Police Power and Administrative Jurisdiction

One of the most important contributions of the new legal history has been the re-evaluation of the “state-centered paradigm” and its place in the evolution of normativity throughout history. The idea that in a “well-ordered society” the government should be concerned with the general welfare of the population, both in a spiritual and material sense, enjoys a long history with medieval roots – a tradition based on a very different rationale than that of the modern administrative state.Footnote ⁷

The concept of “police” represents the starting point of our understanding of the functions of administration within the “jurisdictional paradigm”: the regulation of conduct at the local level of matters pertaining to security, public health, morality and public order, as well as the development of commerce and economic transactions. In particular, as this literature emphasizes, these functions were seen as an extension of the patriarchal role within the household economy to the municipal environment (see also Section 3.3). As Castillo de Bovadilla stated in his Política para corregidores (1597): “The fair government of the household is the true model for the government of the Republic … because the household is like a small city, and the city is a large house….”Footnote ⁸ By the eighteenth century, the idea that the roots of state regulatory power laid in this notion of the police could be found in many different European sources. “By the public police and oeconomy I mean the due regulation and domestic order of the kingdom,” is how Blackstone expressed it in his Commentaries on the Laws of England. The individuals of the state, “like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive in their respective stations.” Adam Smith’s Lectures on Justice, Police, Revenue and Arms (1762–1763), Johann Justi’s Polizeiwissenschaft (1756), Nicolas De La Mare’s Traité de la Police (1722), and the Spaniard Tomás Valeriola’s Idea General de la Policía (1808) offered similar interpretations of “police.”Footnote ⁹

Police power thus understood was part of a process of “localization of the law” in the Hispanic colonial cities, a process that can be overlooked when we focus exclusively on the independent centralized national state as a source of the law (also see Sections 1.3, 1.4, 3.1, and 3.2).Footnote ¹⁰ Based on this considerable degree of normative autonomy, a large number of regulations on security, health, and public morality were sanctioned at the municipal level, gradually widening the scope of intervention of public authorities, and producing, as Jesús Vallejo put it, “state-generating” mechanisms (“generaron Estado”).Footnote ¹¹ The prevalence of local power to regulate such matters was a concept many of the Latin American constitutional orders of the independent era inherited. To illustrate this point, we can cite a number of decisions of the Argentine Supreme Court from the second half of the nineteenth century recognizing the legitimacy of police power developed by local authorities in Buenos Aires to regulate issues such as the location of markets and fairs, bull fighting rings, or slaughterhouses and tanneries in the city.Footnote ¹² The political and administrative need of the many local normative orders in the region to exert greater degrees of control lent force to the arguments calling for further centralization as one of the elements the new administrative order would bring about, as we will see in the next section (see also Chapter 4).Footnote ¹³

Hand in hand with the arguments about centralization, a second question was crucial to all the debates about the origins of administrative law in the region and its relation to the constitutional order. One of the legacies of the French Revolution and the First French Empire had been the creation of an independent administrative jurisdiction that exempted public agents from being judged by ordinary courts of law for their acts as public functionaries. This institution was, on the one hand, “unthinkable” within the “anti-statist legal-political universe of the Ancien Regime,”Footnote ¹⁴ and, on the other, its conciliation with the principle of the separation of powers of liberal constitutionalism was problematic, to say the least; hence, the resistance it encountered in Latin American republics. This separate administrative jurisdiction (“contencioso-administrativo”) was adopted in Latin America only twice over the course of the “long nineteenth century” (though it became much more common in the second half of the twentieth century). The first instance of its adoption took place in Mexico under the dictatorship of General Santa Anna, and was promoted by Teodosio Lares.Footnote ¹⁵ The second instance occurred in Colombia in conjunction with the 1913 Ley 130, which organized the administrative jurisdiction based on the 1886 constitutional clause granting the National Congress this power.Footnote ¹⁶

As we shall see, the gradual separation of the new discipline of administrative law from the received wisdom of the liberal constitutionalism, which had inspired much of the organization of the new nations (also see Section 5.1), rapidly grew from the second half of the nineteenth century to the first decades of the twentieth century. Prior to this, constitutional debates of the mid-nineteenth century focused on the crucial issue of centralization – both for and against – as the key to understanding the success or failure of the new institutional orders.

Centralization and the Constitutional Organization of Latin American States

In 1870, the Panamanian jurist Justo Arosemena offered an explanation for the decades of institutional disruptions and economic stagnation that had afflicted the new nations –one often repeated by others over the yearsFootnote ¹⁷. There was a clash between formal principles established in constitutional models taught by “the abstract science of politics” and the realities revealed by “an applied political science.” It was the divergence between these adopted abstract models and the concrete legacy of societies marked by “colonialism and revolution” that explained the instability of constitutional principles in Hispanic America (see also Section 5.3).Footnote ¹⁸ Even if many other Latin American jurists and statesmen accepted such a diagnosis, it was very difficult to reach a consensus about the best remedy to cure the affliction. Did the problem reside in the election of an unsuitable institutional model or in the incapacity of Latin American elites to adapt any such model to the particular realities of the region?

Two decades earlier, in one of the first texts to be published on the science of public administration in the region, Colombian jurist Florentino González discussed similar problems. “Reading Bonnin” (one of the French forerunners of the discipline), González stated, “I found a preference for a type of centralization that neglects all local interest, and, unfortunately, I have realized that our laws have been based on such pernicious doctrines.” However, it was in the work of Tocqueville that he found “a torch guiding me to a new field of research: setting Bonnin aside, I began to think about the ways in which Great Britain and the United States organized social interests, and understood that the root of our evils was in the spirit of centralization that lives in our laws.”Footnote ¹⁹

In 1869, now appointed as the first Chair of Constitutional Law at the University of Buenos Aires, González expanded these views in his textbook Lecciones de Derecho Constitucional. His support for a radical version of democratic republicanism was based on a distinction between what he identified as “the European system,” an “artificial” tradition of centralizing monarchies, and the “American system” of federal representative republics, based on the model provided by the 1787 Philadelphia Constitution.Footnote ²⁰ José Manuel Estrada, who succeeded González as Chair of Constitutional Law in Buenos Aires, was also a harsh critic of the principles of centralization espoused by European administrativism. Addressing the graduates of the law school in 1881, Estrada concluded that the new discipline was “an unhealthy phase of modern legislation,” the scientific expression of the process of centralization whereby modern societies were “subjected by the state.”Footnote ²¹

On the opposite side were those who defended centralization as one of the pillars of political stability and efficient public administration the region was lacking. When studying the collection of mid-nineteenth-century Hispanic American constitutional texts, the Spaniard Manuel Colmeiro did not hesitate in proclaiming that the imitation of the US constitutional model had been a tragic error. For instance, he attributed the costly Mexican defeat against the United States in their recent war to the weak political structure created by the Mexican Federal Constitution of 1824.Footnote ²² A few years earlier, Colmeiro had published another very influential text on the origins of public administration in Latin America: his two-volume Derecho Administrativo Español. In this work, he explains the basic principles of the discipline, drawing the crucial distinction between political and administrative centralization. If administrative centralization posed the risk of an excessive absorption of functions by the central government, “disregarding the provincial and municipal realities,” Colmeiro was much more sanguine about the importance of political centralization. A logical consequence arising from the reaction against medieval dislocation of territories and governments, centralization meant “the triumph of a common body of law over privilege, of order over anarchy, of the authority incarnated in the monarchy over the dispersion of social forces that had characterized feudalism.”Footnote ²³

Latin American political elites, constantly battling the threat of provincial uprisings and territorial fragmentation, probably favored this energetic defense of a central state and its unitary conception of the law, one found in the first administrative law textbooks produced in the region that departed from Florentino González’s position. The Mexican jurist Teodosio Lares, for instance, stated very forcefully that centralization went hand in hand with the new science of administration. In Spain, he added – grounding his views in a long-term historical interpretation – the efforts made by the Catholic monarchs in order to systematize and standardize legislation were the first signals of the advantages of administrative unification. He concluded, however, that administrative uniformity had grown stronger as a result of Napoleon’s aspirations for more control in Revolutionary France, as well as the work of the Conseil d’État.Footnote ²⁴

Other nineteenth-century Latin American authors explicitly adapted and/or literally copied Colmeiro’s work. The Chilean Santiago Pardo made clear that he had taken much of his 1859 textbook directly from the pages of the Spaniard’s work, as did the Argentinean Ramón Ferreyra when writing his 1866 treatise. Both agreed that the principle of centralization was, as Pardo expressed it, “a condition inherent to a good administration.” Ferreyra went even further:

