Dirty War Crimes
Dirty War Crimes
Jurisdictions of Memory and International Criminal Law
Abstract and Keywords
This chapter first reconstructs the narrative memory and socio-legal context of the contemporary scene of memory in Argentina concerning La Guerra Sucia (‘The Dirty War’) and los desaparecidos (literally ‘the disappeared’, but often rendered as ‘the missing’). It then examines a recent film — El secreto de sus ojos (The Secret in Their Eyes) — concerned with writing the life of the law in the aftermath of atrocity. After reconstructing two ways to live a life full of nothing, a life lived with the trauma of a legal case history, the coda to the chapter addresses itself to the remnants of a criminal jurisdiction of memory. If decisions are constitutive of international criminal justice in times of transition, then a memorial jurisdiction of crime and atrocity can be thought in terms of its manner of speaking: its genres of representation, as much as its taxonomies.
It would be a mistake to expect that trials for past human rights crimes will settle disputes about the historical interpretation of recent events. History cannot be ‘settled’ in this sense…1
What matters is not the fact that we remember history, but the way in which we remember it.2
Although it must be justice that has the final word, we cannot remain silent in the face of all that we have heard, read and recorded.3
Decisions are constitutive of transitions and their dealing with the past. Whether the move is to move on from war or social conflict, from crime or atrocity, the conduct and norms of law give shape to their formation and transformation. This chapter engages the two didactic orientations of international criminal justice that, for better or worse, have come to coordinate the juristic presentation of that conduct, those norms—namely, the prosecutorial and the testimonial. Staying with law and its forms, it addresses the intimacies of a legal case history.
(p.368) The first part reconstructs the narrative memory and socio-legal context of the contemporary scene of memory in Argentina concerning La Guerra Sucia (‘The Dirty War’) and los desaparecidos (literally ‘the disappeared’, but often rendered as ‘the missing’).Throughout, these terms remain in Spanish so that they may resound with all the pain, suffering and injustice that they carry to this day. The second part turns to an engagement with a recent film—El secreto de sus ojos (The Secret in Their Eyes)—set in Buenos Aires and is concerned with writing the life of the law in the aftermath of atrocity. This will have returned the account of Argentina’s memory work to the conduct of criminal jurisdiction. After reconstructing two ways to live a life full of nothing, a life lived with the trauma of a legal case history, the coda to the chapter addresses itself to the remnants of a criminal jurisdiction of memory. If decisions are constitutive of international criminal justice in times of transition, then a memorial jurisdiction of crime and atrocity can be thought in terms of its manner of speaking: its genres of representation, as much as its taxonomies. An ethics of testimony and a logic of memory remain unsettled in the aftermath of mass atrocity. Perhaps it is now possible to say that is a legacy that international criminal justice receives from Argentina.
(II) Sad Privilege of Argentina
Argentina is a community assailed by unassimilable experiences of injustice and suffering that return in parts and images. It is a country possessed by La Guerra Suica that took place from 1976 to 1983. On 24 March 1976, a military junta presided over by Jorge Videla took power from Isabel Perón in a coup d’etat. Five years later, Videla handed over the presidency of the junta to General Viola. Two years later, with the loss of the Malvinas war generating intense domestic problems, a transitional military government took power and prepared general elections. Raul Alfonsin, from the Unión Civica Radical party, campaigned on a platform that promised a national truth commission and a national accounting of what happened.
From the outset, the military junta with Videla as its leader initiated a programme of disappearing leftist guerrillas in an effort to cleanse and strengthen what was characterized as a weak and feminized social body.4 There was a quite specific focus on the student movement. The programme soon extended into a systematic and generalized disappearing of the left. This is La Guerra Sucia. The national truth commission (CONADEP), which was set up when Raul Alfonsin was democratically elected as President, documented some 8,960 deaths and disappearances between 1975 and 1983, with most taking place in the first year of the junta led by Videla. Counting practices have varied and most estimates of los desaparecidos (p.369) now put the count between 10,000 and 30,000 people. Disappearance was the preferred method of the junta. As Ernesto Sabato put it, emphasizing the material, visceral and aesthetic conduct of the junta, ‘in the name of national security, thousands upon thousands of human beings, usually young adults or even adolescents, fell into the sinister, ghostly category of the desaparecidos, a word (sad privilege for Argentina) frequently left in Spanish by the world’s press’.5
The response has been memory politics. La Guerra Sucia and its desaparecidos will have haunted Argentine politics. In part, the response has been a matter of recovering the untold stories, the hidden histories, so that the narrative of the past can recount what was done, where it was done and how, by whom and to whom. In the national accounting that followed the end of the military dictatorship, information was at a premium, especially since the criminal apparatus of power was carried out within a double ordering: one normal, open and official that targeted ordinary criminality; the other abnormal, operating under a de facto power and clandestine that targeted ‘subversives’.6 Nevertheless, the lineaments of the story of the dirty war were well-known from quite early on.7 This is not to downplay the importance of determining the precise and specific facts of particular incidents. In fact, the investigations and files generated by CONADEP, for example, have provided the evidential basis for numerous criminal proceedings beginning with El Juicio a las Juntas in 1985. Similarly, its report has been continuously in print for some thirty years and is now in its fifth edition, as well as having an online and translated presence. In short, the narrative of the past is presented in the mode of a repetition and reminder of what is already known. The clandestine nature of the dirty war, like the Nunca Más report itself, and the word desaparecidos, has something of a talismanic quality. In this it assists the audience of the story—those addressed by the narrative memory of the past, whether personal or communal—to recognize themselves in it. It reminds them of what they already knew and hence forms a personal and collective self-understanding. And such recognition and reminders are an achievement in the context of a dirty war and its aftermath.
(p.370) All of which is to say that the telling of the story of the past, its enunciation rather than its statement, is important for understanding projects based on narrative memory. Here, rather than a demand for information and a recounting of the facts, what comes into view is the demand to ‘send a message’, an attachment to a larger normative story—whether it be about the dirty war, whether it be about the global rule of law or the complicity of the judiciary in the dirty war, or whether it is about the character of the nation.
