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Re-Constructing Criminal Accountability for Human Rights Abuses: Argentina 1990-2024
Alejandro Chehtman*
I. Introduction
Between 1976 and 1983, Argentina endured a brutal dictatorship. At the center of the system of repression was the practice of what would later be termed enforced disappearances, consisting of the kidnapping, torturing, and killing of individuals, while refusing to provide any information about their fate or whereabouts, along with many other atrocious crimes. The defeat in the Malvinas War in 1982 catalyzed a transition to democracy in which, unlike in most other parts of Latin America, the armed forces were unable to dictate the terms to the new regime. When Raúl Alfonsín won the presidential elections in 1983, a path-changing process of what we now call transitional justice was unleashed. The first operational truth commission—the Comisión Nacional sobre Desaparición de Personas, or CONADEP—was created and, in a few months, it was able to conduct a substantial investigation into the systemic nature of the former regime’s criminality. Its findings were published in 1984 in the Never Again (Nunca Más) report. Together with the leaders of the armed organizations, Alfonsín ordered that the members of the first four Juntas who had governed the country be put on trial. After a military court proved unwilling to prosecute them, the Federal Appeals Court in the City of Buenos Aires lawfully seized the investigation, prosecution, and trial. By the end of 1985, five members of the Juntas had been convicted for human rights abuses and sentenced to prison, while the other four were acquitted. Further criminal proceedings ensued, and a large number of prosecutions were underway by the end of 1986, against the will of the Administration. Public opinion, by contrast, overwhelmingly embraced this initial accountability process.
However, this unprecedented accountability process soon found its political limit. In the face of increasingly violent uprisings from the military, the Alfonsín Government passed two amnesty laws (“Full Stop” and “Due Obedience”) foreclosing any further prosecutions of mid- and low-ranking officials.[1] In 1987, a majority of the Supreme Court upheld these laws against motions to declare them unconstitutional.[2] The incoming administration, led by opposition leader Carlos Menem, quashed the last military uprising and was responsible for (finally) subordinating the military to civilian control.[3] At the same time, Menem pardoned those who had been convicted or were still being prosecuted for crimes during the dictatorship. Through a profound reform of the criminal law system, he also ensured the appointment of a large number of judges, at different levels of the judiciary, prepared to help him foreclose the “human rights” agenda, including those on the Supreme Court.
The following period became known among human rights organizations as “el apagón ” (the “blackout”), for the way in which accountability was turned off by the political authorities. By 1990, all those who had been convicted had been freed, and all prosecutions had been halted. The community of victims, human rights organizations, and jurists who had been deeply involved in these efforts felt betrayed. Nevertheless, in the twenty years that followed this hiatus, not only did prosecutions resume, but they reached a depth and scope unparalleled in any other transition to democracy in the region or beyond. Hundreds of trials have been, and are still being, conducted against almost 4,000 defendants of all ranks before courts across the whole country.
This article examines the path that led to the reconstruction of the criminal accountability response in Argentina for gross human rights violations. It is concerned with explaining the critical moves, ideas, and strategies that drove this process.[4] This task seems particularly significant given the tremendous difficulties involved in calling leaders and senior officials of previous dictatorial regimes to account. Two influential narratives have sought to account for this process. On the one hand, some scholars have presented it as the triumph of the anti-impunity agenda, largely favored by dynamics originating at the international level, led by developments in the Global North. In this vein, Karen Engle, for instance, situates the turn to criminal accountability in the case law of the Inter-American Court of Human Rights (hereinafter IACtHR).[5] She claims that the “IACtHR’s early case law set the stage for the human rights movement’s anti-impunity emphasis, normalizing the turn to criminal law.”[6] In particular, she locates the change of landscape in the year 2000, when the Inter-American Commission of Human Rights (hereinafter IACHR) brought a case against Peru before the IACtHR. “By the time the Court’s decision was handed down,” she adds, “impunity had become a clear target of the human rights movement.”[7] Ultimately, she seeks to demonstrate “how the IACtHR and the United Nations have attempted to mediate the justice versus truth and peace debates and have bolstered their anti-impunity stance in the process.”[8] Consistent with this narrative, her account situates the ignition of the new wave of prosecutions in Argentina in the year 2003, with the repeal of the amnesty laws by Congress.[9]
The second narrative shares the general direction of Engle’s story but looks more closely at its internal dynamics. Building on Kathryn Sikkink’s work on transnational human rights advocacy networks and her focus on the ideational dimension of the “justice cascade,” Ezequiel González-Ocantos claims that the “uniqueness of the Argentine case can be explained by NGOs’ earlier realization of the importance of manufacturing alternative legal preferences to give judicial actors the technical capabilities and professional motives to defy impunity laws and pursue complex investigations.”[10] Accordingly, these NGOs shifted the mainstream legal visions held by key judicial agents through “pedagogical interventions” and “replacement” strategies, thereby triggering “deep ideational changes” and removing “decisive judicial blockages on the road to truth and justice.”[11] As a result of these initiatives, these moves helped “judges and prosecutors to defy the limits imposed by a hostile political environment” and exploit the possibilities afforded by a “supportive political coalition in the 2000s.”[12]
The account offered in this article, which is based on a new set of interviews and detailed doctrinal and institutional analysis, substantially differs from these narratives in two critical ways.[13] On the one hand, by tracing the development of legal ideas and practices used to undermine the obstacles to accountability, it argues that the key moves that paved the way to the reconstruction of criminal accountability during the 1990s were essentially driven by local dynamics, ideas, and actors. In fact, they were led by victims and human rights organizations doing work on the ground as part of strong grassroots initiatives, by judicial agents pursuing their own strategic agendas, by bureaucracies developing pathbreaking investigative capabilities, and by politicians in search of legitimacy, sometimes through, or in consonance with, foreign or regional actors. On the other hand, and relatedly, it shows that the reconstruction of the criminal accountability response in Argentina was an incremental process that resulted not only from legal innovation and ideas (shifting legal visions) and the growing influence of international law. It also heavily relied on intensely practical and bureaucratic elements, including developing new methods of producing evidence, innovative institutional architectures, timing and opportunistic seizing of political dynamics, and diverse implementation strategies ensuring the diffusion and streamlining of proceedings.[14]
In particular, the article uncovers two sets of critical synergies that, I argue, decisively account for the specific path that led to the reconstruction of the criminal accountability response. On the first type of synergy, the innovation in legal ideas traced by González-Ocantos constitutes only part of a broader process introducing a series of mechanisms for gathering and processing critical evidence (including DNA sampling and testing, forensic anthropology techniques, etc.) and institutional breakthroughs (such as “truth trials,” administrative mechanisms, foreign prosecutions, and the exploitation of loopholes in the amnesty laws). These innovations were critical in the strategic selection of the case leading to the overturning of the impunity laws. Furthermore, a second type of synergy connects evidentiary and institutional innovations with the speed and breadth of prosecutions between the years 2003 and 2005. These include not only those developed throughout the “blackout,” but also, crucially, the investigation of bureaucratic records by a series of newly created interdisciplinary teams within the Administration. In sum, this article draws attention to the different dimensions, complex sets of motivations, and creative strategic moves that were involved in reconstructing the criminal accountability response to this form of state criminality, which go well beyond the legal innovations highlighted by the existing scholarship.
This is the plan: Section II traces the many ways in which impunity was eroded (and ultimately eluded) through different strategic moves, as well as the continuation of truth-seeking and evidence-gathering efforts mainly by key domestic civil society organizations. Section III dissects the turning point in this story, when existing legal and political obstacles for prosecutions were removed. Section IV concentrates on the implementation phase of the new accountability response. A conclusion briefly summarizes the key findings.
II. Eroding Impunity: 1991-2001
As indicated, the period after the amnesty laws and pardons—sometimes characterized as “the blackout”—has often been construed as the demise of any accountability efforts, or as a triumph of impunity. Yet, a closer look suggests that important developments were taking place below the surface. Many local actors refused to let the struggle for truth and justice die. Their efforts led to three mutually reinforcing strategies. First, they continued developing and gathering critical evidence on the systematic nature of the crimes perpetrated by the dictatorship. Second, they began to resort to a new vocabulary, institutional mechanisms, and ideas stemming from the growing field of international human rights law and institutions.[15] Third, they designed special proceedings and patiently identified available paths to erode and circumvent the main legal obstacles to accountability put in place by the Alfonsín and Menem Administrations. This section shows how these moves were critical in the removal of these apparently formidable obstacles and anticipated the subsequent reconstruction of the criminal accountability response. Furthermore, this section tells a story of the continuity of these efforts with the work that had been conducted during the 1980s, due, in part, to the opportunity these organizations enjoyed of working undisturbed, paradoxically, thanks to the impunity measures—“no one was paying any attention to what we were doing.”[16] It also tells a story of long-term vision—“someday trials will take place, and those responsible will be held accountable.”[17]
A. Evidence
A first set of initiatives led to the consolidation and expansion of existing information (and evidence) regarding the underlying crimes. CONADEP had provided a broad understanding of the system of repression, on which the Juntas trial had relied to demonstrate the responsibility of the military leaders. But many gaps remained. After the amnesty laws, victims and their relatives continued to meet at different venues, including the influential NGOs Centro de Estudios Legales y Sociales (hereinafter CELS), Servicio Paz y Justicia (SERPAJ), and the Asociación de ex-Detenidos Desaparecidos, seeking to “reconstruct” their time of captivity, managing to identify and situate the precise location of their detention centers by sharing memories, and drawing floor plans. They also sought to identify perpetrators and other victims by consulting photographs and sharing noms de guerre.[18]
Less well known is the continuous involvement of the state bureaucracy in the search for evidence and the reconstruction of the machinery of 1970s state terror. After CONADEP finished its work in 1985, its archives and some of its personnel were absorbed by the newly created Undersecretariat for Human Rights. These personnel had been critical in selecting the cases used by the prosecutors in the Juntas trial, as well as in filing criminal complaints about outstanding cases in front of first instance judges before the amnesty laws were passed. After 1987, they continued working with these files, completing missing records, meeting with survivors and witnesses, and trying to gain a better understanding of the system of repression used by the military.[19]
Furthermore, entirely new methods to investigate the crimes of the dictatorship were being developed. The Argentine Team of Forensic Anthropology (EEAF, the anagram of its Spanish title), which had been formally established in 1987, continued and expanded its work throughout this period, collaborating with the personnel of the former CONADEP and with other victims’ organizations. EEAF tasks included identifying detention centers, finding bodies in mass or individual graves, and, ultimately, determining their identity. Key breakthroughs during this period were the development of a technique to scan and identify “old” fingerprints, as well as the development of identification through DNA testing.
