Can Latin America change European political memory? Can a long history of European silence be dealt with from across the Atlantic? The current investigations of Argentine courts into the crimes of the Franco dictatorship have brought these questions to the fore. As we have seen this week, many in Europe are not happy with this Third World « judicial intrusion » under the aegis of universal jurisdiction. However, the situation was exactly the opposite in the 1990s when Spanish courts sought Pinochet’s extradition and the detention of a notorious Argentine dirty war criminal. In the Chilean case, this Spanish intrusion even allowed Chileans to embark on a more serious judicial and historical questioning of the past. Can Latin America play such a role in Europe?
Should democracy oppose historical denial? Guatemala and Argentina are examples of how democratic engagement with past violations of human rights can lead to justice. In both countries, the effectiveness of the legal system should not be taken for granted, but in Argentina and Guatemala dictatorial regimes are finally being taken into legal and historical account. In Europe the situation is and was historically different. Neither Italy nor Germany (from East to West) prosecuted significant numbers of fascist criminals. Spain simply avoided the question.
The demise of Spanish fascism came to life with the affirmation of this idea of the opposition between democracy and history. In Spain, there was an uncrossable boundary between the politics of history as enforced by right and left-wing politicians and the politics of memory kept alive by the families of the victims. In a sense, there was no place for the victims in democratic Spain. But now, even more so than in the past, Spanish judicial silence seems like a dubious way to simply give aging dictatorial perpetrators a pass. Although the Spanish model of historical silence was once influential in Latin America, it is now the Latin American justice system that is leading the path to truth.
The Spanish model inspired the Chilean Transition to democracy and to a lesser extent the Uruguayan and Brazilian experiences as well. Although Argentina first put its Dirty War perpetrators on trial in the 1980s under the administration of Radical President Raul Alfonsín, but when the populist Peronist administration of Carlos Menem came to power in the 1990s, Argentina had turned towards the « conciliation » model of the Spaniards. In the 2002s this changed when Argentinian parliament declared the amnesty laws to be unconstitutional. Since then, the Argentine justice system has relentlessly prosecuted the crimes of the junta dictatorship. This situation was promoted by the Kirchner administrations and it is now widely accepted by left and right wing politicians.
To be sure, there are serious glitches in the Argentine judicial system; it is often the Peronist administration of President Cristina Fernandez de Kirchner that put brakes on current judicial investigations of corruption, and more recently in areas related to human rights as in the recent case of the President’s nomination of General Cesar Milani to the top military position in the country. Milani has been accused by many victims of having been an active perpetrator in the Dirty War but the administration is actively engaged in promoting him rather than pursuing justice. However, Argentina’s judicial system is showing measures of independence in relation to the populist presidency and its specific reversal of policy regarding human rights violations. It would be hard to argue, as some Spanish conservatives do, that the Argentine investigation of the crimes of Spanish fascism is related to the designs of the Peronist president.
Things are different in Europe. Simply put, the fascists of Spain cannot be prosecuted and this is written in the Spanish amnesty law of 1977. However, legal requests from across the Atlantic have started to change this. An Argentine judge recently asked for the extradition of members of the Franco regime. Spanish victims accused them in Buenos Aires of having tortured political prisoners in Spain, in the same way that the Spanish system has indicted Argentine criminals from the so called Dirty war under the legal understanding of universal jurisdiction in the 1990s. At the time, Argentina had an amnesty law similar to the Spanish one. Too many Argentines, believed that the Spanish judicial actions seemed like the only chance to combine history and justice. Ironically, now that the Argentine courts are doing the same, many Spanish politicians and pundits believe that this is an irreverent Third World intrusion in European matters. But the truth is that Argentina’s courts offer Spain the possibility of a legal and historical reckoning. This is the case because the Spanish transition model was rooted in the strict separation between history and justice on one side and democracy on the other. Democracy, the model claimed, can only be obtained if dictatorial criminals of mass atrocities are not judged but invited to actively participate of the political system.
Do Argentina and Guatemala represent an alternative model for transition to democracy, one that could influence future transitions from Egypt to Syria to Myanmar or even the European case of Belarus? As historians and political scientists, we now know that the Argentine model of bringing dictatorial criminals to justice historically combined long-term goals with short-term institutional instability. The brave Guatemalan efforts to deal with its genocidal past, clearly influenced by the Argentine experiences, are also showing similar traits of instability and resistance from conservative powers. But in contrast to Guatemala and Argentina, Spain’s silencing of the past provided initial stability at the expense of history and justice. Now after so many decades, the time has come for European democracies such as Spain to come to terms with their fascist past.
The travails of the Greek legal system in actively dealing with current fascist crimes shows a different perspective for the rest of Europe. In this context, Latin America also provides a different model for Europe. If Spanish politicians from left and right allow the Argentine legal system to provide a justice that the European country cannot enforce, it would be an instance where historical and legal globalization plays a democratizing role that cannot happen alone on European soil.
This article was previously published in the French newspaper Mediapart. It is posted here with permission of the newspaper.
