March 24th is the Day of Memory in Argentina.(1) It was on March
24th, 1976 that the last
and most brutal military dictatorship took power, unleashing its reign of terror
throughout Argentina. Thousands of men, women and children were "disappeared" by
the security forces, most taken to secret detention centers where they were tortured and
kept in subhuman conditions before being murdered. The truth as to what happened to
the majority of the "disappeared" is still not known, the military has yet to turn in the
records of the repression to civilian authorities, and the families of the disappeared
continue clamoring for truth and justice, remembering and making sure that the memory
of the disappeared continues forever.
On March 24th we remember them publically, more loudly, with marches and
demonstrations but also with concrete actions. Last year (1998), on March 24th
Congress voted to repeal (but not annul) the laws of "due obedience" and "punto final"
which enshrined de jure impunity in Argentina.(2) And this year (1999), on March
24th,
the first stone of what will be the Monument for the Victims of State Terrorism was
placed. The Monument, inspired by the Vietnam Memorial, will include the names of
the disappeared. It will face the waters of the Rio de la Plata, where so many of the
disappeared were thrown to their deaths, and will be set within a much larger "Park of
Memory," that will contain sculptures honoring the victims and open spaces for
collective memory.(3)
This sculpture and memorial park does not intend to heal wounds that
cannot be healed, nor to replace truth and justice. Nothing will bring back
real peace of mind to the families that have not been able to find out yet
the final destiny of their loved ones, savagely tortured and murdered.
Nothing will replace the social void provoked by their absence. This park
will stand as a testimony, as a memento and as homage to all those whose
lives were effaced and that have become known to the world as "the
disappeared", as well as to all those who were murdered. They will be
present in their inscribed names and in the evocation of their obliterated
lives.
Future generations will confront here the memory of the horrors
committed and thus become aware of the need for them to happen
NEVER AGAIN.(4)
The struggle for human rights in Argentina has been centered not only on the search for
truth and justice for the victims of state terrorism, but also on the memory and
vindication of the victims and their need, and right, of redress. Projects like the
Monument to the Victims of State Terrorism cannot in themselves make the victims,
and society, whole again - but are essential component in the vindication not only of the
victims as human beings who fought for their believes and were killed in the most
cowardly of ways, but of the families and other human rights workers who have put
their lives and livelihood at risk for so many years, facing guns and social opprobrium,
in their struggle for truth and justice. The monument, as the other monuments, plaques
and memorials that remember the victims, is both a public acknowledgment of the
inherent worth of each person who was killed and disappeared, and a public
condemnation of those who tortured and killed them. In paying homage to the victims,
we condemn their victimizers.
Truth, Justice and Reparations
The struggle for human rights in Argentina has to a large degree been shaped as a
struggle for truth and justice. Learning the fate of the thousands of disappeared was
understood to be primordial from the beginning - at first the goal was to find them, later,
when it became clear that they had been killed, to find out what happened to each one of
them. Families had a strong psychological need of knowing what happened to their
relatives, and society itself needed to (and needs to) understand what the military did in
their name. Human Rights organizations and activists worked very hard investigating,
and organizing and analyzing information about the disappearances, and their work
provided a base for the activities of the CONADEP..(5)
Truth, of course, is only part of the equation. There is an equally great need for justice
for the victims of human rights violations; those who tortured and killed them must be
held accountable for their deeds. Lack of justice impedes the establishment of the rule
of law in Argentina and contributes to a conscience of impunity which encourages
further human rights violations.(6) Human Rights groups and activists in Argentina
worked and continue to work actively for the prosecution of human rights abusers both
before Argentinian and foreign courts.(7) They also participate in the continuos
denunciation of human rights abusers, both so as to impede their promotions within the
armed forces and to let the public know who they are and what they did.
But the struggle for human rights and against impunity has another equally important
element: the reparation of victims of human rights violations. Human rights
organizations and activists in Argentina have worked tirelessly and to a large degree
effectively to obtain redress for the victims of state terrorism. However, the struggle for
reparations has been arduous and one that has painfully divided and continues to divide
the human rights community at its core. This is due, to a large degree, to a deep
misunderstanding in the part of some human rights workers as to what is the purpose
and significance of reparations. The international recognition of the right to reparation
as additional to, rather than a substitute for, the rights to truth and justice, and the
international understanding of reparations as an acknowledgment by the state of its
responsibilities for human rights violations is needed not only to repair this rift, but to
assure that similar rifts do not develop elsewhere.