Another critical organization was Grandmothers of Plaza de Mayo (hereinafter Grandmothers), an association of victims searching for their grandchildren, who had been kidnapped or born in captivity, and then illegally adopted by new families. Their main objective was to identify and recover their grandchildren. Its members started receiving information and gathering evidence in the late 1970s. This task continued and expanded in the 1990s in the face of the pushback created by the amnesty laws and pardons.[20] Accordingly, they traveled abroad to receive testimonies of exiled victims, pursued leads supplied by members of the public, and searched registries of small parishes and other offices where their grandchildren could have been registered by the military. Crucially, they also sought scientific help to develop the technical capacity to reach reliable means of identification, despite the existence of a missing link (the child’s parents). After traveling to different countries to meet with geneticists and other scientists, in the mid-1980s they began to develop the “grandparenthood index” (índice de abuelidad) through the pioneering work of American geneticist Mary Claire King.[21] In 1987, they were able to convince the Alfonsín Administration to establish the first National Bank of Genetic Data (BNDG), allowing them to centralize proceedings for identifications and put them under the control of public authorities.[22]
As a result of this work, they began to request identifications through civil filiation proceedings. Soon, however, they realized they needed the coercive powers of the criminal law system to force judges to conduct the genetic tests.[23] Accordingly, beginning in the 1980s, but more significantly throughout the 1990s, Grandmothers initiated numerous investigations for children-snatching, requesting for them to be “restituted” to their families of birth. This was possible because this particular offense had been left out of the amnesty laws (“Full Stop” (art. 5) and “Due Obedience” (art. 2)). “Through the cracks” of the judicial system, Grandmothers were able to identify a few of their grandchildren and also secure convictions, though with very lenient sentences.[24] This task required addressing two critical doctrinal challenges: they needed to persuade judges of the validity of this newly developed scientific test and circumvent statutory limitations. Indeed, the crime of suppression of identity—originally recognized in the 1922 Criminal Code, with an entirely different situation in mind—provided a relatively lenient sentencing scale (and thereby a relatively short period of statutory limitations). Accordingly, the lawyers in Grandmothers came up with the notion that suppressing the identity of a child was a continuing offense, and succeeded in getting courts to endorse this interpretation.[25]
B. Human Rights Discourse
In parallel, victims’ organizations explored new institutional avenues to challenge the amnesty laws and ensuing pardons. In the early 1990s, some organizations brought a complaint before the IACHR. The context was promising. In 1988, in its first decision, the IACtHR had posited the existence of a “legal duty [under the American Convention on Human Rights] . . . to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”[26] IACHR followed suit and concluded that the amnesty laws and the first pardons were incompatible with article XVIII of the American Declaration of Rights and Duties of Man, and with articles 1, 8, and 25 of the American Convention on Human Rights, concerning their right to a fair trial and to judicial protection, respectively.[27] Notably, however, it did not order the reopening of the criminal investigations, instead concentrating on reparations.[28] Human rights was becoming the dominant discourse of these organizations in their fight for accountability, and providing the relevant fora to make their claims. But this formed part of a bigger movement, in Argentina and throughout Latin America, Eastern Europe, Africa, and parts of Asia, of giving increasing legal force to international law in general, and international human rights law in particular. Indeed, in 1994, Argentina incorporated many human rights treaties into its Constitution, and these organizations had contributed to this outcome.[29]
The IACHR’s recommendations in this case did not immediately lead to any form of renewed accountability actions in Argentina. Yet, they triggered substantive efforts to provide reparations to victims of human rights violations.[30] The Menem Administration started with those who had been detained by the executive branch during the state of siege,[31] and soon moved towards including victims of enforced disappearances and the families of those killed by the military, security forces, or paramilitary groups.[32] These new laws on reparations catalyzed and deepened the ongoing process of gathering and systematizing information (and ultimately evidence).[33] In effect, many people who, “out of fear or shame,” had failed to approach CONADEP in the early 1980s, or even later when this type of work was resumed by the Undersecretariat for Human Rights, “came forward to claim compensation for the harms and losses they had suffered”—now that the risks involved were significantly lower.[34] This phenomenon was particularly salient in certain regions, such as the Province of Tucumán, where the military still held substantial political power (and thereby information about the repression was still scant and fragmentary).[35] In turn, this coming forward of new victims triggered further investigative measures, including witness testimonies, which continued to enrich and solidify the already detailed picture of the circuits and system under which the military repression had been organized.[36]
C. Truth-Seeking
On March 3, 1995, a path-breaking event took place. Adolfo Scilingo—an obscure officer in the Argentine Navy—confirmed for the first time on prime-time TV the existence of “death flights,” in which prisoners were thrown drugged and alive into the Río de la Plata. These statements created a political storm and unleashed a chain reaction seized on by the human rights and victims’ organizations. Only three weeks after his revelations, 40,000 people demonstrated against impunity on the anniversary of the coup. The Head of the Argentine Armed Forces, General Martín Balza, issued a public apology further admitting the responsibility of the military for the human rights violations. In direct response to Scilingo and Balza’s statements, a small group of human rights lawyers around the influential CELS filed a request before the Federal Appeals Court in Buenos Aires—the court that had conducted the Juntas trial—to launch new investigations into the fate of victims of enforced disappearance during the dictatorship, even if prosecutions and convictions were ultimately precluded by the amnesty laws and pardons in force.
The legal basis of these requests was novel: both presentations invoked international human rights law. They resorted to the IACtHR’s decision in Velásquez-Rodríguez v. Honduras (1988) stating a duty to investigate enforced disappearances, and to Report 28/92 of the IACHR, which recommended “that the Government of Argentina adopt the necessary measures to establish the facts and identify those responsible for human rights violations that occurred during the last military dictatorship.”[37] The legal architecture they sought was also uncharted, in that they requested the use of criminal proceedings to investigate and establish certain facts related to serious human rights violations, even if there was no possibility of calling the alleged perpetrators to account. A key, long-lasting innovation was articulating these petitions on the basis of the newly coined rights to “truth” and to “mourning.”[38]
By a slim majority, the judges of the Federal Appeals Court in Buenos Aires—the same tribunal that had overseen the Juntas trial, albeit with a new composition—opened these proceedings and instructed the executive and military authorities to send any relevant information pertaining to the list of people who had disappeared through the mechanics narrated by Scilingo.[39] Yet, this victory was ephemeral. Only a few months later, after these initial requests had proven futile (the military alleged that all the information had been destroyed in compliance with the Self-Amnesty Law and Secret Decree 2726/83), a majority ofthe court abruptly decided to archive the proceedings.[40] Petitioners took the case before the Supreme Court, but they would not get a decision for the next three years.
D. Extraterritorial Prosecutions
In parallel, states such as Spain, Italy, Germany, Switzerland, Sweden, and France were prosecuting some offenders on different grounds of extraterritorial jurisdiction.[41] These moves led, inter alia, to the convictions in absentia of notorious figures of the military such as Guillermo Suárez Mason in Italy and Alfredo Astiz in France. Again, the role of Argentine émigrés’ and victims’ organizations was critical in the legal strategy and evidence gathering for these investigations. For instance, Argentine activist Jorge Iturbe was arguably the driving force behind the Italian cases, bringing Mothers and Grandmothers of Plaza de Mayo to meet Italian Prime Minister Romano Prodi.[42] Similarly, Argentine figures were key in the investigation pursued by Judge Baltasar Garzón in Spain.[43] To illustrate, Julio Strassera, the main prosecutor of the 1985 Juntas trial personally brought Garzón the entire prosecution’s file,[44] while Argentine Nobel Peace Prize laureate Adolfo Pérez Esquivel—a leading figure in SERPAJ who was among the first to testify in Spain—wrote to other Nobel laureates asking for their support of these proceedings.[45] In 1997, Judge Garzón requested the extradition of Junta member Leopoldo Fortunato Galtieri, who had been in charge of the Second Corps of the Army in 1976-79. Germany, in turn, had requested the extradition of Juntas ’ leaders Jorge Rafael Videla and Emilio Massera.
The Administration blocked these extradition requests. President Menem claimed that they constituted foreign interventions into a sovereign matter, and prohibited Argentine authorities from providing any form of collaboration.[46] But these were particularly costly times to block attempts at accountability for gross human rights violations. International criminal law was in the midst of a strong revival, arguably largely driven by dynamics in the Global North. In the early 1990s, the UN Security Council created two ad hoc criminal tribunals to address the mass crimes perpetrated in the former Yugoslavia and Rwanda, respectively. In July 1998, delegates of 120 states gathered in Rome to draft and adopt the Statute of the first permanent International Criminal Court.[47] On October 16, 1998, former Chilean dictator Augusto Pinochet was arrested in London, at the request of Garzón, on international crimes charges, bringing renewed international focus on the human rights situation in the Southern Cone. Pinochet’s detention solidified further the determination of victims’ organizations and significantly increased the pressure on authorities in Latin America, including Argentina.[48]
Argentine victims’ and human rights organizations were committed to making the most of this favorable context. In effect, all these extraterritorial prosecutions had a boomerang effect on developments at home.[49] Organizations such as H.I.J.O.S and Mothers of Plaza de Mayo soon began resorting to escraches[50] against members of the military that had benefited from the amnesties and pardons.[51] In response to the increasing pressure, on March 24, 1998, the anniversary of the 1976 coup, Congress passed a bill derogating both amnesty laws.[52] Nevertheless, this political move only paid lip service to the idea of accountability, as it had no tangible legal effects—the application of the most favorable law principle entailed that those who had benefited from the amnesty laws could not be prosecuted. Demands for more concrete action continued to mount.
