Introduction copyright © 1986 by Ronald Dworkin Translation copyright © 1986 by Writers and Scholars International Ltd, publishers of Index

on Censorship

Originally published in Spanish under the title Nunca Mas, copyright © 1984 by Editorial Universitaria de Buenos Aires

Ail rights reserved

First published in Great Britain by Faber and Faber Ltd in association with Index on Censorship, 1986

First American edition, 1986

Printed in the United States of America

Contents

Library of Congress Cataloging-in-Publication Data Argentina. Comisi6n Nacional sobre la Desaparici6n de Personas.

Nunca mas.

Translation of: Nunca mas.

Includes index.

I. Terrorism-Argentina. 2. Missing persons-Argentina. 1. Title.

HV6433.A7A74 1986 303.6'25'0982 86-664

The introduction by Ronald Dworkin first appeared in The New York Review of Books

List of Figures List of Plates

Introduction by Ronald Dworkin Prologue by Ernesto Sabato Authors' Note

page vii

ix

xi

1 7

The Repression 9

General introduction 9

Abduction 10

Torture 20

Secret Detention Centres (SDCs) 51

Description of individual Secret Detention Centres 76,

Death as a political weapon: extermination 20g:

The implications of 'impunity' 234

The coordination of repression in Latin America 254

Documentation 263

The profits of repression 272

II The Victims

284

Introductory note 284

Children and pregnant women who disappeared 286

The family as victim 321

Families who disappeared 325

The sick and disabled 332

Members of the clergy and religious orders 337

Conscripts 355

Journalists 362

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Introduction

1

Nunca Mas, which was published in Argentina in 1984, is a report from Hell. The work of a special commission appointed by President Alfonsfn, it describes in detail almost unbearable to read the system of licensed sadism the military rulers of Argentina created in their country from 1976 to 1979, when more than twelve thousand citizens were "sucked" off the streets, tortured for months, and then killed. The roots of this horror are deep in the modem history of the country: Argentina has been a political and economic paradox for almost a century. It has extraordinary natural resources, rich and vast agricultural land, and an educated population, and it benefited, early in the century, from heavy foreign, particularly British, investment in its railways and industry. Economists often predicted, fifty years ago, that it would become one of the world's most prosperous nations. But it never achieved the political stability economic success required, and the peculiar role of the military in its politics was both a cause and an effect of that failure.

In 1930 the Argentine armed forces overthrew the elected government of President Hipolito Yrigoyen, of the Radical Civic Union party, in an unconstitutional coup; since then they have overthrown five more elected governments, and ruled Argentina for a longer period, in the aggregate, than all these democratic governments together. Juan Peron, who was then a colonel, participated in the coup that unseated President Ramon Castillo in 1943. He used his position as head of the National Labor Department to take control of the developing trade union movement, which he corrupted into an instrument of personal power. With the help of his wife Evita. who had been a glamorous radio star, he was elected president in 1946 and governed autocratically until he was himself overthrown in 1955 and exiled, eventually to Spain. In his years

[xil

of power he created a cult of personality, particularly among workers' by lavish spending that exhausted the huge financial surplus Argentina had amassed during the Second World War. He also created a police state, using informers and torturers, and Robert Cox has convincingly argued that Peron's administration prepared the way for the terror described in Nunca Mas. *

Per6n was worshiped by both left and right extremists, and they worked together in 1973 to elect a Peronist president, Hector Campora. who had vowed to call Per6n back to power. But before Peron returned in June of 1973, to dismiss Carnpora and become president again himself, the two wings had split apart, and the enormous crowd that gathered at the airport to welcome him from Spain turned into two warring armies before his plane landed. An estimated two hundred young people died in the fighting between them, and that airport slaughter was a dramatic signal. Argentina had begun its nightmare.

Peron immediately sided with the right. (When a reporter from a newspaper financed by the Marxist-Leninist People's Revolutionary Anny [the ERP] asked him, at a televised press conference, whether he would stop paramilitary groups from kidnapping members of that organization, he made no reply except to order that her name be taken. She was soon kidnapped herself.) The ERP and a group of left-wing Peronists who called themselves the Montoneros had become terrorist groups, and killed and maimed government and police officials, and civilians as well. At least eight hundred people died at their hands. Right-wing terrorist bands, which included groups from the army and police, assassinated left-wing leaders in tum, and an undeclared civil war began on the streets of Argentina's cities.

