Injustice: Part 1 – Political Vengeance

Alfredo Astiz referred to his sentence as political vengeance and as unconstitutional[1]. Of course, in Argentina anyone who is associated with the last Junta is automatically discredited no matter what they say – true or false – but as we are talking of a trial during the Kirchner era, it is a worthwhile hypothesis that deserves considering. The Kirchners are classic Latin American populists and today populism is portrayed in the media as a global problem threatening the existing democratic world order and peace. Nowadays, populism is divided into “good” and “bad” where the conservative forms are portrayed as backward, and threatening to the world order but the left-wing forms, especially the South American leaders, are seen as positive by the same group of observers. I argue that populism remains populism and I see no difference between political ideology and the problems of populism, with a tendency towards the Latin American populism being a greater threat to the democracies of their own nations by seeking unconstitutional ways.

So, were the trials of the military part of the Kirchner populist propaganda? It is a question that deserves attention. Today we read about fake news and alternative scenarios being constructed by populists[2]. They do anything to distract of their shortcomings and to mobilise their supporters, however this is never considered for left-wing populists.

I will look at different aspects and they contain a mixture of peer reviewed journal articles, newspaper articles and my personal opinion, derived from them, and I learned that as with everything, there are two sides and this is the case in Argentina too, but only one side gets attention[3].

The Constitution – So What?!

The Human Rights Violation laws were added to the Argentinian legislation under the Kirchners, which is an important and vital achievement for the country. And from the addition onwards, crimes against humanity are crimes. However, no matter how great this step was, it was undermined by applying the law retrospectively. Retrospective law enforcement is a dangerous tool and is normally not allowed in democracy unless it provides a better outcome for the people affected. For example, the imposition of retrospective law is forbidden under Article 18 of the Argentinian constitution[4] and also under, for example, Article 7 of the European Convention on Human Rights[5]. There are many valid reasons for banning retrospective law imposition because it allows any government to reclassify legal actions of the past as a criminal offence, making it extremely dangerous for any citizen. As the HR trials in Argentina are praised as successes, however I want to show that they are wrong and dangerous for the future of the country because they are retrospective. I hope that people understand that it is wrong to go against the constitution and that democracy and the future of a country is more important than anything else.

Once the concept of retrospective law is accepted, as it is in Argentina now, the government can target specific groups with retrospective legislation, which is the end of democracy and hence it is popular with dictatorships and extremist regimes. There are several examples ready available, some theorise about what we consider as normal and others are historical examples that happened. Some may seem unrealistic, but we do not the future and how norms and values will develop[6]. Anything is possible and therefore it is absolutely essential to follow and stick to the constitution at all times and not allow any loopholes for future unknowns.

Some examples on actual and potential retrospective law applications:

  • Climate change crimes – today most of us contribute to climate change which already results in displacement of people and in deaths. It is predicted that it will cause wars, intensify terrorism on top of mass extinctions – it is possibly one of the biggest crimes knowingly committed by individuals[7]. Imagine, in the near future, a government struggling with the effects of climate change deciding to punish the main contributors retrospectively. One of the greatest climate killers is production and consumption of red meat! They could retrospectively make the production and consumption of red meat a crime against humanity and the planet. In other words, eating red meat could equal to genocide and ecocide.
  • Historical examples can be found in some of the most horrible regimes of recent times: Nazi Germany. After seizing power, the Nazis withdrew the prohibition of retrospective legislation with their 29 March 1933 “Imposition and Administration of the Death Penalty Act”, which was specifically created to punish the alleged arsonist Marinus van der Lubbe by death and cover it by the media. During the night of 27/28 February 1922, when the Reichstag was burning, arson was not yet punishable by death according to the applicable law[8].
  • A current debate in Turkey shows that this misuse of legislative power is still prevalent today: after the attempted coup in the summer of 2016, the retrospective reintroduction of the death penalty is being discussed – to be able to punish insurgents in a manner that is felt to be “just” by the current government and its propaganda machine[9].

Any nation needs to decide whether laws can be applied to its citizens and businesses retrospectively, however seemingly immoral their crimes are. The list of illegitimate changes to the legislation of a constitutional state could go on much further: the creation of special courts which undermine the judiciary’s monopoly for penalties belong on it, as well as draconian tightening of punishments under broadly and vaguely defined laws and it feels that under the Kirchners, Argentina was heading that way. The rule of law can be overridden with comparatively trivial measures. Changes to the law are marketed in populist ways, ostensibly “for the greater good”. To that end, civil rights are abolished and the way is paved for governmental despotism. Is this the route that Argentina wants to take again? The trials are certainly a first step towards this.

