"Is it morally defensible, after twenty years of searching, that individuals still cannot find their relatives, when there are people walking around who know the location of their bodies?"
From the time that he worked as a lawyer in Argentina in the early 1970s helping to build the modern human rights movement, Juan Méndez created a road map for others to follow in defending political cases. When he was detained by the brutal Argentine security forces, his family moved quickly to demand his whereabouts, and when his captors realized they had a limited period of time to "elicit" the information they sought, Méndez was subjected to particularly harsh torture. Méndez became one of Amnesty International’s first Prisoners of Conscience in Argentina, and advocates and diplomats alike pressured the junta, forcing Argentina to release him in 1977. In exile, Méndez continued his human rights work, pioneering advocacy tools that are the bases of much international human rights work today. Méndez spent fifteen years at Human Rights Watch, heading its Latin American division, and later becoming Human Rights Watch’s general counsel. Afterwards, Mendez served as a commissioner at the American States’ Inter-American Commission on Human Rights. He served as President Emeritus of the International Center on Transitional Justice and as Special Advisor to the UN Secretary General on the Prevention of Genocide. He currently teaches at American University’s Washington College of Law in Washington DC and serves as the United Nations Special Rapporteur on Torture.
In the late 1960s, I was a university student in Argentina. It was a time of upheaval and student activism throughout the world: in Prague, in Paris, and in Latin America. At the time, we were under a military regime that exploited the schism between the poor and the wealthy. Many of us got involved politically; some took up arms, some joined organizations, and others, like me, tried to use their legal skills to defend political prisoners, to fight against cases of torture, and to protect human rights. I thought of that as my contribution to the struggle.
The first time I was detained was in 1974, before General Juan Perón’s death, in my hometown, in front of the law school I had attended, where I was teaching at the time. They let me go in two or three days. But that signaled to me that I was being watched, that I had enemies. So, my family and I moved to Buenos Aires where nobody knew me. Little by little, I went back to teaching, practicing law, and to political activism in shanty towns and poor neighborhoods. A while later, in August 1975, I was arrested again. At the time, Isabel Perón, who had succeeded her husband after his death, was in power and her regime conducted many political murders.
Terror was everywhere. A lot of people were caught painting political graffiti, and the next day they would appear dead and tortured. And there were others, followed and picked up in their houses or their offices and killed. Like me, a lot of people were thrown in jail and, if they weren’t charged with something, they were placed under administrative detention.
The most repressive military dictatorship in our history started in March 1976. I was in prison at the time and though I was about to be allowed to go into exile, the military held me for another year, still without charges. An Amnesty International mission came to Argentina in November 1976, met my family, and reviewed my case. It was clear that the state didn’t have any evidence against me, except that I was defending political prisoners. I qualified neatly under the category of Prisoner of Conscience for Amnesty, one of the first to be adopted in Argentina. Three months after, I was allowed to leave. There were maybe eight thousand people in similar situations, who spent an average of four years in administrative detention, whereas I was lucky to get out after a year and a half.
In Argentina they had no mercy. Those eight thousand were the "legal" prisoners. Ninety percent were tortured, and tortured heavily with electric shocks, beatings, near drownings, and mock executions. It was very mechanized, very routine, and very brutal because they wanted to get a lot of information out of you, and even if that information was of no value in court, they didn’t care.
They just wanted intelligence. After the 1976 coup d’état, it all became worse, because they knew they didn’t have to worry about producing you alive. In the early seventies, they had only a few days to get information out of you. One, because your friends immediately protected themselves and moved, in case you were forced to say where they lived; and two, because sooner or later they would have to arraign you before a judge. If you were in really bad physical shape then the judge would probably be on their case. And because they worked very fast, they were also very brutal. They would take you to the edge of killing you in torture, and then, if they couldn’t get any more information out of you, might leave you alone. A lot of my friends spent a week in torture sessions. In my case, it was only three days. I was fortunate that my family mobilized very fast to get a writ of habeas corpus and talk to judges. My torturers knew that they had even less time than normal with me. So, instead of two, I had five torture sessions in two days. Pretty brutal, but at least it was short.
After my second arrest, I spent eighteen months in prison. Eventually, I was expelled. I wasn’t even allowed to go back to my family and my house in Argentina. I was, literally, put on a plane and sent into exile. Once my family had rejoined me and we established ourselves in the United States, I had to decide whether I wanted to go back illegally. Many of my friends in exile returned clandestinely to Argentina and, while I admired them for it, I thought it was suicidal, quite frankly, because in the end they couldn’t do much. At this point I decided to stay in exile and I began to work from the outside with NGOs and local groups.