In a very different context, Paulino José Soares de Sousa, the Viscount of Uruguai, reflected along similar lines in his study of administrative law in the Brazilian empire. It was not the legacy of a monarchical tradition but instead the diversity of local conditions that seemed to inspire his analysis. Without centralization, he wondered, “how could we possibly unite the North and South of the Empire, given so many dissimilarities in climate, territory, spirit, commercial interests, and social development? How could we promote the development of so many localities marked by indolence and inertia?”Footnote ²⁶ The proposals introduced by the 1834 Additional Act of the Empire, conceding greater autonomy to the provinces through the establishment of provincial legislatures, were the main target of his criticism of liberal political decentralization. These were based, Soares de Sousa claimed, on “hatred of the central power” and would lead to “an anarchic and disorderly decentralization out of an exaggerated democratic opinion, … subversive and chaotic that would deliver a disarmed central executive power to provincial factions.” He also condemned the idea of transplanting Anglo-American institutional models to Latin countries; those countries where this occurred fell into a political “barbarism.”Footnote ²⁷

Juan Bautista Alberdi, one of the fathers of the 1853 Argentine Constitution, stated a different position based on two principles. The first one was that a republican order could and should defend the principles of political centralization. The problem faced by new nations was the excess of administrative centralized regulations imposed by colonial legislation:

As for the study of the new discipline, he advised a young student that France was not a suitable place to learn about administrative law, since it was not yet clear whether legislation in France would be “monarchical or republican.”Footnote ²⁹

Alberdi’s second guiding principle pointed toward a renewal of public and private law that would serve as a suitable framework for the economic and social transformation of the new nations – one guided by the principles of classical political economy. The whole of South American public law during the initial decades after independence now seemed archaic and inadequate because its goals were now outdated:

The development of “free immigration, liberty of commerce, railways and unfettered industry” were the objectives that had to guide the new constitutionalism.Footnote ³⁰

Whether coming from a more conservative outlook aimed at preserving some of the features of the colonial past or within a liberal discourse looking for a dramatic transformation of the material reality, the law was now predominantly seen as a product emanating from a politically centralized national state. Other possible sources of norms and regulations of social life, such as provincial legislatures or the Church, were gradually subjected to this process of subordination (also see Section 5.2).

The centrifugal effects of strong regionalist movements and economic structural imbalances helped to consolidate a caudillista tradition of strong personalization of power in provincial leaders. This in turn led to the concentration of all functions of administration, legislation, and judicial power in one person, rendering the functional differentiation necessary for the process of rationalization of the law that liberal nation-builders saw as indispensable impossible.Footnote ³¹ During the period in which the federal regimes in many countries in the region were first organizing, those provinces that had up to this point considered themselves autonomous political spaces strongly resisted these centralizing tendencies, leading to bitter political conflicts and even civil wars. By the mid-nineteenth century, during the “heyday of liberal reform,” the balance was tilted in favor of centralized national powers, for example, in Argentina and Mexico; on other occasions, for example, in Colombia, the provinces set very tight restrictions to the scope of the national government.Footnote ³²

Just as the provinces – as autonomous political entities – were seen as an obstacle to centralization, the Catholic Church was also a potential countervailing power that liberal nation-builders had to overcome in order to consolidate their rule. This was a thorny issue, given the age-old interplay between religion, morality, and the law in the Iberian world (see Section 3.2). Depending on several factors, such as the relative wealth and power of each of the national Churches, the different trajectories of the state-building processes, and the character and ideological leanings of the ruling elites, church-state relations varied among the different countries in the region. Despite the difference circumstances, the process of secularization, generally speaking, advanced hand in hand with the consolidation of state authority.Footnote ³³

Nineteenth-century Latin American elites embraced liberalism as an antidote to what they saw as the backwardness inherent in the legacy of these colonial institutions and values. Legal and judicial centralization played an important part in such a project. This juridical bent of Latin American liberal nation-building was expressed in the enthusiastic efforts made by those elites in favor of constitutionalism, codification, and the setting up of new judicial institutions at the local and national level. Along with the new constitutions (see Section 5.2), national codification was seen by defenders and opponents alike as an important political tool for the consolidation of a unified nation in Europe and Latin America (see Section 5.3). In this sense, codification operated on two different levels. On the one hand, the new codes offered the possibility of achieving a certain legal homogeneity in territories where fragmentation and plurality of normative orders was more the rule than the exception. On the other hand, it operated as a powerful symbol of nationhood, since each of the new nations, despite similarities in historical trajectories and shared colonial legacies, could present its own codes as an expression of its own particular legal system.Footnote ³⁴ Just as those defending the legacy of Hispanic or Portuguese colonial institutions could criticize the blind following of the US constitutional model, others pointed in the opposite direction. One of the most serious flaws of the 1869 Argentine Civil Code, according to its opponents, was that the drafter of the Argentine text, Dalmacio Vélez Sarsfield, had reproduced the antidemocratic and monarchical spirit that pervaded its main sources: the Napoleonic Code and the Brazilian Esboço da consolidacao das leis.Footnote ³⁵

Given the increase in state capacities resulting from the integration of the region to the Atlantic economy, which translated into larger fiscal revenues, these centralizing tendencies accelerated from the 1870s onwards. This, in turn, allowed for increased state control over the territories and material resources, the development of a “cognitive capacity” within an administrative infrastructure to manage those resources, and the symbolic capital that sustained its legitimation.Footnote ³⁶ The ascendancy of positivism and different versions of “scientific politics” provided a new ideological framework: Notions of “order and progress” and the civilizing role of commerce would gradually displace the more exalted versions of liberal republicanism of previous decades.Footnote ³⁷

Economic and social transformations, in turn, generated new pressures on the states. The emergence of urban middle sectors created new demands for a more generous provision of public goods such as internal security, communication and transportation infrastructure, better labor conditions, public education and health, all of which culminated in a more general transformation of the idea of citizenship and social rights. Each of these steps produced changes in the legal framework within which the states operated, and they favored the replacement of a traditional conception of local rule by the new centralized administrative techniques.

Economic Growth and the Expansion of State Capacities

Latin American economies during the second half of the nineteenth century participated in Atlantic capitalism mostly through the exports of primary commodities and the reception of European capital investments and credit. Relative institutional stability and attenuation of military conflicts opened up new opportunities for economic growth, which, in turn, facilitated the consolidation and expansion of state capacities in the region. Larger fiscal revenues allowed governments to channel increased resources to their military and police forces, thus helping to maintain internal security and face international threats. In addition, provision of basic public goods (education, justice, communication and transportation infrastructure, public health, and housing) conferred greater presence and visibility to state institutions in the different territories and frequently ensured a stronger sense of loyalty to the ruling political groups. Lastly, inflows of capital investments and credit facilitated the financing of such provisions and thus enabled governments to avoid imposing a higher tax burden on social actors who might otherwise become alienated.Footnote ³⁸

Wars, Public Finance, and State Building

Did internal military clashes and international wars play a role in the consolidation and expansion of Latin American states? Charles Tilly’s influential historical sociology established a link between wars, the organization of fiscal procedures for the extraction of economic resources, and the origins of modern European states. States made wars and wars made states, Tilly concluded.Footnote ³⁹ In Latin America, however, the almost constant presence of military conflicts in the history of the new nations imposed an excessive burden on the rather modest nineteenth-century states, and its incipient fiscal structures.Footnote ⁴⁰ Unlike what Tilly’s observations suggested for the European case, Latin American wars, Miguel Centeno stated, only left a trail of “blood and debt.”Footnote ⁴¹

The increased capacities of Latin American states, including the financing of military forces, was not due to wars or more efficient internal taxation systems; instead, it was the steady inflow of income generated by the customs, given the growth of international trade, and the availability of credit. Steven Topik observed that Brazil’s integration into the international economy was crucial to the formation of the Brazilian state, and his analysis could just as easily be applied to much of the region. On the whole, the “foreign umbilical cord” nurtured the local regimes. Whereas in Europe, according to Topik, “war made the state and the state made war, in Brazil trade made the state and allowed the state to avoid internal wars.” Similarly, Juan Carlos Garavaglia said of nineteenth-century Argentina: “[A]ll the mystery of political struggle and the civil wars of the period … can be summarized in the formula that linked for a long time the custom with the army.”Footnote ⁴² Miguel Centeno compared custom revenues as a percentage of the total fiscal income between the UK and France, on the one hand, and Chile and Brazil, on the other. He showed the disproportionate presence of custom revenue (more than two-thirds of the total) in the Latin American cases.Footnote ⁴³ This dependency of fiscal revenue on foreign trade and international credit, therefore, was a crucial element in the history of state-building in the region, leaving a long-term legacy of weakness in the capacity to extract resources through taxation for much of the period.

Territoriality and State Capacities

Integration into the international economy also unevenly shaped the geographic distribution of economic activities within the new nations. Certain key products served as the primary engine of economic growth in specific regions: wool, hides, beef, and cereals in Argentina; copper and nitrates in Chile, coffee in Brazil and Colombia, guano and nitrates in Peru – to cite just a few examples. External demand coupled with a revolution in transportation and internal communication capable of satisfying this demand gave birth to a new economic geography that frequently generated a structural disequilibrium between regions. This imbalance resulted in political conflicts involving the national state and provincial governments or even clashes between different provinces. Therefore, debates about the relative merits of greater centralization or greater provincial autonomy involved not only doctrinal differences about constitutional theory but also a reflection on the different possibilities of economic development and political ascendancy of internal regions vis-à-vis the national states.

