The construction of a human right: the case of the right to truth for the families of "desaparecidos": when human claims become rights

[Digitare qui] Arianna Jacqmin Oñati International Institute for the Sociology of Law The Construction of a Human Right THE CASE OF THE RIGHT TO TRUTH FOR THE FAMILIES OF “DESAPARECIDOS”: WHEN HUMAN CLAIMS BECOME RIGHTS I “Un innegabile bisogno di diritti, e di diritto, si manifesta ovunque, sfida ogni forma di repressione, innerva la stessa politica” 1 1 Rodotà, Stefano. 2012. Il diritto di avere diritti. Roma, Bari: Laterza. p.2. Table of Contents II The Construction of a Human Right The Case of the Right to Truth for the Families of “Desaparecidos”: When Human Claims Become Rights Table of Contents Preface 1 I. Human Rights: From the Idealistic Conception to the Social Construction 2 1. Human Rights Everywhere 2 2. From the Enlightenment to the Present Day 2 3. Looking for a Common Concept 3 4. From the Natural to the Social Conception 4 5. From the Political to the Legal Dimension 7 6. Human Rights and Transitional Justice 8 II. The Development of the Right to Truth 10 1. Introduction 10 2. The Political and Historical Context 10 3. Mobilization in Court: The Juicios por la Verdad 12 3.1. The Events 12 3.2. Controversial Effects and Traits 14 4. The Evolution of the Right to Truth Beyond Argentina 17 III. The Right to Truth: A Human Claim into Legal Terms 21 1. Introduction 21 2. The Legal Activism 21 3. The Legal Rhetoric 23 Conclusions 30 Bibliography 32 Preface 1 Preface The first time I came across the political and juridical transition of Argentina, I was fascinated by the tenacity of the mothers and wives of disappeared persons who asked for truth before state institutions: both in and out of courts, they claimed their will to learn the fate of their loved ones who had been abducted by the Military under the previous dictatorship. Ten years after the draft of the International Convention for the Protection of All Persons from Enforced Disappearance, I wonder how this deep need for truth happened to become a right and, in particular, a human right. This transformation involves two important aspects: the first is the shift from the field of politics, where the claim for truth is debated, to that of legality, where it is enshrined as a right; the second is the use of rhetorical and argumentative strategies that enable legal activists to create a new human right, which claims to fulfill a vital, natural, and universal need of the human being. In other words, I will deal with the process that attributes legal qualification to moral aspirations. Classical theories on human rights fail to tell such a dynamic and evolutionary dimension of rights, which, as products of a given society at a precise historical moment, arise from human claims and do not pre-exist to them. The right to truth, which was born in the post-dictatorial Argentina, is the result of a specific historical-political context: as such, it provides a revealing example of the social construction of human rights. In order to analyze this process, I divided the work into three parts. The first will present the theoretical framework, namely the literature on human rights and their double possible interpretation: either according to a theoretical-philosophical approach, or to a practicalsociological perspective. The second part will provide an analysis of the historical and political context that led to the birth of the right to truth in Argentina. In particular, I will focus on an original institution, the Truth Trials, or Juicios por la Verdad, which paved the way for the recognition of this right as an autonomous entitlement, for the first time. Finally, I will analyze in detail a legal text that I consider emblematic for understanding how the rhetoric and the typical arguments of human rights activists promoted the emergence of the right to truth. To enrich this last phase, I will also refer to some interviews of lawyers and activists of that time who testified to their involvement in activities at the borders between the fields of politics and law. I. Human Rights: From the Idealistic Conception to the Social Construction 2 I. Human Rights: From the Idealistic Conception to the Social Construction 1. Human Rights Everywhere Today everyone talks about human rights. In Italy, activists, legal experts and media, mention human rights when they deal with abortion, civil unions or the use of the veil by Muslim women. In countries in conflict, the human rights talk gives causes for concern with regard to more blatant claims, such as the protection of life and dignity. In Argentina in the Nineties, the human rights discourse emerged in connection to the request of the relatives of missing persons to know the fate of their loved ones. In short, today the expression “human rights” is a common refrain and an easy tool to legitimize an action or to claim another's duty. Mary Ann Glendon underlines that the legal concept of right has penetrated the American – but more generally Western – common and political speech so much that, ultimately, not only legal experts but also laymen tend “to speak of what is more important to [them] in terms of rights, and to frame nearly every social controversy as a clash of rights” (1991: 4). Norberto Bobbio (1992) and Lawrence Friedman (2011) go even further, by claiming that we live in the “age of human rights”. But where do human rights come from and what are they? In this chapter, I will briefly retrace the origins of human rights, then focus on their present meaning. The aim is to deconstruct their moral and philosophical dimension and to place them in the social context in which they arise and develop. In particular, I will focus on contexts of transition, where human rights are likely to be violated, claimed, and, later, positivized. This study will form the background for the analysis of the right to truth, which, indeed, was born in a situation of transition from dictatorship to democracy. 