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The Making of Human Rights Policy in Argentina: the Impact of Ideas and Interests on a Legal Conflict*

Published online by Cambridge University Press:  05 February 2009

Mark Osiel
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Extract

The walls of downtown Buenos Aires displayed a new and haunting image in the weeks before the inauguration of President Raúl Alfonsín in December, 1983: black, outlined silhouettes of human beings, each accompanied by a name. The ghost-like figures represented those who had ‘disappeared’ in the military's proclaimed ‘war against subversion’. They testified silently but eloquently to the memory of the victims of that experience in the thoughts of many Argentines, and foreshadowed what was to become one of the most vexing political problems for the new civilian government. Among the many difficulties bequeathed to President Alfonsín by the military juntas who ruled Argentina for the eight preceding years, first among these in ethical exigency was the question of what to do concerning los desaparecidos.

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Articles
Information
Journal of Latin American Studies , Volume 18 , Issue 1 , May 1986 , pp. 135 - 180
Copyright
Copyright © Cambridge University Press 1986

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References

1 Scholarly interpretations of the breakdown of the military regime and the transition to democracy include Pion-Berlin, David, ‘The Fall of Military Rule in Argentina, 1976–83’, Journal of Inter-American Studies and World Affairs, vol. 27, no. 2 (summer 1985)CrossRefGoogle Scholar; Dabat, Alejandro and Lorenzano, Luis, Argentina: The Malvinas and the End of Military Rule (London, 1983)Google Scholar; Corradi, Juan, The Fitful Republic (Boulder, Colorado, 1985), pp. 135–52Google Scholar. Beltrán, Virgilio, ‘La Transición Política en la Argentina (1982–5), I Congreso Iberoamericano da Sociología Militar (Madrid, 10. 1985Google Scholar);Fontana, Andrés, Fuerzas Armadas, Partidos Polítcos y Transición Democrática en la Argentina (Buenos Aires, 1984)Google Scholar. Theoretical reflection on democratic transition in comparative perspective may be found in Remmer, Karen, ‘Redemocratization and the Impact of Authoritarian Rule in Latin America’, Comparative Politics, vol. 17, no. 3 (04, 1985), pp. 253–75CrossRefGoogle Scholar; also O'Donnell, Guillermo and Schmitter, Philippe, Political Life After Authoritarian Rule: Tentative Conclusions about Uncertain Transitions (forthcoming).Google Scholar

2 Discursos Presidenciales (Buenos Aires, 1984), speech of 13 Dec, pp. 57–61. The executive decrees promulgated the same day are Decree No. 187/83, ordering arrest and trial of the juntas, and Decree No. 187/83, establishing the special investigatory commission.

3 This method, originating in the German idealism of Dilthey, found its way into sociology through the work of Max Weber, in both his methodological and empirical writings. See especially, The Methodology of the Social Sciences (Glencoe, Ill., 1949), pp. 50–112.Google Scholar The epistemological problems posed by this method, and the possibilities of resolving them, have been the subject of considerable discussion, within which the most significant contributions include Ricoeur, Paul, Hermeneutics and the Human Sciences (Cambridge, 1982)Google Scholar; Schutz, Alfred, The Phenomenology of the Social World (Evanston, Ill., 1967)Google Scholar; Berger, Peter, The Social Construction of Reality (New York, 1966)Google Scholar; and Geertz, Clifford, The Interpretation of Cultures (New York, 1973).Google Scholar A recent application by Geertz of this method to the realm of law is ‘Local Knowledge: Fact and Law in Comparative Perspective’, in Local Knowledge (New York, 1983).Google Scholar

4 For the best contemporary attempts at definition of this concept, see Hayek, Friedrich, The Political Ideal of the Rule of Law (Chicago, 1955)Google Scholar; Rawls, John, A Theory of Justice (Cambridge, 1971), pp. 235–43Google Scholar; Raz, Joseph, The Authority of Law (Cambridge, 1979)Google Scholar, chap. 11; and Unger, Roberto, Law in Modern Society (New York, 1976), pp. 47–58, 66–86.Google Scholar

5 The finest work on the use of the courts for partisan purposes remains that of Kirchheimer, Otto, Political Justice (New York, 1961).Google Scholar

6 There are both similarities and differences between the Buenos Aires trial and those of Greek junta members and other Greek military officers from 1975 to 1978, as well as the trials at Nuremberg and Tokyo following the Second World War. Contrasts and comparisons in this regard are too important to be examined in a perfunctory fashion, and hence will not be discussed here at all. It is necessary to note, however, that Argentine lawyers of all political complexions, as well as several of the journalists who followed the case with special care, have been intensely aware of these historical antecedents, mentioning them with some regularity in conversation and in print. It must also be said that due to a still-pervasive nationalism within Argentine society, it has remained politically inadvisable for the President or government prosecutor to cite foreign authorities in public defense of the trial.

7 On the selection of victims, see Nunca Más: Informe de la Comisión Nacional Sobre la Desaparición de Personas (Buenos Aires, 1984), pp. 293–390. This report of the President's special commission, discussed at later points in this study, is the authority for all factual information here presented, unless additional citation is made to indicate otherwise. The report is soon to appear in English translation, with a preface by Susan Sontag. In Argentina it has sold over 60,000 copies.

