A Collaboration with the University of Pittsburgh

Illusion and reality in Argentina

Lisl Brunner [University of Pittsburgh School of Law 2L, in Argentina]: "The Casa Rosada, which houses the offices of the President of Argentina, has a pristinely pink façade: the yellowish brown hue of its other three sides, however, marks the point at which the project to refurbish the exterior ran out of funds. Commentators say this idiosyncrasy reflects many aspects of Argentina, where grandiose buildings and polo fields quickly give way to shantytowns, and where attention on high-profile trials of septuagenarians can obscure other critical legal problems.

In addition to the trial of Miguel Etchecolatz, I observed some of the trial of Julio Simón, who two weeks ago became the first defendant accused of crimes during Argentina's last military junta to be sentenced to prison since the Supreme Court struck down the 1986-87 amnesty laws last June. Perhaps due to Simón's lower rank in the police department, his ordinary federal hearing had none of the circus-like spectacle of the Etchecolatz trial. Yet it was a notable step in the twenty-year campaign to hold participants in "The Process" (the junta's term for its rule) accountable for their crimes, which has mirrored the judiciary's own crusade for legitimacy in Argentina.

Between 1976 and 1983, judges who did not summarily reject habeas corpus petitions brought by families of the disappeared or lawyers who pursued them too doggedly were themselves carried away in the middle of the night, seldom to reappear. Although democracy brought a truth commission and trials of a handful of generals who oversaw "The Process," the subsequent amnesty laws and presidential pardons thwarted those attempts to rekindle the rule of law. Now that both the pardons and the amnesty laws have been overturned, courts have held that the kidnappings and murders constitute crimes against humanity, and as such, they can never be subject to statutory limitations. Critics, however, cite the legality principle, recalling that Argentina only signed the international treaties that codified the concept of crimes against humanity and their imperviousness to statutory limitations in the 1990s. Today, the prevailing argument holds that international custom dating back to Nuremberg and the Geneva Convention defined the junta's methods as crimes against humanity, which must be punished regardless of when they were committed; the fact that this was not written into Argentine law until later is immaterial. Many are proud of Argentina's advances, but the debate surrounding this particular approach continues.

Other aspects of the Argentine legal landscape include a reverence of the judge as protagonist and principal investigator (subject to checks and balances), which seems to avoid some of the pitfalls of the adversary system. However, the discovery process often takes seven years, during which time probable cause justifies the internment of many suspects in preventive prison. This thought is even more disturbing when one considers the constant complaints of inhumane prison conditions and police brutality. APDH, the group for which I interned, is currently bringing a class action to address this issue, and I also collaborated on a letter to the UN Human Rights Council asking for an investigation into the deaths of three inmates at a Mendoza prison. Their throats had been cut a few days before they were scheduled to testify against police officers.

On an encouraging note, we celebrated the passage International Convention for the Protection of All Persons from Enforced Disappearance by voice vote during the first session of the Human Rights Council. As an organization with NGO consultative status at the Economic & Social Council of the United Nations, APDH sent a representative to Geneva to champion the agreement, termed by many as "the Argentine Convention." If the General Assembly votes in favor of it next month, it will need the ratification of 20 countries to become binding international law.

As more of the international community comes to admire the pink façade, I expect that Argentina will gradually take steps to paint the other three sides."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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