Human Rights in Argentina2017 Annual Report
research, texts, edition
Centro de Estudios Legales y Sociales - CELS
The full 2017 Report is available in Spanish. What follows is a summary of each of the chapters.
Argentina is known globally for its hard-fought Memory, Truth and Justice process over the crimes committed during the 1976-1983 dictatorship. But numerous other human rights achievements have been enshrined in the country’s constitution, laws, regulations and jurisprudence over the years. Today, some of those are at risk.
As we publish our 21st report on human rights in Argentina, various decisions and measures have negatively affected critical questions related to the human rights agenda and protection mechanisms. In a regional and international context that is adverse to global agreements on human rights – across political lines – the Argentine government’s response to grave incidents, repeated police repression, and troubling discourses on current threats to the country and its recent past sound an alarm regarding the consensuses achieved. This scenario has been compounded by judicial decisions that take aim at some of the pillars of Argentina’s democracy (for more information, see the prologue of our report).
In the following sections, we highlight some of the most salient developments.
Memory, Truth and Justice
With regard to the Memory, Truth and Justice process, there has been a resurgence of the discourse that equates the crimes against humanity committed by the state terror regime with the crimes committed by armed political organizations in the 1970s (also known as the “theory of the two demons”). In the last two years, some public officials have openly questioned the number of victims of crimes against humanity, in efforts to minimize the dictatorship’s atrocities or ascribe them to a “war” between two symmetrical forces. President Mauricio Macri has shown indifference to such debates, and expressed an eagerness to “move on” as a society.
Meanwhile, his administration has either reduced in scope, funding or personnel, or altogether dismantled, a number of programs and units supporting the judicial investigation of the dictatorship’s crimes. This includes, for example, the teams of researchers charged with analyzing the Armed Forces’ archives as well as the Argentine Central Bank’s human rights division, which investigated economic complicities with the dictatorship. Such actions undermine the judicial process, which is already plagued by delays at a time when many of the accused are reaching a critically advanced age.
Finally, as political winds have shifted, so have some judicial rulings, most notably the so-called “2-for-1” decision by Argentina’s Supreme Court. In this May 2017 ruling, the Supreme Court effectively slashed the prison sentence of Luis Muiña, who had been convicted of crimes against humanity, by applying the so-called 2-for-1 law to his case. This decision sparked outrage in Argentine society, prompting some half a million people to take to the streets in protest in Buenos Aires alone and fueling the nearly unanimous passage of a law prohibiting perpetrators of crimes against humanity from benefiting from shorter prison terms. While the Supreme Court ruling was deeply troubling, the social and political reaction reinforced a key consensus in Argentine democracy: impunity for the dictatorship’s crimes will not be tolerated.
Argentina’s landmark migration legislation, approved in 2003, is centered on the human rights of migrants and establishes the state’s obligation to regularize their status by ensuring access to national documentation. This legislation has served as a model for similar reforms in the region, in countries such as Uruguay, Bolivia and Brazil.
However, in January 2017, the Argentine government issued an emergency decree that gutted some key provisions of the Migration Law. It permits people’s expulsion for migration-related infractions and minor criminal offenses, and created a fast-track detention and deportation procedure that violates due process, the right to defense and access to justice.
In practice, the approach to migration policy had changed before the decree was issued. The government publicized enforcement operations that cracked down on irregular migration, while discontinuing programs aimed at helping migrants regularize their situation. Some public officials, including the president himself, have explicitly linked migration to crime. Security Minister Patricia Bullrich pointed to migrants from Peru and Paraguay, saying they “come here and end up killing each other to control the drug trade.” Both the government’s policies and its public statements foster the stigmatization and criminalization of migrants.
Economic and social context
Poverty, unemployment and inequality have increased in the last two years, exacerbating difficulties to access decent habitat and harming the effective exercise of basic economic and social rights. The country’s economic problems did not start under this government. However, due to the current administration’s pro-market policies, the burden of economic contraction and high inflation has fallen squarely on the poor.
Among other measures, tax cuts on agricultural and mining exports and reduced subsidies for public transportation and utilities have favored bigger profits in the commodities sector while hurting everyday Argentines. At the same time, public indebtedness has surged, encouraging financial speculation and capital flight. Although the government maintained social investment and even expanded some programs, this was not enough to offset the impact of fewer job opportunities and reduced purchasing power.