8 On the guerrilla movements and their place in recent Argentine history, see Gillespie, Richard, Soldiers of Perón: Argentina's Montoneros (Oxford, 1982)Google Scholar; Hodges, Donald, Argentina, 1943–76: The National Revolution and Resistance (Albuquerque, 1976)Google Scholar; Russell, C. A., Schenkel, J. F., Miller, J. A., ‘Urban Guerrillas in Argentina: A Select Bibliography’, Latin American Research Review, vol. 9, no. 3 (06 1975)Google Scholar; James, D., ‘The Peronist Left, 1955–75’, Journal of Latin American Studies, vol. 8, part 2, (11. 1976), pp. 273–96CrossRefGoogle Scholar; Waldmann, Peter, ‘Anomía Social y Violencia’, in Rouquié, Alain, ed., Argentina, Hoy (Buenos Aires, 1982)Google Scholar; accounts by former members or sympathizers include Enrique Gorriarán, , Democracia y Liberación (Buenos Aires, 1985)Google Scholar; Giussani, Pablo, Montoneros: La Soberbia Armada (Buenos Aires, 1984)Google Scholar; Brocato, Carlos A., La Argentina Que Quisieron (Buenos Aires, 1985)Google Scholar; Bonasso, Miguel, Recuerdo de La Muerte (Buenos Aires, 1984).Google Scholar

9 Nunca Más, op. cit., pp. 299–322; the effort to locate and identify children whose parents were killed by the armed forces, and to return them to grandparents or other relatives, has been a major concern of the government's newly created Secretary for Human Rights, as well as of one of the human rights groups, composed of such grandparents. On the experience of disappeared children, see Nosiglia, Julio E., Botín de Guerra (Buenos Aires, 1985)Google Scholar: on the psychological trauma of children and other family members of the disappeared, see the published report of the Asamblea Permanente por Los Derechos Humanos, ‘Effectos de la Represión: la dimensión de lo psíquico’, 29 Sept., 1984.

10 The degree of civilian complicity in the coup, in the military regime, and in the disappearances is, without doubt, the most emotionally charged issue in contemporary Argentine politics. It is not my intention here to assess the extent of such civilian involvement or its political significance in facilitating the coup or in maintaining the regime. Many serious allegations, however, have recently been made against individual leaders of the groups here mentioned. Although only the most uncompromising human rights leaders would wish to prosecute such people criminally, a much larger number of Argentines (across the political spectrum) believed such allegations to be pertinent in assessing the relative degree of culpability that could fairly be assigned to the juntas, and hence the severity of punishment to be imposed upon them. Examples of such accusations against civilian figures, naming names, may be found in abundance in any issue of the Madres de La Plaza de Mayo. See, for instance, on union leaders, 2 Jan., 1985, p. 3; on the Catholic Church, La Razón, 1 Aug., 1985, p. 10; on press collaboration in systematic ‘disinformation’ see La Voz, 25 July, 1985, p. 11; as to the blindness of Jewish leadership to anti-semitism within the officer corps, the allegations of Timerman, Jacobo in Preso Sin Nombre, Celda Sin Número (Buenos Aires, 1982)Google Scholar, have been substantially confirmed by subsequent evidence in Nunca Más, op. cit., pp. 69–74, trial testimony of several witnesses, and by Rabbi Plavnik, of synagogue Beth-El, describing a number of experiences privately reported to him by members of his congregation. Interview, June 1985, Buenos Aires.

11 In its published form, Nunca Más provides very little information concerning the internal organization of the anti-subversive apparatus, due to the limited scope of the tasks assigned to it by the President. Although some such information has appeared in journalistic accounts, the reliability of these sources is often highly questionable. See, e.g. El Periodista, 24 May, 1985, pp. 9–13; In addition to these reports, I have relied on an interview with a confidential source close to the Presidential Commission's staff.

12 Interview with Eduardo Rabossi, Secretary for Human Rights, July 1985, Buenos Aires; on the chain of command within one major detention center, ‘El Vesubio’, see La Razón, 16 July, p. 15.

13 The initial decision to set up a clandestine anti-subversive apparatus along the lines later implemented is thought to have involved a group of generals and admirals numbering between 12 and 20, in the opinion of Ernesto López, a sociologist specializing in the Argentine military, and founding member of the Centra de Militares por la Democracia en Argentina, a pro-democratic group of retired military officers. Interview, July 1985, Buenos Aires.

14 Nunca Mas, 15–77.

15 This estimate was offered by several staff assistants to Jaime Malamud Goti, Legal Adviser to the President, August 1985, Buenos Aires.

16 Nunca Más, pp. 282–92; the story of Raúl Guglielminetti is particularly notorious in this regard. Gente, 27 June, 1985, pp. 4–13; La Razón, 27 June, 1985, p. 10.

17 Interview with Malamud Goti, July 1985, Buenos Aires.

18 Such demonstrations regularly drew as many as 70,000 supporters in 1984 and 1985; the role of the exile community in publicising the disappearances abroad and in preserving evidence of human rights violations during the years of military rule was also significant. See, e.g., that reported in El Periodista, 26 April, 1985, pp. 10–11.

19 The best indicator of their lack of influence is the fact that whenever there has been any disagreement between them and the President over a point of human rights policy, the President has never had any difficulty doing as he pleased. The President's pollster, Edgardo Catterberg, revealed to an American journalist early in 1985 that public interest in the human rights abuses of the prior regime had fallen considerably since the 1983 election, when this issue is thought to have been significant in Alfonsín's electoral victory. Foster, Douglass, ‘The Terror’, Mother Jones (02./03 1985), pp. 25–53Google Scholar. On the other hand, the trial undoubtedly reawakened flagging interest. The best indication of this is that the largest-selling publication in the country during the trial, averaging 200,000 copies in street sales per week, was the Diario del juicio, 90 per cent of the pages of which consisted of nothing but edited transcript of trial testimony. Information provided by Emilio Mignone, Interview, July 1985, Buenos Aires. According to a November poll published in the Diario del juicio, some 80 per cent of Buenos Aires supported the trial, while only 9 per cent opposed it. Moreover, there remains an important avenue by which the human rights community with influence events; the law of criminal procedure allows private citizens, as querellantes, to initiate criminal proceedings on their own, requiring the government prosecutor to join. Civil actions based on claims of wrongful death have also been initiated by attorneys in the human rights community.

20 It would be mistaken to view the human rights organizations as engaged in ‘single-issue’ politics. The range of their concerns was far too wide to merit this designation. In the name of ‘human rights’, these groups constructed the rudiments of an entire political program, including a foreign policy and an economic policy.