Railways and telegraphs became two of the most important means of development of the “infrastructural capacities” of the new states. They led to greater control of territoriality and facilitated centralization. Telegraphed communication about disturbances in any given province, for instance, made it possible for national governments to mobilize troops (by rail) and quickly pacify the situation and/or support friendly provincial authorities through federal intervention. The cases of Mexico, Argentina, and Brazil in the second half of the nineteenth century all illustrate the powerful role played by the railway – both with regard to its economic impact and how the effects of this impact were used as a tool to facilitate greater control over the territories by the national governments.Footnote ⁴⁴ Similarly, centralized control of the territory demanded and gradually produced the development of new “cognitive capacities” (see earlier footnote 36). Exploration and cartography, surveying the territories, establishing land registries and cadasters (both urban and rural), census taking, and compiling official statistics became crucial to the production of the “legibility” of society by state bureaucracies.Footnote ⁴⁵ Postal services, established by private companies and “mensajerías,” were eventually taken over by national governments.Footnote ⁴⁶ Lastly, the development of national educational systems and federal judicial institutions also contributed to enhance the presence of the national government – both substantively and symbolically – along the territories, thus contributing to the consolidation of its authority.Footnote ⁴⁷

Two consequences emerged from these processes of expanding state capacities relevant to the gradual emergence of the administrative state in the region: the sanction of regulatory frameworks for these new public endeavors and the growth of new state bureaucracies. Regarding the first point, the law established a state monopoly for certain activities in some cases, while it regulated the private provision of certain services or utilities in others. In the case of Argentina, for instance, state ownership and management of postal services (public monopoly established by the 1876 Ley 816) and of water supply and drainage, the Obras Sanitarias de la Nación (the 1912 Ley 8889) were rare cases. On the other hand, private provision by concession was granted in the case of railways and electricity, with legislation regulating tariffs and conditions of service. A little later, licenses were granted for the provision of telephone services and the use of radio frequencies. It was only after the Second World War, in conjunction with the Perón administration, that Argentina underwent the large-scale nationalization of public services and utilities. This took place within the context of the expansion of the doctrine of “public service” (see next section), and it served as the foundation for a new conception of the state.Footnote ⁴⁸ Mexico, in contrast, decided to nationalize the country’s railway much earlier. Between 1903 and 1908, the Mexican government consolidated the different lines into one public national company, Ferrocarriles Nacionales de México, and granted a degree of managing autonomy to a semi-independent body consisting of executives from the merged companies.Footnote ⁴⁹

The number of people employed by the railway, postal service, schools, courts, and public institutions grew rapidly, and the regulatory bodies overseeing these activities, originally rather small and initially focused on national accounting, public finance (hacienda), and the organization of the armed forces and internal security, went on to become large bureaucracies.Footnote ⁵⁰ By the end of the nineteenth century, public employment and its regulation had become a salient issue in the debates about the future of public administration in the different countries. The need to form a body of state bureaucrats with a shared sense of identity and purpose – one conducive to carrying out their functions efficiently, consistently, and competently – became a prime objective of the reformers. Only later did fears about the effects of electoral democratization on the administration of the state materialize, which served to reinforce the belief in the need to isolate state bureaucracies from the pressures exerted by party politics. This revealed the extent to which the perception of technical “experts” in the management of public affairs as an alternative to “ideology,” corruption, demagogy, and the interests of political parties had progressed. This was part of a movement for the purification of public administration, allegedly corrupted by the “spoils system” advanced by political parties and advocated by specialists in public law.Footnote ⁵¹ In 1920s Argentina, Rafael Bielsa denounced “empleomanía” (the manic expansion of public employment) as a corruption of both the electoral institutions and of a healthy public administration. He contended that Argentine political life and the state financial situation could only be healed if the local “política criolla” were replaced by new scientific principles of public administration.

Technical Elites and Social Policies

By the early twentieth century, new social problems and new demands stemming from an expanded conception of citizenship in the region forced the Latin American state elites to elaborate and enforce more complex and sophisticated forms of public policy. This, as Lawrence Whitehead pointed out, “has provided the single most powerful impulse toward the construction of ‘modern states’ throughout Latin America.”Footnote ⁵² Academics and university professors were summoned to contribute a new type of “social knowledge” that would serve as the foundation for the new state policies needed to address these economic, social, cultural, and political challenges. The global circulation of experts, ideas, and models for social policies (the “Atlantic Crossings” examined by Daniel RodgersFootnote ⁵³) were a key part of state responses in Latin America to the “social question,” and transfers and adaptations of “social technologies” abounded. As had been the case elsewhere, the “expert” became a key factor in the development of new techniques of governmentality in state-building in nineteenth-century Latin America. The march toward the administrative state made visible the ways in which “the symbols of knowledge – its acquisition, analysis and privileged possession – have come to occupy the cornerstone of authority.”Footnote ⁵⁴

Public hygiene and the control of epidemics were the first fields in which the demand for expert knowledge went hand in hand with claims for increased centralization of authority in the national governments.Footnote ⁵⁵ The coupling of social welfare concerns with the defense of “national interests” helped legitimize the more centralized authority of the new institutions and mechanisms of intervention. This joint claim was frequently used to overrule objections arising from the defense of individual rights, voluntary associations, or the autonomy of local governments. In 1892, for instance, a report of the Argentine National Department of Hygiene summarized this philosophy as follows: “Hygiene does not admit the principle that an individual is the master of his person or property to the point of causing harm to public health, nor that local powers proceed in sanitary matters independently of the central power.”Footnote ⁵⁶ Similar concerns were expressed by some of the most prominent names in the development of hygiene and public medicine in the region, such as Oswaldo Cruz in Brazil, Eduardo Liceaga in Mexico, as well as Eduardo Wilde and José María Ramos Mejía in Argentina. Their efforts often tended to strengthen an already highly centralized form of government, displacing local authorities or voluntary associations.Footnote ⁵⁷

Other aspects of the Latin American “social question” exhibited similar patterns. The gradual development of social policies and labor regulations was shaped by this convergence of new state technical elites and centralized decision-making processes at the national level as a response to both the social demands and the consequent change in the idea of the limits of the law as an instrument for state action. Lawyers were at the center of the development of new labor regulations, for instance. As the Spanish reformer Adolfo Posada formulated it in his 1890 essay “Law and the Social Question”: “The law is something that inevitably has to be encountered every time one wants to transform and improve the condition of men.”Footnote ⁵⁸

The countries in this region each followed their own developmental path to what has been referred to as the “welfare-regulatory” state, or the “mediatory state” in instances in which the provision of welfare services and the regulation of labor disputes took place. Nevertheless, they shared a similar chronology in which two moments stand out. The first involves the “social question” of the early twentieth century, when the early consequences of economic modernization – incipient industrialization, urbanization, migrations – shaped liberal reform policies. The second occurred following the Great Depression of the 1930s, when many Latin American governments, within the framework of a more generalized critique of liberal constitutionalism and capitalism, began experimenting with corporatist models.Footnote ⁵⁹

Faced with the new economic and social reality, Uruguay underwent the most significant state transformation in Latin America. José Batlle y Ordoñez, who served two separate presidencies (1903–1907 and 1911–1915), laid the foundation for what could be called the first welfare state in the region. Batlle launched an ambitious program of social reforms that included an expansion of public education; the enactment of legislation regarding the maximum working day, minimum wage, the right to strike; the establishment of a national pension system; and compensation for industrial accidents. In this case, the process of advancing social legislation seems to have been the result of government initiatives rather than a response to pressure from organized groups. In the decades that followed, however, the expansion of the welfare state in Uruguay responded to the pressures and influences of an organized and mobilized labor movement.Footnote ⁶⁰

Developments in Chile, Argentina, Brazil, and Mexico combined the previously mentioned pattern of a first phase of “a paternalistic approach to social reform” within the framework of liberal institutions, and later corporatist experiments.Footnote ⁶¹ As we shall see in the next section, the 1930s and 1940s witnessed more profound transformations, in part driven by the crisis and replacement of the model of economic development that had prevailed in the previous period. The governments of Getúlio Vargas in Brazil and Perón in Argentina followed in the footsteps of the military governments of Ibáñez in Chile and Uriburu in Argentina. They combined the development of import substitution industrialization (ISI) with political authoritarianism, the expansion of social policies, and higher degrees of state intervention in the regulation of the economy.Footnote ⁶² This transformation included a corporate strategy of co-optation of the labor movement and the development of social legislation through direct interaction between executive and social actors that occasionally weakened parliamentary institutions.

In conjunction with the structural transformations that shaped anew the Latin American states, local jurists and legal scholars discussed and promoted new global currents of legal thought reconceptualizing the state and its functions. One of the elements contributing to the progress of the region in the early twentieth century, to cite James Bryce once more, was an openness to “the currents of world opinion … the principles and precedents in the art of government.”Footnote ⁶³ The circulation and adaptation of some of these “currents of opinion” – in this case, legal theories about the state – is the subject of the next section.