Per6n died on July 1, 1974; his third wife, whom the Argentines called Isabelita, was his vice-president and became president in his place. She was as incompetent to check the different terrorist groups as she was to control the terrifying inflation, which had reached an annual rate of 700 percent, or to halt a severe economic decline that had produced a negative growth rate. On March 24, 1976, the military took control yet again. The familiar tanks surrounded the Casa Rosada (the "Pink House" from which Argentine presidents

• Robert Cox. "The Second Death of Peron?" The New York Review of Books (December 8, 1983), p. 18.

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governed) and Isabelita was quietly flown first out of Buenos Aires and then, after some years of house arrest, back to a Spanish exile.

The military formed a three-man junta composed of the commanding officers of the army, navy, and air force. The junta adopted a Statute for the Process of National Reorganization that gave it ultimate power to govern; it replaced the Supreme Court and many other judges with its own appointees, and took command of the universities. The country did not protest, and the middle class. tired of inflation, appalled by the chaos of Isabelita's brief administration, and frightened by terrorism, welcomed what it saw as a return to sanity. Argentina's greatest writer, Jorge Luis Borges, whose mother and sister had been arrested under Peron, said that once again Argentina was to be governed by gentlemen. He had no idea what these "gentlemen" actually had in mind.

A substantial section of the military were fascists. They thought of themselves, not as the servants of constitutional government, but as the true ruling caste of the nation, guardians of its values and way of life. They dismissed the Congress and replaced the members of the Supreme Court. They believed that the terrorists of the left were not just criminals to be pursued and punished by police action but a lethal and immanent threat to Argentine civilization, an army of evil they had a duty to destroy in what they called a "dirty war." Nor was this threat limited, in their eyes, only to the guerrillas and terrorists themselves: it was posed, more profoundly, by what General Jorge Videla, the army's representative in the initial junta, called "subversive thought." He meant dissent

of any kind. .

Watchful Argentines soon discovered what a dirty war was. People - mainly but not only young people - began to disappear in great numbers. They were swept off the street, or from their homes in the middle of the night, by squads in plain clothes, and bundled into the trunks of the Ford Falcons with no license plates these squads drove. Most were never seen again. When desperate parents or friends sought information from the police or the military, they were told the authorities had no knowledge of who had taken the victim or where he or she was. Some relatives hired lawyers to bring actions of habeas corpus in the courts. But almost all these actions were dismissed - the judges the junta had appointed remained faithful to them or frightened by them, and anyway had no power to question the military's flat denials of any knowledge-

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and the lawyers who brought the actions began to disappear themselves.

Very few of those who disappeared had any connection to the left-wing terrorist groups whose activities provided the original excuse for the military coup. Many were trade unionists, journalists, or lawyers, others were friends of these, or acquaintances, or people whose names had been given in fright by those who had been arrested, or whose names were in their address books, or people against whom someone in power had a grudge, or who had property someone in power wanted. Many were middle-class and professional people, or their children: no one could be sure that he or his family was safe. Families who had influence or connections were told to make no trouble, that if they kept quiet their son or daughter would no doubt be returned. They almost never were.

The disappearances were no secret. Most people knew someone whose son or daughter or friend had been sucked off the streets. In rare cases the military released someone it had taken; in other cases it acknowledged it had him, tried him on trumped-up charges, jailed him, and finally released him. Those who returned to society told their stories, and these circulated within Argentina and abroad. Jacobo Timerrnan, the highly influential editor of a leading newspaper, was abducted, but his friends within and outside the military were powerful enough to secure his exile to Israel. Timerman wrote a book reporting how he had been tortured, and the sickening conditions under which he and others had been kept.

Not all Argentines were too shocked or frightened to protest. The English-language newspaper, the Buenos Aires Herald, reported disappearances regularly and ran editorials demanding information from the military, though its editors were themselves threatened. An extraordinarily brave group of women, who came to be called the Mothers of the Plaza de Mayo, demonstrated weekly in front of the Casa Rosada, demanding information about their disappeared children. (Several ofthem then disappeared too.) Concerned citizens, including a prominent lawyer, Emilio Mignone, whose own daughter had disappeared, formed human rights groups to try to monitor the repression. The Carter administration in the United States accused Argentina of human rights violations, and sharply restricted foreign aid.