21 Some observers have seen in the occurrence of the trial evidence of a total loss of control by the military over the transition to democracy. Viola, Eduardo and Mainwaring, Scot, ‘Transitions to Democracy: Brazil and Argentina in the 1980s’, Journal of International Affairs (Spring 1985), pp. 193–219Google Scholar. But it is likely that whatever control the military retained after the Malvinas/Falklands fiasco was squandered by its leaders' poor judgment, and that the trial should not be seen as the inevitable result of forces already beyond military control from an early point. As the final junta contemplated the possibility of a rapid return to civilian rule, it may simply have miscalculated which political party would win a possible election. The Peronists had won every free and open election for President since 1943, and had given the military to understand that the past would be buried along with its victims. The amnesty decree was issued 22 Sept., 1983; see Law 22.924, Ley de Pacificación Nacional. It was rejected by the newly elected Congress on 27 Dec; see Law 23.040. A scholarly defense of the constitutionality of the Congressional action in Maier, Julio, ‘Amnistía, Vigencia del Derecho, y la Ley Más Benigna’, Revista Doctrina Penal, Buenos Aires, año 6, no. 24 (10.–12. 1983), p. 679Google Scholar. The final report of the military government, justifying its rule, was issued 28 April, 1985. The report is printed in El Bimestre Político y Económico (March–April 1983), pp. 86–100.

22 The trial of the juntas succeeded in making public some information concerning the close relations between Peronist union leaders and the military regime. The testimony of such leaders as to their ignorance of disappearances of union militants promptly led to allegations of perjury against them. La Voz, 20 June, 1985, p. 12; Nueva Presencia, 21 June, 1985, p. 2. The revelation of this information on collaboration evoked not a word of criticism from others in Peronist leadership. It is also true, however, that the Peronists claimed to have lost more members through disappearance than any other group.

23 The Peronist candidate for Vice President in 1983, Deolindo Bittel, revealed to a group of Spanish journalists, at a private gathering to honor King Juan Carlos during a recent visit to Argentina, that he believed ‘subversion’ to have been so pervasive in the mid–1970s that the military had been justified in its treatment of the problem. The Peronist union federation, the C.G.T., declined the invitation to march in a large rally to express public support for the trial, on the day preceding its start. It was one of the few organizations so invited to refuse.

24 Orders were given orally in most cases, requiring the cooperative testimony of junior officers who are constitutionally entitled to the right against self-incrimination. Written orders were either unsigned or couched so vaguely as to communicate their true intent only by ‘subliminal intimation’, according to Malamud Goti. Official statements during military rule denied any illegality. Before Alfonsín's election, the Federal Police destroyed all files on anti-subversive operations, as internal telegrams confirm. Kidnappers drove unmarked cars; torturers wore no uniforms and employed pseudonyms; victims were kept blindfolded; detention centers were often established on private rather than public property. Moreover, repeated experience with military rule has instilled an endemic fear that deterred unknown numbers of Argentines from reporting the disappearance of loved ones. (The figure of 30,000, however, is now acknowledged by serious observers, even within the human rights organizations, to have been greatly exaggerated. Most now put the estimated total at a maximum of 12,000. Certain of the most strident human rights leaders continue to insist upon the larger number, having turned it from a statistical estimate into a political slogan.) Several who summoned the courage to testify at trial received death threats. See La Razón, 21 June, 1985, p. 10; La Razón, 13 July, 1985, p. 8.

25 On the effort to exhume and identify bodies discovered in mass graves, see the trial testimony of Erik Stover, President of the American Association for the Advancement of Science, and Clyde Snow, a forensic specialist, 22–4 April, 1985. For an edited transcript, see Diario de Juicio, 27 May, 1985.

26 This list was not publicly released by the Presidential Commission, contrary to the desire of some of its members and of the human rights organizations, but it was soon leaked to the press, which published it in full. A second list of 896 military and police officials was compiled by the human rights organizations themselves, and presented to the executive.

27 The jurisdictional question – which court should hear such trials – was the most immediate and therefore most debated legal question of the President's first year in office. This detailed constitutional debate cannot be discussed here in depth. The President's compromise between, and combination of military and civilian jurisdiction was held to be constitutional by the Argentine Supreme Court in the Bignone case (1984–C La Ley 258) and in the Videla case (C. no. 389xx, slip opinion p. 39 Dec. 27, 1984, J. Caballero concurring). For the government's legal position, see the article by the Argentine Attorney General (Procurador General), Diario del Juicio, 11 June, 1985, p. 2; see also the analysis of a renowned constitutional scholar, Campos, German J. Bidart, Los Tribunales Militares y La Constitución (Buenos Aires, 1985)Google Scholar; Professor Bidart Campos also elaborated his views in an interview with the author, July 1985, Buenos Aires; several articles on the subject have also appeared in recent issues of the Revista Argentina de Derecbo Militar, Buenos Aires, 1983–5; the position of the human rights organizations on jurisdictional matters, which the Supreme Court rejected, is elaborated in Mignone, Emilio, Estlund, Cynthia, and Issacharoff, Samuel, ‘Dictatorship on Trial: Prosecution of Human Rights Violations in Argentina’, Yale Journal of International Law, vol. 10 (Fall 1984), pp. 118–50.Google Scholar

28 Constitución de la Nación Argentina, Article 86, section 15a (Buenos Aires, 1978).

29 Anales de Legislación Argentina, t. 1984, ley 23,049; the legislative history may be found in the Diario de Sesiones de la Cámara de Senadores de la Nación, special session, 31 Jan.– 1 Feb., 1984, and Diario de Sesiones de la Cámara de Diputados de la Nación, special session 9 Feb., 1984; this statutory reform was a modification of the existing Code of Military Justice, Anales de Legislación Argentina, t. XI–A, 1951, ley 14,029.

30 The military court was the Consejo Supremo de las Fuerzas Armadas; it dismissed all charges against the junta members. The civilian court was the Cámara Nacional de Apelaciones en lo Criminal y Correccional.