The “Administrative International”

Starting in the early twentieth century, different strands of legal and political thought circulating in the region offered new perspectives of the state and its regulatory powersFootnote ⁶⁴. Against the background of these welcomed ideas, the prior reservations regarding the administrative tradition, mentioned in the introduction to Section 6.1, gradually faded away. Crucial to this development was the way in which what was previously perceived in Latin America as opposing schools of thought on government and public administration – French versus Anglo-Americans – were gradually reconciled and fused into a new formula for approaching the development of the modern state. In the interwar period, new currents of European corporativist thought were added to the range of possible formulas for structuring state institutions and activities.

The impact of these currents of thought was shaped by the particular social mechanisms of the global circulation of knowledge operating differently in each nation. Book translations, lecture tours by European jurists, professional networking, specialized journals, parliamentary speeches, and the press were important channels for the dissemination of the new doctrines among the legal communities and the general public. In terms of content, all these currents shared a common thread: how to transcend the limited radius of action that liberal constitutionalism granted the state in modern society.

The political discourse of the French Third Republic, aided by the growing corpus of jurisprudence produced by the Conseil d’État, developed new doctrines about the relation of individuals and the state. If, on the one hand, judicial institutions should not block the action of administrative agents, then on the other, individuals needed to be protected from possible arbitrary actions by the state. The challenge was to transform a legacy of the Ancien régime into an effective system of protection of individual rights, while at the same time providing the state with new tools to efficiently face the challenges posed by economic and social modernization. These were the problems occupying some of the most distinguished French jurists of the period, such as Maurice Hauriou, Gastón Jèze, and Léon Duguit, all of whom exerted a great deal of influence within the Latin American legal academy.Footnote ⁶⁵ The independent administrative jurisdiction so central to this tradition was, as we have seen, difficult to reconcile with the liberal constitutional framework inherited by many Latin American nations. A.V. Dicey’s 1885 classic Introduction to the Study of the Law of the Constitution dedicated an entire chapter to the comparison of the rule of law with the French “Droit Administratif.” Having analyzed many of the French authors’ works, Dicey concluded that this tradition was completely alien to the British political tradition of the rule of law.Footnote ⁶⁶

This discrepancy was reinforced by the different traditions of thinking about the state and political development in continental Europe and the Anglo-American tradition. The latter, sometimes defined as a “stateless political culture,” characterized by a fragmented or centrifugal understanding of public authority, represented the polar opposite of a more “state-centered” continental political culture, with its tendency to conceive public authority in unitary terms.Footnote ⁶⁷

By the late nineteenth century, however, that opposition was beginning to wane in the United States. In 1887, Woodrow Wilson claimed that:

Wilson concluded by stating: “The weightier debates of constitutional principle are even yet by no means concluded; but they are no longer of more immediate practical moment than questions of administration. It is getting to be harder to run a constitution than to frame one.”Footnote ⁶⁸ Ernest Freund, another prominent American jurist, agreed with this assessment. In 1894, he stated that it was remarkable how little attention the branch of public law dealing with the organization and action of the government had received from English and American jurists. Comparing the administrative systems of Europe and America, he concluded that the systems of the former exhibited a clear technical superiority over the latter.Footnote ⁶⁹

Far from having established some sort of rivalry between jurists on both sides of the Atlantic, considerable advancement toward a fusion of the two systems was made just a few years later. In 1905, Frank Goodnow published his Principles of the Administrative Law of the United States, drawing on continental ideas to advance a non-court-centered theory of administrative law. Two years later, French administrativist Gaston Jèze – who soon thereafter visited Latin America and was instrumental in establishing fluid contacts with local specialists in administrative law and public finance – translated Goodnow’s book into French. In his introduction, Jèze pointed out that Goodnow made clear just how false the idea was that the Anglo Americans did not have a tradition of administrative law.Footnote ⁷⁰ Similarly, in 1906, Maurice Hauriou claimed, echoing the statements made earlier by Wilson in the United States, that the development of administrative law aimed at providing a complete theory of the state, and rightly so. The modern state had been concerned with constitutional forms and civic liberties in its early stages of development, Hauriou contended, but now, at a more mature stage of development, had passed from political idealism to economic realism, “that is, to an administrative regime.”Footnote ⁷¹

From the Latin American standpoint, this rapprochement of American and European sources was of great importance. Latin American jurists could now perceive that the old antagonism between the defenders of the liberal constitutionalism – associated with the “American Model” – and the tradition of administrative law – in the past linked to the “Latin tradition” of monarchical absolutism – was beginning to fade away. A novel fusion of European and American doctrines was giving birth to a new way of conceptualizing the modern state, which coincided with the needs of Latin American governments facing profound structural changes in their societies. Lecture tours in Latin America by some of the most prestigious authors associated with the administrative law tradition, not to mention the circulation of new Spanish translations of their works, facilitated the discussion of these new currents in the region. Three names in particular need to be mentioned in this context: the French jurists Léon Duguit and Gaston Jèze, and the Spaniard Adolfo Posada.

To celebrate the centennial festivities of the independence movements in Spanish America, the Spanish jurist Adolfo Posada embarked on a lecture tour in 1910 to Argentina, Chile, Uruguay, and Paraguay. Lecturing in Buenos Aires on “The Modern Idea of the State,” Posada revealed the influence of Léon Duguit’s ideas on his own thought.Footnote ⁷² Posada had already translated Duguit’s book Le droit social et le droit individuel et la transformation de l’État (1908) into Spanish. Published in Madrid as La transformación del Estado, Posada included both an introductory study reviewing Duguit’s ideas and a survey of the recent American and European developments in the theory of the state.Footnote ⁷³

Duguit himself visited Argentina and Chile the following year. Although his 1911 Buenos Aires lectures were dedicated to the analysis of recent changes in civil law doctrine, Duguit was by that time an established figure in public law. He had already published a number of works in which he put forward a new way of conceptualizing the state. Based on his Buenos Aires lectures, he published Les transformations de droit public (1913), an influential book summarizing the new doctrines about the state.Footnote ⁷⁴ In this work, he targeted the concept of national sovereignty, which he considered an insufficient conceptual foundation for the state. “Public service” became the cornerstone of the new theoretical foundation of state authority. Rather than focusing on its power to rule, the state was a national cooperative that guaranteed the ordered functioning of public services and its regulation. “Governments,” Duguit concluded in the preface to the 1921 edition translated by Posada, “are no more than the managers of the public services.”Footnote ⁷⁵

In 1921, Adolfo Posada visited Buenos Aires for a second time, and the lectures he gave were later published in book form as Teoría social y jurídica del Estado. The following year, Posada published in Madrid new editions of his Duguit translation and of Woodrow Wilson’s The State. Both Posada’s translations and his own texts were instrumental in making new ideas about the state available to legal scholars in Latin America. This represented a fusion of European public law, renewed by the administrative law tradition of Duguit and Hauriou, and the authors behind the latest innovations of American political science, whom Posada also analyzed in his texts (Frank Goodnow, Charles Merriam, Woodrow Wilson, and W. Willoughby). This fusion, as Posada stated, oriented the state to “a positive mission of promoting collective material and spiritual progress, considering the community as a whole,” an idea already embraced by Latin American jurists.Footnote ⁷⁶ Two years prior, in 1919, the Chilean Alejandro Álvarez, one of the most prestigious Latin American jurists of the twentieth century, had already highlighted the convergence of these new trends and suggested an inevitable result: “[T]he new idea of the state and its attributes will sketch the new conception of the law and its future orientation. This new conception is inspired by solidarity, by virtue of which legal relations must be regulated with collective, not individual, interests in mind.” Álvarez remarked that administrative law – via its regulation of public services, police, and hygiene – was progressively delimiting private property for the benefit of the common good.Footnote ⁷⁷

In 1923, Gaston Jèze – who, together with Duguit and Maurice Hauriou, represented the vanguard in the development of administrative law in France – toured Argentina and Chile, lecturing on his area of expertise, namely, public finance. Jèze was at the time director of both the Revue de droit public and the Revue de science et de législation financière. At this point, the reform of public finance and taxation was an issue closely linked to the idea of a healthy public administration in the region, a view energetically pushed by US diplomacy and testified to by the “Kemmerer missions” in Colombia, Chile, Ecuador, Perú, Bolivia, Mexico, and Guatemala.Footnote ⁷⁸ In Buenos Aires, Jèze lectured at the School of Economics of the University of Buenos Aires, and his audience included a number of cabinet ministers and even the president, Marcelo T. de Alvear. His lectures were published the following year in Buenos Aires under the title Finanzas públicas de la República Argentina.Footnote ⁷⁹ A few years later, Jèze expressed a rather pessimistic view of the ways in which Argentine society had naturalized the running of budget deficits, both in private and public life.Footnote ⁸⁰

