Hundreds of thousands of people poured into the Plaza de Mayo square in Buenos Aires on May 10 to protest a Supreme Court ruling that made it possible to reduce the prison sentences of dictatorship-era human rights abusers – a verdict neutralised by a new law passed by Congress on May 10. Credit: Daniel Gutman/IPS

By Daniel Gutman
BUENOS AIRES, May 12 2017 (IPS)

What at first was terrible news that outraged a large proportion of Argentine society, who see the conviction and imprisonment of dictatorship-era human rights violators as an irrevocable achievement for democracy, became a cause for celebration a week later.

An unexpected ruling handed down by the Supreme Court on May 3 initially opened the door to hundreds of members of the military and civilians in prison for crimes against humanity committed during the 1976-1983 military dictatorship to seek a reduction of their sentences, which would in some cases even allow them to immediately be released.

However, the wave of outrage that arose in human rights groups spread in the following days throughout society, leading to changes that came about at a dizzying pace that made it unlikely for the court ruling, which applied to one particular case, to be used as a precedent for other human rights abusers to obtain a reduction in their sentences.“I don’t recall in the history of Argentina any other time that Congress has reacted so quickly to a legal ruling. And I am convinced that the entire justice system is going to rebel against this Supreme Court ruling.” -- Andrés Gil

“It won’t go any farther than this. In the Argentine justice system, the Supreme Court’s decisions are not binding on lower courts. After the strong social repulsion and after all political sectors spoke out against the early release of human rights violators, this will end with Muiña,” Jorge Rizo, chairman of the Buenos Aires Bar Association, told IPS.

It was the case of Luis Muiña, a civilian in prison for his participation in kidnappings and torture in 1976, that sparked the massive protest demonstrations held over the past week.

In a divided ruling, the Supreme Court decided to apply the “two for one” law that compensates for time spent in pre-sentence custody, to reduce Muiña’s 13-year sentence to the nine years he has already served.

But exactly a week later, on May 10, Congress passed a law supported by all political sectors which established that the two-for-one law was not applicable in cases involving genocide, war crimes or crimes against humanity.

A few hours later, hundreds of thousands of people filled the Plaza de Mayo square in Buenos Aires, reminiscent of the biggest rallies in the country’s history.

Many wore white headscarves, a symbol of the Mothers and Grandmothers of Plaza de Mayo human rights groups, who in April celebrated the 40th anniversary of their first march in the Plaza de Mayo square to demand that their “disappeared” sons and daughters be returned to them.

According to human rights organisations, 30,000 people were killed or “disappeared” by the regime.

A big banner on the stage read: “Never again! No freedom for human rights abusers”. The main speaker at the massive rally was Estela de Carlotto, the longtime head of the Grandmothers of the Plaza de Mayo, who have so far found 122 of their grandchildren, stolen by the dictatorship and raised under false identities.

“Just like with the Nazis, wherever they go we will go after them,” Carlotto chanted along with the crowd estimated by the organisers at 400,000 people.

“Fortunately, society has taken a firm stance,” said the activist, adding that the quick action by Congress “fills us with hope and gratitude.”

“Never again! No freedom for human rights abusers”, read a big banner in the massive rally where hundreds of thousands of Argentinians, wearing white headscarves representing the Mothers of Plaza de Mayo human rights group, demanded full punishment for dictatorship-era human right violators. Credit: Abuelas de Plaza de Mayo

In the demonstration there was in the air a strong rejection of the government of conservative President Mauricio Macri, even though it did not play any role in the trial. Many protesters held signs linking the president to the Court’s decision, a connection also insinuated in Twitter by former president Cristina Fernández (2007-2015), who at the moment was traveling through Europe.

The government had a somewhat unclear response to the Supreme Court ruling. It initially left the response exclusively in the hands of Human Rights Secretary Claudio Avruj who, although responsible for this area, is not a high-ranking official. Perhaps over-cautiously, he urged people to be “respectful of the verdict.”

But as the negative repercussions grew, the government began to reject the ruling, through more important figures. And once Congress passed the law, Macri himself congratulated the lawmakers, and said he was opposed to “any tool that favours impunity, and especially when this tool is applied to crimes against humanity.”

The Supreme Court ruling was divided, three-to-two. The majority was made up of Elena Highton, Horacio Rosatti and Carlos Rosenkrantz – the latter two named to the Court last year on Macri’s recommendation.