Reparations
The right to reparations implies both individual and collective measures. At the
individual level, victims of human rights violations(8) must be able to enjoy effective
remedies which cover all the injuries suffered by the victims. Reparation must include
restitution (to re-establish the situation that existed prior to the violations),
compensation (for any economically assessable damage resulting from the violations)
and the rehabilitation of victims. At the collective level, reparations consist in the
public acknowledgment of the State of its responsibility for human rights violations and
should include public declarations reestablishing the dignity of the victims, ceremonies
and monuments in their memory and the naming of streets and other public areas.(9)
Providing truth and justice for the victims is also an essential element of reparations.
Argentina has made very important strides in compensating the victims of human rights
violations for the economic damages they suffered. Political prisoners and ex-disappeared were compensated for the time they
spent in prison or in concentration
camps and thus forcibly away from their jobs or studies. The families of the dead and
the disappeared were compensated for the economic hardship that the loss of their
family member involved. While financial compensations are only a part of the
reparations due by the State and society to the victims, they are important both for their
practical effects and because they constitute a clear acknowledgment by the State of its
responsibility for the human rights violations committed against its subjects. By
agreeing to provide compensation to the victims of human rights violations, the State is
acknowledging that it is responsible for those violations and that they were wrong.
A number of laws and executive decrees were passed by the Argentinian government to
compensate the victims of human rights violations. These included both laws providing
financial compensation and laws recognizing the special status that the disappeared have
in Argentinian society, due to the methods used by the military dictatorship against
them.
In 1985, Congress passed law 23.466 which established provisional benefits for the
families of the disappeared. The law established a minimal pension(10) for the wife,(11)
minor children and other dependents of the disappeared.(12) In 1991, a law was passed to
exempt direct relatives of the disappeared from military service.(13) This law was
necessary given that human rights violators in Argentina continue to enjoy not only their
freedom, but their military careers, and so as that the children of the disappeared would
not end up serving at the same place where their parents might have been tortured or
killed.
The disappeared were not the only victims of human rights violations in Argentina.
Thousands of people were imprisoned during the 1970's, often because of their imputed
political beliefs. Most of them were put at the "disposition of the executive power,"
though a few were actually sentenced through highly political and unfair trials. After
democracy returned to Argentina, some of these people sued the government for false
imprisonment - however, the courts ruled that the suits were barred because of the
statute of limitations. The victims petitioned the Inter-American Commission on
Human Rights arguing that their right to justice had been violated. In response to this,
in 1990 the government set up an ad-hoc Commission to draft a law that would provide
reparations for people in the situation of the petitioners. When Congress was slow in
approving the law, the President passed an executive order that authorized the payment
of compensation. The amount of the compensation was calculated in relationship to the
amount of time each victim had spent in detention, larger compensations were given for
victims who had died during detention or endured particularly gross mistreatment.
About 260 people asked for compensation under this law.
In 1991 Congress passed law 24.043/91 which established reparations for people who
were imprisoned between November 6, 1974(14) and December 10, 1983(15) by orders of a
military tribunal or the executive power. It provided a similar compensation scheme to
that of the decree.(16)
Two very important laws were passed in 1994 to further provide reparations for he
disappeared. The first, law 24.321/94, creates the juridical figure of the "Absent by
Forced Disappearance" for people who were disappeared by the repressive forces until
Dec. 10, 1983. The law calls for the recording of the disappearances in the National
Registry, where births, marriages and deaths are also recorded. The law fills a legal
vacuum, it allows the wives of the disappeared to legally remarry, have sole legal
custody of their children and allows for the disposition of the property of the
disappeared. More importantly, this recognition of the disappeared as a juridical person
signifies an official acknowledgment by the State and society of the disappeared as such.