As president of the prestigious Institut International de Droit Public, Jèze was also instrumental in forging a network of personal relations with Latin American jurists. In 1930, the Chilean Alejandro Álvarez became a “Membre Titulaire” of the institute – a distinction he shared with some of the most famous names in European and American public law and political science, such as Berthélemy, Carré de Malberg, Hans Kelsen, Adolfo Posada, Roscoe Pound, Ernest Freund, and Frank Goodnow. Among the “membres associés” were the Argentineans Rafael Bielsa (“doyen de la Faculté de Droit de Rosario”) and Juan Antonio González Calderón (“professeur a l’Université de Buenos Aires”).Footnote ⁸¹

As part of his South American tour, Jèze also lectured in the Argentine city of Rosario, where the dean of the law school, Rafael Bielsa, welcomed him.Footnote ⁸² In his 1923 Rosario lectures, Jèze touched on two other central topics in the development of the modern conception of the administrative state. One was the role of “public service” in a democratic state, and the other focused on the protection of individual rights through the development of legal actions against the arbitrary actions of public officials. When it comes to the topic of the “public service school,” Jèze can be seen as a disciple of Duguit, who was a pioneer in this field. Public service, he reiterated, had replaced the idea of sovereignty as the foundation of the state and become “the fundamental notion of modern public law.” Governments were the managers of these cooperatives of public services, and their actions as such were considered acts of public power. Administrative law was, largely, the body of norms regulating the working of public services.Footnote ⁸³ In Rosario, he expanded these ideas, discussing the “democratic organization” of public services and its administrative regime.Footnote ⁸⁴ As for the second theme, Hauriou had already claimed that the jurisprudence of the Conseil d’État had shown an evolution from its foundations on the prerogative of the administration to a jurisdiction of “equity.”Footnote ⁸⁵ In “La defensa del ciudadano ante el avance del poder público,” another Rosario lecture that was expanded on in a French version and later published in Institut’s Annuaire, Jèze claimed that the remedies developed by French administrative jurisprudence represented not only the single most important legal creation by French jurists but also the best possible protection of individual liberties known to the world.Footnote ⁸⁶

The 1930s: Economic Crisis, Ideological Realignments, and Corporativism

It is widely acknowledged that the Great Depression of the 1930s brought about a number of far-reaching changes in Latin America. In the economic sphere, for example, there was the shift from export-led growth to ISI; in the political arena, there were numerous military coups replacing democratic regimes; and ideologically speaking, the simultaneous process of critique of capitalism and liberal democracy. As we have already discussed, the move toward centralization on the part of the national states had already started years earlier. But this global economic crisis served as a catalyst that accelerated this process and eventually set the stage for an even greater level of intervention in social and economic matters.Footnote ⁸⁷ Moreover, the crisis revealed the circulation of similar models of state intervention. As Patel has pointed out, “the Great Depression did not just unmake and reestablish global links; it sometimes also synchronized debates, and even the political and societal answers given to them.”Footnote ⁸⁸

The two most popular types of response regarding the organization of the state circulating in the West were the American New Deal, which quickly became a global icon for reformers everywhere, and the new experiments in corporativism launched by fascist regimes in Europe. Despite the very different ideological basis underpinning these two approaches, the “strange legal culture of the 1930s” and commonalities in terms of policy meant that a combination of the two was even possible.Footnote ⁸⁹

In the United States, the growth of administrative state action in the social and economic spheres resulted in the creation of multiple boards, commissions, and authorities that carried out functions traditionally assigned to the legislative and judicial branches. As one observer pointed out at the time, the increasing complexity of social phenomena had rendered the old theories and doctrines concerning the separation of powers obsolete. As a consequence of this situation:

The New Deal presented another feature relevant to the development of the administrative state: the demand for a more efficient administrative management of the executive branch. In 1937, President Roosevelt formed the Brownlow Committee to study the issue. When presenting the committee’s results, he insisted that this was a long-standing problem, and that “the republican form of government” now demanded devotion to the task of “making that Government efficient.”Footnote ⁹¹

The other engine of state transformations was the adoption of models of corporativism that combined economic elements of labor and capital organization with a political project of transforming the models of representation of classical liberal democracy. In Brazil, after initial resistance during the First Republic (1889–1930) to the advancement of state intervention in economic and social matters, the demands posed by issues such as public health, urban planning, and the “social question” eased the transition toward an expanded administrative action. After the pioneering work of the Viscount of Uruguai, cited previously, it was Augusto Olympio Viveiros de Castro, with his early twentieth-century treatise Tratado de sciencia da administração e direito administrativo, who led the development of administrative law in the country.Footnote ⁹² In the 1930s, the works by Oliveira Vianna pointed to a more aggressive line of change, aiming at a substitution of liberal forms of political and economic organization with a corporativist framework. In his Problemas de política objetiva (1930), Vianna claimed that parliaments were “an expensive luxury” to be “cultivated only to a certain extent.” Technical councils and the administrative organization of social classes were going to replace them (parliaments) as the true representative of mass opinion and the organs for the elaboration of the law. A few years later, in Problemas de Direito Corporativo (1938), he argued in favor of “functional and corporative autarchies” to replace “territorial autarchies (federalism and political decentralization)” and the expansion of “administrative tribunals.”Footnote ⁹³

Similar developments were taking place in Argentina in the late 1920s, anticipating some of the initiatives of the 1930 military coup. A bill presented to the Chamber of Deputies in 1927 proposed a change in parliamentary representation in order to incorporate “industrial and economic interests” (“las fuerzas vivas industriales y económicas”). The following year, another bill directly proposed the adoption of a “National Corporative Organization,” patterned after the models developed in Italy and Spain, creating technical councils and a more representative parliament than the one formed by “an amorphous universal suffrage.”Footnote ⁹⁴ Nevertheless, opposition by all of the political parties doomed the military government to reform the 1853 constitution in order to incorporate “functional representation” as a means of “perfecting democracy.”Footnote ⁹⁵

It was clear at this point that the traditional conceptualization of the liberal state was in crisis. There was now a search for new foundations, and these could take one of three forms: the principles of public service or social solidarity developed mainly in France, the consolidation of the American school of public administration that received an important boost with Roosevelt’s New Deal, or the principles of corporativism. In 1936, the Argentinean jurist Rafael Bielsa summarized how much this process of abandoning the liberal legal thinking, inherited from the nineteenth century, had spread throughout the region in favor of a legal philosophy that expanded the range of state activities. The mission of the jurist, Bielsa said, was:

A few years later, another Argentinean jurist, Arturo Sampay, followed a similar path in his book The Crisis of the Liberal-Bourgeois Rule of Law (1942). Sampay, who became one of the leading jurists of the Peronista regime, analyzed contemporary varieties of state organization: the fascist state, the Russian Soviet state, the national-socialist state, and the corporative state of Portugal. Sampay, citing the Romanian theoretician of corporativism Mihail Manoilesco, concluded: “[T]he twentieth century will be the century of corporatism, as the nineteenth century has been the century of liberalism.”Footnote ⁹⁷ This preference for corporatist formulas at the time of thinking up new constitutions was most fully manifested in the regimes of Getúlio Vargas in Brazil and Juan Domingo Perón in Argentina. The 1934 and 1937 Brazilian constitutions as well as the 1949 Argentine Constitution all exhibited this strong tendency toward the corporatist structuring of social interests accompanied by a pronounced concentration of authority in the national executive.Footnote ⁹⁸

The second half of the twentieth century brought with it new waves of military coups, with tragic consequences for human rights (see Sections 6.2 and 6.3). After a new wave of democratization, constitutional reforms tended to follow a similar pattern of concentration of authority in the “engine room of the constitution,” as Roberto Gargarella put it, “without taking into account the impact that the organization of power tends to have upon those very rights.”Footnote ⁹⁹ The ascendance of the administrative state did little to improve the “weak culture of rights”Footnote ¹⁰⁰ that had developed in the region during the early phases of independent life.

. . .

Institutional Breaks: Constitutionalism, Coups d’État and the Role of the Judicial Power

There is no such thing as a “particular type” of Latin American dictatorship. Throughout the twentieth century, the region had many authoritarian regimes, and it is impossible to identify a “dominant form” that would allow for generalization. As will be highlighted here, there were common elements to several of these dictatorships, but it is also important to remember that there were many differences.

Establishing a dictatorship usually required the breakdown of the existing order. More often than not, such a breakdown involved a coup d’état – which in many countries had the military as protagonists, along with varying degrees of civilian participation. From a legal historical perspective, this kind of collapse implied a change in the foundations of legality. Establishing a dictatorship also involved redefining the legal order. This was one of the initial challenges of all attempts to seize power – and retain it – by force: overcoming barriers and constraints to the exercise of political power (which usually requires rotating governments, periodic elections, and the regular functioning of legal institutions run by civilians). However, the removal of the existing legal order usually implied not only a negative element, the obliterating of the already-existent legal bases. It also required presenting an alternative model to the existing legal framework.