It is also a case (or crime!) that can be used in the future for anything. We do not know who will be in power in 10 or 20 or 30 years’ time and but we gave them a reason to turn anything into a crime according to the standards of then and ignoring our rights of now. We might think we are living a normal, law abiding life – but this might not be with the same definitions in the future. The Kirchners knew this and were willing to play with fire, just as is their failure to support the Inter-American Commission on Human Rights, which recognises and forbids the problems of retrospective law imposition[10]. They lobbied groups of people and punished the other and they impose their view on the defeated and the sacrificed constitutional guarantees. Under the Kirchner administration, the Argentinian Supreme Court had judges favouring their political ideology, and that were willing to gamble with democratic values and the Argentinian constitution. This indicates revenge. Democracy should never be abused by personal goals or be undermined by them. If the people could only be tried according to the laws of the Kirchner era and not to anything else in the Argentinian legislation, then they should not have been tried. It is far more important to preserve democracy than to undermine the constitution out of a sentiment of revenge. The trials are not a success for human rights, but a failure for democracy.

Selectiveness

Prosecutor Gabriela Sosti (quoted in Dandan, 2012: 16) argues that the trials are “exceptional because they are trials of history, of the State, not of a common criminal.” Noting that the repressors on trial are part of a larger context in which the criminal is the state, she adds that the trials are judging not military officers “but a state policy that became genocidal[11].”

This statement contains a lot of information to digest and sums up the unfairness of these trials. It firstly implies that simply being a member of the military at that time was enough to represent the state. Further, it shows that what the officers did at that time does not matter – they could have not committed any form of violent action or murder etc, and they will still be punished. Thirdly, it provides a one-sided form of blame, so why not blame anyone who actively spoke out against the regime? They were part of the state too and that would be a large percentage of Argentinians. Finally, it was not a genocide that was committed. Both the one-sided storytelling and the question of genocide, I will discuss in the next section.

The attitude that the comment reflects is a dangerous one as again, and like retrospective law, undermines fairness and has a problem that an example is set that can be applied again in the future. For example, the Kirchner administration committed many crimes (see next section) so should everyone who worked for them and actively supported them be put into jail for those crimes too? It should be possible now that we have made the case!

However, there are other problems and many questions. The trials raise the following: Are all equally guilty? Are people only put on trial because they are known? How can junior officers represent the state? Or are personal motivations involved? Does the severity of the crimes not matter and more the status of them? To me there are too many questions which again undermine the fairness which is an important aspect of a democracy and makes the trials less about justice but more about show of power.

UnPardoning Obedience

A final point I would like to present is the unpardoning of the military by the Kirchners. President Menem pardoned the military leaders and commanders as well as the leaders of the guerrilla groups; an act that was morally questionable and potentially unconstitutional[12]. Menem justified it with national reconciliation which was rejected by the human rights (HR) groups in Argentina and likely welcomed by the supporters of the military regime (their view, as always, remains mostly undocumented in the literature). He wanted to move the nation forward and away from the past[13] which was a good thought.

Generally, it is not acceptable to undo presidential pardons and I strongly disagree with it as it bears dangers. The point is that most pardons in the world are controversial for one group and are praised by another. However, in Argentina, the pardon was potentially against the democratic constitution, which former President Alfonsín wanted to re-establish and to build the future Argentina on. Therefore, it can be argued that despite the Nestor Kirchner’s administration did the undoable of unpardoning, that it was ok as it had been potentially wrong in the first place.

However, there are many problems with this argument – Kirchner only unpardoned the military and not the former guerrillas. To understand, and I will write more on this, in Argentina, the blame is one sided and the left ignores the crimes of the former guerrillas. Also, when speaking of them, their wrong doing is questioned and the victims of their crimes are not considered as victims. This way of thinking was strengthened and enforced especially during the Kirchner administration, by local (and international) HR groups, in published and even peer-reviewed literature. For me this is totally unacceptable and I will dedicate more time on this later as it is such an important point. Going back to the pardons – if they were unconstitutional, then they were not acceptable for the guerrillas too. President Kirchner undermined his credibility by his one-sided approach and his unpardoning could therefore not have been linked to the constitution but to personal revenge.

The president who had a proper democratic agenda was Alfonsín. He had an honest vision and followed the constitution. He understood what was at stake for the nation’s future and he correctly put the masterminds of the Junta on trial and they were sentenced. However, he also listened to the intermediate and junior officers that had committed wrongdoings but were following orders. For me this distinction is important – I have no sympathy with the masterminds – national or international, but young, junior officers I cannot blame. Alfonsín actually understood the situation and he had no personal or ideological agenda apart from turning Argentina into a democratic state as she deserves to be. The Law of Due Obedience, introduced by Alfonsín, protected the lower ranks of the military and it also allowed the military to focus on its successful transition to a “normal” force, without political ambitions.