E. Truth “Trials”
In this general context, in April of 1998, the Federal Appeals Court of the City of La Plata launched its first “truth trial” at the request of the Asamblea Permanente por los Derechos Humanos, a leading human rights institution. Organized inter alia by Judge Leopoldo Schiffrin, the proceedings were construed as a public hearing where perpetrators would be required to answer questions concerning potentially criminal activity.[53] At the time, this looked like a promising strategy for those who, like the Administration, sought to fend off increasing pressure brought by extraterritorial prosecutions in Europe. But it also served the purposes of those pursuing some form of accountability.[54] As witnesses, rather than defendants, members of the military were ordered to appear before the court by their military authorities.[55] Some of the military witnesses provided the judges with information relevant to cases of enforced disappearances, relying on the cover that the amnesty laws and pardons provided them.[56] Most refused to provide any useful information. The judges held more than 400 hearings and heard about 2,000 cases of death and disappearance.[57]
In August of 1998, however, the Supreme Court created some pushback, when it confirmed the prior decision of the Appeals Court of the City of Buenos Aires, closing the first request for truth-seeking proceedings.[58] In response, petitioners decided to take this matter before the Inter-American System of Human Rights.[59] Only two months later, in a case that was virtually indistinguishable from the previous one, the Argentine Supreme Court fully reversed its previous position and unanimously confirmed the existence of a right to obtain information.[60] In the words of an interviewee, “the Menem Administration wanted to hear no troubles coming from Washington, D.C.”[61] Indeed, the following year, Argentina concluded a friendly settlement before the IACHR, acknowledging its duty to investigate these human rights violations.[62] Again, domestic human rights and victims’ organizations had resorted to the vocabulary and institutional machinery of human rights to consolidate their position at home.
These developments opened the door for many courts in the country to follow suit. Courts in different parts of the country initiated some form of truth-seeking proceedings, including Bahía Blanca, Buenos Aires, Córdoba, Rosario, Resistencia, Mendoza, Mar del Plata, Salta, and Jujuy. Each jurisdiction devised its own architecture and legal regime. In some jurisdictions, members of the police and the military who were untruthful were subsequently prosecuted for perjury. In Bahía Blanca and Córdoba, those refusing to testify were held in contempt of court.[63] Perceiving a greater threat, members of the military increasingly appeared with their lawyers or stopped taking part in the process at all, and many courts ended up hearing only from victims. Although these proceedings were initially well-received by victims and helped put the issue of accountability back on the public agenda, the lack of defendants ended up creating frustration, rather than providing closure.[64]
However, a different and ultimately more consequential approach to this type of truth-seeking proceedings was being pursued elsewhere, removed from the public eye. After closing its initial proceedings in July of 1995, and while the appeal was still being substantiated at the Supreme Court, the Federal Appeals Court in Buenos Aires unanimously decided to open “truth” proceedings on July 7, 1997, albeit not as an exercise of their jurisdictional powers. Instead, they construed this new path as “merely administrative.”[65] This new framework had certain advantages. It helped keep the work they were doing under the radar, making it less politically costly, given that, by definition, they were not working on a criminal case. Second, it allowed the court to devise a system to manage and organize information specifically tailored to the complexities of this type of proceeding. Standard written files in regular juridical proceedings were required to add pieces of evidence in chronological order, making them a bureaucratic nightmare in cases of multiple parallel identifications, each with its own discrete, relevant evidence. Thus, the move to an administrative framework allowed for the development of a system of individual files linked to the remains of one person or a small group of persons.[66] Finally, in the event that any of these files would result in a criminal investigation, it also meant that the judges responsible for these administrative actions could not be forced to recuse themselves from intervening.[67]
In this way, the Federal Appeals Court engaged in a process of identifying victims of enforced disappearances with virtually no political opposition. They worked with the EEAF on the exhumation and identification of bodies who had been buried as NN and were able to infer important data from administrative proceedings regarding confrontations that were still kept in military offices. This activity led to the identification of the remains of more than 180 bodies and the restitution of the remains of more than 50 persons to their families. Among them, the court was able to identify the remains of Uruguayan citizens who had been disappeared in Argentina in the context of the Plan Condor, as well as some of the founding members of Mothers of Plaza de Mayo and one of the French nuns who had been kidnapped by the military.[68] This was also judicially sanctioned evidence ready to be used in other types of proceedings. Truth finding was, indeed, considered only as a stepping stone in a larger process. According to CELS, truth trials were pursued with the double objective of determining the whereabouts of disappeared persons as well as indirectly challenging the impunity laws in Argentina by pointing towards the perpetrators and their deeds.[69]
F. Elusion
A final breakthrough on the road towards accountability during this period came about through the circumvention of the amnesty laws and pardons. In October 1996, after the Scilingo revelations, a group of members of Grandmothers filed a criminal complaint against high-ranking members of the military for what they termed a systematic plan for the illegal appropriation of minors who had been born in captivity during the 1970s dictatorship. This complex case was possible as a result of the information gathered by Grandmothers over the years. Through statements of survivors, they were in a position to prove the existence of a maternity clinic at the Campo de Mayo detention center. They also found evidence of a document with instructions about what to do with babies born in captivity from the Province of Córdoba.[70]
The key legal move in this case consisted of establishing a common thread between different cases of baby-snatching that were connected to the Army through different detention centers.[71] David Baigún and Julio Maier, two influential criminal law professors, accompanied by Alberto Pedroncini from Grandmothers, combined a number of cases from the same jurisdiction and charged the military for asociación ilícita (akin to conspiracy), which criminalized taking part in a group whose main aim was to conduct different forms of criminal activity.[72] Furthermore, unlike the crime of identity suppression, this crime provided for significantly longer sentences. Before long, several key military officials were being prosecuted and detained awaiting trial for their participation in a “systematic plan” of baby-snatching. This strategy to circumvent the amnesties and pardons was soon extended. A new investigation was launched into the economic plundering (“war booty”) conducted by members of the Navy, and went on to prosecute Alfredo Astiz, one of the symbols of the dictatorship. In order to proceed, organizations argued that these economic crimes had not been perpetrated “for the purposes of fighting terrorism,” as the clause in the amnesty laws required. Other courts similarly began prosecuting civilians and officials for crimes that had taken place before the military coup.[73]
The key political move, however, had a different origin. On June 9, 1998, Roberto Marquevich, a Federal Judge of the Province of Buenos Aires, ordered the arrest of Jorge Rafael Videla, the head of the First Military Junta. Political timing was ideal—during those exact days, President Menem was traveling in Europe and had been receiving complaints in Finland and Sweden about the lack of progress of extradition requests. On June 10, he was going to meet with French President Jacques Chirac, who the year before had strongly expressed his demand that Alfredo Astiz, sentenced in France in absentia, be extradited to serve his sentence imposed for crimes against two French nuns.[74] Marquevich was soon ordered by the Appeals Court to transfer the file to the Federal Judge of the City of Buenos Aires, to be added to the investigation about the “systematic plan”; more important, a key limitation had been unlocked.[75] A marked sense of political opportunism, both by Menem and Marquevich, in this instance ended up accelerating the pace of the proceedings by removing a political taboo.
There was, however, an important legal obstacle to this type of prosecution: statutory limitations applied to crimes that had been perpetrated almost twenty years before.[76] Although courts had already sorted out this issue for individual cases of suppression of identity on the grounds of the continuing character of the crime, this reasoning did not cover the more serious charge of conspiracy. Accordingly, in September 1999, in a number of influential decisions, the Federal Appeals Court in Buenos Aires held that these acts constituted crimes against humanity, including “enforced disappearances,” to which statutory limitations did not apply. As jus cogens rules, the court further concluded, these provisions could not be modified by treaties or domestic legislation.[77]
Notably, however, this idea was not part of a foreign pedagogic intervention nor part of the new international anti-impunity agenda, but a domestic development articulated some years earlier. Indeed, in 1989, Judge Leopoldo Schiffrin had authorized the extradition of SS official Josef Schwammberger to Germany arguing that his crimes were not subject to statutory limitations on the grounds of the Argentine obligations under human rights treaties and the jus cogens character of the prohibitions involved.[78] The Supreme Court later upheld the core of this reasoning in deciding the extradition of Nazi official Erich Priebke to Italy in 1995.[79] In short, these developments led to the non-applicability of statutory limitations to this type of offense, an important innovation for the pursuit of accountability and for what was yet to come. The scope of these proceedings, however, was still very limited.[80]
III. Turning Point: 2001-2003
The previous period saw continuous evidence gathering and production by victims and victims’ organizations, state bureaucracies (Undersecretariat for Human Rights), and specialized agencies (EEAF and BNDG). Some of these actors were also key in developing new methods and techniques to produce significant amounts of evidence regarding the precise contours and features of the system of repression as well as of concrete crimes and victims. Furthermore, a small number of investigations were already underway against some of the most prominent members of the dictatorship—investigations that were met with public support by increasingly influential human rights organizations. This section examines in detail two developments that opened the floodgates of a broader accountability process. It shows, on the one hand, the decisive importance of the incremental strategic moves during the 1990s, along with their reliance on ideas and contributions made in the 1980s by local jurists and organizations. On the other hand, it suggests that this turning point, in particular the strategic selection of the key case, resulted not only from the introduction of new legal ideas connected to international human rights law and discourse, but also, perhaps decisively, from the evidence produced by these gathering efforts and institutional innovations.