2. From the Enlightenment to the present day The history of human rights is quite debated. Even though the expression spread in the legal domain only after the Second World War, its underlying philosophy, which is based on the idea that men are entitled to natural rights as human beings, has ancient origins. Some scholars find the philanthropic and aspirational roots of the concept within the Stoic thinking (Beck 2006; Douzinas 2007), while others identify a few affinities with the Roman idea of ius humanum (Cascione 2016). However, all agree on attributing the greatest contribution to the development of human rights to Natural Law thinkers of the Enlightenment. Hobbes, Locke and Rousseau based their speculations on the idea that the mere quality of human being entails inalienable rights, which, therefore, belong to every individual. Yet, those theories, which claimed alleged universal values, were adopted by I. Human Rights: From the Idealistic Conception to the Social Construction 3 single national legislations of Western countries, while, eventually, the condition of the holder of fundamental rights coincided with that of citizen. The draft of the “Declaration of the Rights of Man and of Citizen” in 1789 is emblematic in this sense. The discourse over rights did not challenge the role of the state; rather, it strengthened it, since the state was the ultimate source of rights (Moyn 2010). Only the humanitarian tragedies of the Twentieth Century pushed toward a “more universal” recognition of human rights, and, from the Fifties on, the number of international treaties increased exponentially. Human rights, by claiming the universality and the “absoluteness” (Glendon 1991) of their moral basis, have fascinated a plurality of social actors and have transformed into something more than a category of particularly strong individual rights: they have become a moral paradigm, an ideology (Ignatieff 2003), a “utopia” (Moyn 2010). Nowadays, the development of inter and trans-national law tools and networks has permitted to the human rights discourse to grow even beyond national borders. Transnational activism as well as international legislation and jurisprudence have fostered universal – or alleged as such – morality, policy, and law, which develop in parallel to state action and contribute to the growth of a “world society” (Teubner in Verschraegen 2013: 74). The focus on the individual, rather than on the citizen, has developed along with the handover of human rights protection from state institutions to transnational actors. Today, local and global movements interact beyond state consultation or despite its willingness: most of the recent human rights mobilizations developed precisely to fight state powers. As I will explain below, human rights have achieved a further and specific meaning with regard to situations of transition from dictatorship to democracy, and from conflict to peace. In these contexts, the discourse about human rights has been used by opponents, victims, legal and political activists, as a paradigm that is able to delegitimize a policy or a government. Based on a cosmopolitan vision of the human condition (Beck 2006: 2), it has fostered a transnational action, which “sanction[s] institutions, social hierarchies and inequalities with the imprimatur of reason and nature (nowadays universalism and human rights)” (Douzinas 2007: 159). Such paradigm, by claiming worldwide shared values, obtains international support, and becomes part of an adversarial refrain against despotic regimes. As such, the human rights discourse has turned into a policy itself (Arthur 2009). 3. Looking for a Common Concept Defining human rights is a hard task. Prevailing conceptions tend to underline either their aspirational and abstract character or their institutional side, which they achieve through the I. Human Rights: From the Idealistic Conception to the Social Construction 4 recognition from state authorities. Looking for a common concept entails an attempt to square the circle: to reconcile morality with legality. Vincenzo Ferrari (1989: 173-174) emphases two inherent features of human rights: they are absolute and convincing. Absolute since they belong to human beings regardless of any personal condition nor specific socio-political context; i.e. they are universal. And convincing, as they promote models of action that rarely find theoretical contestation: the human rights discourse does not need to recur to sanctions nor promises to persuade, since it is based on broadly shared moral values. Beyond their ethical dimension, human rights entail a juridical aspect, without which they would remain mere wish. Some scholars (Douzinas 2007: 166; Sousa Santos 2009:3) recognise their double dimension by identifying them as both legal entitlements and moral demands, while Gregorio Peces-Barba (1993) defines them as a “legalised morality”, an expression that reconciles both reductionist theories of Positivism and of Natural Law. The idea of human dignity can find institutional protection only once “positivized” within the juridical system. This process implies the intervention of state or extra-state political power to recognise fundamental rights formally, and to enforce them practically. Without recognition neither within texts of law nor within social practice, moral claims remain “crippled rights” (Podgórecki 1989: 132). Faced with a complex theoretical concept of human rights, which swings from the field of morality to that of legality, and eventually to that of politics, it is worth understanding human rights from a practical point of view, by focusing on the way they arise and they work within society. The sociological approach tends to abandon the naturalistic conception of human rights and to emphasise the social process of their construction. This approach does not forget the idealistic dimension of human rights, but scales them down by placing them into the geographical and sociopolitical context. 4. From the Natural to the Social Conception The idea that fundamental rights are rooted in human nature, a quality that transcends and pre-exists to states, has fostered the draft of international human rights charters. Yet, this jusnaturalistic concept is strictly connected to the cultural and philosophical framework of modern society, where the individual and his possibility of action cover pivotal roles. Human rights are primarily individual rights (Friedman 2011: 156). Since the Enlightenment, the protagonists of philosophical scenarios have been individuals as natural creatures, and as lone and equal rightbearers. As conceived by these theories, the Law has to protect the individual from undue I. Human Rights: From the Idealistic Conception to the Social Construction 5 interference from the state and other enemies. That is why the first rights to be guaranteed were civil and political freedoms (Marshall 1963). In the last decades, sociologists have questioned the theoretical link between human nature and human rights: by looking at the ways through which activists mobilize at the local level, they revealed the institutional character of human rights. Even though arising from human needs, which, potentially, belong to all human beings, human rights are embedded within the social context where they develop (Madsen and Verschraegen 2013). Rights do not belong to the individual dimension without previously being acknowledged at the social level. They are the specific product of a particular society. Rather than pre-existing in “Nature”, they are social constructions. The same right can develop in different countries but with inevitably different meanings (Glendon 1991: 11). As the cultural relativist critique claims, human rights narratives are historically and culturally bounded (Dworkin 1977; Friedman 2011). Their