The Forum April 2020 Without a Trace: A Comparative Analysis of How Transitional Justice Methods Address Enforced Disappearances in Spain & Argentina Paige Calabrese J.D. Candidate, SMU Dedman School of Law, 2021; Staff Editor for the International Law Review Association Find this and additional student articles at: https://smulawjournals.org/ilra/forum/ Recommended Citation Paige Calabrese, Without a Trace: A Comparative Analysis of How Transitional Justice Methods Address Enforced Disappearances in Spain & Argentina, ________________ (2020) https://smulawjournals.org/ilra/forum/. This article is brought to you for free and open access by The Forum which is published by student editors on The International Law Review Association in conjunction with the SMU Dedman School of Law. For more information, please visit: https://smulawjournals.org/ilra/. Without a Trace: A Comparative Analysis of How Transitional Justice Methods Address Enforced Disappearances in Spain & Argentina By: Paige Calabrese Fall 2019 When a country is plagued with civil war, dictatorship, or extreme internal unrest, governments can become pressured to take aggressive measures to maintain order and establish power, including abducting citizens believed to be threats to their power. This phenomenon of government-orchestrated civilian abductions is known as “enforced disappearance,” and it leaves damage that endures long after the conflict or dictatorship has come to an end. While many countries have histories checkered with this practice, two countries stand out because of the remedial provisions they have enacted in their transitions to democracy: Spain and Argentina. Spain is often criticized for not taking effective remedial action, but Argentina is frequently praised for its aggressive prosecution of former government officials involved in perpetrating civilian abductions. Transitional justice policies, such as prosecution and reparations, are used to address violations committed by former regimes and provide victims and their families with compensation and closure so that the country can move forward. Through an analysis and comparison of Spain and Argentina’s transitional justice methods employed to address enforced disappearances, each country can learn from the other and improve their approaches to more effectively support victims and hold the government accountable. I. Introduction For countries haunted by pasts tainted with civil war, brutal dictatorships, and governmental corruption, one question of significant legal importance lingers into the twenty-first century: how can modern governments correct the past injustices of government-led civilian abductions during politically turbulent times? Spain and Argentina represent two different sides of the same coin regarding this question, as each country has adopted opposite approaches to implementing transitional justice remedies: Argentina employs rigorous criminal prosecution of former officials formerly involved in civilian abduction,1 but Spain has only offered to aid non- governmental organizations in locating remains in mass graves.2 Spain and Argentina are ideal countries to compare when analyzing how transitional justice systems address enforced disappearances because they have similar histories of 1 Argentina Declassification Project, CENT. INTELLIGENCE AGENCY: LIBRARY, https://www.cia.gov/library/readingroom/collection/argentina-declassification-project-dirty-war- 1976-83 (last visited Oct. 10, 2019). 2 Where are the missing?: Spain, INT’L COMM’N ON MISSING PERSONS, https://www.icmp.int/the- missing/where-are-the-missing/spain/ (last visited Oct.11, 2019). 1 civil war, dictatorship, and human rights abuses.3 In terms of employing transitional justice to address past human rights abuses, Spain and Argentina differ widely: Argentina is often considered a pioneer in transitional justice for enforced disappearances because of its undertaking of aggressive criminal prosecutions of former officials,4 but Spain has taken a more passive approach by providing limited assistance to families who wish to locate the graves of their disappeared loved ones, and only recently announced plans for a truth commission, absent any criminal prosecution.5 Both criminal and humanitarian efforts have yielded favorable results in terms of uncovering truth and allowing families of victims to have closure, however, having one method without the other can be detrimental and leave victims without support and perpetrators without accountability. Typically, enforced disappearances are abductions coordinated by authoritarian regimes using illegal arrest and detention.6 Those who are abducted, as well as their families, are almost always deprived of due process and other rights usually afforded to detainees