What I have been tracking so far is the way in which contemporary memory politics of Argentina are precisely a politics of memory. Information becomes meaningful and has value by way of a normative narrative—and this is so simply because the narrative memory of the past is a way of dealing with the past which implicates and is addressed to others. In this sense, then, it is a way of forming a world in which the narrators can appear to themselves and others. Memory politics are always already public and historical. Yet the pressure of the normative is one that pushes the story of La Guerra Sucia and its aftermath towards an insistence on breaking with the past, as much as setting right standards for the future and moving on. As Ruti G. Teitel astutely notes in her genealogy of transitional justice, ‘the paradoxical goal is to undo history’ and so the threshold challenge of transitions is one of ‘remaining in history’.8 This has both populist-democratic as well as populist-authoritarian orientations. Where ‘moving on’ might be the implicit norm associated with liberal rule of law narratives, consider the explicit invocation of a break with the past by Aldo Rico—a former lieutenant colonel who served in the Malvinas War during the military junta. In 2007, as prosecutions of the military for dirty war crimes get up a head of steam under the Kirchner administration, he argues that it is ‘counter-productive to return to the past’.
Despite the prevalence of a normative politics of memory, it remains possible to frame the question of dealing with the past in terms of an ethics of memory. Here, dealing with the past is conducted in the mode of acknowledgement. What is also at stake is not so much information as understanding. Narrating the past, recalling it, remembering it, is also a demand that others recognize the criminality, the injury, the injustice, pain, suffering and death—the disappearances, the tortures, the abductions, the kidnapping of children, ‘the stolen identities’, the murders. In such projects of memory—whether art installations, human rights advocacy, protests staged by the Madres de Plaza de Mayo especially in the early years, the sites of conscience projects9—the demand for information and for an end to impunity (‘never again’) not only instantiates a break with the past, a normative pressure to (p.371) move on, but also foregrounds an ambivalence. It is as if the acknowledgment of the past is caught between the burden of history and the presumption of a future. In this engagement with La Guerra Sucia, such an ethics of memory appears not so much as a counter-narrative but as a hyperbolic, overheated acknowledgment of the injustice of pain, suffering and death. Bearing witness is viscerally conducted as a life lived with the past.
The disputes to which memory politics give rise are mediated by history and by visceral notions of personal and collective responsibility. In doing so, they force a reflection on the past and on the social context in which the response to the past is made. This reflection, I have suggested, amounts to a veritable working through of La Guerra Sucia and its desaparecidos. But just as important is that this working through—the questions of conduct and narration, the demand for information and for acknowledgment, its politics as much as its question of ethics—take shape within a continual return to law: local, regional and international, criminal and civil. Law will have given shape to the public memory of war. As the La Plata tribunal put it in its Von Wernich judgment in the immediate aftermath of the annulment of the amnesty laws by the Supreme Court and Congress:
Michel Foucault speaks of the law as a ‘producer of truth’ and, agreeing with that concept, permit me to recall again the importance of the recognition of the truth for the construction of collective memory. Especially in societies such as ours that have suffered the genocide which led to the trial that has just been completed.10
In the next part of the chapter, I explore the political form and ethical demand of this memorial jurisdiction, but first some socio-legal context.
The contemporary scene of memory politics bears witness to the experience of La Guerra Sucia in large part through a return to criminal prosecution. Since the demise of the juntas, investigation, prosecution, trial and punishment has been extensive to say the least but it has waxed and waned. The most recent round emerged in the mid-1990s and then showed a dramatic increase with the rise of the Kirchner administration in 2003, first under the presidency of Néstor Kirchner and then with Cristina Fernández de Kirchner, the current president since 2007.
In the aftermath of a national truth commission (Nunca más) and the trials of the military leaders (El Juicio a las Juntas) in the mid 1980s, amnesties and pardons were legislated and decreed for the military. In the wake of military uprisings and as a compromise measure, Raul Alfonsin decreed the Ley de Punto Final (the ‘Full Stop’ law of 1986) and Ley de Obediencia Debida (‘Due obedience’ law of 1987) that effectively amnesties many levels of the military. Videla, together with many other (p.372) officers, was subsequently pardoned by Carlos Menem who was elected President in 1989. These amnesties and pardons were part and parcel of a decade-long campaign of misinformation and denial by the military. In this climate, two events became important. The first is a legal innovation.11 The Centro de Estudios Legales y Sociales—a human rights investigation, advocacy and litigation organization—launched in 1995 what have become known as ‘truth trials’. They did so as a way to get around the amnesties and pardons.12 The Centre brought cases arguing that these legal repertoires were restricted to the conduct of prosecution, conviction and punishment. As such, this left room for the court to exercise a declaratory jurisdiction. What the cases have achieved and what the courts have granted was a verdict that took the form of a declaration of truth rather than a decision of guilt or innocence.13 The second important event was a series of high profile and publicly visible confessions and apologies by those responsible for the atrocities of the dirty war, the most infamous of which was that by Adolpho Scilingo, a naval officer who participated in the death flights (vuelos de la muerte) in which detained and tortured desaparecidos were pushed from aircraft, often while still alive, into the Rio de la Plata and Atlantic Ocean where they drowned.14 This eruption of memories—especially since they were by those who were protected by the amnesties and pardons—in effect transformed and extended the public space within which La Guerra Sucia could be narrated. Within a few years, the confluence of these two forces—legal evasion of the amnesty laws, and a cultural transformation in the status of the military within public debate—ended up with Jorge Videla being prosecuted, convicted and sentenced to preventive detention for kidnapping children and falsifying documents. In what has since become known as the advocacy around ‘stolen identity’, the Abuelas de Plaza de Mayo launched litigation which argued, akin to the truth trials, that the amnesty laws did not apply to the kidnapping of minors, changing their identity, and various property crimes and hence the courts could hold members of the junta accountable for such crimes during La Guerra Sucia.15
(p.373) With hindsight, all these events—together with the activism and advocacy that has been ongoing since before the collapse of the juntas (most notably by the two strands of the Madres de Plaza de Mayo)—turned out to be a precursor to the current round of investigations, prosecutions, trials and judgments which began after the election of Néstor Kirchner as President in 2003. The unravelling of the amnesties16 began to accelerate. In August 2003, the Supreme Court, with the support of the Kirchner presidency, declared the Ley de Punto Final (the ‘Full Stop’ law of 1986) and the Ley de Obediencia Debida (the ‘Due obedience’ law of 1987) unconstitutional, null and void. In June 2005, by a majority of seven to one, the judges of the Supreme Court ruled, on a case initiated by the Centro de Estudios Legales y Sociales and using the situation of a kidnapped child of the disappeared, that the amnesty laws were unlawful. This ruling effectively reopened cases—investigations as well as suspended prosecutions—which had been closed for the preceding fifteen years. It was a watershed and would continually return the narrative memory of La Guerra Sucia to a jurisdictional melding of domestic criminal law, regional human rights instruments and institutions, international law (both criminal and humanitarian).17