institutional character predominates, in the sense that rights have to be socially recognised in order to exist, either under the shape of mere claims or as legal entitlements. They are the product of the victory of the homo societatis over the homo biologicus (Cassese 2005: 230). According to Émile Durkheim, the idea of individual rights comes from the development of an organic model of society, where the individual covers a pivotal role, so much that scholars talk about a “secular humanism” (Verschraegen 2013: 63). Gregorio Peces-Barba (1993) identifies a double philosophical conception in the human rights discourse: he acknowledges the individualistic theory that founds their birth, but he also recognises that the enforcement of human rights requires a contractualistic foundation. Enforcing rights means facing politics and power in the process of selecting the specific rights, their beneficiaries, and their guarantors. Scholars, by looking at the configuration of modern rights, namely their construction in reaction to state power, have identified their institutional, rather than natural, origins. All the more so since Nature has lost its appeal as legal basis for universal human rights, in reason of the development of nationalistic and race theories during the Twentieth Century (Vincent 2010). Not to mention the multiplicity of theories that, from Hobbes and Locke on, try to understand the universal human nature, but fail to find a common concept, thus demonstrating the flexibility of such nature (Podgórecki 1989:134-135). Human rights activists still base their legal reasoning on the persuasive jusnaturalistic rhetoric that accords to human rights natural and universal qualities, even though the objects of their campaigns tend to be particularistic. Indeed, in their mobilization for the enforcement of rights, activists are motivated by very specific circumstances of distress, while they struggle for the I. Human Rights: From the Idealistic Conception to the Social Construction 6 protection of a right for a specific group of people, whose recognition could threaten the protection of other counterposed rights. Thus, their particularistic vision tends to conflict with the universal understanding of human rights at the theoretical level, and with other’s equally legitimate rights at the practical level. Nevertheless, the rhetoric of human rights seems to not recognize conflicts of rights and subjective legal positions, while preferring to adopt a Manichean vision that counterposes violated and violators and that does not entail the overlap of these two roles (Wilson 2009: 209). It identifies in a neat way those who are “entitled to” specific human rights and those who obstruct them. The narrative of human rights shows them as universal but the recognition of a specific right to a certain person or group implies balancing a particularistic demand with other opposed individual and collective positions. Assertive human rights speeches risk promoting exaggerated expectations and limiting dialogue with counterparties (Glendon 1991: 14). The “natural” and the “universal” arguments fail, since, if human nature is the legal basis for rights claims, these claims could not be but in favour of everybody. Nevertheless, human rights discourse recurs to the semantic of Natural Law to accord to human beings a natural dignity, from which rights automatically derive. By asserting that rights should be recognised because the nature of every human being requires so and because it is a “moral self-evidence” (Moyn 2010: 9), human rights activists insist not to fight for a specific group or interest, but for everybody. In their perspective, rights are not created with a political aim; rather, they are “discovered” in the human nature. However, there is inconsistency between what human rights claim to be – natural and universal – and what they finally are – particularistic and contradictory. Finally, if we look at the plethora of human rights that have been legally recognised, or at least claimed, until today, the contradiction of their discourse jumps out: the plurality of ways of understanding human dignity, which reflects not just into the variety of human rights but also in the multiplicity of their interpretations, cannot fit with one single and universal conception of human nature. The uniqueness of the concept of human dignity, upon which human rights are based, is biased by the number of ways of interpreting it and by the contingency of human rights. The rise and the institutionalization of certain of them instead of others can be explained in terms of a particular morality that prevails over another through dynamics of power. In other words, “if humanity is one alone, why are there so many different principles concerning human dignity and a just society, all of them presumably unique, yet often contradictory among themselves?” (Sousa Santos 2009: 3). II. The Development of the Right to Truth in Argentina and Beyond 13 in its early stages. The former had attributed it to both the families of the victims and the whole society and had stated the duty of every government to arrange all the necessary measures to properly investigate human rights violations of the previous regime. This duty persisted even when legitimate juridical circumstances prevented the prosecution of the criminals (1988, VelásquezRodríguez, 181). The Court and other international institutions confirmed this position in the following years (e.g. ICHR 2000, Bámaca Velásquez). Some scholars (Schapiro 2002; Andriotti Romanin 2011; Garibian 2012; Naftali 2014) have reconstructed the evolution of the Juicios from the Nineties on. In 1995, Emilio Mignone was the first who, supported by the Centro de Estudio Legales y Sociales (CELS), tried that strategy, since the amnesty had led to the closure of his case. He appealed to the Cámara Federal de Apelaciones en lo Criminal y lo Correcional de la Capital Federal, asking for the discovery of the facts that had led to the disappearance of his daughter, who had been once identified at the ESMA, an illegal detention centre in 1976. The Court, in turn, addressed to the Military, asking for the clarification of the events that occurred at the centre, the collection of testimonies, and the opening of the archives, but the Military denied their cooperation and the Court closed the case. Nevertheless, a similar request of truth discovery followed: Carmen Aguilar de Lapacó addressed to the same Court in search for her daughter who was supposed to have spent some time at the Club Atlético, another illegal prison. Again, in August 1998, the Court rejected the claim. Thus, Lapacó, who was sponsored by several human rights organisations, appealed to the Inter-American Court, which held the claim. Meanwhile, the Argentinian Federal Court accorded the right to truth through the recourse to administrative procedure (habeas data) to