Chile (1973–1990) and Argentina (1976–1983) experienced state terrorist regimes that detained, tortured, exiled, killed, and disappeared thousands of people in their quest to eradicate Marxism and “subversion.” In Argentina, the successor civilian government initially prosecuted human rights violators; but under military pressure, trials were discontinued under 1986 and 1987 laws, and blanket pardons in 1989 and 1990 undid the justice done. In Chile, the amnesty law left in place by the military dictatorship of General Augusto Pinochet along with the nature of the “protected democracy” that Pinochet created, prevented prosecution of all but a handful of human rights violators. Thus from 1990, when the Chilean dictatorship ended and the last pardons were issued in Argentina, the former repressors, with very limited exceptions, enjoyed complete impunity under democratically elected governments despite the continuing efforts of human rights organizations to hold them accountable.
In the mid- and late 1990s, impunity came under renewed attack from within Argentina and Chile and from abroad. By the turn of the millennium, former practitioners of state terrorism were being investigated and tried, soon to be convicted and sentenced to prison. By 2004, the armed forces’ institutional resistance to justice ended as a new generation of military leaders in both countries renounced the past and embraced a democratic future. The following year, the Argentine Supreme Court ruled amnesty laws enacted in 1986 and 1987 unconstitutional, and in Chile, constitutional reforms eliminated military participation in government and strengthened civilian control of the armed forces. Impunity had ended.
This book examines the reasons why military repressors were not initially held accountable for their crimes, except briefly in Argentina, and I focus on the processes that led to the erosion and collapse of impunity and the rise of prosecutions in recent years. The eclipse of impunity in Chile and Argentina is worthy of study because of its uniqueness. Since the establishment of international human rights norms in the 1948 Universal Declaration of Human Rights--itself the outgrowth of World War II atrocities and the Nuremberg and Tokyo trials--few human rights violators have been held accountable for their crimes. Prior to the beginning of the ongoing trials in Chile and Argentina, Greece (1975–1976), Bolivia (1983–1993), and South Korea (1995–1996) tried and convicted leaders of repressive regimes; in Greece and Bolivia, selected subordinates were tried along with leaders. Cases in those three countries had in common that the prosecutions were orchestrated by political authorities, were limited in number, and were intended to be limited in time, although Bolivia’s did not conform to the time limitation. They were designed to render exemplary justice and close out bad chapters in national histories.
The other trials for human rights violations that preceded the ones in Argentina and Chile were those organized and conducted by the United Nations (UN). In 1993 and 1994, respectively, the UN established ongoing tribunals for human rights crimes in the ex-Yugoslavia and Rwanda and subsequently inaugurated special tribunals for Sierra Leone, Cambodia, and Lebanon. The International Criminal Court, which opened in 2003, broadens and institutionalizes the work of the special tribunals.
In all the above cases of trials for human rights violations, only a small percentage of the perpetrators have been or are being held accountable for the crimes of many. This is not so in Chile and Argentina because advocates of justice, both domestic and foreign, brought about the complete collapse of impunity, not the selective lifting of impunity for a few individuals chosen by the countries’ executive authorities or the UN’s prosecutors to serve as examples to satisfy citizens’ and human rights advocates’ demands for justice. Impunity was firm, under democratically elected governments, at the onset of the 1990s. Fifteen years later, the last barriers to prosecution of the practitioners of state terrorism had fallen or were under siege. No other countries have similar records of successfully challenging what appeared to be iron-clad, permanent impunity for all persons deemed complicit in human rights violations. The story of overcoming impunity in Argentina and Chile and of the resulting trials is unique in the annals of democratic transitions from repressive regimes.