Since then, the number of people investigated, charged, tried, convicted and punished has dramatically increased—albeit that concern has been expressed over the speed (delay and length) with which proceedings are finalized. In the last four years, some 652 people have had criminal proceedings brought against them for human rights violations in relation to the dirty war. There was a significant increase in 2007, and then again in 2009.18 During 2010, there was ‘a marked increase over previous years’. Nineteen trials were concluded. In them, 119 people were judged: twelve already had convictions, ninety-eight were new accused, 110 were convicted and nine were acquitted.19 One of these trials brought Jorge Videla (p.374) before the law yet again. He was sentenced and convicted on 22 December 2010 in El Tribunal Oral Federal No. 1 de Córdoba.20 He was found guilty of twenty-nine counts of murder, thirty-two counts of torture which the tribunal concluded were aggravated by the condition of political persecution, and one count of torture followed by death. The charges arose out of events that occurred in the early years of the coup d’etat, when as mentioned earlier, La Guerra Sucia was perhaps at its most virulent. Videla was sentenced to life imprisonment (perpetua), which the court decided must be served in an ordinary or civilian prison in Córdoba rather than a military prison such as the notorious Campo de Mayo near Buenos Aires where he had previously been imprisoned.21 In a judgment running to over 670 pages, the three judges not only narrated the facts and the charges that they instantiated for each of the accused but returned to the national truth commission, to El Juicio a las Juntas and its elaboration of a criminal regime that was both official and clandestine, to the amnesties and pardons and their constitutional invalidity, and to the cases that were reopened including the La Plata tribunal judgments of Von Wernich and Etchecolatz which emphasized the Foucauldian idea of the law as ‘a producer of truth’ (productor de verdad) and its importance for the transformation of collective memory.22 In addition, the judgment engaged in the various controversies that have marked the doctrinal disputes arising from the increasing internationalization and regionalization of Argentina’s criminal jurisprudence since the mid-1990s.23 However, the case was distinctive. As the tribunal declared, the military dictatorship’s so-called war against subversion (‘lucha contra la subversion’) set up a criminal apparatus of power which operated ‘in coordination with or with the consent of the rest of the legal institutions of our country’.24 But beyond this general association between the military, ‘state terrorism’ and legal institutions, the tribunal also specified that members of its own court had been complicit in the apparatus of repression: ‘[T]he various testimonies that we heard in the debate have shown us that there was a total lack of protection [desprotección] and absence of commitment on the part of the judiciary’.25
In a brief response to the judgment of the Córdoba tribunal, Ruti G. Teitel asks ‘what can such a verdict mean so many years after the restoration of democracy in Argentina?’ Her answer is brief and decisive:
Not giving up on accountability, despite the passage of time, sends an important message about human rights, and the distinctive nature of these offences as ‘crimes against (p.375) humanity’…Years later, what’s at stake is not just punishment but also political truth…That lesson, handed down along with the judgment against Videla, vindicates efforts to establish a global rule of law.26
Rather than frame the memory politics of the last thirty years in terms of a vindication of rights and a normative shift that presupposes a settled rule of law, the remainder of this chapter proceeds to explore a criminal jurisdiction of memory which works through the trauma of La Guerra Sucia. The lineaments of this memorial jurisdiction are here held to the conduct and practices of law. By way of a consideration of the difficulties that beset the effort of narrating a legal case history, it will engage the temporality of a life lived with law, the predicament of memory, and the slippages and complexities of representation. In order to address these matters, I turn to a recent film by the Argentine director Juan José Campanella.
(III) A Memorial Jurisdiction
Towards the end of the film El Secreto de sus ojos (The Secret in Their Eyes), the protagonist—a recently retired deputy clerk in an examining magistrate’s court27 who has spent his life working in the criminal justice system of Buenos Aires—asks, ‘How can someone live an empty life? How do you live a life full of nothing? How do you do it?’
How does the case proceed? […]
How can I do nothing about it? I’ve been asking myself for 25 years and I’ve only been able to come up with one answer. ‘Forget it, it was another lifetime. It’s over, don’t ask.’ It wasn’t another lifetime. It was this one. It IS the one. I want to understand. How can someone live an empty life? How do you live a life full of nothing? How do you do it?28
The film offers a range of responses to this problematic of the intimacies of the legal case history. These responses, I want to suggest, mark the film as a contribution to the contemporary annals of international criminal justice, its narrative memory and its minor jurisprudence of dirty war crimes.
El secreto de sus ojos is the story of Benjamin Esposito, a law clerk, who is trying to write a novel in his retirement. The novel, he imagines, is based on a case he was (p.376) involved in some twenty-five years previously—the rape and murder of a young female schoolteacher. As he writes, he narrates the case but is assailed by images. Esposito and his colleagues Hastings and Sandobal investigate and hunt down the perpetrator Isidoro Gomez in mid to late 1970s Argentina. After several years, the killer rapist is caught by Esposito and sentenced to life imprisonment. The death penalty, as he explains to the victim’s grieving husband, does not officially exist in Argentina. However, after two years in prison, Gomez is released by executive order. The release and order is engineered by one of Esposito’s fellow law clerks in order to use the killer’s talents in a secret police squad against ‘subversives’.29
This is one of the many echoes in the film of that mix of democracy and authoritarianism that has characterized Argentinean law and politics from Juan Perón onwards. And in fact the story of the film is cut from the weave of this political cloth. More specifically, it begins in 1974, just before the death of Juan Perón and the succession of his third wife Isabel to the presidency. It also sets the office politics of the law clerks and judges in the context of the imminent dirty war, and then returns to its contemporary aftermath with the resurgence of memory projects and criminal prosecutions described above. In the foreground however is the narrative of the criminal case—the crime, its investigation and its subsequent history. The ‘Morales case’, as it is referred to in the film, reverberates throughout the lives of all the characters involved in it: the deputy clerk (Esposito), his fellow clerk and friend (Pablo Sandobal), his senior colleague (Irene Hastings, variously clerk and judge), the surviving husband of the rape and murder victim (Ricardo Morales), and the perpetrator of the crime (Gomez). How is this presented?