plaintiff Facundo Urteaga. This first openness from the Courts, added to the favourable position of the National Congress, led toward the spread of the practice of the Juicios in the whole Country from the end of the Nineties (Andriotti Romanin 2011). In 1998, the Asemblea Permanente por los Derechos Humanos (APDH) and some families of the missing urged the Cámara Federal of La Plata to discover the destiny of the disappeared and the circumstances of the abductions. In the following years, this Court, urged by APDH, reopened more than 1800 suits. In the same wake, other victims addressed to the Cámara Federal in Bahia Blanca. The trial procedure was highly differentiated: some courts based their enquiry over the documents that had been previously collected, while others, such as that of La Plata, promoted public hearings weekly, consulted the survivors, the families, and local human rights associations. The majority of the trials concluded with a verdict that identified the corpses. II. The Development of the Right to Truth in Argentina and Beyond 14 The arguments that lawyers used during the trials with relation to the claim for truth came from different fields. As I will show through the analysis of the words that the amici curiae pronounced before the courts, anthropological and philosophical reasonings proved the human and universal need for truth, with relation to disappeared relatives, and founded its legal recognition. These arguments found further support in the jurisprudence of the Inter-American Court, especially in the 1988 Velásquez-Rodríguez case, but the plaintiffs took an even more radical position: they claimed that the right to truth was an autonomous and justiciable right that limitations to prosecution, namely the amnesties, could not prevent. Truth, rather than being the means to achieve justice, was meant to be the end of their demands. 3.2 Controversial Effects and Traits The Juicios were original institutions that found no precedent in the history of Argentina, nor abroad. Scholars situate them “between truth commissions and classic criminal proceedings, symbolic reparation and retribution” (Garibian 2014: 4), since they shared the goals of the former and the structure of the latter. Indeed, similarly to truth commissions, they aimed merely at establishing events and restoring victims, rather than granting retributive justice, but they followed the procedural rules of traditional criminal trials: they took place in criminal Federal Courts – mostly those of La Plata and Buenos Aires – and they envisaged investigations, witnesses, public participation, and the possibility to subpoena the suspected people as witnesses 2 . Only a few studies analysed these unusual institutions, probably in reason of their low effectiveness: at the beginning of the Twenty-first Century, legal developments at the national and international level, among which the abrogation of the amnesty laws and the reopening of the trials, including those of Mignone and Lapacó, led toward the decrease of Truth Trials, while they remained almost unknown abroad. Nevertheless, we find their legacy in the implementation of the discourse about the right to truth and its institutionalisation at the international level. Some scholars analysed the procedural aspects of the Juicios and their complex implications with the following traditional criminal trials (Maculan 2012; Andriotti Romanin 2013; Naftali 2014). Indeed, these para-legal institutions raised many doubts with relation to the guarantees of the defendant. The courts could subpoena the Military members who, eventually, covered an ambiguous and risky position, between that of witness and defendant, and risked self-incrimination. 2 In 2000 the National Court of Cassation declared that the Military had the right not to incriminate themselves: they could not testify under oath and their depositions could not be used in a separate trial. II. The Development of the Right to Truth in Argentina and Beyond 15 Furthermore, with the reopening of the traditional proceedings, the issue of ne bis in idem and the authority of the res judicata were at stake, while judges did not know whether they could use the evidence of the Juicios. The difficulty in collecting proofs, finding institutional support, and organizing the trials marked their weakness (Schapiro 2002: 399). The position of the judges raised some doubts as well. They covered a role that was declaratory and inquisitorial, rather than punitive and adversarial, since they were asked to shed light on the factual truth about past disappearances through jurisdictional procedures. The judge was called to reconstruct a narrative about the past through the collected proofs, and to consider a scope of time, space, and evidence that went beyond his traditional range of investigation and that challenged the principle of rule of law (Andriotti Romanin 2013). Basically, he was requested to perform as an historian or as a witness, rather than as a judge (Garibian 2014), while “the borders between judicial truth and historical truth [were] blurred and undefined” (Maculan 2012: 115). Even the position of some victims, namely those children who had been kidnapped and changed in their identity, was at stake. Their original families claimed for truth, but this right conflicted with the right to privacy of those sons who refused to undergo a DNA test, to discover their biological identity, and possibly to betray their alleged parents (Garibian 2012). Besides these contested issues, the Juicios had some positive impact. They represented a chance for social participation and free expression for the victims, while they managed to strengthen social cohesion through the elaboration of a common narrative about the past. They performed as “rituals for memory” (Mora 2005), since they helped reconstructing the history from the point of view of the victims, and they collected a great amount of data over single cases. The mobilization for truth from victims, human rights associations, and legal experts, complemented by its juridical recognition, led toward the institutionalization of truth as a common value and as an obligation of state institutions (Schapiro 2002: 400). Scholars (Andriotti Romanin 2013) have studied the role of these trials within the Argentinian transition, and their contribution to the victims as tools of justice in broad terms: the chance to ask for truth before criminal courts gave back to justice and institutions an “ethical dimension” (2013: 12). Furthermore, it represented a canalisation of the sorrow and of the desire for revenge. Beyond the individual sphere, knowing the truth about the past was the basis for strengthening democracy. It is important, for the purposes of the present research, to focus on the problematic and ambivalent nature of the truth requests during the Juicios. Memoria Abierta (2010) and CELS (2011) shed light on the