The Reparative Effects of Human Rights Trials Lessons From Argentina Transitional Justice Series

Justice in domestic courts is one of the most prominent aims of victims seeking to obtain accountability for human rights violations. It is, however, also one of the most difficult to achieve. In many Latin American countries, as well as elsewhere, activists have put human rights prosecutions forward as a fundamental means to end impunity, build democracy, strengthen the rule of law and address victims? rights. But there is still little knowledge about what actually happens when these judicial mechanisms are effectively put to work. Can prosecutions of mass human rights violations contribute to overcome the effects of state violence and impunity? Can trials enable meaningful reparative changes for victims in their local contexts? Analysing the human rights trials in Argentina established to prosecute those responsible for human rights violations during the military dictatorship, this book addresses how and why domestic prosecutions can operate as a means for reparation and contribute to dealing with the damage caused by crimes against humanity. Based on a series of interviews conducted with victims participating in these prosecutions, as well as with lawyers, prosecutors, judges and other relevant actors in five provinces of Argentina, this book will be of considerable interest to those studying and working in the interdisciplinary field of transitional justice and human rights. The PhD thesis on which this book was based was awarded with the 2016 Doctoral Studies Award of the Philipps University of Marburg in Germany.

INTRODUCTION: "Small Victories"

The Argentine Case: State Repression and the Path to Human Rights Trials

Reparative Justice

Victimhood and Justice

Debates on the Social and Political Construction of Victims

The Relevance of the Victims’ Perspective in Argentina

Fieldwork and Data Collection

Structure of the Book

PART I: Theoretical Approaches to Reparative Criminal Justice

CHAPTER 1: Justice and Reparation of Human Rights Violations

1.1. Research on Human Rights Prosecutions

1.1.1. The Post Second World War Trials

1.1.2. The Transitional Justice Approach

1.1.3. The Debate for and against Prosecutions

1.2. What does Reparation Mean?

1.2.1. Civic and Legal Reparation

1.2.2. Personal Reparation

1.2.3. Social Reparation

1.3. Why Do Human Rights Trials Provide Reparation?

1.3.1. Communicating and Shaping Social Behaviour

1.3.2. Symbolic Effectiveness: Legitimacy, Acknowledgment and its Social Implications

1.3.3. The Power of Law:

PART II: Implications of State Terror, Limited Justice and Impunity for Victims of Human Rights Violations

CHAPTER 2: The Hallmarks of State Terror on Victims and the Wider Argentine Society

2.1. State Organised Violence in Argentina

2.1.1. The Military Dictatorship

2.1.2. Reconstructing the Meaning of State Violence

2.2. Forced Disappearance in Argentina

2.2.1. Repression and Denial

2.2.2. Psychosocial Consequences

2.3. The Erasure of Rights and the Attempts of Resistance

2.4. Terror and the Rupture of Social Bonds

2.5. Victims under Suspicion: Displacement of Responsibility

2.5.1. The Stigma of Surviving

CHAPTER 3: Darkness and Light of the Military Juntas Trial

3.1. The Transition and the Military Obstacles to Accountability

3.2. The Promise of Justice

3.3. Limitations of the Juntas Trial

3.3.1. The Number of Prosecutions

3.3.2. Testifying in Fear

3.3.3. Silences in the Testimonies: The Reflection of Stigmatisation on the Judiciary

3.3.4. The Capital-centric Approach to Justice

CHAPTER 4: "As if Nothing Had Happened." Legal Impunity and its Social Implications for Victims

4.1. The Era of Impunity

4.1.1 Partial Justice: Accountability for the Theft of Children and Truth Trials

4.2. Social and Political Implications of Impunity for Victims

4.2.1. Reproducing Fear: Victims at Risk

4.2.2. The Silence and Paralysis of Society

4.2.3. Indifference and Social Impunity

4.3. Public Support for Perpetrators

4.4. Victims as Second-Class Citizens

PART III: Reparation through Domestic Human Rights Trials

CHAPTER 5: An Introduction to Human Rights Trials in Argentina. Dynamics, Advances and Challenges

5.1. The Path towards Justice

5.2. Prosecuting Human Rights Violations in the Domestic Legal System

5.3. The Constellation of Actors in the Trials

5.4. The Dynamics of the Trials

5.4.1. Political and Bureaucratic Challenges

5.4.2. The Criminal Responsibility of Civil Actors

5.4.3. The Trials "In the Provinces"

5.4.4. Human Rights Policies in Times of the Macri Administration: Trials at Risk?

CHAPTER 6: Towards Legal and Civic Reparation

6.1. Civic and Legal Reparation: Towards the Restitutions of Rights

6.2. The Right to the Truth: Reconstructing the Puzzle of the Past

6.2.1. The Incomplete Puzzle

6.3. Acknowledging and Legitimating the Victims’ Voices

CHAPTER 7: Reparation as Empowerment

7.1. Dealing with Fear

7.1.1. Facing Fear in Court

7.2. Breaking the Silence Inside and Outside of Court

7.2.1. Taboo 1: Denouncing Sexualised Violence

7.2.2. Taboo 2: Testifying on Political Militancy

7.2.3. The Other Face of Testimony

CHAPTER 8: The Restorative Effects of Trials on the Victims’ Social Context

8.1. Trials as Restorative Justice

8.1.1. The Restorative versus Retributive Justice Debate

8.2. Beyond the Victims: The Social Scope of Prosecutions

8.2.1. The Public Modality of the Trials

8.2.2. The Federal Scope of the Trials: "This also happened to us"

8.3. Social Inclusion. Making Victims Visible

8.4. Decrease in Public Support for Perpetrators

8.5. Towards a Social Framework of Reparation

CONCLUDING REFLECTIONS

Towards a Distinction in Criminal Prosecutions and Human Rights Trials

Rosario Figari Layús is based at the Philipps University of Marburg in Germany from where she holds a PhD in Political Science. Her areas of work and research are transitional justice, human rights and political violence.