In his study of the authoritarian regimes implemented in Chile and Argentina in the 1970s, Robert Barros expressly refers to the challenge of trying to destroy the legal foundation that existed in the period prior to the coups d’état that occurred in 1973 and 1976, respectively. According to Barros, the Chilean and Argentine dictatorships needed to bring about an abrupt transformation of the existing constitutional frameworks, and this occurred in two distinct thematic areas.Footnote ¹⁰¹ The first included an attack on the constitution as a higher law and the subversion of the classical separation of powers. In order to be successful, authoritarian governments must concentrate powers, intervene in parliamentary houses, and curtail the autonomy of the judiciary. For this to happen and result in a legal norm, the barriers set by constitutions of a liberal nature and informed by modern constitutionalism have to be removed. The second obstacle to the establishment of a dictatorship are the limits imposed by the very concept of the rule of law. If a political regime engages in acts such as imposing arbitrary arrests, declaring a state of siege or emergency, and persecuting or punishing its people, it becomes impossible to fulfill individual and collective guarantees, including the right to due legal process and to a full defense, for instance.

The incompatibility of the measures implemented by the Chilean and Argentine dictatorships with the standards of modern constitutionalism is thus evident. In both cases, existing governments were overthrown, parliaments were closed, the military openly assumed power, and emergency measures were adopted swiftly, including punishments, persecutions, state violence, and executions.Footnote ¹⁰² The same dynamic had already been displayed in the civil-military coup that occurred in Brazil in 1964, but with one key distinction: In the case of Brazil, the periods of parliamentary closure were relatively brief. However, many members of parliament – no less than 173 congressmen, according to the official figures from the House of Representatives – were expelled, which evidently affected the composition of Congress.Footnote ¹⁰³ As a result, the legislative branch maintained a pro-regime majority for twenty-one years. Apart from this, the Brazilian dictatorship comprised all the features mentioned earlier.Footnote ¹⁰⁴

From a legal history perspective, the Latin American dictatorships engaged in “de-constitutionalization” operations. These activities – in particular during the time immediately after the institutional and political break with the previous regime – took the shape of assaults on the established constitutional order. These operations were of a “de-constitutive” nature, in order to enable the implementation of extraordinary measures.Footnote ¹⁰⁵

These regimes then proceeded to issue unilateral norms, enforced by military commanders, which granted special powers to the newly installed government and had an element of self-protection – these acts could not be reviewed by the judiciary or any other branch of government. In Brazil, as of April 9, 1964, the so-called “institutional acts” selectively amended the preexisting constitutional order and allowed the practice of “complementary acts” by government authorities.Footnote ¹⁰⁶ In Chile, the so-called bandos were issued, signed by the military junta that assumed power on September 11, 1973; these acts were military documents declaring a state of war (in this case, an internal conflict) and emphasizing, among other aspects, patriotism, order, respect, discipline, and hierarchy as the values to be observed by the Chilean society from that moment onwards. In a second step, several decrees were issued which gradually modified the text of the 1925 Constitution, while a jurists’ committee drafted a bill for a new constitution.Footnote ¹⁰⁷ In Argentina, the military junta that took power on March 24, 1976, elaborated actas institucionales, secret documents that suppressed guarantees set forth in the national constitution, decreed a state of emergency, and allowed the adoption of repressive measures against political opponents.Footnote ¹⁰⁸

Addressing these questions implies two different political developments. The first and most evident one was the Cold War. Latin America found itself in the zone of influence of the United States, which had become concerned about the growing number of left wing movements made up of peasants, workers, students, and liberal professionals, who increasingly occupied prominent positions and exerted a controlling influence within political parties. As a result, a close collaboration between the Latin American business sector and military and representatives of the US government developed, which included the training of the security forces of Latin American military governments on US soil. These concerns of the United States were amplified in 1959 with the unfolding of the Cuban Revolution.Footnote ¹⁰⁹

Another political conflict, which occurred between the late 1950s and early 1960s and was pivotal to the setup of Latin American dictatorships, was the Algerian War of Independence, which engaged the armed forces and political leaders of France. As is well known, one of the consequences of this war was the emergence of a clandestine force, the Secret Army Organization, within the French military. This organization expressed a radical opposition to Algeria’s demands for independence and proceeded to act through the systematic use of torture, the infiltration of the independence movements by agents, and violence against civilians. The rationale for these actions was the idea that the “enemy” was not a conventional army, but a group that engaged in guerrilla warfare and had to be fought with more effective methods of repression. This clandestine organization engaged in what it described as a “revolutionary war.”Footnote ¹¹⁰

The national security doctrine developed in South American countries to justify the coups d’état was directly inspired by this concept of revolutionary war. Four French lieutenant-colonels were sent to the Argentine War College in 1957 to train Argentine military personnel. In 1959, a Brazilian colonel, who had participated in the training sessions in Argentina, brought the basics of the revolutionary war to the Brazilian War College. This exchange remained active until the early 1960s; Argentinian and Brazilian documents on national security clearly show the impact of the concept of revolutionary war on Latin American actors.Footnote ¹¹¹

After successive coups d’état had taken place in Latin America, the dictatorial regimes began to search for consolidating formulas. These included procedures for rotation in the occupation of executive positions (many dictatorships had collegiate military juntas), agreements with segments of the political class, and responses to external pressure calling for a reduction of repressive actions. In this context, the ruling military, with greater or lesser support from civilians, moved to propose, at various levels of organization, solutions that would allow for the institutionalization of the regime – which, in many cases, involved the establishment of a new constitutional order. According to Alain Rouquié, the question that then followed was whether the rulers had constituent capacity, that is, whether they would succeed in re-constitutionalizing their authoritarian regimes, giving them new bases.Footnote ¹¹²

The results were quite different in each country. In 1980, the regime in Chile succeeded in enacting a constitution that contained several self-protection mechanisms, that is, devices for blocking possible democratization efforts.Footnote ¹¹³ In Uruguay, a different scenario played out: The military government eventually proposed a draft for a new constitution, but this was rejected in a plebiscite, and negotiations began for the restoration of power to civilians.Footnote ¹¹⁴ In Brazil, the military regime imposed a constitution in 1967 and then took two years to elaborate another, but it did not have sufficient power to ensure that these norms (or any further constitution) would endure after the end of the military government. The twilight of the Brazilian dictatorship came about through a process of re-democratization through a constituent assembly.Footnote ¹¹⁵ The outcomes were numerous and diverse, but the analysis of the strategies employed to institutionalize regimes (whether successful or not) – and, therefore, to leave binding rules for the future – can be a good starting point from which to observe the various authoritarian regimes installed in Latin America in the second half of the twentieth century.Footnote ¹¹⁶

Recent studies of Latin American dictatorships integrate dimensions that were not widely covered in the years immediately following the demise of these authoritarian regimes. At that early stage, the research had still focused on the strategies and forms of transition from authoritarianism to democracy, or the repressive structures and modes of resistance. However, more recently, other aspects have received greater attention, such as the role of certain institutions, the connection between the exercise of political power and economic agents,Footnote ¹¹⁷ or even themes related to morality and culture.Footnote ¹¹⁸

From a legal history point of view, one topic that deserves emphasis is the role played by judges and courts (and the justice system in general) in the establishment of Latin American dictatorships. This includes, of course, attempts undertaken by these regimes to legitimize breaking the rule of law and to normalize the emergency measures which they inevitably used for repressive purposes.

A common trait in the Argentine, Chilean, and Brazilian dictatorships was that the vast majority of courts and judges supported them. Obviously, there were isolated cases of resistance and confrontation by members of the judiciary, but those were the exception. As a rule, there was collaboration, support, and peaceful coexistence between the judiciary and the dictatorships. There are many explanations for this: the connection between those holding judicial positions and the political and economic elites, the significant power of co-optation held by the military governments with respect to staffing the courts (especially those at the highest levels), a strong sense of hierarchy and obedience in the ranks of the judiciary, and the fact that the countries analyzed here (particularly Brazil and Argentina) had experienced authoritarian regimes prior to the ones inaugurated in the 1960s and 1970s, regimes that required modes of collaboration and dialogue between the military and the judicial authorities.

