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Hastings International and Comparative Law Review

Abstract

The article analyzes in-depth the legal and political process through which Argentina came, first, to grant amnesty to former military officers who took part in the repression during the last dictatorship (1976-1983) and then, to nullify those "amnesties" and indict the officers again eighteen years later. The thematic core is the legitimacy (or lack of it) of constitutional changes carried out by these unconventional means, which were the unavoidable consequence of the difficult process of transitional justice in Argentina.

Section I gives an overview of the most salient legal and political facts of the last twenty-five years and poses the central questions to be tackled by the rest of this article. Section II covers the restoration of democracy in 1983 and the early attempts to bring the perpetrators of heinous crimes to justice. In this Section I analyze the position of some scholars who have suggested that Alfonsin should have chosen the path of constitutional lawmaking, instead of the rocky road of transitional justice. I argue that such position was untenable, in light of both Alfonsin's political commitments and of the redemptive character of the 1983 election. However, I contend that Alfonsin intended to pursue both military trials and constitutional reform, and give reasons

why the trials achieved a logical and temporal priority. The failure of transitional justice is also analyzed in-depth, with particular emphasis in the process that ended in the enactment of the so-called "amnesty laws." This Section also scrutinizes the role of the Supreme Court of Argentina (the "Supreme Court") in the post-1983 period, the political incentives at play when the Court decided the constitutionality of the "amnesty laws," and what alternatives, if any, the justices had at hand. The Section closes with an examination of the political process that led to the 1994 Constitutional Convention and the implementation of a number of international human rights treaties, subsequently relied upon by the Supreme Court to nullify both the Alfonsin "amnesties" and the Menem pardons. Finally, Section III discusses the legitimacy of the Supreme Court's ruling in Simon, which declared the death of "amnesty law," and the political and constitutional implications of this decision. Contrary to the majority of Argentine commentators, I argue that the due process result of Simon, although wrapped in attractive human rights rhetoric, was little more than victor's justice. I argue that the majority position can be seen more charitably as an attempt to fit the decision within a broader picture of political legitimacy Further however valid the outcome may be, the means used to achieve that result are of dubious constitutional legitimacy.

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