double function of the demands for truth. If, on the one hand, they expressed a II. The Development of the Right to Truth in Argentina and Beyond 16 sincere need to know the facts related to the disappearance of their relatives and the whereabouts of their death, on the other, their use was a strategy to challenge the impunity granted by the amnesty laws. Indeed, through the Truth Trials, the victims collected documents and testimonies that could be a precious evidence in potential future proceedings. This legal strategy raises questions about the function of the right to truth. Patricia Naftali (2014, 2015a, 2015b) emphasizes the ambivalence of such right as conceived by the associations and the victims in Argentina, as the speeches of the applicants before the courts testify. On the one hand, mentioning this right appeared to be a “neutral” discourse in political terms, inasmuch it claimed a legitimate, since natural, right of the victims, that to acknowledge past atrocities. A right that has the moral potential of human rights and that, once recognized by positive international law, perfectly fits within the human rights category. As originally conceived in the narratives of the claimants, this right is justified by its alleged universality and its cogency. No silence could be “humanely” admitted before the desire of the families to know why the missing disappeared and where his corpse lies at present. As the Third Chapter will show, the arguments and the words of the activists referred to the reasoning and the language of human rights discourse. Yet, such right, as set in the Argentinian context, inevitably raised doubts in relation to the right to full investigation, and to the punishment in the event of a crime, since the recognition of the right to truth could lead to another claim, that for punitive justice. Indeed, some applicants questioned the legality of the amnesty laws that impeded the proceedings and demanded, in parallel to the right to know the fate of the missing, the accomplishment of the state duty to investigate and punish. Other claimants, instead, included within the scope of the right to truth the identity of those responsible, a circumstance that would jeopardize the guarantees of the defendants. Others, still, did not directly express any claim for justice, but strongly suggested renovating the system of warranties and of reparation for the victims of the dictatorship. According to the most progressive thesis, the right to truth would not belong only to the relatives of the disappeared, but to the whole society, which would be satisfied by the spread of a public and collective historical truth about the totalitarian past. A truth that would demonstrate a clear stance by public institutions on the previous regime and that would prove more than ever to be political (Naftali 2014: 78-80). Finally, the behavior of the associations of victims, from the Eighties on, confirmed their keen interest in seeking for the repeal of the amnesty laws and the reopening of traditional criminal trials. The report of Memoria Abierta (2010), which collects the opinions of victims, lawyers and judges of the Juicios, testifies the willingness of the plaintiffs to take any useful strategy to please the need of the victims to get justice. It also shows the creativity II. The Development of the Right to Truth in Argentina and Beyond 17 of the process of facts finding by the jurisdictional power, which overcomes the natural connection between trial, judgment, and punishment. The right to truth, as claimed by the Argentinian victims, seems to have developed as a residual right to that of justice, in the sense that it emerged precisely because of the lack of any chance of criminal justice. Achieving truth was the second best option (Naftali 2014). 4. The Right to Truth Beyond Argentina The first clear expression of the right to truth, with relation to the need of the family of a disappeared person to discover his fate, can be found in the already mentioned reports and judgements of the Inter-American Commission and Court of Human Rights. Before such evolution, the acknowledgement of the events that concerned the abduction was not irrelevant, but it was not significant per se. The discovery of the facts was considered as a necessary preliminary part of the trial, but logically, temporally, and instrumentally placed before the punitive phase. Knowing what happened, and thus satisfying the need for truth of victims, was justified by the intention to identify and punish the criminals. The Inter-American jurisprudence helped the right to truth developing beyond the scope of the right to justice and achieving an autonomous meaning. Its implementation and its recognition in international treaties would not be achieved without the firm mobilization of the Argentinian victims and the launch of the Juicios. The case that brought the Inter-American Commission to explicitly recognise the right to truth, and to force the Argentinian Government to grant it, came from one of the victims who had claimed for mere discovery before the judges (IACHR 2000, Lapacó v. Argentina). As stated in the achieved settlement between the State and the petitioners, “the Argentine Government accepts and guarantees the right to the truth, which involves the exhaustion of all means to obtain information on the whereabouts of the disappeared persons. It is an obligation of means, not of results, which is valid as long as the results are not achieved, not subject to prescription. This right is specifically recognized in relation to the disappearance of Alejandra Lapacó” (Ibid. ¶17). The right to truth, with relation to the crime of abduction, was finally recognised worthy of protection as such. The impact of the Juicios expanded beyond the Argentinian experience. As for their method, a similar investigation took place in Buenos Aires with regard to the slaughter of Armenian people in Turkey 3 . The judges, urged by descendants of Armenian victims, adopted a purely declarative 3 Juzgado Federal de Buenos Aires, Judge Norberto Oyarbide, Resolución declarativa de los sucesos históricos conocidos como el genocidio del pueblo armenio – años 1915-1923. (Apr., 1, 2011). II. The Development of the Right to Truth in Argentina and Beyond 18 resolution, which identified the crimes as genocide, stated that, as such, they could not benefit from any statute of limitations, and assessed the right to truth of the victims. Such right would set the legal basis for the investigation of the Argentinian Court (Fronza 2012). Some scholars (Maculan 2012, Garibian 2014) find in the Juicios a source of inspiration to further trials, such as those conducted by Judge Baltasar Garzón in Spain with regard to the forced disappearances that had occurred under Franco’s regime 4 . Again, by appealing to the right to truth of the victims, the judge aimed at reopening criminal