From beginning to end, the film is staged as a meditation on memory and in particular the memory of law, of crime, and of desire. It is the clerk Esposito who remembers. However, his memory is not of a singular past but instead El secreto de sus ojos presents us with fragmented strands echoing in a ruptured present. The film moves between four times in which the present of legal recall does not occupy the position of mastery. The film begins with that present but quickly shows it to be the site of an overwhelming return of the past, unsettling everyone’s settled accounts of the case—crime, investigation and denouement. The enigma around which this traumatic history is organized and emplotted involves Esposito’s relations with two characters—Morales, the grieving husband, and Hastings, the judge and colleague with whom he is secretly in love. These two relations establish the double meaning of the title of the film. First, it is while looking at an old photograph of the victim with her husband that Esposito and, unwittingly, the husband discover (p.377) the identity of the killer and rapist. The discovery is based on the intensity of the perpetrator’s gaze at the now-dead woman. Second, throughout the film it is the exchange of glances and gazes rather than dialogue between Esposito and Hastings that cinematically establishes the currents of desire between them both now and in the past. Bringing these two together, Esposito will say to Hastings:
- It’s the look in their eyes. That’s the key.
- You see this kid looking at the woman…Worshipping her.
- The eyes…Speak…They bullshit too, they should keep quiet.
- Sometimes it’s better not to look.
While the content of the dialogue refers to the gaze of the criminal, the camerawork during the exchange establishes the ocular proof, reveals the untold story, of the Esposito–Hastings relation.
These two relations provoke a doubled past in the memory of Esposito, but importantly, although these remembered pasts overlap they are not coterminous, joined but not precisely identical. Similarly, in the present, while he is struggling to express himself he is compelled to confront both characters because of the continuing effects of his past entanglements with them both. This has the effect that the last third of the film stages Esposito’s attempt to hold on to both relations and both histories. The film ends by promising that this attempt is successful: the past confronts the future in the moment of a present that offers the contingent possibility of reconciliation. Significantly, though, the law clerk—now retired—will continue to be unable to speak his desire, but such inability does not arrest him. At the end, he does not give way on his desire.
This then is the narrative of the film—its enigma and emplotment. Let me return to the question that the law clerk asks but cannot get his head around: ‘So, how is it possible to live a life full of nothing, to live an empty life?’ The film stages two responses for us. Both involve trauma and the relations of memory and narrative that it enfolds.
One response concerns the life story of the law, and the task of beginning. The very first scene of the film is presented as a scene of writing and its subsequent erasure, literally: the retired Esposito is beginning to write the novel based on his memory of the Morales case, but he continually scores out and increasingly fills up the waste bin. He visits Hastings, who is now a judge, and recounts: ‘My biggest problem is that I’ve started fifty times and never got past the fifth line.’ She offers him three responses: first, disbelief (‘What do you know about writing novels?’); second, a typewriter fondly described as the ‘old Olivetti’; and finally concrete instruction on how to proceed (start ‘wherever you remember the most…which part comes back most often? That’s the image you should start with’). Start not with the word but with the image. What is this image that returns to assail him and arrest the possibility of narrative? The expectation set up by the film editing is that the reader will be shown the scene of the crime that begins the story of the Morales case. Instead, there is a reverie, a daydream, in which Esposito recalls when he met Hastings and fell in love at first sight. It is only then that the film moves to a subsequent point in the past and the event of the Morales rape and murder. These (p.378) two intersubjective relations determine the shape of the narrative of the case that Esposito will have produced.
He feels the need to start writing, then, but he suffers from the impossibility of beginning at the beginning. Why? At one and the same time, he experiences the last twenty-five years, the time since the Morales case, as his life being ‘sidetracked’. The impossibility of beginning is that beginnings are always plural, perhaps even too many. As Esposito remarks at one point, ‘I remember plenty of beginnings but I’m not sure what they have to do with the story.’ Hastings rejoins: ‘Then start at the beginning and stop dwelling on it.’
We dwell in the middle. A life full of nothing is a life overflowing with the intimacies of the office, work, marriage, political relocation and not a few affaires. That this both arrests the narrative, and importantly is a spur to writing life, is made explicit in the film by the circulation of the ‘old Olivetti’ typewriter which Hastings gives to Esposito as part of the instrumentality of narrative. The typewriter’s letter ‘A’ does not work, does not leave a black letter on the page, leaves a blank space. This is one place where a minor but structuring detail provides a meeting point in the film between the life of law and the memory of the dirty war. As noted earlier, AAA or Alianza Anticommunista Argentina was active during the presidency of Isabel Perón. With the return to criminal prosecution that has marked the memory politics from the mid-1990s, there has recently been a prosecution of the Triple AAA for dirty war crimes prior to the coup on 24 March 1976. And in the film we see various characters in the institutions of law expostulating in frustration about how hard this typewriter makes it for them to do their work of writing files, binding files, filling in forms, witness depositions, and writing memos that overflow the desks and offices that occupy the built legal spaces of the film. As the old Olivetti is passed from character to character, it would seem that its function is that of the macguffin, the cinematic object whose circulation is devoid of meaning and reference beyond making us aware that we are watching a film. However, in El secreto de sus ojos, the malfunctioning typewriter becomes the circulating representation of trauma: a prosaic emblem of an unassimilable experience that overwhelms the life of law and its characters, and which Esposito works through as a legal case history. After all, it is the addition of the letter ‘A’ to a word that had come unbidden to the lawyer while he slept and which he had written on his bedside pad that will have converted ‘I fear’ (TEMO) into ‘I love you’ (TEAMO). ‘A’, the first letter of the alphabet, is the emblem of a life ‘lived with’ trauma and law that dwells between a ‘never again’ and a ‘moving on’.