Owing to the blanket defeat of impunity, the ongoing trials in Chile and Argentina are different from any other experiences with holding former repressors accountable. Unlike the World War II trials and the UN tribunals, alleged human rights violators in Argentina and Chile are investigated, tried, convicted, and sentenced in national courts by judges who are their fellow citizens. In contrast to Greece, Bolivia, and South Korea, the judicial proceedings in Chile and Argentina are not directed by the executive power, do not involve a small number of selected leaders or of leaders and a few subordinates, and are not subject to formal or informal statutes of limitations. In contrast to all the above, they are not orchestrated trials designed to achieve selective justice, close chapters in national histories, and allow either country and its citizens to move on. Rather, they involve intellectual authors, torturers, and killers, generals and admirals along with enlisted men and civilians; anyone deemed complicit in human rights violations is potentially subject to trial. In Argentina and Chile, trials of alleged human rights violators have become a routine, institutionalized component of the judicial process, the pace of which is dictated by plaintiffs, prosecutors, and judges, not political authorities. They are autonomous, ongoing, indigenous processes that would not have been possible without the demise of impunity.
As of 2013, hundreds of Chileans and Argentines had been convicted of and sentenced for human rights violations committed during the dictatorships, and hundreds more were under investigation or on trial; there is no end in sight for the processes. Even if political circumstances or judicial inclinations change and prosecutions stop, the successful assault on impunity and the nature of the trials would stand as unique developments in global context.
The Argentine and Chilean experiences with holding former repressors accountable are important in another way. The defeat of impunity and the judicial actions in the two countries appear to be influencing political authorities and judiciaries elsewhere in the region. The Peruvian Supreme Court in April 2009 convicted former president Alberto Fujimori on four counts of crimes against human rights and sentenced him to twenty-five years in prison. Despite two referenda confirming the validity of an amnesty law shielding perpetrators of human rights violations, Uruguayan judges have invoked current international human rights jurisprudence to sentence several military men and civilians, including two former presidents, for their roles in repression during the 1973–1984 dictatorship. In November 2011, Brazil took an initial step toward accountability by enacting a law to establish a truth commission to investigate human rights violations during the 1964–1985 military regime. In May 2013 a Guatemalan court convicted General Efraín Ríos Montt, former president of Guatemala, of genocide and crimes against humanity and sentenced him to eighty years in prison; however, the country's highest court overturned the verdict. Overall, legal proceedings have been initiated against former repressors in at least fourteen Latin American countries. Causality cannot be clearly established, but it seems unlikely that these developments would have occurred without the precedents set in Chile and Argentina. Yet, in contrast to the Argentine and Chilean cases, impunity has been lifted very selectively in the other countries that have initiated judicial action, resulting in small numbers of trials and involving few persons rather than the massive proceedings that have taken place and continue to unfold in Chile and Argentina.
It is important to note that this book is a study of the construction, erosion, and demise of impunity, not of the justice that followed. It deals with some of the trials involved in breaking down impunity but mentions the “justice cascade” that followed the collapse of impunity only briefly in the conclusion.2 There is a growing body of literature on the topic, some of which is found in this book’s notes and bibliography.
Chapter 1 offers an overview of the state terrorist regimes in Chile and Argentina during which the human rights violations occurred that were at the center of the struggle over impunity. This account of complex developments is necessarily abbreviated, but the notes offer references for further reading.
The origin of impunity in the two countries is the subject of Chapter 2. In Argentina the military made a hasty retreat to the barracks in the aftermath of its ignominious defeat in the 1982 Falklands/Malvinas War with Britain. The military’s weakened position allowed the successor democratic government to prosecute the leaders of the state terrorist regime in Greek-style orchestrated trials. However, victims, their families, and human rights organizations overwhelmed the courts with thousands of criminal charges, subverting President Raúl Alfonsín’s plan for limited and speedy trials and provoking a military reaction to perceived persecution that led incrementally to the establishment of full impunity by 1990. In Chile, by contrast, the military regime had carefully constructed a shield of impunity over the years and controlled the 1990 transition to civilian government. As a result, impunity for ex-dictator Pinochet and the military was firmly established and not seriously challenged for nearly a decade after democracy was reestablished.