But though the evidence was soon undeniable that the junta had been engaged in mass teror, most Argentines were satisfied with

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its explanation that harsh measures were necessary to save the country; they told themselves that the army knew best, that their acquaintances who had disappeared were probably secret communists after all. After 1979, in any case, the disappearances largely ceased. The junta's power was finally broken, not by any domestic or international concern about human rights, but by its own economic and, in the end, military ineptitude. It had based its title to rule on the claim that no elected government could take the measures needed to restore economic health and political stability. After the coup, the junta had appointed a well-known banker, Martinez de Hoz, an advocate of a fiercely unregulated market economy, as finance minister. His programs of attracting foreign capital were successful in the short run - the Argentine peso increased in value so dramatically and quickly that middle-class Argentines traveled the world on their strong currency, and delighted in suddenly cheap imported goods of every kind. But the short-term success turned into economic disaster: domestic industries were ruined, the economy plunged, and inflation returned.

By 1982 it was plain that the military would be unable to deliver the prosperity it had promised, and it suddenly seemed no better than the elected government it had replaced. Mass strikes began, and General Galtieri. who had become the army's representative in the junta, turned to the traditional remedy of unsuccessful tyrants: foreign war. Argentina had claimed title to the Falklands (which the Argentines call the Malvinas), an unpromising group of islands in the South Atlantic near Argentina that Britain had governed since 1833. Negotiations with Britain had dragged on for years, but Galtieri suddenly invaded the Falklands in April of 1982. He and his advisers fatally misjudged Great Britain's Willingness to defend them, and his invasion ended in spectacular and humiliating defeat: the Argentine armed forces could not defend the small group of islands they had occupied, close to their shore, against an attack launched from half the world away. Galtieri resigned in disgrace, and was replaced by General Bignone, who realized that the military could not continue to govern, and organized elections to install a democratic and civilian government. The final junta took the precaution, before those elections, of adopting a general amnesty purporting to immunize every member of the military from prosecution for any crimes he had committed in the so-called war against subversion.

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2

Raul Alfonsin was the candidate of the Radical Civic Union party, the liberal party whose last president nominated by the full party, Yrigoyen, had been overthrown in the military coup of 1930. Alfonsfn had been one of the few politicians who had protested, at some personal risk, against the military terror, and he made human rights the center of his campaign: he promised to investigate tt'1e disappearances and to bring the responsible officers to trial for their crimes. Though the rival and still-powerful Peronist Party was heavily favored, its lackluster candidate, Italo Argento Luder, aroused little interest, and Alfonsin, and human rights, won. He immediately appointed a commission of distinguished citizens, under the chairmanship of a prominent writer, Ernesto Sabato, called the Commission on the Disappeared, with full powers to investigate and report. The commission's interviews were methodical and painstaking; its members visited and explored the detention sites the witnesses they interviewed had mentioned, cross-checked the stories of each, created charts and flow charts of events, and confirmed the most pessimistic speculations about the fate of the thousands of people who had been bundled into the Ford Falcons with no license plates.

Nunca Mas is the report of the Sabato Commission. Its story has two themes: ultimate brutality and absolute caprice. People taken off the streets were driven to one of the many detention centers established by each of the military services, and sometimes transferred from one of these to another. Their houses were looted and their property stolen. Most of them lived the rest of their lives in the detention centers, hooded or blindfolded, forbidden to talk to one another, hungry, living in filth. The center of their livesdominating the memories of those who survived - was torture. They were tortured, almost without exception, methodically, sadistically, sexually, with electric shocks and near-drownings and constant beatings, in the most humlliating possible way, not to discover information - very few had any information to give - but just to break them spiritually as well as physically, and to give pleasure to their torturers. Most of those who survived the torture were killed. Disposing of the bodies presented a tactical problem. First they were buried in mass unmarked pits, but later a more efficient final solution was discovered. The disappeared were loaded

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into planes with an open door, flown over the sea, and then thrown out. Most of them were first drugged or killed, but some were alive and conscious when they left the plane.