31 Criminal liability for those who gave unlawful orders or exceeded otherwise lawful ones derives from the 1951 Code of Military Justice, op. cit., Article 514. The ‘atrocity’ provision was added by the 1984 Reform of the Code. The government argues that this statutory modification poses no problem of ex post facto, despite first appearances to the contrary. The atrocity exception to the defense of ‘following orders’ has a firm foundation in Argentine jurisprudence, deriving from Roman and Canon law, and is reflected in contemporary scholar by interpretation. However, there have been very few cases in which Article 514 has been applied, and there is only one case that is reasonably on point to support the government's view that the ‘manifest illegality’ exception has always been implicit in Argentine law. The issue will be resolved by the Supreme Court when and if cases against junior officers are appealed to it on this constitutional ground. On the ‘following orders’ defense in Argentine law (Article 34, section 5 of the Código Penal), see Fierro, Guillermo J., La Obediencia Debida en el Ambito Penal y Militar (Buenos Aires, 1984)Google Scholar; on the atrocity exception and its longstanding recognition, pp. 139–41.

32 Anales de Legislación Argentina, t. 1984, ley 23,049, 1984, Article 11.

33 Due to the ample support for this view in the national and international legal literature, even conservative lawyers within the Argentine military are apparently prepared to concede this point. Interview with Lieutenant Colonel Santiago Mario Sinopoli, Buenos Aires, July 1985. For observations of Chief Prosecutor Julio Strassera on this issue, see La Prensa, 18 March, 1985, p. 10.

34 Interview with Malamud Goti, Buenos Aires, July 1985.

35 There has been no agency or organization, public or private, to gather information of this sort on a systematic, nationwide basis. The figures offered here were the estimate of Mignone, Emilio, Director of the Centro de Estudios Legales y Sociales, Interview, 08. 1985, Buenos Aires.Google Scholar

36 The trial of the juntas included indictments for senior crimes against 709 individuals. These cases were selected by the prosecution to cover the variety of victims from different sectors of society, the most important detention centers throughout the country, the periods during which each of the juntas held office, and all three of the armed services.

37 Decree No. 157/83, ordering the capture and trial of suspected leaders of the Montonero guerrilla movement, was issued at the same time as those ordering prosecution of the juntas and the creation of the investigatory commission. On the prosecution of the guerrillas, see La Nación, 6 June, p.16; La Razón, 26 July, 1985, p. 14.

38 See his speech to the Senate in support for the Reform of the Code of Military Justice. Diario de Sesiones de la Cámara de Diputados de la Nación, op. cit., p. 423. All information presented here concerning Presidential intentions and deliberations on human rights policy, unless otherwise indicated, come from four interviews with Malamud Goti and two with Rabossi, June–Aug., 1985, Buenos Aires.

39 Prosecutor Strassera repeated this distinction in virtually every interview before and during the trial. See, e.g. La Razón, 29 June, 1985, p. 15; Siete Dias, 1 Aug., p. 64–9. He often went so far as to say that the trial involved an effort to defend the good name of the armed forces no less than that of the disappeared, e.g., La Prensa, 15 July, 1985, p. 10.

40 Alfonsín's own Party, however, did not stand entirely behind him on this issue. The Senate, in which the U.C.R. did not have a majority, voted in July to obstruct the promotion of two officers on account of allegations against them. Tampering by civilian politicians in military promotions was an important cause for the 1930 coup that displaced an earlier U.C.R. government, that of Hipólito Yrigóyen. See Loveman, Brian and Davies, Thomas, The Politics of Anti-Politics (Lincoln, Neb., 1978), pp. 92–4.Google Scholar On the controversy over recent promotions, see La Razón, 21 June, p. 11; La Voz., 3 July. 1985, pp. 8 and 14.

41 Diario de Sesiones…, op. cit., p. 38. It went unnoticed that Alfonsín's legal advisers, despite their public efforts to defend the President's views, had already gone on record in their scholarly writings as subscribing to more Kantian, retributive views of punishment, views that would have put them closer to the position of the human rights groups, discussed below. See Nino, Carlos Santiago, Los Límites de la Responsabilidad Penal (Buenos Aires, 1981)Google Scholar; also his & Eacute;tica y Derechos Humanos (Buenos Aires, 1984); Rabossi, Eduardo, La Justificación Moral del Castigo (Buenos Aires, 1976)Google Scholar. While this discrepancy between published views and public advocacy might seem to suggest the primacy of prudential over normative considerations, it is, nevertheless, an indication of the seriousness with which the President and his advisers took the normative concerns that they invited a handful of the world's most renowned moral and legal philosophers to participate in a series of private discussions in June on human rights policy. These discussions addressed such questions as whom to prosecute and for what offenses.

42 On the difficulties of the average citizen or soldier in identifying a ‘manifestly illegal’ command, when a entire regime is permeated at all levels by officially-sponsored crime, see Arendt, , Eichmann in Jerusalem (N.Y., 1962), pp. 129–34Google Scholar; also Dinstein, Yoram, The ‘Superiors' Orders’ Defense in International Law (The Hague, 1975), pp. 36–38.Google Scholar

43 Treatment of insubordination and disobedience by the Code of Military Justice is severe, but there were no known cases of an officer who refused to comply with criminal orders during the anti-subversive campaign. Thirty-three officers were discharged in 1980 for ‘not sharing the philosophy’ of the armed forces; some of these had expressed criticisms of the anti-subversive campaign to fellow officers, but most had done no more than display support for the Peronist Left in the years before the 1976 coup. Interview with retired Colonel Horacio Ballestar, President of Centro de Militares por la Democracia en Argentina, July 1985, Buenos Aires; on military discipline and criminal liability for disobedience, see Muñoz, Ildefonsa Martínez, Derecho Militar y Derecho Disciplinario Militar, Buenos Aires, 1977,Google Scholar esp. pp. 251–65.