A. Legal Invalidity of the Amnesty Laws
On March 6, 2001, in a path-breaking decision, Gabriel Cavallo, a Federal Judge in the City of Buenos Aires, removed the last remaining obstacle to fully reigniting the accountability process by declaring null and void the Argentine Full Stop and Due Obedience laws. This decision constitutes a useful test case for Gonzalez-Ocantos’s account. In effect, on this matter, he argues that “human rights NGOs found a case in which” they could “convince a judge to declare” the invalidity of the “impunity laws.”[81] He further illustrates this by indicating that the legal team of Grandmothers of Plaza de Mayo and CELS “invoked myriad international legal instruments to persuade . . . Cavallo that the impunity laws were invalid,” and that he “responded favorably, striking down the laws.”[82] He further shows the impact of the “pedagogical interventions” on the grounds that Cavallo’s “clerks were immersed in human rights networks” and had attended “seminars organized in the early 1990s.”[83] Ultimately, he suggests that the ideas on which the invalidity was based came from the transnational human rights networks and their influence over these judicial operators.
However, a closer look at the events gives us a richer perspective. The case had originally been filed in early 1998 by Grandmothers of Plaza de Mayo for the illegal appropriation of Victoria Poblete. As in many other cases, this organization had conducted a preliminary investigation that led to Victoria—“they usually traced children that had been registered outside hospitals, often in small towns, little parishes, or through the intervention of midwives.”[84] Cavallo cited Victoria, and she agreed to give a DNA sample for testing. Through the BNDG, it was possible to determine that she was in fact the daughter of José Liborio Poblete Roa and Gertrudis Marta Hlaczick. Having scientific evidence, with its “reliable” epistemic credentials, was a key aspect of the case moving forward as it pre-empted any claims of political bias.[85] Again, this highlights not only the importance of the contribution of Grandmothers to accountability by providing actionable evidence but also the relevance of bureaucratic agencies such as the BNDG that have the technical capacity to decisively establish the reliability of the findings.
One feature separated this case from most other cases of “children snatching.” While it had often been the case that appropriations of children born in captivity had taken place, in this case, Poblete and Hlaczick had been kidnapped with Victoria Poblete as a newborn—she was eight months old. This meant that, unlike in other cases, the military officials who had handed over the baby to her appropriators were likely the same as those who had conducted the enforced disappearance.[86] As a result, and unlike in most other cases of this type—as we have seen, several were already under investigation—the evidence concerning the appropriation was also critical to proving the enforced disappearance of Victoria’s parents.[87] Against this background, Cavallo and his team found it “extraordinarily problematic to prosecute and punish those who had appropriated her, but also ultimately looked after her, and not those who had kidnapped, disappeared, and were responsible for the killing of her parents.”[88]
In October 2000, CELS requested participation in these proceedings in the capacity of private prosecutor (querellante). In its presentation, CELS advocated for the investigation of the enforced disappearance of José Liborio Poblete Roa, Gertrudis Marta Hlaczick, and their newly born daughter Claudia Victoria Poblete.[89] In February 2001, the Federal Appeals Court of Buenos Aires noted that when children born at the Detention Center “El Olimpo” were returned to their families of origin, their parents were subsequently freed. By contrast, when they were registered under a different family (illegally appropriated), their parents typically remained as disappeared. Accordingly, the Appeals Court urged Cavallo to continue with his investigation.
Yet, in order to proceed, Cavallo faced two critical legal obstacles: the amnesty laws in force and statutory limitations, given the time passed since the enforced disappearances—more than twenty years earlier. In order to tackle them, Cavallo selected two of his closest clerks, relieved them of any duties at the court, and ordered them to work outside its premises to study (for months) the relevant legal issues and draft an opinion.[90] The result was a pathbreaking decision that, I argue, was as much the result of incremental institutional innovation and of the availability of evidence, as it was a piece of novel legal reasoning.
In effect, CELS had already come up with the idea that the nullity of the Amnesty Laws was not definitively foreclosed as a legal avenue, and had previously—albeit unsuccessfully—called on Cavallo to invalidate the amnesty laws in a different case. In that case, however, there had been no evidence on which to proceed. As indicated, the Poblete case offered a breakthrough in this respect: DNA testing provided a match and there was substantial evidence on who the direct perpetrators of the disappearance of Poblete and Hlaczick had been. Accordingly, Cavallo’s clerks informally suggested to CELS’s lawyers that they file a similar “invalidity” motion, and CELS obliged.[91] This shows the importance of evidence in providing courts with motivation to move forward in politically risky investigations.
As it turned out, the legal reasoning articulated by CELS in their request would ultimately exert little influence on Cavallo’s decision in the case. In its request, CELS advanced three main legal arguments. First, these amnesties violated the duty to prosecute grave violations of international law, as articulated by the Special Rapporteur on Extrajudicial Executions, the Human Rights Committee, and the Committee against Torture.[92] Second, as crimes against humanity, these acts could not be subject to statutory limitations or amnesties, in light of Argentina’s obligations under “the law of peoples.” Third, and most important, the amnesties were invalid under section 29 of the Argentine Constitution, which prohibits vesting “extraordinary powers or the total public authority” in the executive, an argument that had been repeatedly used in Argentine constitutional law.[93]
Cavallo’s decision followed a different path. It first addressed statutory limitations. For these purposes, he decided to follow the reasoning of Judge Schiffrin in the 1989 Schwammberger extradition case and concluded that statutes of limitations did not apply to violations of jus cogens norms.[94] Cavallo also cited the 1999 decisions of the Appeals Court on the issue of “systematic plan,” referenced in the previous section of this article.[95] According to one of the decision’s drafters, when they began their research, they realized that the Appeals Court had already satisfactorily “sorted out” this first obstacle—he recalled that “these decisions exercised a significant influence on our thinking.”[96]
When assessing the invalidity of the Full Stop and Due Obedience amnesty laws, Cavallo chose a novel line of legal reasoning, which had not been hinted at by CELS. He argued that these pieces of legislation were incompatible with the American Convention on Human Rights—anticipating by a week the IACtHR’s decision in Barrios Altos against Perú[97]—as well as with the Convention against Torture and the International Covenant on Civil and Political Rights. Furthermore, since under Argentine constitutional law international treaties have supremacy over acts of Congress, this incompatibility entailed that the amnesty laws were null and void.[98] The finding that treaties trumped acts of Congress had already been established by the Argentine Supreme Court in a 1993 precedent[99] and later consolidated in the 1994 constitutional reform. In closing, and as a subsidiary argument, Cavallo restated the traditional doctrine on the invalidity of amnesties, based on section 29 of the Argentine Constitution.[100] Before the decision was made public, Cavallo’s clerks met with the CELS legal team to provide them with a copy of the decision in advance, so they could comment on the legal grounds once it was published.[101]
This decision was a bold, and opportunistic, move. At the time, the only plausible expectation was that the Argentine Supreme Court, appointed almost entirely by the Menem Administration, would confirm its 1987 decision in Camps upholding the Full Stop and Due Obedience laws.[102] Yet, the political weakness in the de la Rúa Administration, caused by the rapidly unfolding economic crisis, provided a window of opportunity. The decision reflected another, more immediate, strategic choice. While other federal judges in the City of Buenos Aires were actively facing intense media scrutiny and disciplinary actions before the Judicial Council on accusations of corruption, this decision boosted Cavallo’s reputation as a judge sensitive to the gross human rights violations perpetrated during the dictatorship.[103]
After Cavallo’s decision, only a few other judges in the country followed his lead by also declaring the invalidity of the amnesty laws.[104] Against his own expectations, however, a majority of the Federal Appeals Court confirmed his decision before the end of the year. Furthermore, in 2002, the Attorney General supported Cavallo’s views in his legal opinion before the Supreme Court. Although the Supreme Court was expected to overturn these decisions and uphold the amnesties, it instead decided to defer its decision by first requiring the intervention of the recently created Federal Criminal Cassation Court, which stood “between” the Appeals Court and themselves under the new judicial structure. The final resolution of this critical issue had reached an impasse.
B. Political Invalidity of the Amnesty Laws
The Cavallo decision provided the legal arguments, but it did not create the momentum for prosecutions to be generally ignited on its own. The political turning point occurred with the election of Nestor Kirchner to the presidency. Because Carlos Menem withdrew before the second round (“ballotage”) could be conducted, Kirchner ultimately took office with a mere 22.25 percent of the votes.[105] He was, as a result, a particularly weak president in search of greater legitimacy. Even though the issue of accountability for human rights violations in the 1970s had not been part of his electoral campaign, in his first speech before the Legislative Assembly after taking office on May 25, 2003, Kirchner made the struggle for “memory, truth, and justice” one of his landmark public policies.[106]
On July 23, 2003, a new extradition request from Spanish judge Garzón arrived through Interpol. This provided a good opportunity for the recently appointed administration to domestically boost its project of accountability. Three days later, Kirchner ordered that the decree prohibiting the extradition of military officials for crimes perpetrated be revoked.[107] In turn, the judiciary ordered several detentions in July and August of 2003 in the context of different extradition requests.[108] It was thereby left to be decided whether the military preferred to face trials at home or abroad.[109] In August, the Argentine Congress conferred constitutional status on the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, further declaring its support for accountability.
The decisive political move, however, was the endorsement of an existing project of an Act of Congress nullifying the amnesty laws. This project had been filed by Patricia Walsh, a politician of the Left and the daughter of Rodolfo Walsh, a notable writer, journalist, and a member of the armed group Montoneros, killed by the military in a confrontation in 1977, who remains disappeared. With the support of Kirchner, this Act was adopted on August 23 by an overwhelming majority in Congress.[110] While, under Argentine law, Congress is not considered authorized to retroactively nullify criminal legislation against the interest of defendants, the political impact of this decision cannot be exaggerated.[111]
The day after its publication, and even before the law came into force—under Argentine law, Acts of Congress come into force eight days after their publication in the Official Gazette[112]—the Federal Appeals Court of the City of Buenos Aires decided to re-open the main criminal investigations that had been frozen since the amnesty laws and sent them to the relevant tribunals according to their territorial jurisdiction. The Court further required them to address the recently passed Act 25.779 nullifying the amnesty laws.[113] The Federal Appeals Court itself reopened the massive investigations started during the 1980s into ESMA and Primer Cuerpo del Ejército—the two largest detention and torture camps during the dictatorship—as well as the one into the Police of the Province of Buenos Aires. Suddenly courts did not feel the need to wait for the Supreme Court to decide on the validity of these laws. In 2004, Federal courts in the provinces of Córdoba, Santa Fe, Mendoza, Entre Ríos, Salta, and Tucumán followed the Cavallo precedent supporting the invalidity of the amnesty laws.[114] With the amnesties and pardons out of the way, a new phase in the reconstruction process began.
