Few Latin American countries escaped military dictatorships in the 1960s, 1970s and 1980s.1 Specifically, under the military juntas in the Southern Cone, remarkable human rights violations were widespread, although the types and degrees of repression varied from nation to nation.2 Such severe human rights violations comprised extrajudicial killings, torture, forced kidnappings, and crimes against humanity; all leading to serious breaches of citizens’ rights to life and freedom from torture, which are fundamental guarantees of a liberal democratic state. When military rule eventually ceased, one of the most significant responses to human rights violations was the readiness of the judiciary to impose punishment for such crimes.3 Undeniably, given that the newly established democratic governments were deemed to guarantee the human rights of the society, their responses to past human rights violations were of extreme importance for democratic reinforcement and for the re-establishment of the rule of law. Skaar affirms that in Latin America, the state condoned these abuses, and that the courts failed to probe the crimes at the time they occurred.4 Moreover, it is noteworthy that at the time of the democratic transition the courts had also been regularly marginalised in sentencing human rights offenders, as it “was widely perceived as a political issue, to be dealt with by the executive branch.”5 The judiciary were submissive to the military regime, either because judges were “military appointees or because they were holdovers from the previous civilian regime who were friendly to the executive and hence lacked independence.”6 According to some commentators Latin America regrettably still does not have a truly independent judiciary. Christensen has observed that “with the possible exception of Chile, it can be asserted that the courts occupy a very minor role in the political life of the several republics.”7 Similarly, Von Lazar has written that in most countries of the region, “there is little respect for the integrity of supreme courts and no real tradition of judicial independence.”8 Moreover, Rosenn contends that rarely do Latin American constitutions restrict practices discouraging the autonomy of the judiciary in the interest of safeguarding judicial independence.9 Nevertheless, although several scholars have declared the overall decline of Latin American courts, Duncan has written that supreme courts perform many important political functions in an independent manner: “it is not as if jurists are totally powerless, or merely window-dressing for presidential dictatorships everywhere.”10 In the same vein, Wiarda and Kline persuasively contend that several courts “have played an increasingly important role in controlling and overseeing governmental action, protecting civil liberties, and restricting executive authority.”11 Indeed, Skaar affirms that over the last decade a new judicial element has unfolded. Judges formerly acted on executive commands in the few cases when they attempted to sentence the military, however “judges are now increasingly acting autonomously in these matters.”12 Hence, as Stotzky and Nino state, “putting human rights violators on trial is…extremely important to the development of institutional structures – such as an independent judiciary – which people respect and whose opinion they accept as valid.”13 Consequently it is evident that an independent and autonomous judiciary is essential in order to re-establish the rule of law and to ensure justice and fairness with respect to human rights violations in a post-dictatorship nation.
Having ascertained that there is a crucial connection between the degree of judicial independence and the prosecution of human rights violators in order to pursue retributive justice, the post-dictatorship experiences of Chile and Argentina will be analysed. Both countries have witnessed brutal military dictatorships in the 1970s and 1980s, when the judiciaries did little or nothing to combat the abuses. In both countries the practice of kidnapping people and making them disappear was a common thread. What is worth mentioning is that, although they started off with very different institutional arrangements and their judiciary showed extremely dissimilar attitudes towards the idea of prosecuting the military at the time of transition, Argentina and Chile moved in remarkably similar directions, leading to the increased tendency of judges to prosecute the military.