Meanwhile, the government’s main housing policy has been to foment mortgage lending by public and private banks. But this only helps sectors with formal employment and the capacity to save money – meaning its potential impact is small. Limiting the state’s role in land management and real estate market dynamics leads to greater speculation, higher property prices and social segregation. These structural problems are not on the political agenda today.
Criminalization of organizing
As workers take to the streets to protest firings and worsening labor conditions, there has been an intensified push to criminalize social, political and trade-union organizing via judicial and administrative means. This has included strategies such as detaining leaders, filing charges against them, reactivating judicial cases, levying fines on individuals and organizations, and shutting down social and trade-union organizations – in many cases for actions related to making demands and exercising human rights.
Such measures have a disciplining effect on people and on the way they express themselves, assemble and organize. They also enable stigmatizing discourses that consolidate discriminatory attitudes toward different social groups. Our report analyzes a number of specific cases of criminalization affecting teachers’ unions in Buenos Aires province and Tierra del Fuego, organized sugar workers in Jujuy and Salta and the qom indigenous community in Formosa, along with the arbitrary detention of social leader Milagro Sala and persecution of the Túpac Amaru organization she headed.
Using the criminal justice system to persecute members of social and political organizations is not new. But this practice has intensified since 2016 and converged with government officials’ discourses and decisions against social protest, labor strikes and organizational leaders. While the violent repression of social protest has increased, so has the criminalization of participants. They are charged with offenses such as obstructing traffic, usurpation and “public intimidation,” a criminal category that has been misapplied to protest situations since mid-2017 and exposes people to stiffer penalties.
The Cambiemos governing coalition takes a security approach to social protest, prioritizing the notion of public order over the right to protest. In February 2016, officials announced a new protocol governing security force action during demonstrations, which focused mainly on clearing roadblocks. This protocol sought to expand the police’s power to detain people without a court order and – in contrast to exemplary regulations from 2011 – did not prohibit police from carrying or using firearms or shooting rubber bullets to disperse crowds. While this new protocol was never published as an official government resolution, it sent a clear message to security forces in favor of repression.
Unsurprisingly, this repression has played out repeatedly, with the abusive use of crowd-control weapons against protesters, their arbitrary detention, and their prosecution on federal offenses – which can trigger deportation procedures, in the case of migrants.
More broadly, this security approach has been applied to land conflicts and other social problems, intensifying police saturation of poor neighborhoods and fostering the construction of “internal enemies” who purportedly pose a threat to national security or sovereignty. This latter development reflects the government’s embrace of the “new threats” doctrine promoted by the United States, which identifies drug trafficking and terrorism among the new threats that countries must fight, ideally with the help of military intervention.
Since Argentina’s dictatorship, numerous laws have enshrined the principle that the Armed Forces should never intervene in domestic security matters. However, some sectors of the government advocate for military involvement in fighting drug trafficking and “terrorism” (which is not a pressing issue in Argentina today and reflects the forced application of foreign concepts to the national context, as part of a political realignment with the United States). A January 2016 security emergency declaration authorized the Armed Forces to shoot down “hostile aircraft” suspected of transporting drugs – which would constitute direct and lethal military intervention in matters of domestic security, in violation of the law.
Mental health policy
In 2010, the National Mental Health Law was enacted, providing for an individualized approach that is respectful of rights and establishing the goal of closing all psychiatric hospitals by 2020. In Argentina, psychiatric asylums have been the site of some of the worst human rights violations: inadequate treatment, abandonment, overmedication, the use of electroshock, grossly deficient hygiene and privacy conditions, and physical and sexual abuse. In the case of children and adolescents, their prolonged or repeated hospitalization in such harmful conditions ensures their social exclusion.
Little progress was made to implement this law between 2010 and 2015. However, in the last two years, the government has taken actions that reinforce, rather than transform, the current psychiatric asylum system. This has included restructuring the bodies created to execute the law, excluding civil society organizations and the users of mental health services, and repealing the only resolution that had made concrete progress toward implementation by establishing the minimum requirements for institutions that offer such services. In general, mental health policy continues to be centered on hospitalization in obsolete, ineffective, unsanitary and even dangerous asylums. It also reflects the renewed influence of psychiatrists’ lobbying groups and of pharmaceutical and other businesses.
Access to abortion
Abortion is legal in Argentina when a woman has been raped or when her health or life is endangered. This according to a law that has been on the books for nearly 100 years.