The second, law 244.11/94, provides compensation(17) for the families of the disappeared
and killed by the repressive forces before Dec. 10, 1983. It also allows for the
registration of people killed, filling the vacuum left by the CONADEP which
concentrated only on people that had been disappeared.(18)
Finally, in 1999 Congress passed a law creating a "Historical Reparation Fund for the
Location and Restitution of Children Kidnaped or Born in Captivity". Under this law,
the Grandmothers of Plaza de Mayo will receive about $25,000 a month during two
years to fund their efforts to search and recover disappeared children.(19)
Still on the inkwell is a bill that would compensate Argentinian exiles. Thousands of
people had to leave Argentina during the military dictatorship to save their lives, often
at a great financial and emotional cost.
While financial compensations are essential when human rights violations have lead to
economic losses as in Argentina, they are only a part of the reparations that both the
State and society owe to the victims. As mentioned above, public memorials and
homages to the victims are needed both to vindicate them and to remind society of what
happened. While the Argentinian national government has done a lot to provide
financial compensation to the victims, its record on providing public reparations is
much poorer, and most public reparations have been provided by other institutions.
In Argentina, most of the public commemorations of the victims have focused on the
disappeared, perhaps due to the uncertainty about their fate and the monstrosity of the
treatment they received. Schools and universities have been among the first to honor
their disappeared students, graduates and professors.(20) They have erected plaques with
their names honoring them, often unveiled during commemoration ceremonies to which
their relatives are invited. In 1998 the University of Buenos Aires for the first time gave
a diploma to a disappeared student,(21) in a ceremony attended by his parents, the Mothers
of Plaza de Mayo and many others.
Some cities and municipalities have also erected memorials to the disappeared or found
other ways to pay homage to them. The city of Trenque Lauquen, for example, erected
an open-air sculpture garden on a city plaza in honor of the seven disappeared from the
city. The city of Villa Regina in the province of Rio Negro declared a "El Libro de
Mariel," a book about the disappeared sister of the author, to be of "municipal interest."
Even cities in Italy, from where many of the disappeared came, have named streets,
parks and buildings after them.
The Monument to the Victims of State Terrorism, a project of the city of Buenos Aires
rather than the national government, will probably become the most important public
memorial to the victims. The name of each and everyone of the disappeared and killed
will be written facing that river which devoured them, and their names will be able to be
read aloud by everyone.
Another type of reparation which is essential both to vindicate the victims and to
preserve the collective memory of the genocide, is the preservation of those places that
functioned as the centers of terror. In Germany and Poland, concentration camps have
been preserved as a reminder of the holocaust to the world, and the same should be done
in Argentina. Human rights activists are now working to turn the ESMA(22)
concentration camp into a Museum of Memory, where future generations could learn
about the genocide that took place in Argentina. The National government, however,
has opposed this measure and would instead like to destroy it.
In 1998, President Menem issued decree 8/98 where he ordered the transfer of the
Navy's Mechanics School to another installation and ordered the Ministry of Defense to
destroy the ESMA building, which had functioned as a concentration camp, so as to
construct "a green space for public use and a place for siting a symbol of national
union". The prospects of destroying a building that might provide information about the
disappeared and building on its place a monument to "national union" was like a slap on
the face for many of the families and friends of the disappeared, and it generated a very
strong negative public reaction.
In response to the decree, relatives of the disappeared filed an "amparo" action asking
that the destruction of the building be stopped, ad the building represents both for them
and for society a symbol of the horror and that destroying it would mean erasing the
living testimony of our past.(23) This action allowed two relatives of the disappear for the
first time to visit the ESMA concentration camp. Meanwhile, a bill has presented in
Congress that would convert the ESMA into a museum. Human rights activists would
like to see all concentration camps become museums and thus permanent reminders of
what should happen never again.
Truth as Reparation
As important as financial compensation and homages to the victims are, they only
constitute part of the reparations due both to the victims of human rights violations and
their families, and to society as a whole. Obtaining the truth as to what happened is a
most important part of the reparations due, and without truth, to the undying pain of the
disappearance must be added the haunting uncertainty as to what happened to the
disappeared.