But why care?

Alfonsín understood that the future of the country is at stake and he made sure to protect the future, something that cannot be said of following administrations. Now democracy is as flawed as it has been in the past and to me the future looks difficult. It is time to undo the wrongs by the previous administration and to invest into a future without populism but down to earth politics that address the problems and focuses on the next generations.

The trials have too many questions regarding fairness, constitutionalism etc so it is justified to question their legitimacy from many perspectives. There is not even the attempt to establish individual criminal responsibility and it simply highlights the selectivity and politicisation of the judicial system and specifically of these trials. They are show trials with feel of a “winners revenge” and that is not good enough for a democracy to develop. It clearly shows also that the trials, despite claiming to be HR trials, do not lead to any improvement in democracy and undermine the rights of individuals. This was specifically highlighted under the flawed democratic rule of the Kirchners. Invariably, this comes at a heavy price for society.

Further, they take away resources of current crimes that continue in Argentina – women rights, indigenous rights etc. The focus seems to be on crimes that happened in the past and these prisoners do not have a fair and equal treatment under the law.

References and Footnotes

[1] http://www.bbc.co.uk/news/world-latin-america-15472396 is one example of many, however, this article was the first I read. It made me think and I guess started off my research into this topic. It was a gut feeling that information was missing and the article itself does not add up either. I will refer back to this article in a future post as it paints a wrong picture of Argentina and the trials. It is an interesting example how news is created and spread without proper research.

[2] Argentina champions fake news across their media. Lots of news is presented without source or proof and is close to defamation of individuals on all sides of the political spectrum. It has become a popular tool just to insult people.

[3] For this post, I only use English references in terms of news, articles and webpages. I want to build my argument without Argentinian news and views, but I will refer to them in later posts as they are obviously very important. However, I wanted to form a personal opinion without being dragged into the Argentinian debate as they are often very personal. I prefer neutral or at least unemotional accounts and they are difficult to find. I know that my conclusions concur with others in Argentina and it is a good sign that we came with the same conclusion using different methods and having different backgrounds.

[4] The International Court of Justice in The Hague, also does not allow Retrospective Law enforcement which clearly supports that retrospective law application is unlawful and unconstitutional

[5]http://echr-online.info/artikel-7-echr/

[6] I spoke to someone from the USA who wanted to challenge that we do not know what happens in the future. I asked him if he would have believed 10 years ago that Donald Trump would be president and he said no and agreed that the future is indeed unknown.

[7] There is no excuse in today’s world to say you have no idea what contributes to climate change – enough scientific material is explained well and open to the public in several languages. Likewise, respected institutions provide information and explanations.

[8] http://ich-bin-dafuer.org/2017/01/18/a-manual-for-dictators-how-the-nazis-destroyed-the-rule-of-law/ There are many examples in the internet by respected journals, universities etc that make a strong case why retrospective law is dangerous and must never be applied no matter how bad the crime. If these examples do not convince, just google it and you will notice it is a favourite dictatorship’s tool.

[9] http://www.independent.co.uk/news/world/europe/turkey-death-penalty-erdogan-coup-president-backs-capital-punishment-a7178371.html

[10] Engstrom, Par (2013), Addressing the past, avoiding the present, ignoring the future? Ongoing human rights trials in Argentina. LASA Forum. Vol. 44. No. 3. 2013

[11] Kaiser, Susana (2015), New Ways of Writing Memory, Latin American Perspectives, Issue 202, Vol. 42 No. 3, 193–206, DOI: 10.1177/0094582X15570885

[12] Elias, Jose Sebastian (2008), Constitutional Changes, Transitional Justice, and Legitimacy: The Life and Death of Argentina’s Amnesty Laws. Hastings Int’l & Comp. L. Rev. 31: 587. Interestingly, there is a discussion of retrospective law and hence amnesties being not possible. In basically all democracies, retrospective law is accepted when it improves the situation and not used when it makes it worse. Argentina under the Kirchners did the opposite!

[13] Escudé, Carlos (1988), Argentine territorial nationalism. Journal of Latin American Studies 20.01: 139-165; Elias, Jose Sebastian (2008), Constitutional Changes, Transitional Justice, and Legitimacy: The Life and Death of Argentina’s Amnesty Laws. Hastings Int’l & Comp. L. Rev. 31: 587.

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