The original point of the "dirty war" - to create a climate of fear in which subversion would be impossible - was superseded, for the officers who actually carried it out, by an even more repellent purpose: the perverse exhilaration of absolute, uncontrolled dominion over others, which became an end in itself, a way of life. Nothing can seem out of bounds in a room where people are deliberately made to suffer excruciating pain. Every instinct of dignity was violated there: nuns and pregnant women were tortured with special glee, husbands and wives and children tortured in each other's presence, and babies taken from their mothers for military families who wanted children. Timennan had written about anti-Semitism in the detention centers; Nunca Mas documents that anti-Semitism in the special pain and indignity reserved for Jews by torturers who strutted their Nazi sympathies. The military had created for itself a world with no rules or restraints. At the height of the terror, according to a book by two BBC reporters, bored junior officers in the torture squads roamed the streets in their Falcons looking only for pretty girls to take back to camp to torture and rape and then kill. *

Alfonsin had made two commitments to the nation: to investigate the disappearances, and to prosecute those responsible. The Sabato Commission was charged only with the former: it was not a judicial body, and- its report, Nunca Mas, made no judgments of individual responsibility. The new government had to decide how to proceed

-- with 'crIminal prosecution, and it faced a variety of problems, both legal and political. Alfonsin was anxious that the process vindicate not only justice but the rule of law. The accused were to be treated with every courtesy, and the strictest standards of evidence and procedure were to be applied.

. Above all, the trials were to respect an important jurisprudential distinction: they were not to be trials in the style of Nuremberg, prosecutions by a conqueror imposing a new code of rules on a defeated regime, but acts of a constitutional government prosecuting past officials for acts that were criminal when they were performed. No new retrospective criminal laws were needed because

• See John Simpson and Jana Bennett, The Disappeared and the Mothers of the Plaza (New York: St. Martin's Press, 1985).

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the outrages the Sabato Commission had documented were plainly illegal under the law of Argentina as it stood during the military rule. The military had not enacted special laws permitting kidnapping, or torture, or detention without trial, or theft, or murder. It had, as I said, awarded itself an amnesty just before it handed over power, but that self-amnesty was unconstitutional, according to Alfonsin's legal advisers; the new Congress had already repealed it, and the Supreme Court had held this repeal valid.

Two further crucial decisions were necessary, however, and both were politically sensitive. First, who should be prosecuted? Alfonsin, at the same time as he appointed the Sabato Commission, had in his capacity as commander in chief ordered the arrest and trial of the military men at the top: the nine commanders who formed the three ruling juntas from 1976 to 1982. But should the government also prosecute the staff and junior officers who supervised the abductions and detention centers and the torture, or the thousands of ordinary soldiers who participated in these crimes? Argentine law provided a defense for military subordinates who were merely following orders. But how should this defense be interpreted? Should it protect soldiers who followed orders that were, in fact, illegitimate? Should it protect those who, following orders, committed obvious atrocities?

Second, in which courts should those who were prosecuted be tried? It was at least arguable that, as many Argentine lawyers believed, the law required that military men be tried only in military courts for crimes committed in connection with their duties. It would violate the spirit of due process the government was anxious to reinforce to change that jursidictional rule retrospectively and try miliary men in civilian courts. But the military court - the Supreme Council of the Armed Forces - was unlikely to condemn the military structure as a whole, as it would have to do if it accepted the claims of Nunca Mas.

The government was subject to intense political pressures on both sides of these two issues. The human rights community, and particularly the Mothers of the Plaza, were outraged at the possibility that the army could be left to judge itself, or that those who had actually butchered and tortured their fellow citizens might escape condemnation altogether. But Argentina needed to bury its past as well as to condemn it, and many citizens felt that years of trials would undermine the fresh sense of community Alfonsin's victory

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had produced. And any general program of prosecution, reaching far down the command structure, might anger the military and make it regard the new government as its enemy, which would be unwise in a nation where military coups had become almost a ritual.

The new government formally declared its intentions in a comprehensive statute, Law 23.049 of February 14, 1984, drafted mainly by one of Alfonsm's advisers, Carios Nino, a legal philosopher from the faculty of the Law School of the University of Buenos Aires. The statute resolved the issue of jurisdiction in this way: all prosecutions of the military for alleged crimes committed under cover of a war against subversives, including both those brought by the public prosecutor and those initiated by private citizens, were to be tried in the first instance by the Supreme Council of the Armed Forces under its "summary proceedings" jurisdiction. But the decisions of the Supreme Council were subject to automatic review by the civilian Federal Chamber of Appeal, which could consider new evidence if it thought this necessary. If the Supreme Council did not complete its hearing of any case within six months, moreover, it was required to notify the Federal Chamber of its reasons for not having done so, and the Federal Chamber then had the option of either sending the case back to the Supreme Council, subject to a further time limit, or assuming original jurisdiction itself, using the procedural rules of the Supreme Council to try the case.