The two-for-one law, which stated that every day spent in pre-sentence custody counted for two days after two years had been served, was designed to help Argentina address the large proportion of people in prison who have not yet been tried and sentenced. But the 1994 law was repealed in 2001 as it had failed to achieve its aim.

But the three Supreme Court justices argued that the most beneficial law for the accused must be applied in penal law, even in cases involving crimes against humanity.

“The sentence, technically, goes against international law,” said Gastón Chillier, executive director of the Social and Legal Studies Centre (CELS), a human rights organisation created during the dictatorship.

“The law which was passed promptly by Congress is a result of the cross-cutting nature of the reaction against the ruling. From now on, the justice system will have to be very autistic to ignore the rejection that the sentence generated,” Chillier told IPS.

One of the founders of CELS, lawyer Marcelo Parrilli, filed criminal charges accusing the three magistrates of prevarication, or knowingly handing down a decision contrary to the law.

Soon after, federal prosecutor Guillermo Marijuán considered that there were grounds to launch a judicial investigation. And the Front for Victory (FPV) political faction headed by former president Fernández sought to impeach Highton, Rosatti and Rosenkrantz.

But it did not all end there, since a well-known constitutionalist lawyer, Andrés Gil, asked the Inter-American Commission on Human Rights to order Argentina to abstain from reducing the sentences of those convicted of human rights violations.

Gil told IPS: “I don’t recall in the history of Argentina any other time that Congress has reacted so quickly to a legal ruling. And I am convinced that the entire justice system is going to rebel against this Supreme Court ruling.”

“Those who signed that decision did not realise that the trial and punishment of those responsible for human rights abuses during the last dictatorship now form part of the heritage of the Argentine people,” he added.

Argentine President Cristina Fernández at army chief César Milani’s promotion to lieutenant general in a Dec. 19 ceremony in the government palace. Credit: Presidencia de Argentina

By Fabiana Frayssinet
BUENOS AIRES, Jan 8 2014 (IPS)

The ratification as Argentina’s army chief of an officer accused of involvement in crimes against humanity during the 1976-1983 dictatorship has revived the debate about the thin line between the moral and judicial responsibility of those let off the hook by an amnesty law for merely “following orders”.

The Argentine Senate approved Major General César Milani’s promotion to lieutenant general on Dec. 18, 2013, thus upholding his June appointment as army chief of staff despite the shadows cast over his past, when he served as second lieutenant in the northern province of La Rioja during the military regime.

On Jan. 3, Milani resigned as director-general of army intelligence. The fact that he had continued to hold that post after he was named head of the army had fanned the controversy about him and his unprecedented power as both chief of staff and head of intelligence.

Milani claims he did not know what was happening in La Rioja Battalion 141, where he was deployed during the dictatorship.

But journalist Guillermo Alfieri, who was held as a political prisoner in La Rioja from 1976 to 1980, doesn’t believe him. “Milani isn’t showing the naïveté of Heidi [the character in the classic Swiss children’s novel] but the hypocrisy of Tartuffe [the opportunistic imposter in Molière’s famous comedy],” he told IPS.

Argentina’s last military dictatorship left 30,000 dead and forcibly disappeared, and 500 children were stolen from political prisoners, according to human rights groups.

Milani argues that he was young and was following orders, and says he was not aware of the human rights abuses taking place in that province.

But he is implicated in three lawsuits brought by families of victims of the dictatorship.

One of them involves the disappearance of La Rioja conscript Alberto Ledo.

Milani signed a document stating that Ledo had deserted his battalion. The young soldier was last seen in 1976 in the northern province of Tucumán, during Operation Independence, which ended in generalised repression under the pretext of eliminating a guerrilla group.

In his autobiography “Ver de memoria”, Alfieri describes the repression in La Rioja as “state terrorism”.

He said he met Ledo because they had friends in common in La Rioja, and described him as “a friendly, respectful and respected young man who loved history, was a musician who kept gatherings lively, and had left-wing ideas that he expressed with restraint.”

Human rights groups say Ledo is another victim of forced disappearance.

Milani’s promotion was approved by 39 to 30 votes in the Senate, after his designation in June as army chief of staff by the left-leaning government of Cristina Fernández, which invoked the presumption of innocence.

