By EMILIO CAFASSI*
History has once again ratified the pendulum relationship between the partial and transitory hegemonies of both countries and their mutual influences
On Monday of last week, the 20th, we marched in silence along the main avenue of Montevideo without any other flag or symbol other than the historic, partially defoliated daisy (logo attributed to a former political prisoner) that identifies mothers and relatives of those who disappeared during terrorism. of State. The fragile but at the same time resistant flower evokes the memory of the atrocious consequences of the last civil-military dictatorship, established between 1973 and 1985 in Uruguay.
We accompanied each step with a silence as eloquent as it was solemn, only interrupted by the emotional tremor caused by our cry “present” resounding like an echo before each name of the missing was read on the loudspeakers on the corners. Just like March 24th in Buenos Aires, these marches demanding truth and justice acquire an undeniable magnitude, proportional to the level of horror of the crimes reported and the impunity that covers them.
Just a handful of words linked together in a choreography of questions allows the inquisitive scalpel to be inserted into the bowels of horror: “when, where, how and why”. Because “they”, the genocidaires and their cover-ups, unquestionably know.
The 1980s found a solid and disturbing parallelism between the two riverine countries in the consecration of impunity. In Argentina, the Alfonsín government imposed the laws of full stop (nº 23.492) and due obedience (nº 23.521) that guaranteed the extinction of criminal action and the non-punishment of the crimes of the dictatorship in 1986 and 1987, respectively, cowardly freezing the necessary continuation of the shocking trial and conviction of the military junta and the previous creation of CONADEP and its investigations.[I]
In turn, in Uruguay, the first Sanguinetti government managed to approve the expiry law (nº 15.848) also in 1986. The pardons decreed by Menem only consolidated the resulting devastation. A grotesque and shameful amnesiac blanket spread over both banks, despite the vital reflex act that subsequently constituted the eastern initiative of the National Pro-Referendum Commission against the “Ley de Caducidad de la Pretensión Punitiva del Estado”, also known as the “Commission of the Green Vote”, at that time insufficient to achieve the repeal objective.
In the early 1990s, the defeat seemed overwhelming in the south of the continent if we also added Pinochet's constitution to the other side of the mountain range, leaving a legal tapestry woven with threads of shadows.
The political and chronological convergences shine with a truly impressive brilliance, as can be seen in the illustrative table that contains textual details. The three norms, through their specific provisions, appear as dark guardians of human rights violators during State terrorism, limiting to extreme levels the possibility of judging and condemning them. It is as if they came from a single pen covered with identical pigments of civic rot. Protection that is articulated in different ways depending on the political context of recovering constitutional norms in each country, but always under the premise of guaranteeing impunity for those responsible.
Comparison of impunity laws
| Appearance | Expiry Law (15.848) | Final Point Law (23.492) | Law of Due Obedience (23.521) |
| Data | 22/12/86 | 29/12/86 | 06/08/87 |
| Government | Sanguinets | Alfonsín | Alfonsín |
| Main goal | Extinguish the State's punitive claim for crimes committed during the dictatorship | Extinguish criminal prosecution for crimes related to violent political actions until 1983 | Establish a presumption of due obedience to exonerate military personnel from criminal liability |
| Extinction of Criminal Action | Article 1 | Article 1 | Article 1 |
| Specific Exclusions | Article 2: Excludes cases with indictment and economic crimes | Article 5: Excludes the crimes of substitution of civil status and child abduction | Article 2: Excludes crimes of rape, child abduction and replacement of marital status |
| Intervention by the Executive Branch | Article 3: The Executive Branch informs about the inclusion of facts | Not applicable | Not applicable |
| Judicial Proceedings | Article 3: Suspend the process until communication from the Executive | Articles 2 to 4: Specific procedures and suspension of deadlines | Articles 3-4: Ex officio enforcement and restrictions on subpoenas |
| Retirement Benefits and Honor Recognition | Articles 5 to 9: Adjusts retirement benefits and recognizes the honor of directors | Not applicable | Not applicable |
Only in this century did some bricks of the wall of silence begin to crack. The first was the Argentine Congress during the Kirchner government which, through a law (nº 25.779) of 2003, annulled previous impunity laws. Subsequently, the Supreme Court of Justice itself ratified it by defending the unconstitutionality of the aforementioned laws in 2005. From that moment on, several judges began to declare pardons relating to crimes against humanity unconstitutional and reopen the cases. On June 15, 2006, the Criminal Cassation Chamber, Argentina's highest criminal court, considered pardons granted for crimes against humanity unconstitutional. Finally, the Court confirmed the decisions of the lower courts, expressly ruling that the pardons were not constitutional and that the sentences they annulled should be served.
History has once again ratified the pendulum relationship between the partial and transitory hegemonies of both countries and their mutual influences. In Uruguay, even with non-imputability in force (until today), the evasion of complaints protected by the law of expiry began to fade after the first Broad Front government with Tabaré Vázquez, although protection for criminals survived. Certainly the defeat of the pink vote[ii] the second plebiscite to repeal the law was a severe blow, which, however, did not completely extinguish the flame of the search for truth.
Later still, Pepe Mujica's government decreed the revocation of administrative acts and messages from the Executive Branch that included cases under the protection of that law, which at the same time suffered typical setbacks from the judicial structure itself, delaying the possibilities of elucidation that the Article 4 would allow. In Argentina, following the appointment of Eduardo Luis Duhalde (called “Duhalde the good”, so as not to confuse him with the provisional president of the same name who preceded Kirchner after De la Rúa's escape) as head of the Secretariat of Human Rights was a March.
