\\jciprod01\productn\H\HLH\33-1\HLH104.txt unknown Seq: 1 14-SEP-20 9:56 Impunity Reconsidered International Law, Domestic Politics, and the Pursuit of Justice Patricio Nazareno* INTRODUCTION Government-directed political violence has left a lasting mark in many nations around the globe. Throughout the 20th century, authoritarian re- gimes orchestrated their state security forces and judiciaries against their own citizens in order to implement heinous purges and repress political dissidents.1 Illegal state repression by Latin American dictatorships during the 1970s and 1980s, which claimed or severely affected the lives of tens of thousands of individuals, represents a primary example of this scourge.2 The Argentine case was particularly traumatic.3 To counter violent actions by political groups, the state initially restricted itself to legally available means,4 yet quickly switched to unlawful tactics. These tactics escalated from sporadic extrajudicial executions5 to the deployment of para-police death squads6 and, finally, to a massive operation launched by the dictator- * Assistant Professor of Law, Universidad de San Andr´es Law School. I want to thank the thought- ful comments on earlier drafts by Robert Barros, Fernando Bracaccini, Alejandro Chehtman, Owen Fiss, Roberto Gargarella, Cecilia Garibotti, Sebasti´an Guidi, Cecilia Hopp, Sam Issacharoff, Ezequiel Malarino, Stratos Pahis, Robert Post, and Guido Waisberg. Excellent research assistance was provided at different stages by Agust´ın Otero, Mauro Meloni, Victoria Franzolini, Eva Langbehn, and Florencia Lacapmesure. I also want to thank Alicia Alvero Koski and the editing team of the Harvard Human Rights Journal for their assistance with editing this piece. This investigation was in part possible by a PAI grant from Universidad de San Andr´es. All translations from Spanish are my own. 1. See generally PAUL BROOKER, TWENTIETH-CENTURY DICTATORSHIPS: THE IDEOLOGICAL ONE- PARTY STATES (1995); Eric Hobwsbaum, Barbarism: A User’s Guide, 206 NEW LEFT REV. 44 (1994). 2. See GREG GRANDIN, THE LAST COLONIAL MASSACRE: LATIN AMERICA IN THE COLD WAR 184–198 (2011); see generally JOHN DINGES, THE CONDOR YEARS: HOW PINOCHET AND HIS ALLIES BROUGHT TERRORISM TO THREE CONTINENTS (2004). 3. See ANTONIUS ROBBEN, POLITICAL VIOLENCE AND TRAUMA IN ARGENTINA 341–359 (2005). See also MARGUERITE FEITLOWITZ, A LEXICON OF TERROR: ARGENTINA AND THE LEGACIES OF TORTURE (2011). 4. The dictatorial government in power during 1966–1973 sought to reform the criminal justice system in order to increase its capabilities to deal with prosecutions for offenses related to terrorism. See Law [de facto] No. 19.053 (1971), Jun 1, 1971, [22.186] B.O. 2. 5. See ROBERT POTASH, THE ARMY AND POLITICS IN ARGENTINA 1962–1973 444–47 (1996) (describing the Trelew Massacre). 6. The Argentine Anticommunist Alliance (known by the acronym AAA) was a para-police group organized and financed by the right-wing factions of the Peronist government in the mid 1970s to \\jciprod01\productn\H\HLH\33-1\HLH104.txt unknown Seq: 2 14-SEP-20 9:56 174 Harvard Human Rights Journal / Vol. 33 ship that took power in the 1976 Coup.7 Under military rule, being a tar- get of the regime implied disenfranchisement from legal protection8 and subjection to vicious brutality, including kidnapping, torture, the theft of newborns, execution, and cover-ups through “disappearance.”9 The human costs of these atrocities, committed decades ago, are still palpable today. These (long) past episodes of illegal state repression have remained pre- sent in the lives of now-consolidated democracies for another reason as well. As yet, most countries have been unable to hold perpetrators accountable.10 Outgoing authoritarian regimes either forced or negotiated their way to impunity during transitions to democracy, and political conditions adverse to justice and legal obstacles shielded this status quo thereafter.11 Some transitional projects did make attempts to settle accounts; still, these at- tempts were characteristically pursued in limited fashion through selective prosecutions and the imposition of mainly symbolic punishments.12 This widespread phenomenon of post-conflict impunity led the United Nations Secretary-General in 2004 to foresee that: In the end, in post-conflict countries, the vast majority of perpe- trators of serious violations of human rights and international hu- manitarian law will never be tried, whether internationally or domestically.13 Latin America has been one of the main contributors to this state of affairs. Prosecutions were very scarce during democratic transitions, and since then, only a few countries have sought to partially revisit the impunity arrange- exterminate the socialist-leaning factions of its own political movement. Its death-squad killings are portrayed in Academy Award winner for Best Foreign Language Film The Secret in their Eyes (2009). 