Human rights organizations and activists have done much of the work of uncovering
what took place and what happened to their loved ones. As mentioned above, they
collected, organized and analyzed information from survivors, families and in a few
cases the torturers themselves. In this sense, it's appropriate to mention the work of the
Argentine Forensic Anthropology Team which for many years has been investigating
and identifying the graves where some of the disappeared were dumped, and identifying
the disappeared themselves. While the majority of the families will never be able to
find the remains of their loved ones, so many were thrown to the river, the team's
worked has helped many be able to bury their own dead, under their own names. For
many families, finding the remains of their disappeared relatives, while painful, is akin
to being reunited with their loved one. The remains of the disappeared also speak
loudly through their injuries as to what was done to them. In addition, finding the
remains of a given person helps identify those responsible for their death - as each
cemetery was under a particular jurisdiction.
While human rights groups have worked very hard to uncover as much information as to
the disappearances as possible, it is the ultimate responsibility of the State to provide the
families of the disappeared and society in general with a complete and detailed account
of what took place. This, the State has not done.
In 1984, the Alfonsin government set up the National Commission on the
Disappearances of Persons, which compiled and systematized much of the information
the human rights groups had uncovered about the disappearances. It also took
testimonies and compiled a list of the disappeared. However, it's investigatory powers
were limited and while the report it produced served to create a bases of collective truths
about the disappearances, it did not provide answers about individual cases.
The role of investigating individual cases was and is the proper province of prosecutors
and investigative judges. However, the abovementioned amnesty laws stopped
practically all investigations as to what happened to the disappeared. While new trials
may bring some information, the Argentinian State still has to fulfill its responsibility of
releasing all the information about the disappearances. And this obligation is not one
that only falls on the shoulders of the Argentinian State - countries like the United States
which have ample documentation about what took place in Argentina and other Latin
American countries, must open their archives and declassify these documents.
Conflicts
The views presented in this paper about the significance of reparations are not shared by
all human rights activists, families and survivors. As mentioned above, the issue of
reparations brought about a profound rift within the human rights community. In 1986,
the Mothers of Plaza de Mayo - the organization that has become the symbol of the
struggle for human rights in Argentina - split into two separate groups precisely on this
issue. While the Mothers of Plaza de Mayo, Founding Line advocate reparations as a
symbol of the State's acknowledgment of its responsibility for human rights violation,
the Mothers of the Plaza de Mayo Association, headed by Hebe de Bonafini, have been
vehemently opposed to them. The organization of ex-disappeared (though not all the
ex-disappeared themselves) have sided with the Association on this issue.
For these groups accepting financial compensation is akin to giving up the struggle for
truth and justice, it's selling out for money. They believe that the only possible
reparation is justice, and that the State should start by punishing all human rights
violators. They reject all other types of compensation. For this reason, they are also
vehemently opposed to the excavation of the tombs of the disappeared and the
identification of their remains. It should be the State who provides all the answers as to
what happened to the disappeared. In addition, for the Association, all the disappeared
should be remembered collectively and not individualized.
Needless to say, these organizations have also strongly opposed the Monument for the
Victims of State Terrorism, again because they see it as a sell out, an attempt by the
state to give much less than what it owes.
While ideological differences are common among human rights groups all over the
world, the conflicts that have arisen over these issues have been profoundly painful for
everyone involved and destructive for the human rights movement in Argentina. The
organizations and individuals which oppose reparations have often accused those who
have accept them of being prostitutes or traitors. Accusations like those were shouted at
human rights workers on the March 24th march, for example - and are printed on a big
signed carried by the Association to their Thursday marches at the Plaza de Mayo.
Conclusion
Argentina has gone a long way in providing reparations for victims of human rights
violations; much more needs to be done however. The struggle for truth and justice
continues, and full reparation will not be paid until these are reached. The reparation
legislation that has been passed in Argentina can serve as an example to other countries
with similar histories as to what can and should be done for the victims. The
Argentinian experience with intra-group conflicts should serve as a warning sign of
potential problems that other countries might experience. It should also remind us all of
the importance of truth and justice for reconciliation.
1. In 1998, the Legislature of the City of Buenos Aires declared May 24th as they Day of
Memory
to remember the victims of state terrorism in Argentina.
2. The "punto final" law, issued in 1986, extinguished criminal actions against human rights
violators who had not yet been charged with a crime. The "due obedience" law, issued in 1987, declared
that all but the top military and police leaders were to be presumed to have been following orders and
could not be prosecuted for the human rights violations they committed.
3. The park will also include a monument to the victims of the AMIA bombing.
4. From: Commission for the Monument to the Victims of State Terrorism, document read at the
ceremonies for the placement of the first stone.