44 The President's argument that the crimes of the subordinates, committed under duress or induced by deception, were insusceptible to deterrence, might have had some merit. But the implication that their superiors were more susceptible to deterrence, and the corresponding distinction in the government's treatment of the two, was probably misconceived. There is a type of military coup, to be sure, in which plotting officers merely wish to restore order, and promptly return to the barracks. The deterrent effect of a subsequent trial might be expected to give second thoughts to officers who do not plan a lifelong stay in office for themselves or their appointed successors. But this is not the variety of coup that has generally caused large numbers of human rights abuses. There is another type of coup, impelled by an intense ideological commitment on the part of its leaders to transforming existing political institutions and ideals, thus presupposing a longer stay in power. This is the variety of coup that has always taken the worst toll in lives and liberties. It is difficult to see why plotting officers so earnestly and dogmatically committed to their purposes, confidently assuming lifelong stays in power, should prove more susceptible to deterrence than their indifferent or apathetic subordinates. Even if the trial of the juntas proves successful in deterring human rights abuses, such abuses are not the only occurrences likely to be deterred. Military governments that have permitted such offenses in the past, but are contemplating a transition to civilian rule, might easily be deterred from so doing by the prospect of being subjected to criminal prosecution in the future. This prospect was especially troubling to Chilean opposition leaders, as the author learned in interviews with them in December 1983.

45 Argentine law, like that of most Western societies, allows liability for failing to intervene to prevent harm, provided that the defendant was forewarned of such a duty and had the capacity to exercise it successfully without incurring serious risk to himself. See Balestra, Carlos Fontán, Derecho Penal: Introducción y Parte General (Buenos Aires, 1974), pp. 207–21.Google Scholar

46 On ‘complicity’ in Argentine law, see Fierro, Guillermo, Teoría de la Participación Criminal (Buenos Aires, 1964), pp. 279–306Google Scholar; Fontán Balestra, op. cit., pp. 452–61; Lomas, Roberto Terán, Derecbo Penal: Parte General (Buenos Aires, 1980), t. 2, pp. 157–8Google Scholar; Núñez, , Manual de Derecbo Penal: Parte General (Buenos Aires, 1975), pp. 288–91Google Scholar. The form of complicity at issue here would be aiding and abetting. This is a basis of liability distinct from commission by omission.

47 The capacity of international actors to influence the human rights practices of sovereign nation-states is a matter of some scholarly dispute. See, e.g. Vogelsang, Sandy, American Dream/Global Nightmare: the Dilemma of U.S. Human Rights Policy (New York, 1980)Google Scholar; Schoultz, Lars, Human Rights and United States Policy toward Latin America (Princeton, 1981)CrossRefGoogle Scholar; Hoffman, Stanley, Duties Beyond Borders (Syracuse, 1981)Google Scholar, esp. pp. 95–140.

48 Liability of military officers in this regard would be based on Article 227 of the Código Penal, dealing with concealment of evidence of a crime by one possessing a duty to report it.

49 The scenarìo for a future coup suggested by most observers supposed a significant increase in labor unrest, growing in response to economic austerity measures imposed by the President, acting under pressure from the International Monetary Fund. Because civilian support for military intervention has been important to every prior coup, there was considerable significance in the fact that civilian political leadership did not stand uniformly behind the trials, not only right-wing Peronist circles but also the growing Unión Centro Democrático, led by Alvaro Alsogaray.

50 On the ‘criminal organization’ indictment at Nuremberg, see Woetzel, Robert, The Nuremberg Trials in International Law (London, 1962), pp. 190–217Google Scholar. The use of this device in the Nicaraguan cases differed importantly from its use in the postwar German trials, where greater efforts were taken to ensure that individual members of the organizations in question had directly taken part in criminal acts beyond mere membership.

51 This, at any rate, was the scenario hopefully contemplated at the outset by the President and his advisers. The passage of time would soon reveal their error of political analysis, an error which Malamud Goti conceded. Interview, July 1985. The reason for the unity maintained by the armed forces in opposition to the trial of the juntas lies in their conceptual world, described in the next section.

In late June, Malamud Goti was estimating the number of convictions of military officers, anticipated in the next few years, at between 150 and 200. By mid-July his estimate had dropped to 80, and appeared to be falling fast. The diminution stemmed from a reluctant recognition that the officer corps was successfully maintaining its unified opposition to the trial of the juntas, and that junior officers would prove unwilling to testify against their superiors even upon threat of prison for noncooperation. The threat of being forced to provide such testimony was arousing great anxiety within the ranks at this point in the trial, according to press accounts (e.g. La Nación, 19 July, p. 4). As the law stood, an officer who had engaged in criminal conduct had to reveal in court the commands he had received from superiors, and the name of the superior from whom he had received them, if he hoped to invoke the ‘following orders’ defense. Thus, junior officers faced a difficult choice between loyalty to their superiors and self-preservation. That the rising level of collective anxiety posed a threat of uncertain proportions to the survival of the constitutional regime went without saying. To assuage such anxieties, the President apparently decided in these weeks not to force junior officers to choose between revealing their orders or going to jail. Such officers would not be subpoened to provide evidence against their peers, on pain of being cited for contempt. Evidence against military defendants would consequently have to come almost exclusively from survivors of the illegal detention centers, a group numbering around 1,000. Malamud Goti claimed that most of the officers who would go free as a result of this Presidential decision were not among those who had held high-ranking positions (and had given orders), but from those who had followed orders to commit atrocities (i.e., the torturers).

52 These doubts, stemming from fears of a future amnesty covering both guerrillas and military offenders, are discussed at a later point. An example of this ubiquitous accusation may be found in the comments of Nobel Peace Prize winner Esquivel, Adolfo Pérez in La Voz, 15 06, 1985, p. 17.Google Scholar

53 For a center–right perspective, apportioning considerable responsibility to civilians, but refusing to absolve the armed forces on these grounds, see Lynch, Horacio and Carril, Enrique V. del, Definitivamente Nunca Más: La Otra Cara del Informe CONADEP (Buenos Aires, 1985)Google Scholar; Mr Lynch also elaborated his views on this matter in an interview with the author, July 1985, Buenos Aires.