The law also resolved the issue of criminal responsibility. It provided, in Article 11, that, in the absence of any evidence to the contrary, any member of the military who acted "without decisionmaking capacity" would be presumed justifiably to have regarded all the orders he received as legitimate orders, except that this presumption would not hold if the acts he committed were "atrocious" or "aberrant." That provision created, in effect, three categories of defendants: high-ranking officers, who were not entitled to the defense that they were merely following orders; junior officers and servicemen, who could use that defense because they were deemed entitled to treat the orders they had received as legitimate; and those of any rank who committed atrocities and were denied the defense for that reason. It was widely understood that abduction, for example, was not atrocious, so that the junior officers who formed the abduction squads would not be guilty under these stan-

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dards, but that torture, rape, murder, and robbery were atrocities, ~otlianhosewno- could be proved to have committed those offenses would not be excused just because they had been ordered to do so.

Law 23.049 was attacked by the human rights groups as much too lenient; they saw it as a capitulation to the military for political reasons. * They feared that the military court would acquit all defendants, and that the civilian court would not reverse the military court on appeal. They also doubted that it would be possible to prove which junior officers or servicemen were actually guilty of atrocities, since most of the victims who had been tortured were dead, almost all victims were blindfolded, and the torturers used code names in their victims' presence. The first of these fears has so far proved ungrounded. The Supreme Tribunal of the military refused to participate in the trial of the nine commanders, which was transferred to the civilian court, and has also been unwilling to participate in any of the other prosecutions that have already been brought.

3

The trial of the nine commanders in the civilian court began on April 22, 1985, and held the nation enthralled for five months. The state prosecutors had charged each of them with very specific crimes: with the abduction or torture or murder of a specified number of victims. The trial was held in a dark-paneled and somber courtroom in the middle of Buenos Aires, before a panel of six judges, who took turns presiding. t These judges had been appointed by the goverrunent from a wide variety of backgrounds, and from different parties, so as to emphasize the court's independence from the AIfonsin administration.

Security at the trial was fierce. Anyone wanting to attend needed a special pass, and was checked for weapons at several stages on

* See, e.g .. Emilio Mignone, Cynthia L. Estlund, and Samuel Issacharoff, "Prosecution of Human Rights Violations in Argentina," Yale Journal oj International Law 10, p. 101. Carlos Nino replied to that ankle in "The Human Rights Policy of the Argentine Constitutional Government: A Reply," Yale Journal oj International Law 11, p. 217.

t Andres J. D'Allessio, Guillermo A. C. Ledesma, Ricardo R. Gil Lavedra. Jorge A.

Valerga Araoz. Jorge Edwin Torlasco, and Leon Carlos Arslanian.

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the way to the courtroom. Nevertheless, the room was crowded to overflowing, day after day, with mainly young Argentine men and women, whose generation had suffered most from the terror and who seemed to feel that the prosecution spoke for them. The proceedings were taped for television, and portions of the evidence and argument were broadcast on the evening news each night. The press box was filled with both Argentine and foreign reporters, a special newspaper reporting the trial was published and sold weekly, and the daily papers published pages of testimony after each session.

Argentine criminal trials are conducted on what is called the prosecutorial model rather than on the adversary model of AngloAmerican practice. Questions are put to witnesses not by the prosecuting lawyers or the lawyers for the defense but by the presiding judge, though many of the questions he puts have been requested by the lawyers. Most of the witnesses had much the same story to tell the court: the story of abduction and torture made familiar by Nunca Ma.s. The grim and shocking details were in turn reported to the nation later, in the daily papers and special journal. and on television. The judges sought information, not just about the witnesses' own experiences, but about other disappeared persons they had met or seen in the centers, those who never returned.

I attended the trials for a day with a small group of British and American philosophers and lawyers who had come to Buenos Aires to discuss human and civil rights with members of Alfonsin's government. We heard two pieces of testimony in that single day that confirmed the arbitrary and absolute lawlessness, and the sexual violence, of the world the torturers had created for themselves and their victims. A young woman testified that after she had been held blindfolded and tortured for months she and the others in her group were allowed to clean themselves, in preparation for a visit to the center by General Galtieri, who was then army commander of the local district. Galtieri asked if she knew who he was, and if she understood his absolute power over her. "If I say you live, you live," he said, "and if I say you die, you die. As it happens, you.' have the same Christian name as my daughter, and so you live," Another young woman testified that one of the young officers who had tortured her asked her whether he might write to her after he was transferred to other duty. "I like to keep in touch with all my girls," he said, and he has sent her Christmas cards for years.