proceedings. However, the impact of the Juicios is evident not so much with regard to the chosen procedure – a criminal trial with a declarative aim –; rather precisely to the basis of such trials: the existence of the right to truth. By looking at experiences of both criminal and alternative, mainly restorative, justice, it is clear that truth has achieved an essential role at the local and at the international level. Partly influenced by the jurisprudence of the Inter-American Court – itself the result of local juridical mobilization – the European Court of Human Rights, since the Nineties, has underlined the state duty to conduct an effective official investigation with regard to human rights violations from public agents, especially in case of use of lethal force (ECHR 1998, Kaya v. Turkey). The right to truth, if not explicitly stated, was nevertheless recognised as strictly linked to the right to life and to an effective remedy in case of murder (Antkowiak 2002). In the following years, the Court broadened the conception of such right, and started questioning the possibility to recur to the right to truth in case of torture, serious human rights violations, and breach of international humanitarian law (2012 ElMasri v. Macedonia; 2013 Janowiec v. Russia). The state duty to investigate, as an obligation of means, has been the object also of several recommendations of the UN Human Rights Committee, which has recognised the right to truth, with specific reference to the crime of abduction, as part of the effective remedy. The organs of the United Nations have welcomed the doctrinal proposals of international organizations, first of which ICTJ and ICRC, which strove for the institutionalisation of this right. The formal recognition emerged from the enactment of reports and recommendations, but especially from the adoption in December 2006 of the aforementioned International Convention for the Protection of All Persons from Enforced Disappearance, whose Article 24.2 finally sets on paper the right to truth for the families of missing persons. The discourse over the right to truth did not only develop in relation to jurisdictional procedures, but also to alternative ways of justice, such as those that are common in contexts of 4 Juzgado Central de Instrucción no. 5, Audiencia Nacional de Madrid, Judge Baltasar Garzón, Diligencias Previas Proc. Abreviado 399/2006 V. (Oct., 16, 2008). And Sumario (Proc. Ordinario) 53/2008 E. (Nov., 18, 2008). II. The Development of the Right to Truth in Argentina and Beyond 19 political transition. The remarkable rise of truth and reconciliation commissions all around the world founds its basis precisely on the struggle for truth with regard to a past of mass human rights violations. Courts and truth commissions share the willingness to retrace past atrocities. However, such process of discovery tends to evolve into two different ways, since the scope of the truth at which the two institutions aim does not coincide. If, on the one hand, jurisdictional truth is the one that relates with mere facts and that emerges from juridical enquiry and the mechanism of evidence, the truth at which the commissions seek – yet highly differentiated from a commission to another – aims at something further, which, depending on the social, political, and cultural context of the involved country, goes from the acknowledgement of the causes of mass violence, to the reconstruction of a common memory, to the elaboration of the victims’ emotional experience… Differently from criminal trials, which base their discovery on those facts that can be proved in courtrooms through a contradictory procedure, commissions benefit from wide margins of evaluation, since they do not apply the standards of due process, nor do they use crossexaminations. Their investigation is not limited to a single case; rather, it is linked to a situation of widespread violence that might have covered even long periods (ICTJ 2013: 11). Understanding the socio-legal context of mass violations is functional, in this case, not to punish criminals, but to provide compensation and rehabilitation to victims. The word “truth”, with relation to its discovery within trials and within commissions, has achieved a broader interpretation, mostly from an individual and factual perspective to a collective and narrative one. The South-African Truth and Reconciliation Commission, which was active in the same years of the Juicios and which influenced the mandate of the following commissions in South-American and East-Asian countries, distinguished four categories of truth. Factual and forensic truth focuses both on the individual findings and on general causes and patterns. Personal and narrative truth involves victims and perpetrators by sharing conflicting points of view; while interaction and debate create social truth. Finally, healing and restorative truth aims at acknowledging the victims’ sorrow and at restoring their dignity (TRC 1993: 111-114). Interestingly, the right to truth, which was born in the Argentinian context as a close claim to that of justice, has then developed in a different direction around the world. Scholars and promoters of transitional justice associate the concept of the right to truth, as internationally recognized, to the theme of reconciliation, social peace and, possibly, forgiveness. Truth and – indeed – reconciliation commissions draw inspiration from a model of social harmony that did not belong to the rhetoric of the Argentinian activists. The emergence of truth procedures, which aim at truth II. The Development of the Right to Truth in Argentina and Beyond 20 discovery for both individual and collective needs, find justification in this new model. Yet, the logic of reconciliation, even though based on the discovery of past crimes, does not reflect the origin of the right to truth. The Argentinian victims claimed for truth mostly in order to satisfy a personal will to reconstruct the destiny of disappeared persons and to collect evidence for further trials. The idea of reconciliation with the opposing party was far from the aim of the victims; while the procedure they selected to trace past crimes, namely the appeal to criminal courts, reflected such a specific approach toward truth. Differently from other countries, the institution who was requested to shed light on the past was a criminal court, not an informal commission, nor a historian, nor the victims and the criminals through public debates. Also in Argentina there had been a truth commission, the CONADEP, before the Juicios, but even its intervention had not envisaged public sessions, nor a deep involvement of victims and criminals. Its mission was mostly investigative: even though it was not responsible for the 1,400 denunciations it collected, it was asked to transmit all the data to an ad hoc criminal commission. The coveted truth of Argentina, through the intervention