When the democratic transition occurred in Argentina in 1983, the Supreme Court Justices selected by the dictatorship tendered their resignations.14 The newly elected government of Alfonsìn faced numerous challenges, among which two of the main ones were appointing a Supreme Court that would indisputably defend the rule of law, and sentencing the military for the human rights violations committed during the military regime and the dirty war.15 Importantly, Alfonsín defied the traditional stratagem of appointing a Supreme Court that unanimously shared his principles. Instead, he appointed “judges with established records on protecting human rights”16 from diverse backgrounds, which sent a strong message to the nation that Alfonsín intended to install a critical, independent Court, guardian of the rule of law. However, despite Alfonsìn’s campaign promises of bringing the military to court, while Garro states that “never before in Argentine recent history was there a government so ideologically committed to the cause of human rights”,17 Skaar rightly points out that Alfonsìn wanted to keep trials rigorously limited, as “he knew that broad prosecution of military men was likely to unleash political conflict that could destabilise the new democracy.”18 Indeed, the president had the Congress approving two amnesty laws. The first was the Ley de Punto Final, or ‘full stop law’, setting a 60-day period for the submission of new complaints of crimes committed during the dirty war.19 The government intentionally set this 60-day period to concur with the end-of-year holidays, when the Argentine courts are closed.20 Admirably, the reaction of the courts to such amnesty law was a clear sign of their unwillingness to return to their passive role to the military acquired during the dictatorship. Indeed, several federal courts and rights-friendly lower court judges suspended their holidays to work on new submissions.21 As Nino suggests, it appears that the Punto Final law had the unintended effect of “awakening the courts…who where presumably unwilling to be responsible for the eternal impunity of some criminals.”22 The second amnesty law was the Ley de Obediencia Debida, or ‘due obedience law’, which eliminated all pending indictments against junior officers.23 Most significantly, the presumed independence of the newly constituted Supreme Court was evidently undermined when in 1987 it upheld the constitutionality of the Ley de Obediencia Debida.24
Eventually, Alfonsìn, having become extremely unpopular, left the presidency of Argentina to Menem, who introduced additional political control over judicial matters.25 Popkin asserts that during Menem’s administration, the number of justices on the Supreme Court was increased and the majority of the courts’ members had strong ties to the government.26 Former partners of the president’s law firm, his personal friends, and even the former minister of justice were appointed as Supreme Court judges.27 What is remarkable of Menem’s presidency was that, in 1989, three decrees pardoning almost 400 people were issued.28 While the president declared that this move was indispensable to forgive past abuses and look to the future, I vigorously agree with Skaar who disputes Menem’s argument, asserting that “in essence, it was a policy of forgive and forget”,29 which drastically interfered with the ability of the courts to bring those military officials to trial. Thus, it is evident that “judges worked in constraining domestic circumstances during the first presidencies”30 and that, even after the decline of the dictatorial regime, “Argentina has experienced different levels of judicial independence over time.”31 Fortunately, years after Menem thought he had closed the door on retributive justice by pardoning the military, it was once again resolutely on the political and judicial agenda. Indeed, among the several groups of cases beginning to be presented to court, one of them was particularly remarkable in the judicial history of Argentina: the juicios por sustracciòn de menores, centered on the kidnapping of newborn children of the disappeared. Since these court cases started under the Menem government and continued under the government of President de la Rùa, they offer an exceptional opportunity to assess the importance, in the absence of unjustifiable influence, of judicial independence in human rights matters. Moreover, the cases of child kidnapping also highlight the arising of the awareness of the courts concerning such significance of their independence from the executive and emphasise the relevance of the Supreme Court’s welcome initiative of upholding innovative federal court rulings in important human rights cases.