The trauma of beginning is also staged as the trauma of being in love for the criminal lawyer. Repeatedly, time and time again, Esposito is shown to be arrested by the experience of love. The loquacious law clerk who has a facility with repartee is rendered speechless when it comes to the articulation of his feelings for his senior colleague. The lawyer’s unspoken love for Hastings is mirrored by the love for the dead victim by her surviving husband. This love, and its relation to memory, provides the setting within which the film works out a second response to the question of how to live a life full of nothing.
(p.379) The husband, Ricardo Morales, is a character who appears in the aftermath of the crime (of murder and rape). Remaining, he suffers. He weeps for his dead wife, he gazes at her photographs, he speaks about her in the present tense. He says: ‘I know I’m in denial but…it helps me go on until we find the guy.’ This performance is highly ritualistic, which for me recalls the protests of the Madres de Plaza de Mayo moving counter-clockwise, same time, same day and same place in a crowded plaza. In the film, at the same time each day, Morales sits on the same bench at a train station looking for the perpetrator who is believed to be commuting in and out of Buenos Aires. He keeps a vigil, held in the moment after his wife’s murder. Out of this experience Morales will construct punishment for the perpetrator as a way of addressing the question of how to live a life full of nothing. For Esposito, writing the case history provides a way of working through crime and its repetition in parts and images. For the husband Morales, working through requires punishment—and specifically life. As the Córdoba tribunal in the Videla case inscribes the sentence in 2010: perpetua.
Over the course of a series of conversations initiated by Esposito, Morales broaches the form of punishment to be meted out to the killer. Esposito imagines that Morales might find a sense of retribution in the death penalty, but is surprised when the grieving husband eschews it. For Morales the death penalty is not enough. He concludes: ‘No. Let him grow old. Live a life full of nothing.’ It is this comment which provides the enigma for Esposito and which he struggles to emplot. For Morales, it becomes a programme of action which he will recount some twenty years later to Esposito: when the perpetrator was released after two years from the sentence of life imprisonment, Morales captured him and detained him in a cell which he had secretly constructed on a rural property.30 For twenty years, Morales has lived his life in a pas de deux with the killer of his wife. Detention en perpetua as a life full of nothing: without company, without conversation, without daylight, without hope.
Why does Morales keep him in detention? It is neither revenge nor proportionality. Both these are ways—as Foucault has shown—of instituting, codifying and maintaining a memory of the crime, and variably in the mind or body of the individual and the public.31 But the film shows Morales discovering the instability of memory. As he says while waiting at the train station:
The day she was killed, Liliana made me tea with lemon. I’d been coughing all night and she said it would help. I remember these stupid things. Can you see? Then I start having doubts and I don’t remember if it was lemon or honey in the tea. And I don’t know if it’s a memory or a memory of a memory I’m left with.
A life with the killer allows Morales to keep memory alive but at the cost of the perpetual occupation of the position of grieving survivor, the one who subjects himself to the duty to remember. Like the Vietnam vet who refuses to take the drugs that will get rid of the horrific hallucinations that possess him on his return from the war. As the veteran says, ‘I do not want to take drugs for my nightmares, because I must remain a memorial to my dead friends’.32
These then are two ways to live a life full of nothing, two ways to live with the trauma of a legal case. What remains is the conduct of criminal law. It is possible that this conduct—whether local, regional or international or, as is more likely, some melding of the three—engages the obligation to acknowledge experiences of mass atrocity in a time between never again and moving on. In the time that remains, this liminal possibility and the predicaments that beset it are explored in terms of the rhetoric of testimony and the logic or taxonomy of international criminal law.
‘There exist no provisions in our law, that perfectly and precisely describes the form of criminality that shall be judged here.’
—Julio Strassera, El Juicio a las Junta 33
International criminal justice arrives on the scene too early or too late. But never quite on time. Its temporality is that of deferred action. If we return to El secreto de sus ojos, the film is concerned with a similar constitutive delay; it relates the difficulties encountered by those who arrive in the aftermath of a crime, the aftermath of an atrocity.
While this temporal predicament is news to few, what is perhaps less appreciated is its effects on the conduct of (international) criminal justice and the ethics of acknowledgement. International criminal law is repeatedly confronted with individual and collective situations of oppression and injustice to which it is called upon to respond. At the same time, it is confronted by atrocities and injuries which are unutterable—and that it is this very unspeakability which positions the event as atrocious and which calls for legal representation. In short, the obligation to represent comes up against the unpresentability of the event. This is not simply a (p.381) matter of noting that law remains silent about particular injustices and mass atrocities. As was said in the account of memory politics with which this chapter began, it is important that data is collected, the numbers of the dead and the dying are counted, the statistics tabulated, the stories iterated and disseminated, the crimes legally enumerated in statutes and the enumeration expanded if necessary. A lack of information is not the predicament I have been trying to get at here. Rather, the event is atrocious precisely because it is a constitutive limit of representation and information. This is not an obstacle or hurdle to be overcome by yet one more effort.34 There is a constitutive inaccessibility to experiences of trauma. Not all experiences of atrocity and injury are traumatic—and in saying this I do not want to downplay the sadness and injustice of these experiences. It is their return to possess us that constitutes them as traumatic. In sum, it is the very inaccessibility of trauma which generates the demand and struggle for narrative self-representation. This is the paradox of narrative memory: to narrate the event where the conditions of the event remove the very possibility of narrative representation. As my account of memory politics at the start indicated, this predicament can be broached in a number of ways. In cognitive terms, it is the tension between information and understanding; in ethical terms it is what has come to be called ‘bearing witness’ rather than providing proof, conducting a hearing rather than reporting on phenomena; and in aesthetic terms it is the difference between representation and expression. Here, it will be presented as a matter of working through the inaccessibility of trauma—first in terms of the genres of representation, then in terms of the taxonomies of international criminal law.
Consider the genres of representation. As already mentioned, in El secreto de sus ojos, Esposito is trying to write. But in tension with the fact of his compulsion to narrate the Morales case is the question of the form of representation that this narration takes. If Esposito is to be believed, then he is writing a novel. However, he comes up against the incredulity of Judge Hastings:
What do you know about writing novels?
