Idaho Attorney Measures Rule of Law in Argentina, by Larry C. Hunter, Moffatt Thomas
Let’s just get it on the table from the beginning, Buenos Aires is one of the most beautiful cities in the world: a rich amalgam of architecture from the new world and old (principally late 19th, early 20th century French and Italian architecture), well-maintained parks, statues and other monuments and picturesque avenues. It also has its share of cramped slums and crushing poverty.
The challenge in Argentina is to utilize its assets to build an infrastructure to overcome the systemic misdistribution of income. The purpose of this article is not to discuss the economic situation or needed economic reforms in Argentina. However, for such reforms and development to take place, the basic platform of the Rule of Law needs to be in place. By Rule of Law, I refer to the system wherein a country is governed by duly enacted laws, not by one person’s dictation.
It may seem strange to talk about Rule of Law in a country that has such incidents in its fairly recent past as military coups d’etat and dictatorships as recently as from 1966 – 1973 and 1976 — 1983. Argentina had a string of four presidents in the space of two weeks in 2001 —2002 and the “dirty war” of the early 1980s.
The most drastic departure from the rule of law was the era of 1976 — 1983 when the military killed 30,000 suspects and others in what is known now as the “Dirty War:’ These “desaparecidos,” as those victims are referred to, were removed from homes and families and executed without trial or protection of their rights. That horrible violation of human rights lies only 30 years in the past and engenders continuing weekly demonstrations in Buenos Aires and other places by the mothers and grandmothers of the victims. They parade in the plaza with white scarfs on their heads with that same symbol painted on the plaza.
Nonetheless, even during the darkest periods of government persecution, the flame of democracy was not extinguished. An elected government returned in 1983. There has been an elected government continuously from 1983 to the present. Even during a period of extreme economic stress and rioting in 2001 — 2002, elections were held and a duly elected government was installed.
The last dictator, General Reynaldo Bignone bowed to popular pressure and a flagging enthusiasm for military rule after the military’s misguided war over the Falk Islands by allowing elections in October 1983. He was later tried and convicted in 2010, 2011, 2012, and 2016 for his role in various human rights atrocities during his term as dictator (1982 — 1983) and earlier as leader in the military government from 1976 —1981. He had avoided earlier prosecution for reasons too involved to discuss in this short essay, but arguably dictated by the exigencies of the return to democracy. His convictions are one indication of the functioning rule of law in Argentina. The 2015 presidential elections are the other.
Return to democracy
Bignone and his fellow Junta members were the first example of a country in Latin America bringing former dictators of the country to trial for human rights violations of various types. Early trials in the 1980s were instigated by Raiil Alfonsin, the first president elected after the junta in 1983. The trial and convictions against the military leaders of the first three juntas, life sentences against two of the leaders and lesser sentences against three others. These trials were the first and most comprehensive large scale action taken by a democratic government against a former dictatorial government of the same country It was the first to be conducted by a civilian court, as opposed to a military court. It succeeded in prosecuting the crime of the juntas.
Unfortunately, the prosecution was temporarily thwarted by pressure from the military and political right wing. Laws were passed in 1986 and 1987 prohibiting further prosecution against junta members. In 1989 and 1990, the succeeding President Carlos Menem pardoned the convicted.
However, the Rule of Law prevailed. In the early 2000s, then President Nestor Kirchner was able to obtain Supreme Court rulings allowing extradition in crimes against humanity and a ruling that the laws commuting convictions were unconstitutional. In addition, Congress repealed the laws which banned prosecution. Former general Bignone was tried for separate incidents of crimes against humanity and found guilty in 2010, 2011, 2014 and 2016, the last when he was 88 years old. He is serving prison terms of 25, 15, 23, and 20 years as a result of those convictions. Admittedly, it took years to bring the perpetrators to justice, but it was done in a trial in a regularly constituted court. All three branches of the government (Argentina has an executive, legislative, and judicial branch — modeled in large part after the system of the United States) cooperated in the eventual outcome.
A difficult standoff
The second example is recent, more straightforward and commonplace, but also very important. There was a Presidential election in the last part of 2015 (in their spring). The winning candidate was Mauricio Macri, the mayor of Buenos Aires, a member of the “opposition” party.
Since 2003 the country’s president had been a Kirchner, first the aforementioned Nestor for one term and his wife Christine Fernandez de Kirchner who was elected for two terms. Both of the Kirchners were of the Justicialista party an outgrowth/successor to Peronismo, the party founded by Juan Peron. In simple terms, it is a populist/socialist party with great support from the economically disadvantaged and the working class. Since voting in Argentina is mandatory, it was believed that the expected large turnout would support the Justicialista candidate, Daniel Scioli.
Indeed, Scioli won the first round when there were seven candidates, but failed to gain 50 percent of the vote, necessitating a run-off and lost in the finale to Macri. Macri’s party was more conservative and could be likened to a moderate to liberal Republican position in the United States. Macri’s election was seen as a part of the trend in South America to less socialist/nationalistic governments and was significant enough that President Obama paid a state visit to Argentina in March 2016. Obviously, in such a state visit there is much more to the visit than the mere window dressing of social contact between the two leaders and their wives. Clearly, it was a significant visit.
The important part of the election from a “Rule of Law” perspective is that a significant shift in governance took place peacefully and pursuant to law. There will clearly be labor protests (there already have been) over some of the new government policies. However, such demonstrations are common and not viewed as portents of political upheaval’. As the saying goes “nothing is sure in love and politics” — perhaps particularly so in Latin America. Nonetheless, Argentina has shown that its citizens value the Rule of Law as a basis for their society.
- To go full circle on the issues treated in this article, one of the fears the Justicialistas have is that Macri will pardon the imprisoned military leaders.
Larry C. Hunter, Of Counsel with Moffatt Thomas in Boise, practices dispute resolution. He is Past President of the Idaho State Bar, Idaho State Delegate for ABA House of Delegates and a member of the House since 2004. He and his wife were missionaries for their church in Buenos Aires from October 2014-April 2016, where he served as an attorney for the church.