5. The National Commission on the Disappearance of Persons (CONADEP) was set up by the
newly democratic government in 1984 to investigate the disappearances during the military dictatorship
in Argentina. Their report, "Nunca Mas," summarizes their findings.
6. See Avila, Marcelo La Lucha Contra la Impunidad Como Garantía del Estado de Derecho
in
KO'AGA ROÑE'ETA se.iii (1997) - http://www.derechos.org/koaga/iii/avila.html
7. Soon after democracy returned to Argentina on Dec. 1983, the civilian authorities initiated
criminal prosecutions against human rights violators. Most of these criminal procedures were stopped,
however, when under heavy military pressure the National Congress passed two laws effectively
amnestizing all but the highest military leaders. These were tried, mostly convicted, and later pardoned
by current President Menem. Human rights groups then focused on possibilities for justice abroad, and
criminal prosecutions against Argentinian military were initiated in France (where Cpt. Astiz was
sentenced in absentia to life in prison for the murder of two French nuns), Italy (where preliminary
hearings for the deaths of 7 Italian citizens should finish in May, 1999), Spain (where dozens of
Argentinian military have been indicted on charges of genocide, terrorism and torture) and Germany
(where prosecutors have began to investigate the murder of German citizens in Argentina). New criminal
procedures were also initiated in Argentina against Argentinian military on charges of misappropriation
of minors (kidnaping), and to obtain the truth about the fate of the disappeared.
8. By "victims" we refer both to the direct victims of human rights violations and to their family
members and other people with close personal relationships to the direct victim.
9. See Question of the impunity of perpetrators of human rights violations (civil and political).
Revised final report prepared by Mr. Joinet pursuant to Sub-Commission decision 1996/119,
E/CN.4/Sub.2/1997/20/Rev.1, 2 October 1997
10. It's currently about $140 a month., the cost of living in Argentina approximates that in the
United States.
11. This was later expanded to include common law wives
12. In essence, this meant elderly mothers that could show that their disappeared child supported
them, and younger disabled siblings of the disappeared.
13. Law 23.852/90 was passed on Sept. 27, 1990 and issued on Jan. 2, 1991. It became moot
when obligatory military service was abolished in Argentina.
14. The date when a state of siege was declared in Argentina by the Isabel Peron government.
15. The date when a democratic president took power in Argentina.
16. Financial compensation was given at an official rate of $75 per day of imprisonment. The
actual compensation paid, however, was significantly lower due to the compensation system set up.
About 7,000 people have already been paid compensation under this law.
17. The amount of the compensation is about $200,000, paid in government bonds with several
years before maturity.
18. In addition to disappearing people, the repressive forces also killed some of them outright.
They would then be reported as having died in an armed "confrontation" with the security forces. The
CONADEP only had jurisdiction to investigate the disappearances, so there has not been a through
investigation of the summary executions nor a list of victims officially compiled.
19. The repressive forces in Argentina kidnaped pregnant women and mothers with young
children. While some of these children taken, or born in captivity, were returned to their family, a large
number of them were given to families close to the military to raise as their own. The Grandmothers of
Plaza de Mayo have been searching for their disappeared grandchildren ever since they were taken, and
have been successful in finding about 60 of them.
20. About 21% of the disappeared were students, almost 6% were teachers.
21. Daniel Bendersky, a Physics student, disappeared on 16 Sept. 1978, a month after he turned in
his thesis, but before he was able to defend it. His thesis was so brilliant he received a "10".
22. The Escuela de Mecánica de la Armada (Navy's Mechanics School - ESMA) was the largest
concentration camp in Argentina. Thousands of people were taken there after being kidnaped by the
Navy, and there they were savagely tortured and later killed.
23. The action was filed by Laura Bonaparte, a member of Mothers of Plaza de Mayo, Founding
Line, who has seven family members disappeared and Graciela Lois, the co-author of this paper, whose
husband was disappeared and seen at the ESMA. An "amparo" action is equivalent to a request for an
injunction based on a possible violation of constitutional or other fundamental rights. The amparo was at
first granted by the court, but has been denied by the appellant court. It is now being considered by the
Argentinian Supreme Court.