I’ve been writing novels all my life. Take a look in the archive.
Oh the case files. How many pages will your file be?
Upon being shown Esposito’s finished efforts, Hastings is no less sceptical: ‘It’s a novel. It doesn’t have to be true or even believable…’ And when Esposito shows his draft to Morales, he is met with a similar reminder of what he has done. Morales remarks offhandedly: ‘You should flesh it out. It’s like a long memo.’
Just when Esposito thinks that he is writing a novel, the responses of others, which he has sought out, indicate that the archive is writing him. In representing the case as a novel, what is expressed is a file or a memorandum, an artefact that emerges out of the archive of his office—the court documents which he has (p.382) submitted for signature by his judge, the dossiers that pile up on desks, the loose case documents that the viewer is repeatedly shown being stitched together with sisal cord out of memoranda by his assistant Sandobal ‘with a surgeon’s movements, an artist’s grace, and the solemnity of an officiating priest’,35 and so on. The paradox of testimonial conditions of trauma is that testimony is not simply confronted by an experience that takes place in time, but also involves others. There can be no acknowledgement of trauma without the marks of genre. It is this condition of address that generates the difficulty of deciding whether the case history he is writing is a novel, a file or a memorandum.
Akin to the difficulty of pinning down the genre of the lawyer’s writing, international criminal law has, since its inception in the aftermath of the World War II, been given shape by a difficulty of classification and its logics of memory.
Consider the subject of international criminal law. Is it law? And if law, is it international law or criminal law? The fact that it is international lawyers engaged with crime does not necessarily turn what they say into international criminal law, just as the fact that it is criminal lawyers talking about international law does not turn their commentary into the doctrines of international criminal law. And the difficulty becomes even more acute—beyond simply its much-vaunted fragmentation—with ‘the contemporary conflation of human rights law, criminal law, and the international law of war’ that ‘implies a pronounced loss for those seeking to challenge state action’.36 And if the critic is deprived of a language of critique, then the problem also recurs for those interested in a less normative characterization. In Argentina, the eruption of memory politics as a question of criminal jurisdiction has seen a cross-fertilization of domestic constitutional law, regional human rights law in the guise of the Inter-American Court of Human Rights, and international criminal law from the Nuremberg trials to the International Criminal Court via the ad hoc tribunal for the former Yugoslavia. This has seen Argentine case law, as Pablo Parenti remarks, carry out a procedure of ‘double classification’: the facts of the charges instantiate a legal crime under domestic criminal law and a legal category (crime against humanity) under international criminal law.37 But even this, as the Córdoba tribunal’s judgment in the 2010 Videla case illustrates, generates anxiety over breaching the double jeopardy rule, or worse, produces a double punishment. What it foregrounds is that, when considered as a jurisdictional device through which law conducts itself, the conduct of international criminal law circulates between the nominative (definitional), the adjectival (evidential) and the adverbial (procedural). This is particularly evident when it comes to addressing the coincidence of the category of murder and the category of crime against humanity. Here, murder has a nominative place in domestic criminal law, an adjectival place in as much as it is part of the enumeration of the crime against humanity, and an (p.383) adverbial place in as much as the statute of limitations restricts prosecutions for murder in domestic law but not for crimes against humanity under international criminal law.38 Law moves between and across the various parts of speech without ever quite settling down.
At this point, however, the question of the subject of international criminal law has moved from the jurisdictional forms of law to the classification of crime. Crime has also stood in to unify the disparate and plural utterances of international criminal justice. But which crime? Most obviously, the crime that unifies the subject would seem to be ‘war crime’ but it was precisely the war crimes paradigm that created so much difficulty in holding on to what was unprecedented in the Holocaust at the Nuremberg trials as much as the Eichmann trial. Isn’t it this unprecedented quality which the category of ‘crimes against humanity’ was to address? Since its introduction there has been considerable uncertainty as to its scope and meaning, and each category has been interpreted by reference to the other. Initially, the war crimes paradigm was simply extended to interpret the crimes against humanity prohibited at Nuremberg; yet since the 1970s and more obviously since the 1990s, the paradigm of crimes against humanity—at least in the context of atrocity—has given content to war crimes as violations of human rights.39 And if, as some have argued, the jurisprudence of the courts has left this distinction behind, then it has reappeared in different idioms. For example, consider the jurisprudence of rape that has emerged out of the ad hoc tribunals for Rwanda and the former Yugoslavia. The incorporation of the social recognition of rape and sexual violence against women into a legal recognition was staged initially as a question which foregrounded the problem of classification. Can rape be prosecuted as torture, as genocide, as a crime in its own right or as a crime of honour? All, one or none? And when it comes to juridically defining the crime of rape, when such is necessary, the definition is construed in terms of violence or consent. Here, it remains to simply note that the jurisprudence of rape has restaged the slippages between the war crime paradigm and the crime against humanity paradigm in the idiom of violence and consent.
In all this, the classification of crime and the forms of legal speech emerge as the jurisdictional struggle of legal doctrine to hold on to a position of interiority, just as the genre of Esposito’s writing emerges as the point of contestation between himself, his addressees, and the case history that he has so much difficulty beginning. The conceit of this chapter, then, is that a criminal jurisdiction of memory can be treated as a case history, such that its narrative genres, compulsive repetitions, and (p.384) blank letters bear witness to the trauma of its speech. International criminal law lives a life full of nothing if its settled accounts of law and crime are not unsettled by the injustices and atrocities to which it is called upon, sadly, to respond. Setting out from the perspective and tradition of memory politics and its ethics has suggested that attention to the conduct or enunciation of international criminal law provides resources for working through that unsettled history.
(1) Juan E. Mendez, ‘Latin American Experiences of Accountability’ in Ifi Amadiume and Abdullah An-Na’im (eds), The Politics of Memory: Truth, Healing and Social Justice (London: Zed Books, 2000), 137.
(2) K. Asmal, L. Asmal, R.S. Roberts, Reconciliation Through Truth: A Reckoning with Apartheid’s Criminal Governance (Glosderry: David Philip Publishers, with Mayibue, University of the Western Cape, 1996), 26.