Of course, the situations varied to certain degrees. In a pioneering study, Anthony Pereira indicates three trends in the countries mentioned here.Footnote ¹¹⁹ In Brazil, the regime achieved a high degree of judicialization, that is, the Brazilian dictatorship managed to establish links with the judiciary and thereby succeeded in conferring some measure of formality to its acts. Chile’s approach was similar yet different in that the Pinochet regime made extensive use of military – not civilian – legal institutes and procedures, such as martial law and the publication of bandos. In Argentina, the military dictatorship resorted less to the judiciary because of the experience immediately prior to the 1976 coup. Juan Pablo Bohoslavsky describes how the military regime that lasted until 1973 sought to repress opponents by means of trials in a special court called “Camarón.” When the Peronists reassumed power, the court was disbanded, and those that had been convicted received amnesty. This experience might have been a decisive factor why the agents of the Argentinian dictatorship unleashed a fierce policy of clandestine elimination of opponents outside the judicial proceedings, through executions and disappearances.Footnote ¹²⁰

These differences between the various countries, however, do not conceal the common element their regimes shared: the judiciary in these countries continued to carry out its activities during the dictatorships. More importantly, in the vast majority of cases, it acquiesced to the emergency procedures in place, which ended up weakening the use of legal procedures aimed at defending liberty, such as habeas corpus. In the overview offered by Bohoslavsky, this complicity is presented as a feature of several authoritarian regimes during the twentieth century (not only on the American continent):

These common features might have been the result of two different levels of judicial activity which consolidated during the dictatorships. On one level, there was the provision of ordinary jurisdiction, that is, the regular (and public) exercise of judicial power to adjudicate cases in compliance with the laws, codes, and procedural guarantees. On a second, less transparent level, more malleable types of jurisdictions were frequently created for emergency measures, such as for example, military tribunals. At this second level, there were fewer procedural guarantees, equality between the parties was not ensured, and political persecution was permitted.

The coexistence of two levels of judicial activity was nothing new. As Mario Sbriccoli and Massimo Meccarelli point out, this binary division originated in nineteenth-century Europe. There, the first level consisted of the codes and ordinary laws concerning criminal prosecution. On the second level were the so-called “special laws,” which were present in dictatorial contexts: “national security” laws, extraordinary procedural norms for special courts, and military regulations. According to these two authors, the reason for this division was the necessity for European governments (in particular Italy and France) to control certain political movements that challenged the established order (such as anarchism, for example). The ordinary criminal jurisdiction proved insufficient to organize state repression: special rules and procedures were thus createdFootnote ¹²² and a double level of legality established.Footnote ¹²³

Latin American dictatorial regimes shared common legal objectives, which they pursued in different ways. However, the transitional justice that developed in these countries after the dictatorships ended varied in form, intensity, and duration (see Section 6.3). Argentina was where the greatest resort to the judiciary took place, to prosecute those responsible for human rights violations during the dictatorship (which lasted from 1976 to 1983). According to an estimate by Human Rights Watch, based on data compiled through September 2019, in Argentina 3,329 persons were investigated for crimes against humanity, 997 persons were convicted, and 162 acquitted.Footnote ¹²⁴

In one of these lawsuits, the Argentine public prosecutor’s office filed a criminal action to hold a number of judges, prosecutors, defenders, and judicial officials responsible for crimes against humanity in the province of Mendoza. The verdict handed down by the Oral Court in Criminal Court No. 1 of Mendoza, following extensive evidence gathered from four different criminal cases, led to the sentencing to life imprisonment of two former federal judges, a former federal prosecutor, and a public defender as well as other members of the justice system.Footnote ¹²⁵ The ruling in this case, which became known as “juicio a los jueces,” was affirmed, concerning the four cited convictions, by Chamber IV of the Federal Criminal Cassation Division, in a ruling released on September 6, 2019.

In Chile, where charges of human rights violations have been analyzed, especially since the imprisonment of former dictator Augusto Pinochet in London in 1998 following an order issued by the judge Baltasar Garzón,Footnote ¹²⁶ there has been a significant movement by judges to examine the complicity of the judiciary with the dictatorship. On September 5, 2013 (just as the fortieth anniversary of the coup d’état was approaching) the National Association of Judicial Magistrates of Chile released a statement with an explicit appeal to be forgiven by the victims of the dictatorship (and their families) and Chilean society itself “for having failed, at this crucial moment in history, to guide, challenge and motivate our professional association and its members not to give up the fulfillment of their most basic and essential duties.”Footnote ¹²⁷

Institutions and Social Movements: The Catholic Church, Students, and Workers

A central element in the analysis of the dictatorial regimes that emerged in Latin America in the post-war context is the complex role (or rather roles) played by the Catholic Church, both by its leadership and by lower-ranking priests. In Brazil, Chile and Argentina, the Catholic Church lent support to the coups d’état of 1964, 1973, and 1976. This was vital, because these coups cannot be understood only in their institutional perspective. Instead, the deposition of civilian governments in Latin America involved some degree of engagement in questions of morality and culture by the conservative forces in society. In Argentina, the regime assigned itself the task of carrying out a “process of national reorganization.”Footnote ¹²⁸ In Brazil, the coup of 1964 was preceded by a series of demonstrations summoned by Catholic groups – these were presented as marches “with God for the family and for freedom.”Footnote ¹²⁹

Engagement with morals and culture, however, was also evident on the other side of the spectrum. Before the coups d’état, there were organized, active student movements (which later would become central in the resistance to the dictatorships). The 1960s witnessed waves of demands for new patterns of socializing, freedom, and artistic expression.Footnote ¹³⁰ In several countries around the world, students’ revolts took place, and Latin America was part of this process, which also involved brutal repression by the state, as was the case in Mexico in 1968. In that country, which was about to host the Olympic Games, the university students movement grew throughout 1968. This was accompanied by an increasing number of demands made by health professionals, railway workers, peasants, and others. The goal of these movements was the improvement of living conditions and the full application of the 1917 Constitution, and one of the key instruments of these protests was strike.

The Mexican student movement participated in these struggles, with which it shared both the agenda and the methods. Student strikes were common, especially at the Universidad Nacional Autónoma de México (UNAM) and the Instituto Politécnico Nacional (IPN). The actions taken by the military and police forces (which included paramilitary groups) to quash these protests were usually violent and excessive. On October 2, 1968, the so-called “Massacre of Tlatelolco” took place in the Plaza de las Tres Culturas. Hundreds of students were killed by repressive forces, and the military subsequently occupied the university.Footnote ¹³¹

In 1971, there was a new crackdown on student activity in Mexico. Similarly to the mobilization of 1968, the students advanced demands related to access to education, to university autonomy, and, above all, to internal democracy in the universities. Teachers and workers stood in solidarity with the students. However, on June 10 a group of paramilitaries known as “los halcones” violently crushed a student march, which resulted in approximately 120 students being killed. The episode, as traumatic as the Tlatelolco massacre, became known as “El Halconazo.”Footnote ¹³²

Such brutal repression responded to a broader context of demands by students that were also voiced in other places, most famously in France and the United States, as part of the opposition against the Vietnam War. Gilberto Guevara Niebla, a student at UNAM and a student leader, said that “through television we knew what was happening in the United States and with the young people in France.”Footnote ¹³³

Student movements were also very active in South American countries. In Argentina and Uruguay, they were integral elements of clandestine organizations such as the Montoneros and the Tupamaros, which began to carry out armed actions against political and military targets even before the 1973 and 1976 coups d’état. In Chile, the student movement was largely connected to the Unidad Popular throughout the turbulent presidency of Salvador Allende.Footnote ¹³⁴ In Brazil, the National Union of Students was deeply involved in social causes and was part of movements fighting for better education, increased state participation in the economy, and improved living conditions for the low-income population. In all these countries, the student movements were among the main targets of the military regimes when those seized power.Footnote ¹³⁵

One of the outstanding features of these movements was the complex web of relationships and influences of which they formed part. They modeled themselves after the Chinese and Cuban revolutions and the orthodox orientation of Soviet communism; however, as is usual in such movements, there was much internal tension among the various currents.

This revolutionary, transgressive element of nonconformity adopted by the student movements was unacceptable to Catholic orthodoxy, Catholicism still being the vastly dominant religion in Latin America in the 1950s and 1960s. Furthermore, members of the ecclesiastical leadership had personal connections with the military and political elite. It was thus natural that the higher echelons of the Church would have a positive view of the institutional breakdown fostered by the military coups. The proposal of the dictatorial regimes encompassed a return to traditional values and social practices, especially in relation to the concept of family. In Brazil, the National Conference of Bishops of Brazil (CNBB) declared support for the coup of 1964, in Chile, the Episcopal Conference (CECH) offered to promote “national reconciliation” after the coup of September 11, 1973, and in the case of Argentina, the close ties between bishops and other segments of the Church and the military is documented in many historical sources.Footnote ¹³⁶

However, this was not the end of the story. While much of the Church hierarchy supported the coups, it is important to remember the role played by some segments of the Catholic Church in criticizing, resisting, and combating dictatorial regimes. Thus, if some members and organs of the Church were partners in repression, others were victims (often fatal) of these same dictatorships. How was this possible?

In a text from his youth, the controversial author and polemist Carl Schmitt (himself a practicing Catholic) summed up a central characteristic of the Roman Church: It can be classified as a “complexio oppositorum,” that is, as a political body that houses in its ranks prelates with opposing orientations on Christian doctrine and on the role of the Church.Footnote ¹³⁷ This insight fits the situation during the Latin American dictatorships, where the Church exhibited this kind of duality towards the regimes. Maria Angélica Cruz, in her analysis of the behavior of the Catholic Church during the Chilean regime, uses the expression “double game” – on the one hand, the Church conferred legitimacy to the military coup, on the other, it was concerned about the victims of the repression and tried to support them.Footnote ¹³⁸ According to the author, over the course of the regime, the Church’s dominant stance became more critical of the repression.