Unlike the Argentine courts, whose judges were replaced by military appointees during authoritarian rule, the Chilean Supreme Court remained untouched by the military.32 Indeed, the Chilean judges possessed a highly collaborative and sympathetic attitude toward human rights violations and,therefore they enjoyed a high degree of independence.33 I strongly agree with Correa Sutil who states that such attitude by the courts was the result of a previously passive legal culture with a negative concept of judicial independence. Such culture was adopted by the courts in order “to comfort themselves while they ignored the government’s abuses of human rights.”34 As a result, president Aylwin inherited a Chilean judiciary which was certainly not receptive to its citizens’ claims or to the “positive judicial independence” which “required an ideological shift to provide judges with a motivational ‘push’ to action.”35 Thus, unlike the new Argentinean courts’ refusal to return to their passive role imposed during the dictatorship (as illustrated by their reaction to the enactment of the Ley de Punto Final), Chilean courts had a very different attitude towards coping with human rights issues. Skaar opines that when Aylwin took office, “the quest for justice was pushed by the executive but actively hindered by the courts.”36 This is further supported by Hilbink who asserts that “in Chile…judges refused to assert their authority even…after the Pinochet era…and have only very recently begun manifesting notable behavioral independence.”37 As a matter of fact, the truth commission, established by Aylwin, issued its report in 1991 documenting copious amounts of summary executions and forced disappearances between 1974 and 1990, and criticising Chile’s courts – the Supreme Court in particular – for their evasive behaviour towards human rights crimes during the dictatorship.38 The report infuriated the Supreme Court, which accursed it as “ill-considered, tendentious, the product of an irregular investigation, and of probable political bias.”39 More importantly, Skaar notes that when Aylwin required the courts to take action, they refused.40 It could be argued that some events occurring during Aylwin’s presidency could be considered a positive shift of the courts towards a more desirable reactive action to human rights violations. Indeed, shortly after taking office Aylwin requested that the Supreme Court reopen the case concerning the murder of the minister of foreign affairs Orlando Letelier during the Allende government.41 In 1993, judge Bañados succeeded in sentencing the former chief of the DINA (Pinochet’s secret police) Contreras, and the DINA second-in-command, Espinoza.42 Although this first successful court case against the military in Chile has been characterised as a first sign of judicial independence, I agree with Skaar who affirms that “the judiciary would probably not have started investigating the case without explicit pressure from the Aylwin government.”43 This is a manifest, further sign of the initial divergence between Argentina and Chile: while in the former case it was the courts pushing for prosecuting the military, in the latter it seems evident that the request for justice was encouraged by the executive.
Nonetheless, after the Aylwin government the courts started changing their position concerning the prosecution of human rights crimes that occurred during the dictatorship and in a surprise ruling the Supreme Court upheld the 1994 appellate court’s verdict against Contreras and Espinoza in the Letelier case.44 Described as “the most notorious and protracted case dealt with in military and civilian courts in Chile since the 1970s”45 in the words of Roniger and Sznajder, the Letelier case signaled that “even the Pinochet-loyalist Supreme Court was gradually becoming more willing to demonstrate a certain degree of independence from Pinochet.”46 As Skaar points out, Chile’s example is divergent from the Argentinean experience because the former is “peculiar as judicial independence in this context meant autonomy from the previous government (headed by Pinochet), rather than from the sitting government.”47 Fortunately, after Frei became president, Chile started sharing the podium with Argentina as it eventually developed an increasingly independent and assertive judiciary, which became willing to address human rights issues, irrespective of executive preference. The real breakthrough in Chile in relation to judicial independence occurred in 1998-2006, when the Pinochet case captured the attention of the Chilean courts, evidencing their new and unexpected shift of consideration in terms of holding the military accountable for human rights violations committed during the dictatorship of Pinochet.48 Thus, although it was demonstrated that Chile’s and Argentina’s courts started from very different points in terms of consideration and attitude towards prosecuting the military for human rights abuses, it is apparent that both countries eventually moved in parallel directions, resulting in the sentencing of human rights offenders.