54 Alfonsín's most recent expression of this view, at the time of this writing, appeared in a July address to the armed forces, during which he traced the rise of guerrilla movements and the excesses of the anti-subversive campaign to a common origin in a lack of respect for law and lawful means of political contest (‘una falta de juricidad’), La Razón, 10 07, 1985, p. 10Google Scholar; the President's view appears repeatedly in the speeches gathered in Discursos Presidenciales (Buenos Aires, 1985); see also his book, La Cuestión Argentina (Buenos Aires, 1981). For similar views, within Argentine scholarship and intellectual journalism, see Timerman, Jacobo, La Razón, 7 07, p. 12Google Scholar; Giussani, Pablo, ‘La Fábula del Viejo León y el Zorrino’, La Razón, 9 06, p. 12Google Scholar, and his book on the Montoneros, op. cit.; Cavarozzi, Marcelo, Autoritarismo y Democracia, 1955–83 (Buenos Aires, 1983)Google Scholar; Viola, Eduardo, ‘Autoritarismo e Democracia na Argentina Contemporanea’. Ph.D. Dissertation, University of São Paulo, 1982Google Scholar; Aftalión, M. E., Mora, M. A.Araujo, , and Noguera, F. A., i Qué Nos Pasa A Los Argentinos? (Buenos Aires, 1985)Google Scholar; and a recent address by Rabossi on the dogmatic mentality in Argentine politics.

55 Luis Moreno Ocampo, Assistant Prosecutor in the trial of the juntas, expressed an identical view. See La Razón, 25 June, 1985, p. 9. For a perceptive analysis of this view, mostly sympathetic but partly critical, see the observations of Cavarozzi, Marcelo, in Los Derecbos Humanos en La Democracia (Buenos Aires, 1985), pp. 15–8.Google Scholar

56 Scholarly research viewing guerrilla activity as a significant cause of the coup, and hence as bearing significant responsibility for its consequences, includes the work of Viola, op. cit.; Cavarozzi, op. cit.; Giussani, op. cit.; for a review of the historical literature on this question, see Mainwaring, Scott, ‘Authoritarianism and Democracy in Argentina’, Journal of Inter-American Studies and World Affairs, vol. 26, no. 5 (08. 1984), pp. 415–31.CrossRefGoogle Scholar

57 On the legal approach favored by the human rights community, see Mignone, Estlund, and Issacharoff, op. cit.; and McDonald, Augusto Conte, ‘Justicia Militar y Obedencia Debida’, Revista Pazy Justicia (03 1984)Google Scholar; a revealing reflection on the relation between legal strategy and political analysis in the human rights community is available in Emilio Mignone, ‘Transition Democrática y Derechos Humanos’published manuscript, 1984; see also Madres e la Plaz de Mayo, July 1985, p. 165; interview with de Bonafina, Hebe, Clarín, 17 07, 1985, pp. 16–21Google Scholar. Information in this section derives principally from interviews with Emilio Mignone and Julio Raffo, of the Centro de Estudios Legales y Sociales; Simón Lázara, Raúl Aragón, and Alberto Pedroncini, of the Asamblea Permanente Por Los Derechos Humanos; Marcelo Palermo and Juan Carlos, of the Servicio de Pazy Justicia; Herbert Schiller, editor of Nueva Presencia; Rabbi Boris Plavnik, of Synagogue Beth El and the Movimiento Judío por Los Derechos Humanos; Hebe de Bonafina and Renée Epplebaum, of the Madres de la Plaza de Mayo. Interviews in June, July, and August, Buenos Aires, 198;. On the history of the Madres, see Bousquet, Jean-Pierre, Las Locas de la Plaza de Mayo (Buenos Aires, 1982).Google Scholar

58 The President and his advisers claimed to be planning a later trial of the first junta for having staged the 1976 coup, but their failure to include such an indictment in the 1985 trial revealed this to be a rather low priority.

59 For the position of the human rights groups on this issue, see La Razón, 28 July, 1985, p. 11; Tiempo Argentino, 19 April, 1985, p. 7; ‘La Verdad Sobre los Presos Políticos’, unpublished, press release of the Servicio de Paz y Justicia, May 1985.

60 This argument was made with special forcefulness by attorney Julio Raffo. Interview, July 1985, Buenos Aires.

61 See, e.g. La Voz, 30 June, 1985, p. 4.

62 On continuing violence by far-right groups, and their apparent links to government security forces, see the list of over 300 incidents in 1984 compiled by the Servicio de Paz y Justicia, ‘Informe Sobre Atentados, Amenazas, Intimidaciones, y Robo de Documentación’, unpublished; also Clarín, 22 June, 1985, p. 2; La Razón, 18 June, 1985, p. 20; La Voz, 25 June, 1985, p. 19; La Razón, 18 July, 1985, p. 2; El Porteño, June 1985, p. 16–20; Madres de la Plaza de Mayo, 7 June, 1985, pp. 2–3. Violence increased significantly in September and October. The refusal of the judiciary to imprison suspected right-wing terrorists prompted Alfonsín to declare a state of siege; see The New York Times, 29 Oct., p. Ai.