of state institutions, as in the case of the CONADEP, or despite state denial, as in the case of the Juicios, was very close to criminal truth, which is factual and individual. Ultimately, the greatest paradox concerning the right to truth is the following. The original promoters of this right aimed at eroding the effectiveness of the amnesty laws, thus at compensating the lack of criminal justice; while, today, scholars raise it to a core value of another kind of justice, the restorative and dialogical one, the same justice that is able to legitimize the adoption of amnesties in the name of reconciliation. In other words, throughout history, activists and politicians have used the rhetoric of the right to truth both to legitimize and to delegitimize the lack of judicial proceedings (Naftali 2014:14). III. The Right to Truth: A Human Claim into Legal Terms 21 III. The Right to Truth: A Human Claim into Legal Terms 1. Introduction The present chapter will focus on the process through which a social demand develops into a human right, through the example of the right to truth in Argentina in the Nineties. How it happened that the claim for truth from the families of the desaparecidos, which basically had no legal ground, achieved a juridical recognition (so much to be later enlisted within an international treaty)? The construction of the right to truth, as that of every human right, involved a plurality of social actors. From the Government, who approved the amnesties, to the soldiers, some of whom publicly confessed their past crimes, to the victims and their associations, who tenaciously asked for the discovery of the atrocious past: all of them contributed to the surfacing of the right to truth. The biggest input to its recognition came from legal experts: lawyers and judges. These two subjects played a key role in developing the legal concept of right to truth, through a heated dialectic that accompanied the Juicios in the Nineties. Lawyers, by using the rhetoric of human rights, paved the way for its recognition not only within the Argentinian borders, but also at the international level. The legal strategy to which they recurred related with the transformation of a social and political issue, the will for truth, into a legal issue, the right to truth. All this happened coherently with the distinctive policy of human rights activists, who seek to “channel moral indignation into legally enforceable mechanisms at the national and international level” (Wilson 2007: 351). This chapter will first focus on the role that lawyers played during the campaign for the right to truth; then, it will analyse in detail one of the key legal texts of the movement, through which victims and lawyers claimed the existence and the protection of this right. Both sections will be enriched by the contributions of some lawyers who took part to the Juicios and who granted interviews to Memoria Abierta, the institution that groups all Argentinian human right non-governmental organisations and that aims at keeping alive the memory over state terrorism under the latest dictatorship. 2. The Legal Activism The construction of the right to truth is strictly related with the activism of those lawyers and victims in Argentina, who, although coming from different social, political, and cultural backgrounds, found themselves on the same side: that of the oppressed by the military dictatorship and disregarded by the following governments. Since the Sixties, many lawyers had helped the families of the missing with juridical assistance, through a political and personal battle. This activity had III. The Right to Truth: A Human Claim into Legal Terms 22 involved lawyers as legal experts and, at the same time, as supporters of a certain category of clients, namely the very or alleged opponents to the regime. When choosing to offer legal advices to political prisoners, lawyers could not help getting politically involved as well. In this sense, lawyers established a first face contact between the field of politics and that of law. In carrying out their professional legal activity, they risked the same consequences of political opponents: threats, torture, forced disappearance, and murder. Nevertheless, the legal intervention did not end soon. The political campaign and the legal reasoning developed a mutually enforcing relationship, which strengthened soon after the fall of the dictatorship through the activity of denunciation, and of regularization of the juridical state of disappeared people, rebels and prisoners. The action of lawyers was supported at the international level by a developed network of human rights associations and institutions, among which the Inter-American Commission on Human Rights, which had visited the Country in 1979. Its strict report about the human rights situation in Argentina had legitimised and fostered the claims of the victims, paved the way for further mobilization at the local and international level, and given birth to a multiplicity of human rights associations in the Country. Activists adopted different legal strategies to bypass political impediments to justice, truth, and reparation, and they became fundamental actors in the fight against impunity through their unusual “politicization”: they did not publicly contest the scope of the amnesties, but they aimed at eroding their scope through other legal tools. Memoria Abierta (2010) analysed the strategies that lawyers enacted after the fall of the dictatorship to support the victims. Among them, there is the elaboration of original juridical concepts, such as the right to truth, that could help the victims dealing with the lack of institutional justice and truth, and which gave birth to the Juicios por la Verdad. This technique was only one of the ways to fight impunity and, thus, to restore justice. In parallel to the claim for truth in court, lawyers fought for the declaration of unconstitutionality of the amnesty laws, for the reopening of traditional trials, and for the “restitution of identity” to disappeared children. Their roadmap was complex and it included different strategies, which were strictly connected to each other, in the name of a main purpose: justice. As scholars observe, the claim for new rights can be perceived as a tool of political mobilization, even in lack of any recognition of such rights from courts: “what counts is not whether the court order actually leads to a redistribution of values, but rather the impact of the judicial decision on cognition” (Scheingold 2011: 131). In this sense, rights are relevant as means of political action, rather than as ends in themselves. Their resonance in the political sphere might matter more than their effective juridical appreciation. In the case of Argentina, the recognition of the right to truth III. The Right to Truth: A Human Claim into Legal Terms 29 legitimate, the ultimate and most influential