Domestic and international human rights advocacy, an essential element in the eventual erosion and collapse of impunity, is the subject of Chapter 3. Human rights movements developed during the dictatorships to try to stop or at least attenuate the torture, murder, disappearance, and other violations that were the hallmarks of state terrorism. At the onset of the dictatorships, the international human rights movement was merely a work in progress, but largely in response to state terrorism in Chile and secondarily in Argentina, it took shape and gained strength over the next few years. After the return of democracy, human rights advocacy refocused on challenging impunity and pursuing justice for the human rights violations committed under the dictatorships. This proved successful in the first three years of restored democracy in Argentina, but with the establishment of impunity between 1986 and 1990, the human rights movement fell on trying times. Likewise in Chile, the human rights movement went into decline at the onset of democracy as funding and public support faded with the end of state terrorism and the attendant human rights violations. However, both movements persisted and, abetted by the international human rights lobby that had become robust by the 1990s, eventually vanquished impunity.
Chapter 4 deals with another indispensable element in the struggle against impunity: changes in the domestic and international legal environments. Under state terrorism, the judiciaries of both countries were completely controlled by the dictatorships and provided legal cover for the massive human rights violations that occurred. In Argentina, the environment changed radically in favor of justice with the return of democracy in 1983, but the imposition of impunity reestablished a climate hostile to human rights advocacy. In Chile, owing to the steps Pinochet had taken to ensure the continuation of impunity, the advent of democracy in 1990 had little effect on the legal environment created by the dictatorship. Facing daunting obstacles to justice, human rights advocates turned to the international human rights lobby that had grown exponentially since the 1973 Chilean coup. The introduction of new international jurisprudence combined with judicial reform in both countries eventually fostered new legal environments that, in the aftermath of events that revived the languishing struggle for justice, proved receptive to the arguments against impunity.
The precipitating events that sharpened the conflict over impunity are the subject of Chapter 5. In both countries, anniversaries of key developments under state terrorism and in Argentina under restored democracy focused public attention on the past and, with the pain and memory that such anniversaries evoke, on the unfinished business of the present. Coinciding with the anniversaries were foreseeable but unanticipated events: Argentine naval officer Adolfo Scilingo’s 1995 televised confessions about death flights from the Escuela de Mecánica de la Armada (ESMA, Naval Mechanics School), known as the Argentine Auschwitz; and in 1998, the arrest of General Pinochet in London on charges of crimes against humanity brought by a Spanish judge. These dramatic events magnified the impact of the anniversaries, reinvigorated the domestic human rights movements, further engaged the international human rights lobby, changed the legal environment, and made justice for human rights violations an urgent national issue in both countries.
In Chapter 6 we see human rights advocacy and changes in the legal environment bear fruit in the aftermath of the precipitating events. Facing mounting pressure from the domestic and international human rights movements, from prosecutors and judges, and from public opinion, the militaries, led by men born a generation after the architects of state terrorism, renounced their institutional past, abandoned their implacable resistance to justice, and accepted, however reluctantly, a new reality of investigations, trials, and prison sentences for their colleagues tainted by the practice of state terrorism. By 2005, after several years of erosion, impunity collapsed, and the doors to justice opened wide.
The conclusion reviews the major findings of the study, notes important developments related to impunity and justice that have occurred between 2005 and 2012, and briefly assesses the justice achieved in Chile and Argentina.
A note on usage is in order. First, while the military hierarchies of each country established and administered the state terrorist regimes, the perpetrators of human rights violations included more than military personnel. In Chile, the armed national police, Carabineros de Chile, played a central role in the repression; and the secret police, initially the Dirección Nacional de Inteligencia (DINA, National Directorate of Intelligence) and, after 1977, the Central Nacional de Informaciones (CNI, National Information Center) consisted of military men, police, and civilians. In Argentina the federal police formed an integral part of the state terrorist apparatus, and civilians also collaborated in the repression. In order to reduce clutter in the text, however, I use the terms “military” and “armed forces” broadly to include those repressors who were not technically members of the Chilean or Argentine army, navy, or air force. Second, where English translations of Spanish books are available, I have cited the English versions to accommodate readers who may not be well versed in Spanish. Finally, all translations from works published in Spanish are mine.