MAKING JUSTICE Further Discussions on the Prosecution of Crimes against Humanity in Argentina CENTER FOR LEGAL AND SOCIAL STUDIES INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE MAKING JUSTICE Further Discussions on the Prosecution of Crimes against Humanity in Argentina CENTER OF LEGAL AND SOCIAL STUDIES INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE Jorge Taiana Leonardo Filippini Carolina Varsky Diego R. Morales Pilar Calveiro Fabricio Guariglia Lorena Balardini Laura Sobredo Ana Oberlin Marcelo Ferrante Translated by Paula Arturo 1 2 Contents Introduction ................................................................................................................. 4 Preface Jorge Taiana ................................................................................................................. 7 1. Criminal Prosecution in the Search for Justice Leonardo Filippini ....................................................................................................... 11 2. Testimonies as Evidence in Criminal Prosecutions for Crimes Against Humanity Some thoughts on their importance in the Argentine justice process Carolina Varsky .......................................................................................................... 30 3. Restricting Access to Public Office for Perpetrators of Crimes against Humanity The Argentine Experience Diego R. Morales ........................................................................................................ 50 4. Forms and Meanings of the Repression between the Dictatorship and Democracy Pilar Calveiro .............................................................................................................. 70 5. International Crimes and Non-State Actors The Argentine Case Fabricio Guariglia ........................................................................................................ 91 6. Gender Violence and Sexual Abuse in Clandestine Detention Centers A contribution to understanding the experience of Argentina Lorena Balardini, Ana Oberlin, and Laura Sobredo ................................................... 106 7. Proof of Identity in Criminal Prosecutions for Abduction of Children and Identity Substitution Marcelo Ferrante ...................................................................................................... 143 About the Authors .................................................................................................. 162 3 Introduction This book represents one of the main activities conducted in the framework of the “Domestic Prosecution and Torture Prevention in Argentina” project, a joint effort between the Center of Legal and Social Studies ( Centro de Estudios Legales y Sociales , CELS) and the International Center for Transitional Justice (ICTJ), with funding from the European Union. The concern that gave rise to this project was the need to build mechanisms capable of disrupting the persistence of torture and abuse by Armed and Police Forces in Argentina, by channeling and making effective the fight against impunity for serious human rights violations committed during the military dictatorship. This impunity is understood as one of the main factors in the prevalence of torture, which characterized the period of State terrorism and persists to this day. The peculiarities of the justice process in the country have provided the necessary input for outlining the main objectives sought through actions, designed for the purpose of strengthening the development of the process and prosecuting perpetrators. Therefore, the project includes, among other activities, technical assistance to members of the Public Ministry, as well as discussions and joint work with plaintiff attorneys from human rights organizations for implementing effective strategies for prosecuting torture. Another specific project goal is to share the local experience at an international level, as current progress in the prosecution of torture in Argentina is not known in depth abroad and can be enriching for countries undergoing similar processes, most of which are in their initial phases. To that end, this book provides a selection of texts on different relevant aspects of the process, with the intention that they may become reference material for scholars, researchers, and members of the legal community. It consists of seven papers on specific topics related to Argentina's experience, reflecting the political, legal, and social complexity of this historical process. The first two chapters constitute a descriptive approach aimed at introducing the reader to the main historical and legal aspects of the process. In the first text, “Criminal Prosecution in the Search for Justice,” Leonardo Filippini reviews the historical route of the justice process in Argentina from a comparative perspective between criminal prosecution, crystallized in the trial of the first three military juntas in 1985-1986, and the processes that are taking place today. The main purpose of this paper is to highlight the milestones of each stage, while identifying and analyzing possible ruptures and continuities between them. From the analysis of the Argentine case, the author addresses criminal prosecution as a transitional measure. 4 In the second chapter, “Testimonies as Evidence in Criminal Prosecutions for Crimes against Humanity - Some thoughts on their importance in the Argentine justice process,” Carolina Varsky analyzes the joint effort between lawyers acting as private prosecutors on behalf of victims, their families, or organizations and witnesses, in the construction of the narrative of events. In first place, this paper highlights procedural challenges while evaluates the work of these lawyers guiding the construction of testimonies. Then it discusses the “hierarchy” of victims in criminal proceedings in relation to criminal responsibility and the tensions resulting from their political affiliation. The author also dedicates a brief section on the issues of cooperation from perpetrators with the investigation of crimes of State terrorism, from the paradigmatic case of Navy officer Adolfo Scilingo. The following articles examine particular aspects of Argentina's experience, through an innovative socio-historical-legal approach toward issues related to legacies inherited by the democratic system from State terrorism, which constitute obstacles to the full exercise of the Rule of Law. Therefore in the third chapter, “Restricting Access to Public Office for Perpetrators of Crimes against Humanity - The Argentine Experience,” Diego Morales analyzes vetting and lustration mechanisms for restricting access to public office for people who have been involved in serious human rights violations as a response to their persistent impunity in democratic regimes. In the fourth chapter, “Forms and Meanings of the Repression between the Dictatorship and Democracy,” Pilar Calveiro describes the differences and continuity of “repression” at two very distinct political times in Argentina: State terrorism and 21st Century Democracy. To that effect, she analyzes the concrete mechanisms of repression during the last military dictatorship and highlights present forms of exercising repressive power and its imprisonment mechanisms. Other aspects that this book attempts to conceptualize are considered controversial by some stakeholders in the justice process and the human rights movement in general, which is why our intention is to provide an original contribution to the discussion and open the debate on these issues. The fifth chapter, “International Crimes and Non- State Actors - The Argentine Case,” was written by Fabricio Guariglia, who ponders on the possibility of prosecuting non-state actors involved in this type of crime, addressing the precepts of international criminal law, its current status, its requirements, and the consequences of the emerging scenario in such cases. In relation to some less explored aspects of the process, the sixth chapter, “Gender Violence and Sexual Abuse in Clandestine Detention Centers - A contribution to understanding the experience of Argentina, ” by Lorena Balardini, Ana Oberlin and Laura Sobredo, the authors undertake the analysis of sexual abuse and other gender violence perpetrated during the illegal repression from the particular perspective of human relationships that are characteristic of the coexistence between oppressors and victims in clandestine detention centers. The article proposes a psycho-socio-legal 5 approach to understanding this practice, while discussing the potential for and obstacles against prosecuting and analyzing certain cases. Finally in, “Proof of Identity in the Criminal Prosecution for Abduction of Children and Identity Substitution,” Marcelo Ferrante tackles the illegal appropriation of children as part of the mechanisms of repression and social unrest of the time, and rekindles the discussion regarding evidence and conflicts of interest that arise in such cases, when crimes have two victims. The underlying intention of this book is to move toward a theoretical ground that goes beyond the strictly legal approach to cases. It is thus intended as a compilation of researches that reflects the political complexity of this historical process, in order to contribute to the academic debate and general knowledge on the subject. 6 Preface Our world today faces constant challenges inasmuch as the validity of human rights and fundamental freedoms. Some occur in the context of surmounting violent domestic and international armed conflicts.