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A Memory of Justice as a Democratic Pedagogical Force

2006; Taylor & Francis; Volume: 28; Issue: 2 Linguagem: Inglês

10.1080/10714410600739863

1556-3022

Mario Di Paolantonio,

International Law and Human Rights

Click to increase image sizeClick to decrease image size Notes See Snyder (2003/04 Snyder , Jack L. ( 2003/04 ). Trials and Errors: Principle and Pragmatism in Strategies of International Justice . International Security , 28 (3) , 5 – 44 . [CSA] [Web of Science ®] , [Google Scholar], 26); Van Zyl (1999 Van Zyl , Paul . ( 1999 ). Justice in Practice: Dilemmas of Transitional Justice: The Case of South Africa's Truth and Reconciliation Commission . Journal of International Affairs , 52 (2) , 647 – 667 . [CSA] [Google Scholar]); De Greiff (1996 De Greiff , Pablo . ( 1996 ). Trial and Punishment: Pardon and Oblivion. On Two Inadequate Policies for the Treatment of Former Human Rights Abusers . Philosophy & Social Criticism , 22 ( 3 ), 93 – 111 . [CSA] [Crossref] , [Google Scholar]). On 14 June 2005, Argentina's Supreme Court declared a series of amnesty laws to be unconstitutional, effectively opening the way for prosecuting hundreds of military officers involved in rights abuses committed during the last military dictatorship (1976–83). The long awaited decision, which was stalled before the Supreme Court since 2001, confirms lower court rulings that previously deemed the unconstitutionality of laws sheltering the military from prosecution. Given that judges can only rule on cases that are brought before them (Skaar 2001 Skaar , Elin . ( 2001 ). Judicial Independence and Human Rights Policies in Argentina and Chile . Working Paper 15 . Bergen : C. Michelsen Institute . [Google Scholar]), my underlying interest in this article is to understand the resolve and continuity of the social demand to bring judicial accountability and overturn the amnesty laws. More specifically, I seek to trace how the unfulfilled aspirations of the 1985 trial of the military works pedagogically, providing the social momentum and significance required to overturn the amnesty laws. The investigation and educational endeavour was assigned to a special commission—the National Commission on the Disappeared (CONADEP)—set up under Decree 187 on December 15, 1983. The commission produced a two-volume report (Nunca Mas!) that included various survivor testimonies and a list of (some) of the disappeared (see CONADEP 1986 CONADEP (National commission on disappeared persons) . ( 1986 ). Nunca mas: The report of the Argentine national commission on the disappeared, with an introduction by Roland Dworkin . New York : Farrar Straus Giroux . [Google Scholar]). On 9 December 1985, the court delivered its verdict. Since the court attributed responsibility for the proven criminal acts to individual commanders the sentences varied. Out of the nine defendants four were acquitted (Graffigna, Galtieri, Anaya, Lami Dozo); only two were given life sentences (Videla and Massera); Agosti was sentenced to four and a half years; Viola received seventeen years; and Lambruschini was sentenced to eight years. See Brailovsky (1997 Brailovsky , Antonio Elio . ( 1997 ). Foreword . In Matilde Mellibovsky (Ed.), Trans. Maria and Matthew Prosser , Circle of Love Over Death: Testimonies of the Mothers of the Plaza de Mayo . Windham : Curbstone Press . [Google Scholar]), Rial (1993 Rial , Horacio Vazquez . ( 1993 ). The Crisis of National Culture . In Colin M. Lewis & Nissa Torrents (Eds.), Argentina in the Crisis Years (1983–1990): From Alfonsín to Menem . London : Institute of Latin American Studies . [Google Scholar]), and Catterberg (1991 Catterberg , Edgardo . ( 1991 ). Argentina Confronts Politics: Political Culture and Public Opinion in the Argentine Transition to Democracy . London : Lynne Rienner Publishers . [Google Scholar]). See John Keane's Democracy and Civil Society (1998), esp. Chapter One, for an important discussion on the analytic distinction and interaction between civil society and the state (though working with different issues and events—to redefine socialism in Eastern Europe—than those found in my article). In order to recover a more productive sense of pedagogy that links with the possibilities of democratic politics, I utilize the term active paideia. Following Cornelius Castoriadis (1997), the term gestures to a political pedagogical process that is pertinent to the reproduction of democratic subjectivity and possibility. Given that democracy is not a consolidated form, democracy requires the active transmission of its possibility through subjects that are subject to laws and yet retain the potential to put these laws into question. An active paideia can thus be understood as the activation of the right to ask questions, a process for substantively reconsidering, asking, and possibly reconstituting what “is” and who “we” are beyond the immediacy of the present. See Henry Giroux (2003) for an insightful extension of Castoriadis's thought on the pedagogical formation of democratic subjectivity as central to re-forging civic agency and a public space beyond the hermetically sealed present at work within the logic of neoliberalism. Emilio Mignone—the director of CELS who headed the suit, and whose daughter Mónica Candelaria Mignone disappeared in May 1976—explained that the case, in spite of the limitations of the amnesty laws—sought to uncover “what happened [and this] implies dismantling the means by which such crimes are committed. And that is crucial for the future.” In conversation with Feitlowitz he reported that the federal judges who overheard the case, “explicitly acknowledged the rights to know and mourn, and that is extremely important. In fact, it was a first for our courts” (1998, 243). In April 1995, the courts ordered the navel chief of staff to make available files and any relevant information that could contribute to the knowledge of the remains, hence ensuring the right and possibility of mourning. Predictably the military responded that it had no information. Although