Injustice: Part 4 – A Short Summary: Hypocrisy in Argentina

The trials are and remain unconstitutional and must be stopped and the sentenced must be acquitted. If they have committed crimes than there are legitimate ways of prosecuting them and these should have been followed instead on an individual basis along with trials of former members of the Montoneros and ERP.

There is an outcry when the trials are described unconstitutional by, for example, Alfredo Astiz and others, however, it is a fact. They are against Article 18 of the Argentinian constitution and this has even been written about in respected, peer-reviewed international law journals by international researchers. The problem has been highlighted by human rights researchers too[1].The researchers agree to some extend with trials against individuals, but only within the legal system that does not harm the Argentinian democracy or are against the constitution. The way it has been done since the Kirchner administration is undemocratic and unconstitutional, under a highly manipulative political system and the sentences therefore have no meaning. It is interesting how Argentina moved from a dictatorship to another undemocratic, autocratic way of dealing with groups of people that a government does not agree with.

It is important to remain impartial and without ideological influence when it comes to the trials in Argentina that are associated with the last military Junta. Morals (or lack of) and ideology are not a good advisor as we learned from the past and therefore they cannot decide what is right and wrong in a democracy. They are dangerous when used by a populist movement or by a dictatorship. They naturally undermine democratic understanding and speak for their selection of the population that they identified to be the ones that should dictate what happens. This is not how a democracy should be run and I look beyond my ideology to identify the problems. I do not sympathise with the last Junta (nor with the guerrillas for that matter) – I never have and I doubt I ever will – but what happened under the Kirchner administration was wrong and dangerous; it needs to be immediately corrected by the government. One cannot punish a group of people just to deflect from own wrongdoing and to fulfil personal desires of revenge – this is why I switched sides in this debate. Both happened and it puts democracy at a great risk. I am surprised that a vast selection of international and national voices did not stand up for democracy and instead joined this dodgy game.

There would have been constitutional ways to do these trials and yet that way was not chosen and that is simply not correct. But event that process would have been questionable and it would have been better to safeguard the future of the country. It is also that if the military are put on trial, then the Montoneros and ERP members and supporters must be put on trials[2]. It cannot be a one-sided history Their victims also deserve justice. Argentina cannot rewrite its history and have a justice of the winners, where the winners are above the law and the losers are prosecuted illegally.

An interesting aspect of the trials and the support of the HR organisations, including the UN, is that the trials are against the Human Rights Charter of the UN itself[3]. So not only are they unconstitutional in Argentinian terms but also against the HR Charter. For that reason, the UN should have intervened and asked for a different approach to the past crimes or maybe advised on reconciliation instead. For example, the individuals are prosecuted as the state[4] and not as individuals which in itself is against Article 6 of the HR Charter which is about the recognition of a person. Articles 7 and 10 state that all are equal before the law and that the tribunal must be neutral – I question that this is happening or has happened in the trials as people are pre-condemned by the justice, the government (especially the Kirchner administration), diverse NGO groups and supporters. Likewise, article 11 states everyone must be assumed innocent until proven guilty – this was never the case with any of the prosecuted and worse, they are tried for general crimes of the Junta and not for their individual contributions, if indeed, they did contribute. Further, article 11 prohibits the use of retrospective law which was applied in the trials and its dangers have been discussed in Parts 1 and 3. Article 12 states that everyone must be protected against interference or harm by the public – which was not always guaranteed to the men on trial as personal attacks have happened to them in ordinary life and they have been subject to public shaming. Therefore, the popular form of protest called ‘escraches’, or similar actions, are actually against the human rights charter.

The trials must follow certain procedures and cannot be arbitrary resulting from populist ideology. The prosecutions must follow the Argentinian constitution and the UN Human Rights/international law. As this has not been done, the men are illegally sentenced and must be freed and acquitted immediately. For me the discussion of the Ley 2 for 1[5] is irrelevant as this would only apply if the trials would have been legal, which they are not. The discussion should be to right the wrongs committed against these men.

Footnotes and References

[1] I have cited some in previous sections and to me it is not good enough for an uninformed public to discredit the prosecuted as liars – which is the case in terms of the trials. The prosecuted must have the same rights as others and the courts must follow the constitution. They must be equal in from of the law. Otherwise we are back to the days of the Junta where selected groups did not deserve justice. The people shouting in the streets must realise this.

[2] Their crimes include murder, kidnapping, terrorism which are also crimes against humanity. They must be put on trial – to the same importance level in the organisation as the prosecuted military.

[3] www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf

[4]Susana Kaiser (2015), New Ways of Writing Memory, , LATIN AMERICAN PERSPECTIVES, Issue 202, Vol. 42 No. 3, 193–206, DOI: 10.1177/0094582X15570885

[5] There is a law in Argentina that allows for only half a sentence for prisoners and it would mean that the men have served their time and should be freed – put in an oversimplified way. However, the prosecuted should not even be in jail.

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