M

Mariela Galeazzi

(translated from Spanish by Isaac Morales)

November 3, 2017

 

Picture of Palmas Zaldua (Centro de Estudios Legales y Sociales), Alan Iud, Estela de Carlotto and Taty Almeida (Abuelas of Plaza de Mayo), via Flickr OAS/Inter-American Commission of Human Rights.

 

Commissioners: José Francisco Eguiguren Praeli (President CIDH), Pablo Vanucci (unit memory, truth and justice), Edison launches (UN Special Rapporteur on freedom of expression), Claudia Pulido (Deputy Executive Secretary).

 

Petitioners: Centro de Estudios Legales y Sociales (CELS), Abuelas de Plaza de Mayo (Abuelas), Abuelas de Plaza de Mayo, mothers of Plaza of Mayo founding line, Permanent Assembly for human rights (APDH), Permanent Assembly for human rights (APDH) The killing, Association good memory, Centre of legal studies and Sociales (CELS), Commission memory, truth and justice area north, relatives of missing persons and arrested for reasons political, family and companions of the Holy Cross Foundation memory 12 Historical and Social Argentina, H.I.J.O.S. Capital, Argentina League for human rights, ecumenical movement for human rights (MEDH).

 

State: Argentina

 

On October 24, 2017, the Inter-American Commission on Human Rights held a hearing of its 165th Session in Montevideo, Uruguay, on the right to truth, memory, and justice for crimes against humanity in Argentina.

 

CELS noted the significant progress in recent years in prosecuting those responsible for crimes against humanity, providing service to victims, granting restitution of identity to grandsons and granddaughters, looking for information, systematizing files, and creating places of memory. However, he explained that the reason for the hearing was concerns retrogression, which is evident by all the powers the State has gained since President Mauricio Macri assumed power. The dismantling of programs that contributed in judicial investigations and relayed information linking economic actors with crimes of the dictatorship and the application of lenient prison regimes and privilege for those convicted of crimes against humanity were some of the issues mentioned as examples in this regression.

 

The representative of Abuelas, drew attention to a historical delay in the resolution of trials involving crimes against humanity by the Supreme Court, the National Chamber of Penal Cassation, and other courts in the interior of the country, emphasizing that the delay allows those who are accused to escape the accusations because of their advanced age. He noted also the adoption of regressive criteria in cases for crimes against humanity, citing as an example the decision of the Supreme Court in the ruling “Muiña”. There, the superior court violated the prohibition on the commutations of sentences to declare applicable the so-called “law of the two for one” for those condemned for crimes against humanity. Additionally, it did so without using conventions and without applying the international standards in this area. Estela de Carlotto concluded that those facts must not be understood in isolation from a political context in which different government officials have denied or relativized the terrorism of State and the number of victims, instead supporting the “theory of the two demons “, which states that what happened in Argentina at the time of dictatorship was a “war” and not State terrorism.

 

State representatives said that memory, truth, and justice is a State policy, and they rejected the “malicious accusation of indifference, denial and emptying” founded in “false . . . statements, tainted with bias and held in” ideological and partisan convictions.” They stressed that recognizing the context of violence by all sectors during the dictatorship is not endorsing the “theory of the two demons” and that they do not want more “spurious applications on behalf of human rights.” Moreover, the State said that the Secretariat of Human Rights of the Ministry of Justice and Human Rights is involved in 90 per cent of cases involving human rights across the country, performing containment, monitoring, vulnerability analysis of witnesses and victims, study of repressive structures, and monitoring of judicial proceedings. The States agreed with the concern about delay of the court cases, but noted that this delay is not new because it has been an existing problem for years. In relation to the decision of the Supreme Court in the case “Muiña,” the States mentioned that the secretariat objected to this approach, citing jurisprudence of the IACHR.

 

Commissioner Pablo Vanucchi lamented the absence of representatives from the court system considering that many of the concerns were related to the danger of the regression in this area. In relation to the question of the relativization in the public discourse of State terrorism, he drew a parallel with the Holocaust in Nazi Germany, and said that as the new German democracy does not compromise, the new Argentine democracy, where there will always be disputes, disputes must be resolved with common agreement and recognition of State terrorism. In the same vein, the President of the Commission Francisco Eguiguren said that the judiciary must be independent, but remained concerned by decisions of the Supreme Court in the case “Muiña” and “Fontevecchia” and remarked that there are issues that are a “historic truth,” like the dictatorship, enforced disappearances, crimes against humanity. Commissioner Edison Lanza encouraged the State to be an example for the region and help build standards, for example, in the administration of the files of repression.

 

The presentation of the organizations and the State’s response presents a question that has gone unanswered and that the Commissioners suggested in their interventions: what defines a State policy in defense and promotion of the rights to the memory, truth, and justice? No doubt, the creation of the Unit of Memory, Truth and Justice will have the task of developing regional standards to respond to that question. For now, what seems clear is that it is not enough for the State to mention actions developed by a Secretary of a Ministry. The judiciary is part of the State, and therefore, it is subject to international scrutiny of its decisions.  The courts can also violate rights and, therefore, they must be held accountable, not only nationally, but internationally. Moreover, in a context in which the State has saddled human rights organizations with a partisan and political obligation, the idea of building a new democracy on the basis of a common respect for all human right, the question is as urgent and unavoidable as it is challenging.