CELS launched an appeal (this was before Judge Cavallo's 2001 ruling, which annulled the Punto Final and Obediencia Debida laws), the amnesty laws put in place by Alfonsín prohibited the courts from pursuing any further investigation into the disappeared, lest it lead to criminal charges against the military. According to Peruzzotti: the resuscitation “of normative narratives,” in Argentina, “unearthed the ethical dimension of political institutions,” which granted citizens the possibility of “making political power accountable” (2002, 86). He describes this “renormativization of politics” as emerging from the twists and turns of rights-oriented politics that developed in its various responses to authoritarianism (from seeking to de-legitimize the military when they were in power, to bringing military violators to justice, to contesting the amnesty laws and pardons put in place by Alfonsín and Menem). Accordingly, this “rights-oriented politics initiates processes of juridification from below that have greatly contributed to the authorization of rights as institutions” (Peruzzotti 2002 Peruzzotti , Enrique . ( 2002 ). Towards a New Politics: Citizenship and Rights in Contemporary Argentina . Citizenship Studies , 16 ( 1 ), 77 – 93 . [CSA] [CROSSREF] [Taylor & Francis Online] , [Google Scholar], 87). Peruzzotti describes two different types of organizations that emerged from the twists and turns of the rights movement in Argentina: he notes, (1) “associations and social movements that emerged as the result of continuing human rights violations by the state institutions” (2002, 87). These movements, which draw the link (continuity) between the pardoned violations of the military and the impunity of recent police violations, “have expanded the discourse against state arbitrariness in new directions” (2002, 87). He also mentions, (2) the development of “a new kind of association that has civil society as a major terrain of their politics” (2002, 87). Within these associations the terrain of politics is the expansion of rights and civil-society itself. “A major goal of their activities is to modify entrenched authoritarian patterns as well as privatist tendencies to move in a direction of a culture of active citizenship that could strengthen democratic institutions” (2002, 89). Given the emphasis here on the normative regeneration of the social space, Peruzzotti describes the pedagogical aspiration of these associations to be “a more offensive type of politics aimed not simply at protecting society [from the state] but at reforming the state as well” (2002, 89). The following are some important judgements that have adhered to Cavallo's precedent, ruling the amnesty laws to be null and void: in August 2002, Federal Judge Reinaldo Ruben Rodriguez of the Federal Court No.1 in Santa Fe, delivered judgment declaring the laws invalid in a case entitled ‘Public Prosecutor's Office—filing complaint, Case No. 311/02’; in September 2002, Federal Judge Claudio Bonadío declared the laws to be null and void in a proceeding entitled ‘Scagliusi, Claudio Gustavo and others—unlawful imprisonment, Case No. 6, 869/98’; in March 2003, Federal Judge Carlos Skidelsky revoked the laws as unconstitutional in a case regarding the ‘Margarita Belén massacre’ (in 1976), where 22 political prisoners were murdered in the town of Margarita Belén, El Chaco. We also find that on 16 March 2004, a Federal Court in the province of Buenos Aires reopened an investigation of the former Head of Police in that province for alleged crimes committed during the dictatorship, see: Camara Federal de Buenos Aires, marzo de 2004. Three days later, Judge Rodolfo Conicoba Carral declared that the presidential pardons granted by former President Menem to certain military officials in 1989–1990 were unconstitutional, see: declaracion de inconstitucionalidad de los indultos a seis represores marzo de 2004. Although lower courts drawing on Cavallo's precedent repeatedly struck down the amnesty laws, appeals were still pending before the Supreme Court, which until 14 June 2005 remained hesitant to deliver a ruling on the constitutionality of the laws. Amid the Supreme Court's reluctance to issue a timely and decisive ruling, both the lower house of Deputies and the Senate voted in August 2003 to abolish the amnesty laws. While the vote was firmly supported by President Néstor Kirchner (2003–present), and ended up garnering a considerable majority in both houses, it was merely a symbolic gesture; for lest the separation of powers is overridden, the Supreme Court ultimately holds the right to decide on the constitutionality of the laws. The Court's reluctance to issue a ruling in a timely manner was publicly seen as a cynical attempt by the Court to bargain with a government that sought to impeach certain of its members for corruption and political bias. As the public legitimacy of the Supreme Court eroded, a series of dismissals and new appointments occurred. It is significant that the 14 June 2005 declaration of the unconstitutionality of the amnesty laws (by a vote of seven to one) was one of the first major rulings of the (reformed) Supreme Court, effectively gesturing to the importance of law and democracy founding its legitimacy on its ability to address the unsettled past. As José Miguel Vivanco, America's director at Human Rights Watch, claimed: The crimes of the ‘dirty war’ are far too serious to be amnestied and forgotten. The Supreme Court's ruling shows that no matter how many years go by, laws that block justice for gross abuses of human rights remain a thorn in the side of democratic governments. The era of sweetheart deals for the military, extracted at gunpoint from democratic leaders, is over. Hopefully, this ruling marks the beginning of a new era in which everyone, no matter how powerful, is subject to the same standard. See: Human Rights Watch (2005). Argentina: Amnesty Laws Struck Down Supreme Court's Long-Awaited Ruling Allows Prosecution of ‘Dirty War’ Crimes. Available at http://hrw.org/english/docs/2005/06/14/argent11119.htm.