Its functions and scope expanded by promoting trials of criminals against humanity, achieving the conviction and imprisonment of just over a thousand perpetrators. Although this number represents only a fraction of the total number of criminals in the terrorist state, it is a significant indicator of a dignifying trend. In Uruguay, however, the guideline was broken when in 2013 it suffered a new setback with the decision of the Supreme Court of Justice to declare unconstitutional the interpretative law with which parliament intended to mitigate the effects of the aberrant expiry.
Mauricio Macri's government resumed the path of inversion. It did not touch the legal norms in this regard, it did not release criminals, nor did it question Cristina Kirchner's commendable initiative to transfer the headquarters of the Secretariat to the sacred facilities of the Memory and Human Rights Space, in the former ESMA, that dark and vast clandestine torture center and extermination of the dictatorship. However, it unleashed a discursive offensive against the defense of human rights, which Alberto Fernández's subsequent lukewarm manner failed to reverse or even contain.
He started what today Javier Milei and his activists call a “cultural battle”, in a grotesque reinterpretation of Gramsci's concepts of culture and hegemony, which they had difficulty reading. On the other hand, Lacalle Pou's triumph did nothing more than perpetuate the immutable state of things that enshrines the expiration celebrated by all herrerism,[iii] with additional spice in the formation of its multi-party alliance, in which the faction “Town meeting” constitutes a faithful determinant of its balance. In effect, in the direction of the Macrista style, the unscrupulous and virulent narrative against the sentences of the criminals of the dictatorship of the sector headed by the military Manini Ríos, reinforces the abominable pole of obsolescence.
In this rarefied climate, hostile gestures are quick to emerge. Precisely the emblematic ESMA, on the eve of the Montevideo march, welcomed people nostalgic for torture, such as former army non-commissioned officers from the class of '78. These individuals, full of dark arrogance, applauded these actions and took photos with the flight plane of death, now on display in the memory museum. Meanwhile, President Javier Milei, his deputy Villarruel and Minister Petri do not stop insulting the human rights movement, claiming dictatorship, or directing foreign policy towards the genocidal Benjamin Netanyahu and his main hierarchs, who today face an arrest warrant for a prosecutor from the International Criminal Court.
Furthermore, they are determined to dismantle the evidentiary and accusatory material of the ongoing trials. To do this, they deactivate the documentary source that turned out to be the Relevance and Analysis Equipment (ERyA) of the Armed Forces archives, depriving justice of the crucial evidentiary input necessary to support the accusations. Gestures and actions reveal a deliberate attempt to dismantle the progress made in the search for truth and justice, reestablishing a dark cloak of impunity over the crimes of the past.
As we marched in silence, I wondered what would happen to that same demonstration on the other side, with the permanent repressive threats formalized and executed by Minister Bullrich's security protocol, contained or self-inhibited in the massive marches, but fierce in the face of more minority expressions. or in deconcentrations. In addition to the protocol, the omnibus law by Javier Milei and his DNU complement some aspects, forming a truly threatening device, because without guarantees of basic civil freedoms, such as the right to protest, it will be increasingly difficult to advance the principle of equality before the law, which violates impunity.
We march among the surviving weeds of dictatorships, which created the maximum violation of civil liberties, among other socially and economically devastating aberrations, through the domination and appropriation of bodies. Through confinement, torture, death, the appropriation of babies and the sexual exploitation and humiliation of victims, especially women. On the other hand, through control through omnipresent sordid terror, in the urban circulation of “free” citizens.
The future is full of uncertainty, although we agree that in our common sense lives the apothegm according to which the only fight that is lost is the one that is abandoned. In this way, we will be lost if we do not repeatedly take to the streets, if indignation stops revealing us, if in some sense of discouragement and perception of inequality of forces, the marches stop calling us.
They encourage us to make the silence of each step a deafening roar.
*Emilio Cafassi is senior professor of sociology at the University of Buenos Aires.
Translation: Arthur Scavone.
Translator's notes
[I] CONADEP was the National Commission on the Disappearance of Persons, a commission created in Argentina in 1983, shortly after the end of the military dictatorship that governed the country from 1976 to 1983. CONADEP was tasked with investigating cases of forced disappearance of people during the dictatorship, documenting and denouncing human rights abuses committed by the military regime. His final report, known as “Não Más”, was fundamental for the investigation and accountability of crimes committed during the dictatorship in Argentina.
[ii] The term “pink vote” refers to the color of the voting ballot in the plebiscite that called into question the repeal of the Expiry Law in Uruguay, held on October 25, 2009. It was proposed to annul articles 1 to 4 of the law and the declaration of its non-existence. The plebiscite took place simultaneously with the general elections that year and another plebiscite that sought to enable Uruguayans to vote abroad (white vote). The initiative reached 47,36% of affirmative votes, with the constitutionally required absolute majority not being achieved.
[iii] “Herrerismo” refers to the conservative and originally anti-liberal current of the National Party (or White Party) in Uruguay that originates in the leadership of Luis Alberto de Herrera, the first winner of that party's elections in 1958. He toured the country on campaign, accompanied by his 17-year-old grandson, Luis Alberto Lacalle. In 1989, his grandson, Lacalle Herrera, won the elections already imbued with orthodox liberalism, especially on economic issues and, in 2020, his great-grandson, Lacalle Pou.
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