IV. Implementation: 2004-2024
As argued in the previous section, the Cavallo decision was the outcome of an incremental process of evidence building and strategic litigation eroding and eluding the legal obstacles to prosecution. The newly elected Kirchner administration embraced and actively promoted the process of accountability, gaining significant levels of popular support and legitimacy.[115] For many accounts, this was essentially the endpoint of this long and winding road, in terms of putting together a set of sufficient conditions for the accountability process that ensued during the following years, which was unprecedented in terms of its scope, depth, and breadth.[116] However, this section argues that the implementation of this policy required critical institutional, bureaucratic, and legal innovations without which its wide scope cannot be explained. These included undertaking institutional reform; providing access and developing the capacity to process evidence “buried” within the bureaucratic archives of the state; designing prosecutorial strategies aimed at addressing the systematic and collective nature of the crimes; dealing with the economies of scale involved in this type of proceedings; setting conditions to facilitate the diffusion of the trials across the country; and taking political and institutional action to deal with resistance and indifference within the judiciary.
A. Institutional Conditions
To move the criminal accountability agenda forward, dealing with a hostile Supreme Court was one of the highest priorities. The Court had been “packed” by President Menem in the 1990s—he was able to secure an “automatic majority”—and there was still a solid majority that resisted any new process of accountability.[117] Even justices who would have otherwise been ideologically sensitive to this policy would likely be unsupportive, on the grounds that they had already considered the amnesty laws compatible with the Argentine Constitution in Camps, in 1987. During a television interview, Kirchner later stated that, before taking office, he had received an offer from the outgoing administration to foreclose the issue of accountability for human rights abuses through a decision by the Supreme Court upholding the amnesty laws.[118] This move would have allowed him to gain political stability without spending his very limited political capital. Kirchner claimed he had rejected this offer. He had different plans.
Accordingly, Kirchner swiftly moved to change the composition of the Court. The Court itself was suffering a deep legitimacy crisis, as was the rest of the political and institutional system, driven by the tragic 2001 political, social, and economic crisis that devasted Argentina, and the charges of corruption against the Menem Administration, of which the Court had been unconditionally supportive. Only eleven days after being sworn into office, Kirchner used the national broadcast system to publicly demand the resignation of Julio Nazareno, the President of the Court who had close personal and professional ties with Carlos Menem.[119] Kirchner thereby began a new process of court-packing—the seventh in recent Argentine history—driven mainly by ideological considerations. During his first two years in office, the Administration “induced the departure of six out of nine justices and was able to appoint four.”[120] One of the key considerations for selecting new justices was their position on the “human rights” agenda, a short-hand for their position on prosecutions for crimes perpetrated by the dictatorship. Eugenio Zaffaroni, the first justice appointed by Kirchner in 2003, has recently acknowledged that in his meeting with Kirchner before being nominated to the Court, they explicitly discussed Zaffaroni’s position concerning the amnesty laws.[121] Carmen Argibay, the third justice appointed by Kirchner, could also be perceived as sympathetic to accountability, as she had been arbitrarily detained for nine months by the military during the dictatorship, took part in the 2000 Tokyo “Tribunal,” and came straight from serving as a judge at the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY).
In 2005, the “new” Argentine Supreme Court confirmed the invalidity of the Full Stop and Due Obedience amnesty laws. In order to account for the reversal of its 1987 decision, the Court profusely cited the IACtHR decision in Barrios Altos v. Peru, and some of its justices even creatively declared it binding for Argentine courts.[122] In addition, it clarified that, as a matter of constitutional law, the nullifying Act of Congress had no relevant legal effect, as only the courts are authorized to strike down laws on grounds of their incompatibility with the Constitution.[123] In 2007, the Argentine Supreme Court further found that the pardons issued by the Menem Administration were unconstitutional and thereby null and void, allowing for all those who had been freed to be re-imprisoned.[124] These findings allowed courts to order the detention of all those who had been convicted and provided further legal certainty to the reignition of investigations of those who had only been indicted at the time the pardons had been issued.
In parallel, Kirchner adopted two further political moves to support the process. On the one hand, the Administration sought to limit any backlash within the Armed Forces. Although Menem had been arguably responsible for subordinating the military to civilian control, the Kirchner Administration further retired a significant number of high-ranking military officials who were in active service during the 1970s (comprising 75 percent of the generals in the Army and 50 percent of those in the Navy and the Air Force).[125] The Administration further pursued an aggressive policy of not promoting younger officials suspected of, or connected to, the repression during the dictatorship.[126] On the other hand, Kirchner appointed individuals connected to the struggle for human rights and accountability in the previous decades in key areas of the Administration, including, most influentially, the Undersecretariat for Human Rights (which was “promoted” to a Secretariat) and the Office of the Attorney General.[127]
B. Archives
This latter move further contributed to the evidentiary front.[128] As indicated earlier, a bureaucracy had been working within the Undersecretariat for Human Rights, going as far back as the late 1980s, on expanding and fine-tuning the work initiated by CONADEP. Indeed, in any new investigation, the first order of business was still typically to see whether it had a CONADEP file and, if so, to determine the content of the file.[129] Yet, by this time there was a much more detailed and precise picture as to the operation of the system of terror imposed by the military, the fate of their victims, and the number and location of the camps.
Nevertheless, there was still a sensitive issue to be addressed, namely, the identity of a significant number of perpetrators and their role within the system of repression. To address this issue, the Administration first ordered the declassification of all relevant documents and archives pertaining to the period of the dictatorship.[130] Furthermore, it substantially increased the number of relevant personnel at the new Secretariat for Human Rights and created interdisciplinary teams of archivists, anthropologists, and sociologists. These teams soon developed an expertise in documental analysis, allowing them to infer appointments and functions from certain bureaucratic documents. In a similar vein, in 2004, the Administration created the National Commission for the Right to Identity in the Special Unit for the Investigation of Enforced Disappearances of Children among many other relevant bodies, which, in turn, contributed to ongoing investigations on this matter.[131] Finally, the Administration created human rights divisions in every Ministry at the national level, as did many provinces.[132] Among their functions was the analysis of relevant documents of the 1976-83 period, with a view to identifying information that could connect public officials with sites of state criminality.[133]
Arguably, the most influential of these new Human Rights Divisions was the one established within the Ministry of Defense, given its direct access to military personnel files. Accordingly, a multidisciplinary group carefully examined the archives of the Armed Forces, looking for relevant information in standard bureaucratic documents, such as promotions, requests for leaves of absence, and, perhaps more controversially, medical histories.[134] Through analysis of these documents, they were able to determine specific appointments at relevant torture camps or the existence of leaves of absence on the grounds of psychological trauma, thereby connecting individual officials with the system of mass criminality.[135] This office thereby conducted a critical investigative function that neither prosecutors nor investigative judges could have performed given their lack of human resources and specialized expertise.[136] As a result of all this work, the list of identified defendants went from 692 in 1986, after the CONADEP report and the Juntas trial, to more than 3,700 in 2024, and the list of identified detention centers rose from 300 to nearly 800. Commentators suggest that the information obtained and processed from these files provided decisive evidence to secure a conviction in many cases.[137]
C. Diffusion
Once reignited, the accountability process spread throughout the country. Courts in all but two of the 24 Argentine provinces processed cases of this nature in the following years. There are at least three main considerations that explain this fact. The first one, as has been argued, has to do with the amount of evidence that had been made readily available about crimes in most of these jurisdictions, including witnesses—many of them direct victims—willing to take part in these proceedings,[138] and specialized public offices and other civil society organizations prepared to share their information and expertise when required.
A second, and perhaps less obvious, element has to do with the particular legal framework used in these proceedings. In effect, Cavallo in his decision resorted to the notion of crimes against humanity and other violations of international law to fend off statutory limitations and to account for the invalidity of the Full Stop and Due Obedience (amnesty) laws. Yet, he prosecuted the defendants not for any such crimes, but for domestic offenses such as deprivation of liberty, murder, etc. At the time, Cavallo perceived this decoupling of legal regimes as necessary to make the decision as legally robust as possible in the face of anticipated rigorous scrutiny (including by a hostile Supreme Court).[139] In effect, in March 2001, there was “no international legal instrument that he could use to qualify the underlying acts as international crimes, or crimes against humanity”—they “could not use the Nuremberg Charter, nor the Statutes of the ICTY or ICTR [International Criminal Tribunal for Rwanda], and the Rome Statute was not yet in force.”[140] By contrast, in another example of continuity, Cavallo’s and the subsequent decisions were simply following the path chosen in 1985 in the Juntas trial, where the heads of the juntas had been prosecuted and convicted for domestic offenses.[141] Indeed, resort to the domestic Criminal Code was dictated by the prevailing reading of section 18 in the Argentine Constitution, establishing that “[n]o inhabitant of the Nation may be punished without previous trial based on a law enacted before the act that gives rise to the process.”[142] “Law” in this context has been traditionally interpreted as encompassing exclusively an Act of Congress.