The commanders' trial ended and the court gave its verdicts on

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December 9, 1985. Though the military rules under which the civilian trial had been conducted allowed for capital punishment, the prosecutor had asked only for life imprisonment for five of the nine defendants, fifteen -year sentences for two of them, and twelveand ten-year sentences for the remaining two. Only two of the defendants were in fact given life sentences: Jorge Videla and Emilio Massera, who were in command of the army and navy, which had committed the most outrages during the worst period of repression, from 1976 to 1979. Ramon Agosti, who was in charge of the air force, which was much less involved in repression during that period, was sentenced to fifty-two months in jail. Roberto Viola, who had replaced Videla, was sentenced to seventeen years, and Armando Lambruschini, who had replaced Massera, to eight. The four remaining defendants - Leopoldo Galtieri and Jorge Anaya, who commanded the army and navy after the policy of wholesale abduction had been abandoned, and Omar Graffigna and Basilio Lami Dozo, who presided over the air force after Agosti - were acquitted. (Galtieri has recently been convicted, in a separate trial, on charges arising out of his conduct of the Falklands/Malvinas war, and will be tried for crimes committed while a corps commander before he became army chief.)

Some Argentines were disappointed by these results. Many believed that all the defendants should have been convicted and jailed for life. But the court's policy of making distinctions among the defendants, acquitting four and giving lighter sentences to some of the others, was valuable in several ways. It showed the court's political independence from the government and from the prosecution, which had demanded much heavier sentences, and in that way reinforced the character of the trial as an exercise in due process of law rather than political vengeance. And it avoided any suggestion that there cannot be degrees of guilt in crimes against humanity, that those who have committed some outrages have nothing to fear, by way of future punishment, if they commit more.

The court's opinion defending its various decisions is voluminous: hundreds of pages long. Its main argument begins with an important distinction. The commanders did not themselves, as individuals, abduct or torture anyone. The charges against them assumed their responsibility for the acts of others. But for whose acts were each of the commanders to be held responsible? The prosecutor had asked the court to find each of the three juntas collectively

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responsible for all acts committed by any of the three military services under its administration. That would have made the commander of the air force, for example, which was much less involved than the other services, equally responsible for the outrages committed by the army and navy.

The court, declined to accept this argument. It studied the power structure of the junta, and accepted the defense's argument that the commanders of the separate services remained autonomous. not subject to any general orders of the junta as a whole. The history of power struggles within the three juntas supports the court's conclusion. * There was no evidence of any coordination of the dirty war at the junta level, and many of the abductions and arrests carried out during the first junta (including, perhaps, Timerman's arrest) were understood as challenges to the overall authority of the nominal president, General Videla, rather than as flowing from it+

But the court nevertheless insisted on the responsibility of each member of the junta for the outrages committed by members of the military service he commanded. It rejected the defense counsel's argument that. the abductions, tortures, and murders were acts of excess by individual servicemen for which their commanders could not be held responsible. It cited an impressive variety of arguments for that conclusion. The convicted commanders had issued general instructions calling for extraordinary measures to be used not only against terrorists but against subversives more generally, and General Videla had publicly defined subversion to include subversive thought. The publicity within Argentina about the disappearances, and the diplomatic inquiries from abroad, could have left the commanders in no doubt about how these general instructions had been interpreted. (Indeed, at the height of the terror, the Supreme Court, even though it had been appointed by and was faithful to the military, had finally, in a consolidated action on some four hundred habeas corpus petitions, called upon the commanders to investigate the fact that their subordinates had solemnly declared no knowledge of the disappeared.)

• That history is well reported in The Disappeared by Simpson and Bennett.

t The first junta declared the intention of appointing a fourth member, who would serve as a coordinating administrative head of the services as a whole. but political disagreement within the junta prevented any such appointment. in the form Originally intended.