As a journalist put it, “the missing children are the final, and perhaps the most testing, moral dilemma of the junta years.”49 In 1999, Judge Bagnasco presented formal charges against former senior officers for the disappearances of 194 babies.50 This constituted the start of an emblematic court case that provoked commotion in the Argentine judicial system.51 This case caused various technical and legal disputes regarding both substance and jurisdiction. Nonetheless, it is extraordinary that, despite such technical and legal difficulties, the courts promptly manifested their readiness to exercise their autonomy by discovering and applying suitable alternative strategies for sentencing the military. First, the two amnesty laws passed by the Alfonsìn government barred investigation into the brutal action of the dictatorship.52 The Congress had abrogated these two laws in 1998. On one hand, as Mallinder asserts, repealing the amnesty laws “did not annul them…This meant that the cases where the laws had already been applied could not be reopened, which included most of the worst human rights violations.”53 On the other hand, the repeal possibly signaled to the courts that the laws no longer enjoyed much public or political support. In fact, a public opinion poll taken in 1998 suggested that 80% of Argentines supported repeal of the laws.54 Interestingly, to bypass them, the judges accepted an argument put forward by lawyers: because the bodies of the disappeared had never been found, the disappearances were a “continuing crime”.55 By presenting such argument, as a result, the two amnesty laws did not protect disappearances.56 The second crucial issue that courts had to deal with was that, as the military had been tried in 1985 for direct responsibility for the abduction of children, technically they could not be tried again for the same crime.57 Again, the judges found an alternative and adequate manner to keep the proceedings continue. Judges established that the disappearances were part of a systematic practice that constituted a crime against humanity.58 Interestingly, the argument of child kidnapping as a systematic plan was also invoked by Judge Bagnasco when he started charging military officials in 1999 and by Judge Cavallo in the subsequent case of the two notorious torturers Juan Antonio del Cerro and Julio Hector Simon, and seven other military officers for the kidnapping of Claudia Poblete and the disappearance of her parents in 2000.59 In other words, as Skaar correctly states, the judges who worked on these cases “used an innovative approach to charge the military with indirect responsibility for the same crimes for which they had already been convicted.”60 Hence, these two tactics provided an unexpected opening for legal prosecution. These cases unmistakably illustrated that finally the judiciary could be considered completely independent from any influence from the executive. In fact, once it became clear to the military that they could be put on trial, although the highest military council, the Consejo Superior de las Fuerzas Armadas (CONSUFA) tried to pressure Judge Bagnasco to have the case transferred to military courts, Bagnasco insisted that it was a criminal case and that there was no reason to transfer it to the military justice system.61 CONSUFA then asked the Supreme Court to declare it competent to take the case.62 Unsurprisingly, Skaar remarks that this caused a stir in Argentine society as it was alleged by the media that the military, through CONSUFA, had threatened the Supreme Court in an effort to acquire jurisdiction in the case.63 However, the Supreme Court had followed regular procedures and did not act in response to explicit military influence.64 As further evidence of this, the Supreme Court ruled in 2000 that the case would remain in civilian courts under the jurisdiction of Judge Bagnasco.65 These court rulings constituted an important step in the long journey to have the amnesty laws constraining the judicial independence abolished permanently and subsequently in 2005 the Supreme Court declared these rules null and void.66 Therefore, these cases evidently show that by 2001, judges had acquired the long-desired judicial autonomy of which they were deprived during the dictatorship period, and “had become accustomed to exploring the exceptions to the amnesty laws: prosecuting military officials for child kidnapping, prosecuting civilians who were not part of the security forces, and investigating human rights violations that had taken place before the military coup.”67
As the result of the juicios por sustracciòn de menores having been introduced in Argentina, in Skaar’s words, “perhaps better than any other court case in Chile, the legal dealings in the Pinochet case demonstrate the changes in court behavior regarding human rights matters stemming from the dictatorship period.”68 Just like the Argentinean judiciary in the cases concerning the abduction of children, the Chilean courts had to face some technical and legal obstacles too, namely the necessity to make the former dictator Pinochet prosecutable by depriving him of senatorial immunity, (a process known as desafuero) and his subsequently worsening state of health. Less than a week after Pinochet landed in Santiago, judge Guzmán “found himself crisscrossing the country in search of the disappeared and interrogating retired military officers.”69 The first case which Guzmàn brought before the Santiago Court of Appeals was the Death Caravan case in 2000. This case concerned the killing of several opponents to the junta headed by Pinochet, which occurred shortly after he assumed power in 1973.70 Guzman convinced the Santiago Court of Appeal of voting in favour of the desafuero in the Death Caravan case in 2000, stripping Pinochet of senatorial immunity guaranteed by the 1980 Constitution.71 Most importantly the Supreme Court, in a historic verdict, upheld the appellate court decision.72 However, in a surprising ruling in 2002 the same Supreme Court confirmed an appellate court’s ruling which suspended charges against Pinochet on grounds that he was medically unfit to stand trial. This permanently closed the