This “minor” feature of the Cavallo decision had a tremendous impact at the time of the implementation of the accountability response in terms of its diffusion and effectiveness (i.e., the reconstruction). For one thing, this decoupling allowed willing courts in different parts of the country to displace the legal obstacles created by statutory limitations and amnesty laws in a very straightforward way: the use of a legal formula. They simply needed to connect any criminal act with the systematic plan of repression to conclude that it amounted to a crime against humanity. This finding justified the non-applicability of statutory limitations as well as the invalidity of the Argentine amnesties. Notably, the Attorney General created a specialized office charged with providing the legal rationale for removing obstacles such as amnesties and statutory limitations when consulted by prosecutors of different provinces.[143] As the person responsible for this task, he appointed one of the clerks who drafted the Cavallo decision.[144]
Furthermore, this legal decoupling also significantly simplified the work of courts in different parts of the country in prosecuting the crimes of the military. The reason for this is simple: there was no experience nor any in-house expertise in these courts for prosecuting international crimes, such as crimes against humanity. Yet, these courts had no difficulties in prosecuting domestic offenses. The largely unanticipated practical implications of this strategy cannot be exaggerated and significantly contributed to the rate and spread of prosecutions and trials.[145]
A third element that accounts for this broad diffusion has to do with the treatment afforded to hostile judges, or those perceived as “dragging their feet.” On March 24, 2007, in an event commemorating the 1976 coup, before a large crowd at the former detention center La Perla, President Kirchner publicly complained that the Federal Cassation Court had been “sitting” on the proceedings for years and that at this stage trials should be on their way.[146] During this time, many judges were informally pressured by members of the government to swiftly process these cases.[147] These measures were soon followed by institutionalized action. Through an administrative act (“Acordada”), and while exhorting judges and courts to move swiftly in these cases, the Supreme Court created a Special Unit to monitor the progress of the different cases.[148] Involvement in this transversal body was soon expanded in 2009 to include representatives of Congress and the Executive. Among different measures, they requested periodic reports from tribunals prosecuting this type of case about relevant obstacles and difficulties that could delay the proceedings. Ultimately, the Administration also used its disciplinary powers against recalcitrant judges. For instance, members of the Federal Criminal Cassation Court were subject to disciplinary proceedings before the Judicial Council (Consejo de la Magistratura).[149] The strategy also included some positive reinforcement; courts prosecuting this type of case were given ad hoc contracts that allowed them to hire new personnel and promote their clerks.[150]
D. Streamlining
A final challenge these proceedings faced was the issue of “economies of scale.” It quickly became apparent that there would be large quantities of cases against hundreds of defendants, which would require the participation of thousands of victims, witnesses, and experts, requiring a better strategy to process the number of cases and the volume of evidence. Already in 2008, CELS criticized the strategy of trials for being too narrow, including very few defendants and very few crimes, while most offenders were still at large.[151] There were also concerns that cases had been excessively fragmented.[152] When the Federal Appeals Courts from different parts of the country received the files from their Buenos Aires counterpart, they delegated investigations to local first instance judges, rather than first grouping cases by those who had ordered the crimes. These organizational features interfered with the courts’ ability to process these cases. For instance, in the Province of Mendoza, there were about 100 different investigations, including 250 victims in total, which in turn would have required an impossible number of trials for acts stemming from a much smaller number of detention centers and potential offenders.[153]
Moreover, this prosecutorial architecture omitted any centralized criteria for the prioritization of cases in terms of factors such as the seriousness of the underlying offenses or the place of perpetrators within the military hierarchy. Accordingly, prosecutions of a single individual for what were notoriously crimes perpetrated by groups of individuals, often acting within a chain of command, were not entirely uncommon. General Luciano Benjamín Menéndez, who had been the highest authority in the Third Army Corps that reigned over the Province of Cordoba, was initially convicted in relation to four victims of enforced disappearance in a jurisdiction where more than 900 people had been killed and disappeared; around 400 cases were opened against him.[154] Besides the amount of time that this kind of approach would take, it also meant calling victims and their families to testify repeatedly with attendant high costs of revictimization.
To address these issues, the Office of the Attorney General created a special office charged with coordinating investigations and prosecutions for crimes against humanity and other serious human rights violations.[155] This move allowed for the establishment of a more centralized strategy of prosecution, which was slowly implemented throughout the country. The strategy mirrored that created by CONADEP in 1984, which organized victims around detention centers (at the time, called the “magnets” approach), thereby seeking to prosecute the largest number of defendants for the broadest range of crimes. Priority would also be given to those perpetrators and underlying crimes for which the evidence was strongest.[156] First instance prosecutors were instructed to quickly move to the oral phase of trials. This led to a first wave of “mega” trials. Perhaps the most notable example of this policy is the one corresponding to crimes at the Escuela de Mecánica de la Armada, the most important detention center of the Navy, situated just within the administrative limits of the City of Buenos Aires. In 2017, a total of 54 defendants were put on trial for crimes against 789 victims, leading to 48 of them being convicted.[157] The Special Unit further devised individualized prosecutorial strategies for each region of the country, taking into consideration the number of cases and the level of progress they had reached. In addition, specialized units were created in the different jurisdictions and staffed by teams of prosecutors with expertise in this type of case.[158]
E. Outcomes
In sum, the resulting process of accountability remains unparalleled in terms of its scope, depth, and breadth. As of June 2024, a total of 3,746 individuals have been prosecuted for offenses amounting to crimes against humanity perpetrated in connection to the last military dictatorship. During this time, 326 sentences have been passed, and 1,187 people have been convicted, while 190 have been acquitted. Thirteen trials are ongoing while 70 more are waiting to be initiated (281 further cases are still being investigated). Of those convicted, 508 individuals are serving time under house arrest, 56 are detained in the military compound in Campo de Mayo, and 78 are in a regular prison facility.[159] Perhaps most tellingly, there have been prosecutions in all but two of Argentina’s 24 districts, including provinces and the city of Buenos Aires.[160] The political and social support underpinning these figures has also been substantial. To illustrate, in October 2007, Cristina Kirchner won the presidential election with 45.29 percent of the votes, against opposition forces with 23 percent and 16.19 percent respectively. Notably, all three candidates—accounting for around 85 percent of voting citizens—had publicly expressed their support for the accountability policy.[161] The prosecution of crimes perpetrated by the military has been one of the few stable public policies that different administrations have maintained, at least until now.
Before concluding, it is worth at least hinting at some important aspects of the deep and pervasive social and political effects of this whole process of accountability, even if only schematically. First, and perhaps most significantly, the prosecutions and trials restored the victims’ dignity, allowing them to confront those who kidnapped, tortured, or raped them, or were responsible for the killing of their loved ones. Many of them have appeared in several different trials, while others have insistently pushed, for instance, for the recognition of sexual violence among the relevant crimes.[162] Furthermore, this process consolidated a strong collective memory about the wrongs perpetrated during the dictatorship, which reverberated in school programs, museums, and cultural expressions acknowledging the suffering inflicted and condemning the wrongs perpetrated.[163] In parallel, it removed the armed forces as a relevant political actor in Argentina, thereby consolidating democratic rule, but also keeping the armed forces away from internal security issues, such as organized crime, in sharp contrast to the situation in many other Latin American countries. Third, the scope of this process has further raised questions of complicity among the economic, judicial, and political elites, triggering some limited investigations and prosecutions.[164] This helped to expose the conditions under which atrocious acts of this magnitude could have taken place in the country. Finally, the endorsement and self-appropriation by one political movement of the agenda of accountability, and its close links with some of the most important victims’ organizations, has arguably undermined the legitimacy of some of these organizations through a perception of partisanship (and, in certain cases, of opaque financial dealings).
V. Conclusion
This article provides a detailed account of the reconstruction of the criminal accountability process in Argentina, after its demise in the wake of amnesty laws and pardons. It traces the main legal, institutional, and evidentiary innovations through the key phases of this reconstruction. Indeed, it tells a story of continuity rather than rupture with Argentina’s pioneering efforts at transitional justice in the 1980s, and one of incremental progress, political maneuvering, and pathbreaking innovation until these legal obstacles could finally be overcome. Furthermore, it highlights the importance of bureaucratic agencies, evidence gathering, and institutional innovations in the implementation of this criminal law response. That is, although it acknowledges the pervasive influence of the discourse and institutional mechanisms provided by international human rights law as highlighted by previous work on this topic, it shows that they only account for part of the story.
Politically, the reconstruction of the accountability response was made possible by strategic decisions of the Menem and, especially, the Kirchner Administrations, although the foundations had been laid during the Alfonsín period. However, the critical engine at the heart of this process was the persistent, ground-breaking efforts in evidence gathering as well as the strategic use of local and international mechanisms by victims and local civil society organizations. This reconstruction must be viewed as an incremental process, covering many complementary dimensions ultimately leading to a critical turning point in which both law and politics were decisive in turning the tide in favor of accountability. The synergies that were developed during the “blackout” decisively helped to account for the strategic selection of the case leading to the overturning of the amnesty laws, and for the progress of prosecutions in the 2003-2005 period. Finally, this article suggests that the resulting scope and depth of these judicial proceedings cannot be understood without also taking seriously the range and sophistication of the initiatives promoted by several Argentine Administrations to implement the accountability response as a distinct and fundamental state policy. This article also differs from some of the most influential accounts of this process in two important respects. First, it suggests that this was a largely local endeavor, based on grassroots initiatives led by victims, victims’ organizations, and a number of committed jurists. Indeed, it was these local actors who sought solutions in foreign fora and institutional settings to pursue their accountability agenda, rather than being the mere beneficiaries of pedagogical interventions or a universalist anti-impunity agenda. Most of the key ideas and strategic moves came from local actors, including victims and courts, but also legal academics. Second, the article calls into question the exclusive focus dominant accounts have put on the ideational aspect of this reconstruction, by signaling the many relevant dimensions that any process such as this must encompass, the setbacks it must endure, and the legal and practical imagination it requires. From forensic anthropology to DNA testing and the analysis of bureaucracies, several organizations (including Grandmothers of Plaza de Mayo, EEAF, BNG, among others), as well as victims, played a decisive role in making the necessary evidence available for courts. In sum, the relentless commitment, careful strategic planning, and persistent production of evidence by victims and civil society organizations are essential if we want to understand why criminal accountability and legal punishment have come to dominate our understanding of transitional justice,[165] even if, or precisely insofar as, criminal law’s central place raises many important concerns and uncomfortable questions.