“I cannot, on the basis of mere suspicions, execute or lynch a general,” argued Senator
Aníbal Fernández (no relation to the president) of the governing Frente para la Victoria.

Human rights organisations and 1980 Nobel Peace Prize-winner Adolfo Pérez Esquivel considered Milani’s appointment a setback, because it revived the argument of “due obedience,” the name of a 1987 law that protected from prosecution lower-ranking members of the military under the concept that they were following orders.

Milani’s designation as army chief shocked the public because the governments of late former president Néstor Kirchner (2003-2007) and his wife and successor Fernández took a proactive stance on human rights.

They promoted the repeal of the 1980s amnesty laws and backed the trials against human rights violators. Since 2003, 515 human rights abusers have been sentenced.

“It offends me that the government is protecting and promoting a member of that criminal apparatus, which tried to write Ledo off as a deserter,” Alfieri complained.

The Centre for Legal and Social Studies (CELS), a prominent human rights group, objected to Milani’s appointment in July, because of his alleged participation in human rights abuses.

The military chief asked to explain himself to CELS, which has been behind the trials of human rights violators, and in response to a questionnaire he argued on Dec. 13 that in La Rioja the repression was “passive and low-intensity.”

But Alfieri said that La Rioja actually had “the largest number of [political prisoners] in the country, in proportion to the number of inhabitants in the province.”

“In La Rioja an intense witch hunt was unleashed, with systematic torture, hellish transfers and prisons turned into concentration camps,” he said.

“Even the gymnasium in Engineers Battalion 141 was used to warehouse detainees in bulk in the early days of the dictatorship,” he said, adding that there was no way that Milani hadn’t known what was going on.

Political and social allies of President Fernández have criticised Milani’s promotion.

They question what lawmaker Gabriela Cerruti of the Nuevo Encuentro party, a government ally, defined as “the threshold between judicial, political, moral and social guilt.”

The head of CELS, journalist Horacio Verbitsky, said Milani’s appointment was “a serious political error,” although he stressed that “asserting that this invalidates the human rights policy of the last decade reveals a deliberate bias.”

Political analyst and writer Alejandro Horowicz, author of the book “Los cuatro peronismos”, argued that it was important to go back to “the operating logic and patterns of the military repression.

“Irregular combatants had no rights, they could be tortured, raped and killed, and the perpetrators did not have to take responsibility for their own behaviour,” he told IPS.

According to Horowicz, by using “task forces” for fighting the guerrillas, the chain of command was suspended or subordinated to the heads of the operations.

In his view, Milani’s appointment should be understood in the context of the different approaches to “personal responsibility” in trying crimes against humanity.

“The first approach relegates the institutional character of each personal behaviour, to scrutinise the actions of the incriminated person,” he said.

“In the second, since everyone is innocent until proven guilty, the officers who have not been tried are innocent in an institution that is not,” he said.

“The third is that those who do not hold highly visible positions go unnoticed and are concealed by the broad mantle of the lack of legal charges,” he said.

Horowicz said the fact that Milani says he supports democracy “does not mean much politically” and his declaration to CELS “indicates that he is not willing, like the rest of officialdom, to take responsibility for anything.”

That would lead, he said, to a deeper analysis about “the democratic reconstitution of a military force in decomposition.”

“All you have to do is look at the behaviour of the armed forces throughout all these years, even after the repeal of the due obedience and full stop [a 1986 amnesty law that set a 60-day deadline for bringing legal charges in cases involving human rights violations] laws, to confirm that there is a willingness to do more of the same,” he said.

It also helps, he said, “to comprehend that it’s not about the names of individuals but about a decisive absence: of a genuinely democratic policy in the armed forces.”

The still unanswered question, he said, is why a government committed to human rights would decide to pay that political cost.

Was it a political error? Or perhaps, said Alfieri, a key move in guaranteeing governability at a moment of political crisis over allegations of corruption, a high inflation rate and police uprisings staged on the pretext of demands for a raise?

Perhaps the answers have to do with Fernández’s growing trust in Milani since he became head of military intelligence.

In the face of the lack of explanations, “speculation ranges between stubbornness, a strategy of turning the army into a nest of spies, and the unrealised dream of getting the military to align with popular sectors to promote the general welfare,” Alfieri said.

In any case it’s a double-edged sword, according to Horowicz, because “it diminishes the government’s manuevering room during crises.”