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The detention centers had to be financed and staffed centrally, and it was impossible for the commanders not to have been aware of their activities, and of the numbers of persons who passed through them and never reappeared. Many of the abductions had been carried out after the police in the district had been notified not to interfere - they were told the district had been designated a "green light" area, meaning they were to assume that anything that happened had been authorized by the military - and this would have been impossible without knowledge throughout the structure of command.

But the most powerful evidence of complicity throughout the structure of command of each of the armed services was simply the sustained pattern of abduction, torture, and murder, a pattern that could not possibly be explained as the work of a few aberrant officers. The court explicitly relied on Nunca Mds as evidence of this pattern, though it added that the evidence it had heard directly was sufficient to establish the pattern of outrage on which its verdict was based, even without that report. It rejected the defense's absurd argument that the commission contained untrustworthy members, and its even more ludicrous argument that the witnesses, both before the commission and before the court, were biased against the military because of the outrages they or their relatives had suffered.

4

The commanders who were convicted have appealed, but it is unlikely that the convictions will be changed on appeal. So the trial of the commanders is over, and it was an event of immense importance. It explored, judicially, in general and in detail, the entire network of official lawlessness and outrage; the publicity the trial attracted served as a national catharsis. The verdicts vindicated the fundamental principle that government cannot be above law, and have largely satisfied the world that Argentina has returned to respect for human rights and the rule of law. In many ways, however, the trial of the commanders was legally much easier, morally less perplexing, and politically less dangerous than the further trials, of those lower in the structure of command, which advocates of human rights hope will now follow.

There were no serious problems of proof in the commanders' trial. It was only necessary to show what Nunca Mds had already

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i

i

established, that the pattern of terror was so consistent and organized that those ultimately in charge must have known of and endorsed it. There could be no moral objection to holding them responsible for what they had directed or allowed. There was no question of their acting under orders of anyone superior to them. Nor were the present armed forces likely seriously to object, or to be demoralized, by the trial and conviction of commanders who had already either retired or resigned. and of whom several had anyway been discredited by the Falklands war.

The trial of junior officers - those who actually supervised or carried out torture and murder - would be a very different matter in all these respects. Problems of proof would be formidable. The question would be raised whether it was fair to convict even torturers who could claim they were following orders. A large part of the present army and navy would feel threatened by any general program of prosecution, moreover, and although another military coup seems unlikely in the near future, the armed forces remain an important and entrenched institution in the Argentine community, and many political leaders believe that it would be both socially divisive and politically unwise to alienate them from the democratic government.

About seventeen hundred prosecutions have been filed against about five hundred other members of the military, and some of these, including the case against the notorious General Camps, who directed a large detention center, have now begun to be heard in the same civilian court that convicted the commanders. In spite of the blindfolds and code names, solid evidence exists, both in the files of the Sabato Commission and in those compiled by the prosecutors preparing for the trial of the commanders, implicating many more, including hundreds of junior officers and servicemen. Nevertheless, it is still unclear how many of these prosecutions will be pursued to trial, how many of the defendants would actually be convicted, and how many of those who are convicted will be sentenced to jail. Each defendant must be tried in the jurisdiction of his alleged crimes, and the judges in some places may prove to be more sympathetic to the military than those in others. The officials of the Alfonsin government have said they are determined to respect the independence of the judiciary - it counts the domination of judges by the junta leaders as among their most serious breaches of constitutional principles - and that they will not try to influence either decision or sentencing.

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It has become clear, moreover, thatsome officials of the present government do want a general amnesty for junior servicemen. Last April, German Lopez, the minister of defense, issued a general directive to military prosecutors not to pursue any cases against junior officers who thought they were following legal orders, which was widely understood to bar charges even against those who had committed atrocities. An army prosecutor, Brigadier General Hector Canale, said that the directive was necessary because the growing number of prosecutions was "harming the morale of the ranks, and generating the possibility of projecting an image of collective trial against members of the armed forces." The minister's order would not bar civilian prosecutors from instituting charges the military prosecutors declined to bring, and Alfonsin took the occasion of his state of the nation address to Congress a few days after the order had been issued to reaffirm his policy of bringing anyone guilty of torture or other atrocities to justice. But there will no doubt continue to be political pressure on him to modify that policy.

The arguments I have mentioned in favor of some general amnesty are powerful and in no sense illegitimate. It is desperately important, not only for Argentina but for Latin America generally, that the Alfonsin government succeed. It is one of the few governments in the region firmly committed to constitutional democracy in our own sense, one of the few we can respect unreservedly. But it is vulnerable to a variety of economic and political forces.