guarantor of the dignity of the victims, even towards government violations (Vedio, in Memoria Abierta 2009: 128). A judicial decision, even unfavorable, shows that an issue that was private has achieved public relevance, since the court, at least, has recognized the claim as existent. In the words of the amici curiae, Solamente el Poder Judicial representado por esta Excma. Cámara cuenta con el grado de credibilidad necesaria para establecer, finalmente, la verdad de lo ocurrido con cientos de personas que fueron desaparecidas por agentes del Estado en Argentina 14 (ESMA 1995). Furthermore, the use of legal language helps transforming mere claims into “rights”, even though in the form of denied rights. Such language encapsulates a discourse about entitlements and duties (Scheingold 2011: 136), which is addressed to courts as mediators of the dialogue between citizens and representatives. The technique of choosing the judicial way to claim for new rights, to supplement legislative and administrative procedures, has been widely used in different fields (Sax 1970): activists prefer using the naïve language of rights, especially of human rights, rather that the stronger and riskier political language. 14 “Only the Judicial Power, represented by this Hon. Court, has the degree of credibility needed to finally establish the truth of what happened to hundreds of people who disappeared at the hands of state agents in Argentina”. Conclusions 30 Conclusions I started the present research by claiming that today human rights are everywhere. They have become the mindset through which, not only legal experts, but also layer people think and talk about individual, or, more rarely, collective, human needs. Personal concerns are likely to be framed as rights, or, even, as human rights, namely those rights that belong to the human being as such, and that are, thus, universal. The rhetoric of human rights, which is settled in Natural Law philosophy, is particularly successful in countries “in transition” from dictatorship or conflict to democracy and peace. In the aftermath of a period of mass violence, victims, lawyers, and activists in general, are likely to lay claim to a high level of protection for subjective positions, which were not guaranteed in the previous period. In other words, they demand rights, since rights legally recognize and defend personal demands and positions. And, first of all, they seek human rights, as they correspond to basic human needs. It is interesting to focus on the strategy that lawyers use to found these claims. As previously noted, they often recur to the human rights discourse, both in terms of rhetoric and arguments. So it happened in Argentina in the Nineties, where legal experts observed the need felt by the families of missing persons to discover their destiny, and they reconfigured it under the shape of right to truth. A right that had never existed before beyond the frame of the right to justice. The activists highlighted a social problem, caused by the impossibility of the families to know the whereabouts of the missing, and designed it no longer as a will, but as a pre-established and undeniable human right, as if it had always existed. They shaped an original legal artifact, the right to truth, through an innovative procedure, the Juicios por la Verdad. The analysis of the memorial that the two main human rights organizations proposed to the Federal Chamber of the Capital and of the statements of some lawyers shows the process of creation of a new human right through the use of Natural Law semantic. The activists spoke about the right to truth as a human, natural and universal right, that belongs to all relative of missing people. This strategy helps founding a right that has not enough political support and that, thus, needs further legitimation. They use the human rights discourse as legal means, in the sense that they address directly to a court by claiming for the recognition of a pre-existing and “natural” right, but they look for a political aim, namely the constitution of it, even though they bypass the legislative process. Lawyers recur to the human rights discourse when they struggle transferring important concerns into the words of politics. Indeed, there is no better legitimation to a right than founding it on a condition that is “essentially human” (ICHR 1993, Aloeboetoe et al.). Such language appears neutral, pre-political, and naïve, in the sense Conclusions 31 that it does not refer to a particular socio-political context to legitimize the need for a specific right. This rhetorical strategy, which is devoid of particularistic connotations, tends to be successful, since it legitimizes a specific right by appealing to an alleged universal human condition. But what makes the human condition universal is the philosophical and rhetorical mindset that founds human rights activism. Lawrence Friedman would talk about the “overwhelming global culture” of human rights (2011: 126). As discovered by looking at the Argentinian experience, the evolution of a right has a strict relation with the socio-legal context where it grows. The right to truth, as every human right, is highly politicized. It cannot transcend the cultural, social and political conditions of a specific context, namely that of Argentina in the Nineties. Rather, it is the result of such peculiar situation: it was born in a context of transition, of mass disappearances and of denied justice. These three conditions, together with a strong activism of the victims and a winning legal strategy of the lawyers, brought to the creation of the right to truth as right that belongs to the families of the abducted. In other contexts, the expression “right to truth” has been used to support a plurality of aims, as the one to build a common memory, to know the responsibility of every past crime, or to reconcile victims and criminals. Yet, the right to truth as conceived by the Argentinian victims is something different, very close to the right to full investigation and strictly linked to the crime of abduction. The specificity of this crime requires the discovery of events not only for a purpose of truth ascertainment, but also, and primarily, for the aim of justice. Indeed, the crime of abduction is based on a “non-fact” (Garibian 2012: 31), namely the lack of the victim, thus on a concealed truth. Therefore, justice, for the families of the missing, entails the opposite process: the disclosure of such truth. Knowing what happened to the bodies is a way to stop the crime, first of all. As long as facts remain unknown, the crime persists, while the families keep on missing their relative. Another element that contributed to the development of the right to truth in that moment and place, and under that original form, was the ambiguous policy of post-dictatorship governments. 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