* Dean & Professor of Law, Escuela de Derecho, Universidad Torcuato Di Tella. I am indebted to Delfina Beguerie, Marcelo Ferrante, Ezequiel González-Ocantos, Nicola Lacey, and Luis Moreno Ocampo for comments and suggestions to a previous version of this article. All websites were last accessed on October 14, 2024. Unless otherwise stated, all translations are my own.
[1] Acts 23.492 (1986) (Arg.) and 23.521 (1987) (Arg.), respectively.
[2] Corte Suprema de Justicia de la Nación [hereinafter CSJN], “Camps,” Fallos 310:1162 (22/6/1987).
[3] Rut Diamint, La historia sin fin: el control civil de los militares en Argentina, Nueva Sociedad 95 (2008).
[4] By contrast, here I will not provide a critical assessment of any of the features or any particular aspect of this process.
[5] This view has been previously articulated by Daniel Pastor, among others. See Daniel R. Pastor, El Derecho penal del enemigo en el espejo del poder punitive internacional, in ¿Tiene un futuro el derecho penal? 201 (Julio B.J. Maier & Gabriela E. Córdoba eds., 2009).
[6] Karen Engle, A Genealogy of the Criminal Turn in Human Rights, in Anti-Impunity and the Human Rights Agenda 21 (Karen Engle et al. eds., 2016).
[7] Id. at 29.
[8] Id. at 43.
[9] Id. at 39.
[10] Ezequiel González-Ocantos, Shifting Global Visions 71 (2016); see also Kathryn Sikkink, The Justice Cascade (2011).
[11] González-Ocantos, supra note 10, at 71.
[12] Id.
[13] I conducted interviews with members of the judiciary, the prosecution and legal defense, leading NGOs, scientific teams, victims, and academics. Interviewees include Victor Abramovich, Jorge Battaglino, Verónica Blanco, Gabriel Cavallo, Susana Echevarría, Silvia Labayru, María José Lavalle Lemos, Graciela Fernández Meijide, Marcelo Ferrante, Leonardo Filippini, Hernán Folgueiro, Manuel Garrido, María José Guembe, Martín Irurzun, Pablo Parenti, María Luisa Piqué, Marcelo Sancinetti, Stella Segado, Catalina Smulovitz, Maco Somigliana, María del Carmen Tucci, Daniel Valladares, Carolina Varsky, and Patricia Ziffer. They have all kindly agreed to appear on this list, though no particular statement is attributed to any of them.
[14] To illustrate, unlike the uniquely detailed history presented by Naomi Roht-Arriaza, which concludes in 2003, this article accounts for the decisions concerning the implementation of the policy of accountability. See Naomi Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005).
[15] See Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and Political Change, 52 Int’l Org. 887 (1998).
[16] Interview on file with author.
[17] Id.
[18] Id.
[19] Id.
[20] Abuelas de Plaza de Mayo, La Historia de Abuelas 64 (2022).
[21] The first case of scientific identification was that of Paula Eva Logares in 1984.
[22] Act 23.511. The BNDG was the first of its kind in the world, in terms of a public institution both massively storing blood samples of individuals seeking for their family members and being able to test blood samples against a great number of possible victims.
[23] Abuelas de Plaza de Mayo, Interview with Ramón Torres Molina, YouTube (Oct. 27, 2022) (https://www.youtube.com/watch?v=1gGjkK1iOB8) (https://perma.cc/4AZW-9Y4M).
[24] Abuelas de Plaza de Mayo, supra note 20, at 69.
[25] See Abuelas de Plaza de Mayo, Interview with Mirta Guarino, YouTube (Aug. 12, 2024) (https://www.youtube.com/watch?v=H3jboxqWuIw) (https://perma.cc/K4D9-JNJQ).
[26] Velásquez-Rodríguez v. Honduras, Case No. 4, Inter-Am. Ct. H.R., para. 174 (1988).
[27] Inter-Am. Comm’n H.R., Report 28/92 (2/10/1992), operative para. 1.
[28] Delfina Beguerie, The Rise of Human Rights in Latin America: Constitutional Logics and Dynamics of Legitimacy in a Regional Order (2024) (J.S.D. dissertation, Yale Law School) (on file with author).
[29] See Constitution of the Argentine Nation § 75(22) (reinst. 1983, rev. 1994). At least two key figures of the human rights movement were constitutional delegates (Alicia Oliveira, a chief legal officer in CELS and Ramón Torres Molina, of Grandmothers). For the broader trend, see Alejandro Chehtman, Constitutions and International Law, in The Oxford Handbook of Constitutional Law in Latin America 533 (Roberto Gargarella et al. eds., 2022).
[30] The IACHR, in Report 28/92, recommended “the Government of Argentina to award petitioners with a fair compensation” for the violations of human rights they had suffered (operative para. 2).
[31] They were also required to have filed a lawsuit before December 10, 1985, and their request had been rejected on grounds of statutes of limitations, or their lawsuit was still in progress.
[32] Acts 24.043, 24.321, 24.411, and, soon afterward, Act 24.823.
[33] Reparations had been already recommended by CONADEP in its conclusions.
[34] Interview on file with author.
[35] Id. This process was further facilitated by the creation of the legal figure of individuals “absent on grounds of enforced disappearance” under Argentine private law, which allowed family members of victims to petition on their behalf without being required to state they were dead.
[36] Id.
[37] Cámara Nacional de Apelaciones en lo Criminal y Correccional Federal (Arg.) [hereinafter CCCF], Causa ESMA, Res. no. 1/95, Mar. 20, 1995. They also invoked the IACtHR decision in Velásquez-Rodríguez.
[38] Martín Abregú, La Tutela Judicial del Derecho a la Verdad en la Argentina, 24 Revista IIDH 20 (1996).
[39] CCCF, “Méndez Carreras,”Res. no. 1/95, Mar. 20, 1995.
[40] CCCF, Causa 761 “Hechos ocurridos en el Ámbito de la Escuela Superior de Mecánica de la Armada,” Res. no. 10/95, July 18, 1995.
[41] Roht-Arriaza, supra note 14, at 129. Some of them had been initiated as early as 1982, when the military was still in power.
[42] Id. at 130-32.
[43] Id. at 9.
[44] Id. at 18-19.
[45] This is why Sikkink has called this mechanism the “boomerang” effect. See Margaret E. Keck & Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (1998).
[46] Decree 111/98. In 2001, President de la Rúa would similarly order that any requests of legal assistance to this end were to be denied. See Decree 1581/2001.
[47] Argentina played an important role in the negotiations, increasing the political dissonance with the policies favored at home.
[48] Alejandro Chehtman, Latin America as a Laboratory of Transitional Justice, in Latin American International Law in the Twenty-First Century (Alejandro Chehtman et al. eds., forthcoming 2025).
[49] Keck & Sikkink, supra note 45, at 12.
[50] During this period, a new victims’ organization (H.I.J.O.S.) was created, gathering the children of those who had been victims of enforced disappearance. The word escrache comes from the slang of Buenos Aires and means to “shed light on what is hidden.”
[51] This form of protest entailed a demonstration of artistic, public denunciation of individuals responsible for human rights violations. One of the first examples was putting up street signs indicating information about the homes of those responsible for tortures and disappearances. This type of protest was designed by a collective group called Grupo de Arte Callejero (Street Art Group).
[52] Act 24.952.
[53] It is hard not to see the influence of the 1994 South Africa’s Truth and Reconciliation Commission.
[54] The Menem Administration sent judge Shiffrin and his colleagues computers and other necessary supplies. Menem wished to express his support but did so silently. Interview on file with author.
[55] Interview on file with author.
[56] This information was subsequently used in criminal proceedings, despite the fact their rights against self-incrimination were arguably not adequately safeguarded.
[57] Roht-Arriaza, supra note 14, at 105.
[58] CSJN,Fallos 321:2031.
[59] IACHR, Report 70/99 (1999).
[60] Seeking some elusive form of balance, the Court construed this right in the narrowest possible terms, through the legal action of habeas data, incorporated to the Argentine Constitution in its 1994 reform.
[61] Interview on file with author.
[62] IACHR, Report 70/99 (1999).
[63] Roht-Arriaza, supra note 14, at 107.
[64] Interview on file with author.
[65] Id.
[66] The importance of these bureaucratic, management details in this type of hyper-complex situations cannot be exaggerated. Interviews on file with author.
[67] Id.
[68] Incidentally, the amicus curiae figure was introduced into the Argentine legal system in the context of these proceedings.
[69] Interview on file with author.
[70] See Interview with Torres Molina, supra note 23.
[71] They soon became many more.
[72] Interview on file with author. For the lasting impact of this move, see Francesca Lessa, The Condor Trials: Transnational Repression and Human Rights in South America ch. 9 (2022).
[73] Roht-Arriaza, supra note 14, at 113.
[74] See Cuatro historias escandalosas en el legajo del juez Marquevich, Clarín, Dec. 22, 2002. Astiz had been removed from active duty in the Navy in 1996, just before Menem went to France to present Argentina’s credentials to join the OECD.
[75] A few weeks later, Emilio Massera, another key figure of the first military Junta, was detained by Judge María Servini de Cubría on similar charges perpetrated by the Navy and connected to the detention center known as ESMA.
[76] Under section 62 of the Argentine Criminal Code, statutory limitations for this crime applied twelve years after the dissolution of the asociación ilícita.
[77] See, e.g., CCCF, “Videla, J.R. s/prisión preventiva” (9/9/1999), “Suárez Mason y otros s/procesamiento” (9/9/1999), “Massera, Emilio -Exp. 30.514” (9/9/1999), among several others.