case against Pinochet for involvement in the Death Caravan crimes.73 The intriguing question is: what caused this change of consideration from both courts? With regards to the appellate court, Skaar persuasively argues that its reversal between 2001 and 2002 indicates that “the court had all along wanted to strip Pinochet of his immunity but had not prepared to prosecute him.”74 Moreover, in the words of the prosecuting lawyer Villagra, the Supreme Court’s initial favourable vote to prosecution was overturned by “direct executive pressure”75 on one of the Court judges. Nevertheless, although it could be stated that Pinochet was now ‘left off the hook’, such situation was only temporary. Indeed, since the Death Caravan case had unfolded, several new complaints were presented to the courts, which readily demonstrated their desire to corner the ex-dictator and hold him accountable for his wrongdoings.76 Although Pinochet’s health condition, combined with a inadmissible pressure from the government, seemed to be a significant obstacle to the numerous proceedings brought against the general, the courts admirably insisted on their pursuance of justice demonstrating their regained judicial independence during Lagos’ presidency. Lagos, when he became president after Frei, created the torture commission, a second truth commission, which for the first time systematically gathered information about victims of torture during the dictatorship, and “he made the information submitted to the torture commission secret, and even proposed the criminalization of the use of such information for judicial processes.”77 Huneuus points out that the signal to the judiciary was unmistakable: torture was not a judicial issue.78 Nonetheless, during Lagos’ government, the courts reached a high degree of autonomy which, as the Argentinean judiciary, would not have been relinquished as easily as during the dictatorship: “this time…judges rebelled, thwarting Lagos’s efforts to tailor the trajectory of Pinochet-era cases to his political agenda.”79 As a result, in 2005 judge Montiglio convicted Pinochet in connection with the kidnapping of three dissidents by the security services and in 2006 judge Solis convicted the general with kidnapping, homicide, and torture practiced by Pinochet’s secret police between 1974 and 1977.80 Even though none of these trials reached a conclusion by the time of Pinochet’s death, it is obvious from these cases that despite the legal and technical difficulties encountered, the courts seemed to find “their own direction”81 on human rights matters, irrespective of the preferences of the sitting government. Therefore, it can be concluded that regardless of the very divergent starting point that the Chilean judiciary adopted in comparison to the Argentinean courts with respect to prosecuting the military for human rights violations committed during the dictatorship, both countries resulted in having strikingly similar positions. As Huneeus affirms, “the junkyard dog, once unleashed, was not heeding orders.”82
To conclude, by analysing the first presidencies arising after the dictatorships, it has been illustrated how imperative and crucial judicial independence was in Argentina and Chile in the years after the military regimes in order to manage to prosecute the military officials and former dictators who committed human rights violations. Although the two nations’ judiciaries started their journey to justice from considerably diverse starting positions, it has been demonstrated that eventually they moved along parallel directions, which lead to the desired and required just prosecutions of the offenders. Indeed, I strongly agree with the former Haitian president Jean-Bertrand Aristide who opines that “no official, no matter how high or petty, and no person, no matter how rich or poor or how educated or uneducated, can be beyond or above the law.”83 Accordingly, I illustrated the significance of the Argentinean and Chilean courts’ autonomy and independence from the executive preferences in the move from amnesty and impunity towards trials. Undeniably, despite the fact that the executives in both countries attempted to hinder and prevent courts from succeeding in trying the violators, fortunately it is apparent that the judges have admirably been able to adopt new strategies in order to achieve their primary aim: bringing justice by prosecuting the responsible offenders.
Ilaria Minucci
In this essay I will reveal the fundamental necessity of judicial independence in the countries of Argentina and Chile in order to be able to prosecute military officials and former dictators who committed human rights violations during the dictatorships. Specifically, I will analyse the period from the first post-dictatorships presidencies (Alfonsìn and Menem in Argentina, and Aylwìn and Frei in Chile) until the breakthrough years (which occurred over the early 2000s in both nations) when the Chilean and Argentinean courts finally reached their autonomy leading to the sentencing offenders. Throughout this essay, I will discuss each country in different paragraphs in order to compare Chilean and Argentine judiciaries and demonstrate how they both started from divergent points to eventually reach the same conclusion: prosecution in order to achieve justice.84
Ilaria Minucci comes from Italy. Currently, she is at her second year of LLB at Lancaster University in the UK. She is deeply interested in human rights. Ilaria Minucci pochází z Itálie. Momentálně studuje ve druhém ročníku bakalářského studia práva na Lancaster University ve Spojeném Království. Zajímá se především o lidská práva.