7. See generally JACOBO TIMERMAN, PRISONER WITHOUT A NAME, CELL WITHOUT A NUMBER (1981); IAIN GUEST, BEHIND THE DISAPPEARANCES (1990). 8. See MARK OSIEL, MASS ATROCITY, ORDINARY EVIL, AND HANNAH ARENDT 71–78 (2001) (ana- lyzing the repressive apparatus and the judiciary’s role). 9. The Argentine dictatorship was sometimes heinously innovative. While other regimes adopted the disappearance to suppress dissent, it was implemented by Argentina “most barbarously.” GEOFFREY ROBERTSON, CRIMES AGAINST HUMANITY 356–58 (2012). Many killings were conducted through shocking “death flights,” in which prisoners were drugged and then thrown, alive, into the sea. See ANTONIUS ROBBEN, ARGENTINA BETRAYED 168–174 (2018). Similarly unprecedented were atrocious instances of newborn identity theft. See infra Section IV.A §1. 10. This is essentially the scenario in Spain, Brazil, Paraguay, etc. Other countries have only sub- jected some perpetrators to trial and punishment. 11. The retributive-justice “score” of several democratic transitions suggests a pattern. Justice ef- forts were basically absent in transitions negotiated between outgoing and incoming regimes and were only present in the handful of transitions that followed the downfall of authoritarian rule (as it was in the case of Argentina, after the Malvinas/Falkland War defeat). Cf. SAMUEL HUNTINGTON, THE THIRD WAVE 211–231 (1991). 12. See JON ELSTER, CLOSING THE BOOKS: TRANSITIONAL JUSTICE IN HISTORICAL PERSPECTIVE 211–15 (2004); LARRY MAY, CRIMES AGAINST HUMANITY 211–16 (2005). 13. U.N. Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies: Rep. of the Secretary-General, ¶46, U.N. Doc. S/2004/616 (August 23, 2004). \\jciprod01\productn\H\HLH\33-1\HLH104.txt unknown Seq: 3 14-SEP-20 9:56 2020 / Impunity Reconsidered 175 ment.14 However, this region is also home to the one worldwide exception that has disproved the Secretary-General’s pessimism. Over the past fifteen years, Argentina has been conducting a remarkable wave of trials to settle accounts for violations of human rights at the hands of the dictatorships that ruled the country back in the 1970s and early 1980s. This justice enterprise breaks with standard expectations. Neither the fact that the crimes had been perpetrated decades earlier nor the advanced ages of many defendants seems to have made a difference. Instead of being selective, the prosecutions in Argentina have been extremely thorough.15 The indict- ments have reached about 3,000 suspects—many of whom were immedi- ately placed in preventive detention—and most have been (and are still being) tried with notably high conviction rates.16 Furthermore, rather than being merely symbolic, the punishments imposed have been quite severe. Most perpetrators have received lengthy prison sentences, and they are spe- cifically denied common benefits like house arrest.17 This latest wave of trials has reasserted Argentina’s status as the “global leader” in accountability for human rights violations.18 Not once but twice in recent history have Argentine justice policies ended up being influential internationally. The country first pursued justice for its last dictatorship’s crimes immediately after transitioning into a democracy in the mid-1980s, a time when most inaugural democratic governments turned their backs on similar atrocities.19 This courageous pursuit created a powerful global pre- cedent. As Owen Fiss notes, although the prosecutions fundamentally con- cerned Argentine criminal law, their framing as a “human rights” matter “enabled them to transcend the limitations of the local culture to which they belonged.”20 The intellectual interest this justice endeavor attracted 14. For a thorough review, see generally TRANSITIONAL JUSTICE IN LATIN AMERICA: THE UNEVEN ROAD FROM IMPUNITY TOWARDS ACCOUNTABILITY (Elin Skaar, Jemima Garc´ıa-Godos, & Cath Collins eds., 2016); Naomi Roth-Arriaza, After Amnesties are Gone: Latin American National Courts and the New Contours of the Fight Against Impunity, 37 HUM. RTS. Q. 342 (2015). 15. For a detailed account of the rationale determining who is to get indicted, see infra notes 263–276, 349–351 and accompanying text. 16. Official data on suspects who have heard a verdict by March 2018 allow for some rough calcula- tions. Approximately 80% of the suspects who have had an investigation against them completed have been put on trial (the remaining had pre-trial acquittals). The conviction rate on trial stands at approxi- mately 90%. See PROCURADURIA´ DE CRIMENES´ CONTRA LA HUMANIDAD, INFORME ESTADISTICO´ SOBRE EL ESTADO DE LAS CAUSAS POR DELITOS