63 The term ‘national security’ is not often employed by military officers themselves, being a summary characterization used by others to refer to several interrelated ideas believed to be held by the officer corps. On national security doctrine in Argentina, from the perspective of the human rights groups, see Frontalini, Daniel and Caiati, Maria Cristina, El Mito de la Guerra Sucia (Buenos Aires, 1984)Google Scholar; Duhalde, Eduardo Luis, El Estado Terrorista Argentina (Buenos Aires, 1983)Google Scholar; Lázara, Simón, Seguridad Nacional, Sistema Republicana de Gobierno, y Derechos Humanos (Buenos Aires, 1984)Google Scholar; and the published report of the round-table debate on national security sponsored by the Asamblea Permanente, 4 Dec, 1984; a more scholarly and non-partisan discussion of the same subject may be found in Rouquié, , Poder Militar y Sociedad Política en Argentina, 1943–73 (Buenos Aires, 1982), pp. 249–51.Google Scholar

64 The same could be said of another facet of the ideology prevailing within the officer corps: anti-semitism. The prosecutor failed to pursue periodic suggestions of anti-semitism among the torturers, offered spontaneously at trial by several prosecution witnesses. Since anti-semitism is thought to retain wide appeal within the officer corps and in Argentine society at large, the possible implication that it was on trial would have seriously impaired the government's effort to win public approval for the prosecution of the juntas. The fear that the trial might come to be labelled and discredited as ‘the work of the Jews’ may have restrained the prosecutor from such questions. For speculation on this possibility, see Timerman, Jacobo, La Ratión, 20 07, p. 10Google Scholar. An insightful memoir by a former sympathizer of the far right and recent convert to democracy, exploring the enduring centrality of anti-semitism to Argentine conservatism, is Ruiz de, GabrielLlanos, los, El Anti-Semita (Buenos Aires, 1984).Google Scholar

65 On political wrangling within the United Nations over the inclusion of groups defined by shared political belief within the legal definition of genocide, see Kuper, Leo, Genocide (New Haven, 1982), pp. 24–30.Google Scholar

66 The ‘institutional’ or non-personalist nature of recent military rule in Argentina, Brazil, and Uruguay is a matter on which there is complete consensus in the scholarly literature. For discussion of this matter, and of the Argentine military in general, see O'Donnell, Guillermo, ‘Modernization and Military Coups’, in Lowenthal, Abraham (ed.), Armies and Politics in Latin America (New York, 1976)Google Scholar; Rouquié, op. cit., esp. on factions and ideological divisions within the officer corps, pp. 346–52; Andrés Fontana, op. cit. Potash, Robert, The Army and Politics in Argentina, 1945–62 (Stanford, 1980)Google Scholar; Eduardo Viola, op. cit.; Aguinis, Marcos, Cartas Esperandadas a un General: puente sobre el abismo (Buenos Aires, 1984)Google Scholar; on the legal structure of the military regime, see Snyder, Frederick, ‘State of Siege and the Rule of Law in Argentina’, Lawyer of the Americas, vol. 15, no. 3 (Winter, 1984).Google Scholar

67 Indeed, the terminology of mass production seemed almost irresistible if one wished to make reasoned moral judgments, consistent with the organizational complexities of state-sponsored mass murder.

68 In fact, the official stance of the human rights groups – improbable as it might seem – was that none of the disappeared had been terrorists. They had simply been ‘political opponents’ of the military regime and its economic policies, according to the preferred idiom of the human rights community. For representative statements of this view, see Caballero, Raúl Rabanaque, ‘A Propósito de la Llamada “Guerra Sucia”’, La Voz, 29 06, 1985, p. 11Google Scholar, and the editorial in Madres de la Plaza de Mayo, no. 8, July 1985, pp. 4–5. Although the eight organizations have maintained their unity on this matter in public, there is a measure of private disagreement over whether it would be preferable, on both political and ethical grounds, to admit that some of those who disappeared had committed acts of violence, adding that this fact obviously would not excuse the military's execution of them without trial. The organizations of family members of the disappeared strongly opposed such a public admission, and the other organizations were willing to go along with this position without strenuous objection. As to this silence, Presidential officials and the government prosecutor have accused the human rights community of the same confusion as the officer corps: refusing to admit any distinction between one who threw bombs and one who taught catechism to slum-dwellers. This accusation has elicited vitriolic criticism of the government from these organizations. See the press release of 23 June, 1985, from the Madres de la Plaza de Mayo; limits of space preclude a further analysis of this and other divisions within the human rights community.

69 For more detailed argument about the causal connection alleged to exist between the political and economic ideology of the officer corps, on one hand, and the disappearances, on the other, see Fontalini and Caiati, op. cit.; and Simón Lázara, op. cit.; for criticism of the President's ‘two terrorisms’ thesis, see Camarero, Pedro Cazes, ‘Dos Terrorismos ? Una Mirada Retrospectiva’, La Voz 25 06, 1985, p. 25.Google Scholar

70 See Videla, D. Jorge Rafael, Ante Los Jueces: escritos presentados ante la Cámara Federal y la Corte Suprema de Justicia de la Nación (Buenos Aires, 1984)Google Scholar; observing the ambiguities in the defendants’ response to the charges, El Periodista, 19 April, p. 9; La Nación, 20 Dec. 1984, p. 20.

71 There were periodic reports in the press of a ‘blood pact’ by which junior officers swore to kill any of their number who spoke out publicly against their erstwhile superiors.

72 On this defense within Argentine law, see Carreras, Eduardo Raúl, Las Causas de Justificatión en el Código Penal (Buenos Aires, 1978), pp. 105–10Google Scholar; and Zaffaroni, Raúl Eugenio, Manual de Derecbo Penal (Buenos Aires, 1977), pp. 320–98Google Scholar; Ricardo C. Núñez, op. cit., pp. 192–3; for general background, Vivot, Julio J. Martínez, La Defensa en el Proceso Militar (Buenos Aires, 1980).Google Scholar

73 The prosecution responded with testimony from the Peronist officials who drafted the decree, maintaining that it had been the organizations and operational capacity of the guerrillas that were to be annihilated, not their suspected members. See the testimony, in the first week of the trial, by these former officials, e.g. José Deheza, Defense Minister under the Peronist government and Luder, Italo, Diario del Juicio, 27 05.Google Scholar Moreover, the juntas had overthrown the prior democratic regime and therefore could not plausibly claim to have acted under a belief in the continuing legitimacy of that regime or its decrees.