[78] Federal Appeals Court, La Plata, Province of Buenos Aires (30/09/1989), at J.A. 27-XIII-1989. Incidentally, he had been the clerk who helped draft Justice Bacqué’s dissent in Camps. See supra note 2.
[79] See CSJN, “Priebke,”Fallos318:2148.
[80] To illustrate, between 1988 and 2005, Argentine courts had sentenced only twenty-three individuals for illegal appropriation of children. See Lessa, supra note 72, at 208.
[81] González-Ocantos, supra note 10, at 109.
[82] Id.
[83] Id. at 110.
[84] Interview on file with author.
[85] Id.
[86] Id.
[87] Interviews on file with author.
[88] Interview on file with author.
[89] Written presentation on file with author.
[90] Interviews on file with author.
[91] Id.
[92] Request of CELS before the court (typescript on file with author).
[93] Id. This argument was used, for example, to invalidate the self-amnesty passed by the military before leaving power in 1983.
[94] Incidentally, one of the drafters of the Cavallo decision remembers that “when doing research for this case at the library of the Supreme Court—the biggest legal library in Argentina—he would find at the back of almost every book” the name of Leopoldo Schiffrin, handwritten in the label that traditionally recorded previous borrowers. Interview on file with author.
[95] CCCF, “Massera s/excepciones” (Sala I, expte. 30514) 9/8/99; “Astiz, Alfredo s/nulidad” (Sala II, expte. 16.071) 4/5/00; and “Contreras Sepúlveda s/prescripción de la acción penal” (Sala II, expte. 18.020) 4/10/00.
[96] Interview on file with author.
[97] Barrios Altos v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 87 (2001).
[98] Hernán Folgueiro, Inconstitucionalidad de las Leyes de “Punto Final” y “Obediencia Debida”: Notas al fallo “Simón” de la Corte Suprema de Justicia de la Nación, in Abuelas de Plaza de Mayo, Derecho a la Identidad y Persecución de Crímenes de Lesa Humanidad 70 (2002).
[99] CSJN, Ekmekdjián v. Sofovich, Fallos, 315:149 (1993).
[100] Among the informal influences that shaped the legal argumentation in this decision, a drafter cited the teachings of Mónica Pinto in her course on legal responses to gross human rights violations by prior regimes at the University of Buenos Aires. Some of the ideas that underlie this decision were also presented by Marcelo Ferrante (also a former student in Pinto’s course) in his book with Marcelo Sancinetti, El derecho penal en la protección de los derechos humanos (1999), which both drafters of the Cavallo decision knew well. Interview on file with author. This is not to deny the influence of the academic seminars organized by transnational civil society actors in the mid-1990s, highlighted by González-Ocantos, but to show that they were one element among several relevant influences, and by no account the decisive one.
[101] Interviews on file with author.
[102] See, e.g., Guido Braslavsky, Enemigos íntimos: Los militares y Kirchner 10 (2009).
[103] Notably, in the short term it also created immediate difficulties in receiving a position of Justice at the Federal Appeals Court. Eventually, Cavallo was promoted to the Appeals Court. Upon leaving the judiciary and establishing his own private practice, his involvement in a case in defense of the owner of the main media conglomerate in Argentina and her two adopted children cost him the support of many victims’ organizations.
[104] María José Guembe, Reopening of Trials for Crimes Committed by the Argentine Military Dictatorship, 2 Sur: Int’l J. Hum. Rts. 114, 121 n.23 (2005) (https://doi.org/10.1590/S1806-64452005000200008).
[105] Under the Argentine Constitution, if no single presidential candidate gets a qualified majority in the first round, the two with the most votes must go to a second round to decide who will be the next president.
[106] Carolina Varsky & Leonardo Filippini, Desarrollos recientes de las instituciones de la justicia de transición en Argentina, Nueva Doctrina Penal 2005/A, at 116.
[107] Decree 420/03 (28/7/2003).
[108] None of them were ultimately extradited because the Spanish government later annulled its requests.
[109] Braslavsky, supra note 102, at 131.
[110] Act 25.779.
[111] In effect, Engle identifies the reversal of the amnesty laws with this piece of legislation rather than with the Cavallo decision or its confirmation by the Argentine Supreme Court. See Karen Engle, Anti-Impunity and the Turn to Criminal Law in Human Rights, 100 Cornell L. Rev. 1111 (2015).
[112] Civil and Commercial Code art. 5 (Arg.).
[113] Interview on file with author.
[114] Varsky & Filippini, supra note 106, at 135. Only the Federal Appeals Court in San Martín, Province of Buenos Aires, disagreed.
[115] See, e.g., Braslavsky, supra note 102, at 27.
[116] See, e.g., Roht-Arriaza, supra note 14; González-Ocantos, supra note 10; Sikkink, supra note 10; Lessa, supra note 72.
[117] See González-Ocantos, supra note 10, at 86.
[118] Interview with Nestor Kirchner, Telefé Noticias, YouTube (May 7, 2009) (https://www.youtube.com/watch?v=NNuc9TWbuto) (https://perma.cc/TPT6-W73F).
[119] Braslavsky, supra note 102, at 123.
[120] See Andrea Castagnola, Manipulating Courts in New Democracies 56 (2018).
[121] Interview in Podcast, Generación 94 (episode 13), YouTube (Aug. 20, 2024) (https://www.youtube.com/watch?v=81FmG7kcwH0) (https://perma.cc/9EN8-AREA).
[122] See supra note 97.
[123] CSJN, “Simón, Julio Héctor y otros s/privación ilegítima de la libertad (Poblete),” Fallos: 328:2056 (14/6/2005).
[124] CSJN, “Mazzeo, Julio y otros,” Fallos 330:3248 (13/7/2007).
[125] Varsky & Filippini, supra note 106, at 122.
[126] Interview on file with author.
[127] Examples include Eduardo Luis Duhalde in the Human Rights Secretariat, or Jorge Taiana and Alicia Oliveira in the Foreign Affairs Ministry.
[128] Iván Poczynok, La incorporación institucional de la perspectiva de los Derechos Humanos en el área de la Defensa en Argentina (2006-07) (typescript on file with autor).
[129] Interview on file with author.
[130] Resolution 44/2007.
[131] These further bodies included, among many others, an office in charge of supporting victims and witnesses, a witness protection program, an office in charge of rewards for information concerning perpetrators or crimes, and an office to assist victims of child appropriation with the process of recovering their identities.
[132] Admittedly, these developments were marked by internal disputes between rival groups seeking preeminence.
[133] Interview on file with author.
[134] Id.
[135] Id.
[136] Id.
[137] Interviews on file with author.
[138] On September 18, 2006, Jorge Julio López disappeared after testifying in a trial against Miguel Etchecolatz, an official in the Police of the Province of Buenos Aires. After this tragic incident, the Government of the Province of Buenos Aires created a plan for the protection of witnesses.
[139] Interview on file with author.
[140] Id.
[141] See, e.g., Alejandro Chehtman, The Juntas Trial: Adjudicating on a Tightrope, in Mass Trials for Mass Crimes (Frédéric Mégret et al. eds., forthcoming 2025).
[142] Argentine Constitution § 18.
[143] Interview on file with author.
[144] Id.
[145] This two-pronged strategy also facilitated a central political feature of this reconstruction. According to Argentine Courts, it only allowed for the prosecution of crimes perpetrated by the military, but not those of the armed organizations. See, e.g., CCCF, “Conti, Jorge Héctor y otros s/asociación ilícita” (27/12/2016); Cámara Federal de Casación Penal, “Kremer, Juan s/recurso de casación” (26/12/2018); CCCF, “Salgado, José María y otros s/recurso de apelación” (9/6/2022). This issue is still a matter of controversy.
[146] Braslavsky, supra note 102, at 308.
[147] Interview on file with author.
[148] Acordada 42/08.
[149] Braslavsky, supra note 102, at 309.
[150] Interview on file with author.
[151] CELS, Derechos humanos en Argentina: Informe 2008 (https://perma.cc/REF3-4VMG).
[152] Interview on file with author.
[153] Pablo Parenti, Informe Pericial para la Corte Interamericana de Derechos Humanos, Caso Julien Grisonas y otros v. Argentina, at 22 (Apr. 20, 2021) (typescript on file with author).
[154] Id. at 26.
[155] See Resoluciones PGN 164/04 and 14/07, and later 1442/13.
[156] Resolución General PGN 13/08.
[157] See, e.g., Las Noticias del Ministerio Público Fiscal, Causa ESMA Unificada: el Tribunal impuso 29 condenas a prisión perpetua y otras 19 de 8 a 25 años de prisión (https://perma.cc/TM46-ZCJJ).
[158] Interview on file with author.
[159] Actualización estadística trimestral de la Procuraduría de Crímenes contra la Humanidad, June 14, 2024 (https://perma.cc/L3EK-KZ3Y). Admittedly, over time the whole process began to slow down, with trial chambers holding hearings only a few days a week, appeals that lasted years without being resolved, and investigative judges and prosecutors failing to give priority to the remainder of these cases (“in any event, they are not subject to statutory limitations”).
[160] See, e.g., Juicios de lesa humanidad en tiempo real (https://perma.cc/D642-NVJY).
[161] Braslavsky, supra note 102, at 337.
[162] See, e.g., Leila Guerriero, La Llamada (2024).
[163] For instance, the ESMA detention and torture camp—the most important one within the City of Buenos Aires—has been made into a museum, which receives visits from schools on a daily basis.
[164] See, e.g., Juan Pablo Bohoslavsky, ¿Usted también doctor? Complicidad de jueces, fiscales y abogados durante la dictadura, 5 Rey desnudo 156 (2015).
[165] Ruti Teitel, Transitional Justice 27 (2000).
Suggested Citation: Alejandro Chehtman, Re-Constructing Criminal Accountability for Human Rights Abuses: Argentina 1990-2024, 1 Mod. Crim. L. Rev. 64 (2024).