The fight without borders for justice: The emergence of the "juridical memory" from the trials for the missing persons (LA LUCHA SIN FRONTERAS POR LA JUSTICIA: La emergencia de la "memoria jurídica" a partir de los juicios por los "desaparecidos")

MIRA, JULIETA

Buenos Aires

Seminario; "Filosofías y metodologías de la memoria: Reflexiones sobre la experiencia postdictatorial Argentina y su estudio"; 2012

Instituto de Investigaciones Gino Germani

THE "SWINGING OF THE PENDULUM" EVOLUTION OF THE JUSTICE: FROM THE UNIVERSAL JURISDICTION TO THE TRIAL RESUMPTION IN ARGENTINA    This chapter deconstructs the "pendular evolution" of justice with respect to the massive violations of human rights committed in Argentina during the "State terrorism", whose victims are internationally known under the still painful expression of "desaparecidos".  The "desaparecidos" in Argentina constitute a painful scare on the conscience of humanity.  At the same time, the everlasting claim for justice, stemming from the massive and systematic violations of human rights, which occurred in Argentina during the "State terrorism", left its footprint on international criminal law as well as in international human rights law, especially in relation to the forced disappearance of people. Argentina showed a changing behaviour in its politics and its commitment to deal with the past.  Upon Argentina´s democratic opening, the first transition government of President Raúl Ricardo Alfonsín favoured the so-called "Juicio a las Juntas" ("Military Boards Commitment for Trial"), and therefore promoted the individual criminal accountability of the main individuals responsible for the atrocities committed during the military regime.  However, the accountability model implemented by Alfonsín´s government was "limited" since amnesty laws were issued after the closing of the proceedings, within the context of instability that surrounded the new democratic government which was threatened by the military forces. Consequently, the initial and partially designed rendering of accounts intended in the middle 1980s was followed by a period of impunity crowned with the pardons issued by President Carlos Menem.  Thus, 20 years of impunity were necessary from the commencement of the first judicial proceedings involving crimes against humanity for said proceedings to be reopened in Argentina. During said period of impunity, survivors, relatives, human rights organisations, lawyers and non-governmental organisations resorted to multiple strategies in their search for justice, including commencement of judicial proceedings overseas. All these ?proceedings? were pursued with the never lost hope of committing for trial those responsible for the planning and carrying out the acts of disappearances, tortures, violations, child ?robberies? and assassinations.  These attempts to obtain justice and redress resulted in progressive conquests, often of a symbolic nature that contributed to the gathering of evidence, keeping the claim for justice alive and legitimating the proceedings grounded on individual criminal accountability.  Among all the criminal proceedings developed overseas, those developed in Spain under the principle of universal jurisdiction were crucial. After a long evolution, in part thanks to the judgment rendered by the Spanish Audiencia Nacional (AN)  against the former corvette captain Scilingo in year 2005, the Argentine federal court of last resort called Corte Suprema de Justicia de la Nación (CSJN) declared the unconstitutionality of the amnesty laws  and therefore granted full legality to the criminal proceedings against the serious violations of human rights, initially those committed during the dictatorial government self nominated as ?Proceso de Reorganización Nacional? (?National Reorganization Process?), from 1976 to 1983.  The path of the Argentine case from extraterritorial jurisdiction to national jurisdiction which took the shape of a "virtuous circle" is analysed in this chapter. In other words, this chapter elaborates on the positive impact of the "Juicios de Madrid" ("Madrid Trials"), on the reopening of Argentine judicial proceedings in order to advance in the search for justice against international crimes that took place in Argentina during the 1970s and 80s.