(3) Ernesto Sabato (1984), Prologue to Nunca Más:The Report of the National Commission on the Disappearance of Persons (or CONADEP) [website], <http://www.desaparecidos.org/nuncamas/web/english/library/nevagain/nevagain_002.htm> (accessed 31 October 2011).
(4) For an excellent reconstruction of the dirty war in terms of the gendered construction of subjectivity, authority, the state and resistance—as well as the ‘twice performed behaviours’ of the Madres, see Dianne Taylor, Disappearing Acts (Durham, NC: Duke University Press, 1997), particularly Chapter 7.
(5) Sabato, above n 3. This chapter will not recount the details of the dirty war. The Nunca Más report provides much. For scholarly elaboration that has assisted with my understanding, see Mario Di Paolantonio, ‘Tracking the Transitional Demand for Legal Recall: The Foreclosing and Promise of Law in Argentina,’ Social & Legal Studies, 13 (2004), 351–75; Taylor, Disappearing Acts, above n 4; Antonius C.G.M. Robben, ‘How Traumatised Societies Remember: The Aftermath of Argentina’s Dirty War,’ Cultural Critique, 59 (2005), 120–64; Mark J. Osiel, ‘Ever Again: Legal Remembrance of Administrative Massacre,’ University of Pennsylvania Law Review, 144 (1995), 463–704; Mark J. Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick, NJ: Transaction Publishers, 1997).
(6) This is a common topos. It was initiated in the immediate aftermath of the military dictatorship in the report of the national truth commission and in the judgment of the court in El Juicio a las Juntas. For a recent example, see the Córdoba judgment in the Videla case of 22 December 2010, at 28. Available at <http://www.eldiariodeljuicio.com.ar/> (‘22/12 Sentencia Descargá la sentencia completa’).
(7) This is not uncommon in transitional justice contexts. Priscilla B. Hayner, ‘Fifteen Truth Com-missions—1974–94: A Comparative Study’ in N. Kritz (ed), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Vol. 1, (Washington DC: United States Institute of Peace Press, 1995), 228 (commenting that ‘while not true in every case, a general understanding of who did what during a period of violence is usually well accepted by the civilian population within a country’).
(8) Ruti G. Teitel, ‘Transitional Justice Genealogy,’ Harvard Human Rights Journal, 16 (2003), 86–87. See also Ruti G. Teitel, ‘Transitional Jurisprudence: The Role of Law in Political Transformation’, Yale Law Journal, 106 (1997), 2009–2080; Ruti G. Teitel, Transitional Justice, (Oxford and New York, NY: Oxford University Press, 2002).
(9) International Coalition of Sites of Conscience [website], <http://www.sitesofconscience.org/> (accessed 24 February 2013). See also Memoria Abierta, a coalition of human rights organizations tasked with the archiving of the memory of abuses that occurred under the juntas. In December 2010, it launched ‘Vestigios’, an online memorial displaying photos of objects that survivors and relatives of victims kept in memory of their loved ones. Available at <http://www.memoriaabierta.org.ar> (accessed 24 February 2013).
(10) Juicio a Christian Federico Von Wernich, Causa 2506/07, Tribunal Oral en lo Criminal Federal No.1 de La Plata, November 2007, 168–9 (my translation). Available at <http://www.apdhlaplata.org.ar/Fundamentos%20VW%20chico.pdf> (accessed 11 October 2011). The reference to the work of Foucault is also to be found in the earlier 2006 judgment of Etchecolatz (Causa 2251/06), 253–4. For commentary on these cases arguing that the pressure of civil society groups on domestic courts risks an incorrect yet understandable interpretation of the international law of genocide as the court and civil society actors go about building a collective memory, see Margarita K. O’Donnell, ‘New Dirty War Judgments in Argentina: National Courts and Domestic Prosecutions of International Human Rights Violations’, New York University Law Review, 84 (2009), 333–74, particularly 364–73.
(11) It is one amongst a number of contributions that Argentine domestic advocacy has made to the transformation of regional, international criminal justice, and human rights and humanitarian law. For comment on this and other contributions, see Mendez, above n 1; Pablo Parenti, ‘The Prosecution of International Crimes in Argentina’, International Criminal Law Review, 10 (2010), 491–507; and especially Kathryn Sikkink and Carrie Booth Walling, ‘Argentina’s Contribution to Global Trends in Transitional Justice’ in Naomi Roht-Arriaza and Javier Mariezcurrena (eds), Transitional Justice in the Twenty-First Century (Cambridge: Cambridge University Press, 2006).
(13) On the truth trials, Juan Méndez and Francisco Bariffi, ‘Right to Truth’ in Rudiger Wolfrum (ed), Max Planck Encyclopaedia of Public International Law (Heidelberg and Oxford: Oxford University Press, 2007); Juan Méndez, ‘An Emerging “Right to Truth”: Latin-American Contributions’ in Suzanne Karstedt (ed), Legal Institutions and Collective Memories (Oxford: Hart, 2009); Sikkink and Walling, above n 11, 316.
(14) Juan Méndez and Francisco Bariffi, ‘The Scilingo Case’ in Wolfrum, above n 13. For analysis, see Antonius C.G.M. Robben, ‘How Traumatised Societies Remember: The Aftermath of Argentina’s Dirty War’, Cultural Critique, 59 (2005), 120–64.
(15) Andrew Graham-Yool, Who Do You Think You Are? The Search For Argentina’s Lost Children (London: Seagull Press, 2011) provides an account of the cultural resonances of the stolen identity issue and advocacy and can be supplemented by Francisco Goldman, ‘Children of the Dirty War: Argentina’s Stolen Orphans,’ The New Yorker, 19 March 2012, 54–65. See also Arie Gandsman’s recent examination of the ways in which the lives and relationships of the children of the desaparecidos have become battlegrounds for transitional justice projects: ‘Retributive Justice, Public Intimacies and the Micropolitics of the Restitution of Kidnapped Children of the Disappeared in Argentina,’ International Journal of Transitional Justice, 6 (2012), 423–43. For the Abuelas, or Grandmothers of the Plaza de Mayo, see their website available at <http://www.abuelas.org.ar> (accessed 25 February 2013).