Argentina's economy remains fragile, even though the austere new economic plan Alfonsin instituted last summer brought down the rate of inflation and secured some monetary stability. The plan has so far not succeeded in stimulating economic growth. Real wages have fallen by about 30 percent since it was adopted, and the economy continues to be burdened by a top-heavy public sector, uncompetitive heavy industry, capital shortage following large flights of capital abroad during the military rule, a gigantic $50 billion foreign debt - 50 percent of export earnings are now required simply to meet interest payments on that debt - and, according to latest reports, a new rising rate of inflation that some economists predict will settle at 5 percent a month. Argentina remains overdependent on agricultural exports, which are particularly vulnerable to protectionist barriers. Nor is the new government yet fully confident

of political stability. The congressional elections last autumn were marred by bombings attributed to the right, and Alfonsfn thought it necessary to declare a state of emergency for a short period to meet what he called a serious threat of disturbances. (In fact, however, none of those who were arrested under the special emergency powers was convicted and they were all released.) In May, the local police discovered a bomb along the route Alfonsin was to take to visit an army headquarters; according to The New York Times of June 12, the route was "supposedly under strict army security."

In these circumstances, the government has good reason to avoid divisive policies that might alienate the armed forces. Nevertheless, we must hope that the Alfonsin government will take that risk and prosecute anyone it can prove tortured or killed civilians, even under orders, though it may turn out that only a relatively small number can be convicted. The world needs a taboo against torture. It needs a settled, undoubted conviction that torture is criminal in any circumstance, that there is never justification or excuse for it, that everyone who takes part in it is a criminal against humanity. Argentina will serve the cause of human rights best by not losing a dramatic opportunity to endorse that conviction. Torture is already almost everywhere condemned; even the youngest Argentine soldiers apparently knew that what they did was illegal and wrong, that they had to protect their anonymity with blindfolds and code names. But torture is also almost everywhere used, and the discrepancy is partly the result of a widespread opinion that it is justifiable sometimes, that it is defensible when carefully aimed only at extracting information needed to save lives from terrorism, for example.

The Argentine nightmare shows one of the several fallacies of this view. Torture cannot be surgically limited only to what is necessary for some discrete goal. because once the taboo is violated the basis of all the other constraints of civilization, which is sympathy for suffering, is destroyed. The Mothers of the Plaza de Mayo, and the others who call for prosecution of all torturers and murderers in the military ranks, are right-not because they are entitled to vengeance, but because the best guarantee against tyranny, everywhere but especially in countries like Argentina where tyranny has often seemed acceptable to the majority, is a heightened public sense of why it is repulsive. Trials that explore and enforce

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the idea that torture can have no defense may encourage that sense. Allowing known torturers to remain in positions of authority. unchallenged and uncondernned, can only weaken it.

Ronald Dworkin July 1986

Prologue

During the 1970s, Argentina was torn by terror from both the extreme right and the far left. This phenomenon was not unique to our country. Italy. for example, has sutTered for many years from the heartless attacks of Fascist groups, the Red Brigades, and other similar organizations. Never at any time, however, did that country abandon the principles of law in its fight against these terrorists, and it managed to resolve the problem through the normal courts of law, guaranteeing the accused all their rights of a fair hearing. When Aldo Moro was kidnapped, a member of the security forces suggested to General Della Chiesa that a suspect who apparently knew a lot be tortured. The general replied with the memorable words: 'Italy can survive the loss of Aldo Moro. It would not survive the introduction of torture.'

The same carinot be said of our country. The armed forces responded to the terrorists' crimes with a terrorism far worse than the one they were combating, and after 24 March 1976 they could count on the power and impunity of an absolute state, which they misused to abduct, torture and kill thousands of human beings.

Our Commission was set up not to sit in judgment, because that is the task of the constitutionally appointed judges, but to investigate the fate of the people who disappeared during those ilI-omened years of our nation's life. However, after collecting several thousand statements and testimonies, verifying or establishing the existence of hundreds of secret detention centres, and compiling over 50,000 pages of documentation, we are convinced that the recent military dictatorship brought about the greatest and most savage tragedy in the history of Argentina. Although it must be justice which has the final word, we cannot remain silent in the face of all that we have heard, read and

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