In practice, however, many obstacles lie in the way of legal abortions, and in 2012 the Supreme Court issued a historic ruling (known as F., A. L.), clarifying legal interpretations and specifying measures to be taken to ensure equal access to such abortions throughout the country. These included the issuing of hospital protocols to guarantee proper medical attention for women who have the right to a legal abortion. Five years after the Supreme Court ruling, implementation of such protocols was only partial: by March 2017, fewer than half of Argentina’s provinces had protocols in place that incorporated the high court’s criteria.
In addition, courts continue to criminally prosecute women accused of engaging in illegal abortions, based on information provided by health care workers who violate patient confidentiality (which is a criminal offense in itself). This means that young, poor women in particular run the risk of being detained if they seek medical attention for obstetric emergencies, which pushes them into the unsafe, illegal circuit of abortions – even when they have a right to a legal abortion or post-abortion health care. These women are stigmatized and criminalized by the judicial branch and the medical system itself. The case of Belén, a young woman who sought medical treatment for a miscarriage and ended up incarcerated for over two years before being acquitted on homicide charges, has served as a stark example.
The GIEI and Ayotzinapa
Moving beyond Argentina, our 2017 report on human rights includes a chapter analyzing the intervention of the Interdisciplinary Group of Independent Experts (known by its Spanish acronym, GIEI) in the case of the 43 disappeared students from Ayotzinapa, Mexico. The GIEI was created by the Inter-American Commission on Human Rights (IACHR) to help investigate this case, which earned international notoriety, and to ensure implementation of the Commission’s precautionary measures. The Group’s experience shows that innovative and real-time intervention by international human rights protection mechanisms can be highly relevant, and can help drive structural change.
The GIEI’s contributions to the Ayotzinapa case are many. It refuted the “historical truth” about the students’ disappearance that the Attorney General’s Office had put forth, proved the intervention of state and federal police and the Army’s presence at the scene of the disappearances, discovered more than sixty mass graves in the Mexican state of Guerrero and demonstrated how a senior government official had tampered with evidence.
In addition, the GIEI – which had achieved credibility and had a high profile nationally and internationally – described the structural flaws in Mexico’s criminal investigation system that contribute to impunity, while also backing local organizations’ demands for a national law on enforced disappearances. In this way, it was able to influence discussions on security policy, the judicial system and the human rights crisis in Mexico, which entails alarming rates of extrajudicial execution and torture as well as disappearances.
International drug policy
The Mexican government’s declaration of a war on drugs and organized crime in 2006 enabled military intervention in domestic security matters, causing widespread violence and contributing greatly to the country’s crisis today. In the final chapter of our report, which is available in English here, the failures of the international drug control system and the practices it has spawned are analyzed by Julia Buxton, Acting Dean and Professor of Comparative Politics at the Central European University’s School of Public Policy.
Gastón ChillierExecutive director of CELS. The author thanks Marcela Perelman and Ximena Tordini, members of the staff.
This report is being finalized at a pivotal juncture on the human rights front. A number of decisions, measures and events have adversely affected critical items on the human rights agenda and protection mechanisms in Argentina. We do not aim to provide a full assessment of the governing Cambiemos alliance’s platform, but rather to underscore a troubling convergence of political and judicial actions and decisions that erode key aspects of the country’s human rights system.
Julia BuxtonPhD, Acting Dean, Professor of Comparative Politics, School of Public Policy, Central European University, Budapest
The human rights community has increasingly drawn into its portfolio of advocacy and research activities the grave and systematic injustices resulting from the implementation of counter narcotics laws and strategies. Alongside NGOs in North America and Europe, Latin American human rights organizations have been at the forefront of this strategic shift. This mirrors the more progressive position that a number of Latin American governments have recently adopted vis-à-vis the international system for the control of narcotic drugs, which is administered through the offices of the United Nations Office on Drugs and Crime (UNODC).
This contribution to the CELS annual report situates the importance of human rights advocacy on drug policy reform in broader historical context. It examines the reinforcing harms that result directly from repressive and punitive drug policies and from the lack of accountability for the negative impacts of counter narcotics programs, which – by the metrics of the UNODC itself – have been a resounding failure.
From a rights perspective, it is a matter of grave concern that anti-drug strategies enable the state to renege on basic obligations to citizens – usually the most vulnerable and marginalized in society – including through the denial of treatment, services, and access to justice. That the implementation of counter narcotics policies reinforces racial, gendered and socio-economic inequality, as well as imposing disproportionately high enforcement costs on countries of the Global South underscores the urgency of policy change.