in democratic countries.7 Arguably what makes enforced disappearances highly concerning is their clandestine nature, which is attributable to governments’ extensive resources and power compared to the very limited resources of individual citizens.8 Because of the secrecy with which enforced disappearances are executed, it is difficult to ascertain exactly who was involved in the abduction, where the victim is, whether the victim is alive, and if others in the family or community are at risk of being abducted.9 According to the International Commission on Missing Persons: Since illegal arrest and detention is, by its nature, devoid of accountability or due process, families of those who have been “disappeared” have no recourse to the law. The absence of the victim and the anonymity of the perpetrators makes this a crime that is both sinister and very hard to combat. By the same token, the ease with which a government may be able to make citizens disappear multiplies the fear it inspires among citizens.10 3 Id.; CENT. INTELLIGENCE AGENCY: LIBRARY, supra note 1. 4 David Tolbert, To Prevent Enforced Disappearances, Rethink the Justice and Security Equation, INT’L CTR. FOR TRANSITIONAL JUSTICE (Aug. 29, 2017), https://www.ictj.org/news/prevent- enforced-disappearances-rethink-justice-and-security-equation. 5 Spain: UN experts welcome proposal for Truth Commission, U.N. OFFICE OF THE HIGH COMM’R (July 25, 2018), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23402&LangID=E. 6 Who are the missing?, INT’L COMM’N ON MISSING PERSONS, https://www.icmp.int/the- missing/who-are-the-missing/ (last visited Oct. 11, 2019). 7 INT’L COMM’N ON MISSING PERSONS, supra note 2. 8 Id. 9 Id. 10 INT’L COMM’N ON MISSING PERSONS, supra note 6. 2 With enforced disappearances, neighbors, friends, and family could be present and living their usual daily lives one day, and the next abruptly disappear without a trace or warning. II. Historical Background: Spain’s problems began when the Spanish Civil War broke out in 1936; when the pro-democracy Republicans clashed with the fascist Nationalists.11 The Nationalists, led by General Francisco Franco, eventually defeated the Republicans and formed a fascist government with Franco as dictator and instituted a system of government rooted in oppression, fear, and force.12 Historians estimate that approximately 114,000 people were murdered or abducted by Franco’s regime between 1936 and 1952, and approximately 30,000 infants were taken from their parents and illegally adopted to families that were politically aligned with the dictatorship.13 Similarly, Argentina’s Dirty War began with a military coup in 1976, and ushered in an aggressive, military-led campaign against political dissidents and anyone believed to be affiliated with anti-government movements or groups.14 During the Dirty War, between 10,000 and 30,000 people were abducted, tortured, and killed by the state (the numbers vary because there are no official records detailing who was abducted, where they were detained, or how or when they were killed).15 Furthermore, about 500 infants born to detained pregnant women were taken from their mothers and illegally adopted to families of military officials and those who supported the regime.16 III. Argentina after the Dirty War: When the Dirty War ended in 1983, Argentina restored democracy and immediately commenced investigations into the human rights abuses that occurred during the dictatorship, which consisted primarily of enforced disappearances.17 The fledgling democracy established the National Commission on the Disappearance of Persons, which is internationally regarded as the first truth commission to address human rights abuses.18 With the induction of The Commission, the Argentine government aimed to collect as much information as possible about the abductions 11 Spanish Civil War breaks out, HISTORY, https://www.history.com/this-day-in-history/spanish- civil-war-breaks-out (last updated July 28, 2019). 12 Id. 13 INT’L COMM’N ON MISSING PERSONS, supra note 2. 14 CENT. INTELLIGENCE AGENCY: LIBRARY, supra note 1. 15 Id. 16 INT’L COMM’N ON MISSING PERSONS, supra note 2. 17 KATHRYN SIKKINK & CARRIE BOOTH WALLING, TRANSITIONAL JUSTICE IN THE TWENTY-FIRST CENTURY: BEYOND TRUTH AND JUSTICE 301–24, at 304 (Naomi Roht-Arriaza et al. eds., 2006). 18 Id. 3 and torture that occurred during the Dirty War; ultimately, The Commission’s efforts resulted in the publication of a fifty thousand page report revealing the accounts of torture survivors and acknowledging the murders of approximately nine thousand people.19 The Commission created momentum for the government to pursue prosecution of the officials involved in the abductions, which not only allowed the victims to have justice, but also