It wasn’t so dangerous when I started. You didn’t know whether the repression was going to be transitory, and maybe next month it would be all right, or at least a little better. You always have hope that, even if it’s dangerous for a lot of people, it’s not that dangerous for you, because you’re not that well known. So you live. It’s not that you’re incredibly courageous, you just think that maybe it’s not going to be as bad as it looks. In fact, I think we only realized the tragedy of Argentina when we went into exile and observed it from the outside looking in. When you’re in the middle of it, obviously, you have a sense of duty. You know you have this prisoner that you have to file a brief for, or there’s this friend who’s just been caught, and his mother is asking you to do something about it. There’s a sense of being needed, and also a feeling that this will pass and, hopefully, we sail through it. Unfortunately for many of my friends, that optimism was a serious mistake.
The front line of lawyering can be done very effectively as long as you have a halfway independent press. For example, if we would go to court and the judge wasn’t inclined to do anything about it, one way of putting pressure on him was to go simultaneously to the press with a copy of the habeas corpus writ. If, in the morning, there was a little article that said that a habeas corpus on behalf of so-and-so had been filed with Judge so-and-so, then the judge knew that he must do something within the week. If not, there was going to be another article saying, "He didn’t do anything." Unless you have all those things in place, the system breaks down. In the present period in Latin America, even under constitutional rule, those conditions are not always met. We can’t call it democratic quite yet. There are many other things that must be done, more on the preventive side of things such as human rights education, or building independent, impartial, courageous, and professional press organs, or making sure that human rights activists are better known through the media. We learned hard lessons from the dictatorial past and, even when democracy isn’t what we hoped it would be, at least we’re building the fences against the future breakdowns of the rule of law.
What passes for reconciliation in Latin America is really another word for impunity. It’s not so much because of how I feel about the people who did wrong to me. I don’t really care any more if I could identify them, or send them to prison. But taking the position of the communities affected, I feel very strongly that reconciliation has to happen through a process. It cannot be imposed by public policy. How do we get from here to there? Not with state-imposed amnesties that pretend that reconciliation has happened by fiat. In fact, all they’re doing is letting the torturers and the murderers go free. Some say, "Peace and justice are not the same thing and to have peace you can’t have justice." I don’t deny that one priority in places like Sierra Leone today or El Salvador in the early nineties is to silence the guns; but you cannot raise that to the level of good policy.
When you say let bygones be bygones you actually give an incentive to murderers and torturers to come back and to do it again. Or worse. Now democracy has taken hold, but you still don’t have military elites or police bodies that are accountable. They have not had to account for anything and, although they don’t torture political enemies anymore, instead they torture suspected common crime offenders. What kind of democracy is that? If there is one great thing about the detention of Pinochet, it is that it has forced this issue in Chile. And it has forced it in a good way because there is no risk of a coup d’état. People in Chile, Argentina, and other countries with similar episodes are frankly asking, "Is this reconciliation fair?" Is it morally defensible, after twenty years of searching, that individuals still cannot find their relatives, when there are people walking around who know the location of the bodies? The victim has a right to know. And he or she has a right to have the state tell him or her. And if the violation was serious enough, the state also has the obligation to restore justice by prosecuting those responsible.
Moral leaders have to lead the way by clarifying roles, by calling on the military to disclose the information that they have, and by asking that the government not pass spurious amnesty laws. Likewise, moral leaders must tell the people that once they have been shown in good faith that the new democratic government has done everything possible, they must reconcile. It is important to ask for reconciliation between warring factions when people go to war over political differences, to say that we are still members of the same national community, who should look to the future and forget the past. But it’s a different thing to ask the victim of human rights abuse to reconcile with his or her torturer or the killer of his or her child. Especially when the torturers and the killers don’t want to offer anything in return, they don’t want it discussed, and they don’t want any information revealed. They pretend that they should be given some kind of medal for what they’ve done. The military is quiet now, but it doesn’t accept that it did anything wrong and fights tooth and nail any effort to disclose the truth or to hold itself accountable. In those terms, there is no reconciliation possible.
I feel very privileged that I have been able to work in this field for a long time and to have seen the front lines in Argentina, to work from the international advocacy perspective at Human Rights Watch, and now from the academic perspective at the IIHR (Inter-American Institute of Human Rights), and the University of Notre Dame. This has given me a sense of the place and the purpose of each of these different types of organization in the overall human rights movement. All of them are effective in their own way. Domestic human rights groups are essential because they are in the front line. But without the possibility to go to international organizations and, eventually, in appropriate cases, to intergovernmental organizations (like the Inter-American Commission, the Inter-American Court, or the European Court on Human Rights), their ability to change things on the ground is limited. By the same token, without academic organizations that can train and professionalize activists in different parts of the world, the movement cannot continue to grow and improve, bringing in new generations of people doing the work as effectively as they can. All that is knowledge. And knowledge has to be transmitted. We have much to teach and much to learn.