Constitutional Changes, Transitional Justice, and Legitimacy: The Life and Death of Argentina’s “Amnesty” Laws.

Abstract

The article analyzes in-depth the legal and political process through which Argentina came, first, to amnesty former military officers who took part in the repression during the last dictatorship (1976-1983) and, then, to nullify those “amnesties” and indict the officers again eighteen years later. The thematic core is the legitimacy (or lack of it) of constitutional changes carried out by unconventional means, which are the unavoidable spin-offs of the very difficult process of transitional justice that has taken place in Argentina. Section I gives an overview of the most salient legal and political facts of the last twenty-five years and poses the central questions to be tackled in the rest of the article. Section II covers the restoration of democracy in 1983 and the early attempts to bring the perpetrators of heinous crimes to justice. I analyze the position of some scholars who have suggested that Alfonsin should have chosen the path of constitutional lawmaking, instead of the rocky road of transitional justice. I argue that such position was untenable, in light of both Alfonsin’s political commitments and of the redemptive character of the 1983 election. However, I contend that Alfonsin intended to pursue both military trials and constitutional reform, and give reasons why the trials achieved a logical and temporal priority. The failure of the enterprise is also analyzed in-depth, with particular emphasis in the process that ended up in the enactment of the so-called “amnesty laws”. This Section also scrutinizes the role of the Supreme Court in the post-1983 period, the political incentives at play when the Court decided the constitutionality of the “amnesty laws”, and what alternatives –if any- the justices had at hand. The Section closes with an examination of the political process that led to the 1994 Constitutional Convention and the grant of constitutional standing to a number of international human rights treaties which were later deemed fundamental by the Supreme Court to nullify both Alfonsin’s “amnesties” and Menem’s pardons. Section III, finally, discusses the legitimacy of the Simon ruling by the Supreme Court, declaring the death of the “amnesty laws”, as well as the political and constitutional implications of such a decision. Contrarily to a majority of Argentine commentators, I argue that the process that ended up in Simon, although wrapped up in the attractive rhetoric of human rights, can be seen as little more than the imposition of political power by the victors. I offer an alternative view that tries to fit the decision in a broader picture of political legitimacy. However, I give reasons why, though the outcomes may be deemed legitimate from a certain perspective, the means used to achieve such results are of dubious legitimacy.