(16) Here I focus on the amnesties. The pardons also begin to unravel. In 2000, the Supreme Court in the Mazzeo case declared them invalid—at least in respect of those who had already been indicted but not yet convicted.
(17) Symptomatic of the synergy between domestic criminal law and international criminal law by way of the constitutionalization of human rights, Carmen Argibay, one of the majority judges in this ruling, had been a judge on the International Criminal Tribunal for the former Yugoslavia.
(18) Centro de Estudios Legales y Sociales, ‘Estadísticas de los juicios por crímenes de lesa humanidad en Argentina’ (the statistics are extrapolated from the table entitled ‘Total personas de acusadas por delitos de lesa humanidad. Evolucion 2007–2011’). Available at <http://www.cels.org.ar/wpblogs/> (‘Ver más estadísticas de los juicios por crímenes de lesa humanidad’) (accessed 31 October 2011).
(19) This information for 2010 is provided in Attorney General’s Office, Unidad Fiscal de Coordinacion y Seguimiento de las causas por violaciones a los Derechos Humanos durante el terrorismo de Estado, ‘Informe sobre el estado de las causas por violaciones a los derechos humanos cometidas durante el terrorismo de Estado 29 de diciembre de 2010’, 1 and 4 (my translation). Available at <http://www.mpf.gov.ar/> (accessed 31 October 2011). This office and website is charged with monitoring all such criminal proceedings. Its website contains statistical information, and annual updates.
(21) During the dirty war the military barracks at Campo de Mayo near Buenos Aires was the site of an estimated 5,000 detentions, arising from abductions, and with consequential tortures and deaths.
(23) For a useful conspectus of the disputes in English published just before the judgment of the Córdoba tribunal, see Pablo F. Parenti, ‘The Prosecution of International Crimes in Argentina’, International Criminal Law Review, 10 (2010), 491–507.
(26) Ruti G. Teitel (2011). ‘Justice Delayed, But Not Denied,’ Tico Times [online newspaper], <http://www.ticotimes.net/Opinion/Previous-perspectives/justice-delayed-but-not-denied> (accessed 31 October 2011).
(27) The film, while not inaccurate, brushes over the precise legal office of the protagonist, Benjamin Esposito. I have followed the convention of the novel on which it is based—La pregunta de sus ojos by Eduardo Sacheri—and which is somewhat more precise on this issue. The protagonist is a deputy clerk in one of two clerk’s offices in a court presided over by the examining magistrate. He is part of the investigative jurisdiction. As deputy clerk he is the primary administrator of the clerk’s office. It is a sore point for him, in the book, that he never finished his legal studies.
(28) El Secreto de sus ojos (The Secret in Their Eyes) (dir Campanella, 2009). All unattributed quotations in the remainder of the article are from this film, and use the English translation in its subtitles.
(29) Consider the decrees by Isabel Perón allowing the military to take action against ‘subversives’. Arrest warrants were later issued against her concerning forced disappearances during her presidency. She was arrested in Madrid where she was living in 2007 but in 2008 the Spanish courts rejected her extradition to Argentina. Isabella (or Maria Estela Martinez de Perón) was president from 1 July 1974 to 24 March 1976. The film begins, and the memory of the crime goes back to the day of the murder (21 June 1974) a few weeks before the death of Juan Perón and her ascension to become the 42nd President. As a result of the coup that initiates the dirty war, Jorge Videla replaces her as president. The paramilitary group known as the triple A or AAA (Alianza Anticomunista Argentina) was particularly active during her Presidency, and then moved from the Peronist right to the military junta.
(30) There are a number of intertexts that are relevant here. One is the web of secret detention centres—known as ‘pits’ (pozos) and ‘black holes’ (chupaderos)—that form a large part of what made the dirty war crimes ‘clandestine’. Another is literary. It is difficult not to hear a dialogue with Chilean playwright Ariel Dorfman’s Death and the Maiden (New York, NY: Penguin, 1992), especially in their respective staging of the world shattering relation between victim and perpetrator, torturer and tortured. A third would be that the trigger for the capture and detention of the killer-rapist by the grieving husband is that the killer has been imprisoned and then released by executive order. This was the fate of Videla and other military after the El Juicio a las Junta, with the amnesties of the Ley de Punto Final (the ‘Full Stop’ law) and Ley de Obediencia Debida (‘Due Obedience’ law).
(31) This concern with law as a system of memory is most explicitly spelt out in Discipline and Punish (London: Allen Lane, 1977). The monarchical system of the ancien regime and the deterrent regime of the philosophes are presented as two juridical techniques for the codification of memory; the former through the body of the condemned and the theatre through which the spectacle of execution addresses its public; the latter through the mind and a generalized resemblance.
(32) Achilles Heel, quoted as the epigraph to Cathy Caruth (ed), Trauma: Explorations in Memory (Baltimore, MD: Johns Hopkins University Press, 1995).
(34) Short of a revolution, it is the juridical tradition that will have to be engaged. But part of the difficulty is that the conventional understanding of revolution is to present it as rupture, a zero sum game. Yet, modern revolutions—and transitional societies are exemplary here—most often take the form of negotiated settlements.
(35) Eduardo Sacheri, The Secret in Their Eyes, trans. John Cullen (New York, NY: Other Press, 2011), 102. As Vismann has reconstructed for us, the history of the law is a history of the file: see Cornelia Vismann, Files: Law and Media Technology (Palo Alto, CA: Stanford University Press, 2008).
(39) This was one of the objections that Hannah Arendt in Eichmann in Jerusalem (New York, NY: Penguin, 2006) had with the tradition stemming from Nuremberg. Under the war crimes paradigm, what is prohibited is the cruelty of the conduct, as if war had norms and the criminals were simply breaching the settled rules of war. In the crimes against humanity paradigm, Arendt glimpsed a different tradition—not so much an extension of the war crimes paradigm of cruelty measured against the humane but something unprecedented which would reflect the unprecedented quality of the holocaust and measure against the human. A helpful reading of Arendt for international criminal lawyers which catches at the edges of this question has been provided in David Luban, ‘Hannah Arendt as a Theorist of International Criminal Law’, International Criminal Law Review, 11 (2011), 621–41.