74 On this defense within Argentine law, see Carreras, op. cit., pp. 18–60; Fontan Balestra, op. cit., pp. 300–9; Núñez, op. cit., pp. 187–8; Zaffaroni, Eugenio, Tratado de Derecho Penal: Parte General, vol. 3, pp. 623–31Google Scholar; Goti, Jaime Malamud, Legítima Defensa y Estado de Necesidad (Buenos Aires, 1977), pp. 51–77.Google Scholar

75 On this defense within Argentine law, see Carreras, op. cit., pp. 61–104; Malamud Goti, op. cit., pp. 15–50; Niño, Carlos Santiago, La Legítima Defensa (Buenos Aires, 1982)Google Scholar; Fontan Balestra, op. cit., pp. 281–300; Nuñez, op. cit., 188–91; Zaffaroni, op. cit., pp. 585–623; both the necessity and self-defense arguments immediately succumb to the ‘proportionality’ exception, well recognized in Argentine criminal law (as in most other Western societies): one cannot employ greater force than absolutely necessary, either to defend oneself or to prevent the ‘greater evil’ to society. See Donna, Edgardo Alberto, El Exceso en las Causas de Justificatión (Buenos Aires, 1985)Google Scholar. The measure of force applied was enormously disproportionate to the severity of the threat posed by the guerrillas.

76 A representative example of this argument is the statement of General Roberto Viola, one of the defendants: ‘In a war it is incorrect to speak of the violation of rights. This terminology is applicable only to times of peace. What nation during war – at any time in human history – can say that it respected human rights totally and absolutely?’ Clarín, March 1981, p. 7; At the time of the conflict between guerrillas and the armed forces, there was no public admission of any such state of war, since this admission would have required acknowledgement of certain rights of prisoners and non-combatants under international law. The Montoneros expressly sought such a declaration of war from the military regime.

77 Such views are voiced with regularity in far-right publications like Cabildo, Digo, Projectión Estratégica. On the admixture of Catholicism and nationalism in the mentality of the officer corps, see Rouquié, Poder Militar…, op. cit., pp. 349–57. An effort to write the history of the period from a far-right perspective is Ancarola, Pedro, La Argentina como Definitión (Buenos Aires, 1983).Google Scholar

78 Prosecutor Strassera periodically observed that the principal objective of the defense attorneys seemed to be to use the public trial less as an opportunity to win acquittal, which they presumably thought to be impossible, than to propagate within public opinion the defendants' favored historical interpretation and moral judgments of the period. Interview with Strassera, Diario del Juicio, 2 July, unpaginated. For other speculation concerning the legal strategy of the defense, see La Voz, 15 June, 1985, p. 9; La Razón, 12 June, 1985, p. 15; La Razpón, 10 June 1985, p. 14. Only defendant Omar Domingo Graffigna adopted the strategy of ascribing greater power and control over the anti-subversive campaign to other junta members, seeking to diminish his contribution relative to theirs.

79 There was pervasive sympathy with these efforts in the officer corps, according to all reports. For instance, General Rios Ereñu, Chief of Staff, described the trial, before the court's judgment, as ‘a political act, merely consecrated by a judicial one’. See, La Razón, 27 June, 1985, p. 1. Similar public comments by other officers appear in La Semana, 28 Aug., 1985, unpaginated.

80 The Court rejected a request to add a number of prosecution witnesses, proposed by Strassera late in the trial, and at one point reprimanded him for laughing aloud in reaction to a defense attorney's question. La Razón, 14 June, 1985, p. 12.

81 The President would have been willing to settle for sentences as short as 7 or 8 years for the junta members from the Consejo Supremo, without insisting on appeal to the Camara Federal, whose civilian judges were likely to issue much longer sentences. Interview with Rabossi, July 1985, Buenos Aires.

82 This analysis of the motivation of the Consejo Supremo was suggested by Rabossi, interview, Buenos Aires, July 1985.

83 There were occasional suggestions in the conservative press, principally in La Nación, that Alfonsín and Strassera were seeking to accelerate the pace of the trial to ensure that the judgment would be handed down before the November 1985 Congressional elections, so as to reap a political harvest from the anticipated conviction. Such acceleration had occurred at the expense of the defendants' right to a fair trial, the editors implied. This was the very newspaper whose initial response, upon learning that the trial would last several months, was to criticize the government for requiring the Court to dwell at such length on the ‘irretrievable past’. Similar charges against Alfonsín, for using the trial to advance his political fortunes and those of his Party, have been levelled by certain Peronists. See the particularly vituperative attack in La Línea, May 1985, pp. 8–9.

84 The capacity of a social actor to recognize the accuracy of a characterization of his typical intended meanings is the test to which any work of interpretive sociology should be held, according to Weber. See Runciman, W. G. (ed.), Max Weber: selections in translation (Cambridge, England, 1978), p. 22.Google Scholar

85 On December 9, the Cámara Nacional in a unanimous decision, convicted five of the defendants and acquitted the remaining four. General Jorge Rafael Videla and Admiral Emilio Eduardo Massera, both of the first junta, received life sentences. Brigadier General Orlando Ramón Agosti, who represented the Air Force in the first junta, received a term of four-and-a-half years. General Roberto Eduardo Viola, representing the Army during the second junta, received a term of seventeen years, while Admiral Armando Lambruschini, of the same junta, was sentenced to a term of eight years. The sentences against all five of these defendants entailed being stripped of official rank and deprived of various rights, including those to a military pension, to property ownership, and to vote or hold public office. A more detailed description and discussion of the Court's judgment would take us beyond present concerns. Such a discussion appears in the Spring 1986 issue of the Harvard International Law Journal.

86 The most thoroughgoing critique within modern sociology of utilitarian or instrumentalist explanations of human behavior, coupled wíth a defense of the power of “normative” influences over social conduct, remains the “voluntaristic” theory of Talcott, Parsons. See his The Structure of Social Action, (New York, 1957), 2 vols.Google Scholar A recent, sympathetic reformulation of Parsons's views is Alexander, Jeffrey, Theoretical Logic in Sociology, (Berkeley, 1985), vol. 4.Google Scholar

87 Naipaul, V. S., The Return of Eva Perón (New York, 1980), p. 186.Google Scholar