One of the main reasons for this ambivalent attitude of the Church was the orientation that emerged after the Second Vatican Council, concluded in 1965. The renewal of the pastoral constitution envisaged by the Council would require increasing the number of organs and entities within the Church dedicated to the “social question,” as well as to the question of how to bring the clergy and the low-income populations, especially peasants and workers, closer to one another. In Chile, the Vicaría de la Solidariedad was created, and in Brazil, there were the Comunidades Eclesiais de Base. Across the poorest communities in Latin America, the Church employed large numbers of priests – many from outside the Americas – not only for traditional evangelization efforts, but also to offer incentives for self-organization, to support the fight for social rights, and to mobilize people to demand agrarian reforms and political emancipation.Footnote ¹³⁹

As was to be expected, these activities were suppressed immediately by the military regimes, resulting in tensions on two different levels. Within the Church, differences increased between parts of the ecclesiastical leadership (who tended to support or collaborate with the dictatorial regimes) and priests dedicated to implementing the social doctrine established in the Second Vatican Council (who maintained a critical stance and resisted repressive measures). Rifts appeared between the Church and the military, and specific reprisals were carried out against religious orders and priests who had a leading role in public life and civil society.

It has been reported that under the Argentine dictatorship, at least twenty Catholic priests were murdered or disappeared, a hundred were kidnapped and taken to clandestine detention centers, and nine seminarians were murdered or disappeared. Two French nuns, Alice Domon, and Léonie Duquet, went missing in December 1977.Footnote ¹⁴⁰ In the Brazilian countryside, especially in the north-eastern states, the presence of Italian and French priests was very common. At the end of the Brazilian dictatorship, an Italian priest, Vito Miracapillo, refused to celebrate a mass in commemoration of Brazil’s independence, claiming that the country could not be considered an independent nation, given the precarious living conditions of a large part of its population. This made national news, and the minister of justice decided to expel the priest from Brazil. This case is often mentioned as an example of the complicity of the judiciary with the policies of the military regime. Four habeas corpus proceedings brought before the Supreme Court, which sought the nullification of the expulsion decree, were unsuccessful.Footnote ¹⁴¹

Finally, a crucial episode for the downfall of the Brazilian dictatorship was the murder of Vladimir Herzog and the reaction it triggered. Vladimir Herzog was born into a Jewish family in the city of Osijek, in the former Yugoslavia (now Croatia). His family moved to the Bosnian town of Banja Luka, and, with Nazi troops approaching, the family sought refuge in Italy. They lived in small towns in Veneto and the Marche until they managed to migrate to Brazil. A naturalized Brazilian, Vladimir graduated in philosophy at the University of São Paulo and became a very active journalist in the 1960s and 1970s. He covered the inauguration of Brasília in 1960, worked in the main newsrooms, was a correspondent for the BBC in London for three years, and then joined the staff of TV Cultura in São Paulo, where he took the post of director of journalism. He had ties to the Brazilian Communist Party (PCB), as did many other journalists at that time. Upon responding to a summons to give a statement in a police facility in São Paulo, he was arrested on the spot, tortured, and killed by the dictatorship’s security forces on October 25, 1975.Footnote ¹⁴²

On October 31, 1975, an ecumenical service was held in the Cathedral of São Paulo in memory of Vladimir Herzog. At that time, the archdiocese of São Paulo was led by Cardinal Dom Paulo Evaristo Arns, an active defender of human rights who had publicly exposed the violations committed by the military regime. It is estimated that about eight thousand people attended the ceremony, which was celebrated by Dom Paulo, Rabbi Henry Sobel, and the Presbyterian Reverend Jaime Wright in defiance of the regime’s express orders. This celebration signaled the resumption of protagonism by civil society in the struggle against the dictatorship, and Herzog gained the status of a martyr. In 1978 (still under the authoritarian regime), a federal judge recognized the responsibility of the Brazilian state in Herzog’s death, yet the proceedings continued for many years without any official recognition. Finally, on March 15, 2018, the Inter-American Court of Human Rights condemned the Brazilian state, explicitly pointing out “the failure to investigate, and also prosecute and punish those responsible for the torture and murder of Vladimir Herzog committed in a widespread and systematic context of attacks on the civilian population.”Footnote ¹⁴³

Operation Condor, Its Origins and Aftermath: Collaborative Networks and Crimes on a Global Scale

One of the most discussed and researched feature of mid-twentieth century South American military dictatorships is the so-called Operation Condor, a program to carry out repressive operations. Created in the late 1970s by the Chilean dictatorship, it also involved the participation of Argentina, Uruguay, Bolivia, Paraguay, and Brazil. The structure and activities of Operation Condor are important, but it is also essential to point out that this operation was only part of a much more extensive and complex web of relations between Latin American countries as well as between them and other centers of power, such as the United States, European nations, and the former Soviet Union. The study of these links reveals the global character of the political struggles waged on the American continent during the period of the dictatorships.

Between the end of the 1960s and the beginning of the 1970s, the range of political options in Latin America was broad, particularly in the southern part of the continent. Brazil and Paraguay already had conservative military regimes due to the influence of the United States; however, in other countries the situation was different. In 1970, the Unidad Popular, which included left wing political associations, came to power in Chile with a pro-state platform to fight social inequality. In Bolivia, there were several coups d’état, but some of the generals who then held the presidency were supported by social movements.Footnote ¹⁴⁴ These generals took a nationalist stance, moved away from the US sphere of influence, and nationalized industries. As noted earlier, in Argentina and Uruguay, students and workers actively mobilized against the central governments, and guerrilla groups began to operate (Montoneros and Tupamaros).

As is well known, the Cuban Revolution, which concluded in 1959, exerted immense influence on political and social movements throughout the American continent. Ernesto Che Guevara, Argentinean by birth and one of the leaders of the Cuban Revolution, continued to engage in political activities outside Cuba and was murdered in Bolivia in 1967. With the rapprochement between Cuba and the Soviet regime, and given the strong influence of the United States in the region, the Cold War gained an additional dimension. Predictably, the US security apparatus began to operate in Latin America, always aiming to prevent the emergence of new regimes such as the one in Cuba.

Several documents recently declassified by the US government reveal the intense diplomatic and espionage activities carried out in order to contain possible leftist regimes. For this to succeed, forming alliances with dictatorships was crucial. A recently revealed memo documents a conversation between President Richard Nixon, Secretary of State Henry Kissinger, and British Prime Minister Edward Heath at a meeting in Bermuda on December 20, 1971. Nixon and Heath discuss Cuba and its possible influence in South America, with Nixon saying that in Chile “the left is in trouble, and there are forces at work which we are not discouraging,” referring to the moves by US authorities to destabilize the Allende government. The conversation also reflected concerns with what was transpiring in Uruguay, where left and center-left parties created the Frente Amplio, and it seemed possible that it could win the elections (which it did not). According to Nixon, “Brazilians helped rig the Uruguayan election.”Footnote ¹⁴⁵ Whether this was true or not, we know that, given Brazil’s interest in monitoring (and persecuting) Brazilian exiles on the other side of the border, there was intense participation by the Brazilian military regime in the repression of Uruguayan guerrilla forces.

The results of this coordination were clear. During the 1970s, dictatorships prevailed in South America. In Bolivia, General Hugo Banzer led a coup d’état. His predecessor, General Juan José Torres, was one of the first victims of Operation Condor. He was killed by a Bolivian military command (with the participation of Chilean agents linked to the CIA) in Buenos Aires, in July 1976.Footnote ¹⁴⁶ In Uruguay, the President of the Republic Juan María Bordaberry led a self-coup, closed the Congress, and began acting as a dictator until he was deposed by a military junta that assumed de facto power in the country.Footnote ¹⁴⁷ In Chile, the September 11, 1973 coup took place, and in Argentina, the “national reorganization process” started in March 1976. Most of the South American countries were now military dictatorships aligned with the United States at the international level.

Cooperation between the different military forces was also evident. Many Brazilian political exiles lived in Chile; a number of them were arrested and held at the National Stadium in Santiago and report having been tortured by Brazilian military personnel.Footnote ¹⁴⁸ Argentine commandos were looking for exiles in Brazil, and on some occasions, groups composed of Brazilian and Argentinean soldiers tortured the exiles they tracked down. However, while collaboration throughout the 1970s was random, in 1976 Chile proposed a broader initiative, the earlier-mentioned Operation Condor.

This new type of collaboration was discussed between members of the armed forces and intelligence communities of the South American countries in a meeting that took place in Chile from November 25 to December 1, 1975, attended by delegations from Brazil, Argentina, Paraguay, Uruguay, and Bolivia. As previously stated, the military and security forces of the various dictatorships had already pursued joint activities and conducted operations in more than one country. At this November meeting, however, Chile sought to establish a more systematical approach to these operations.Footnote ¹⁴⁹ Its immediate goal was to intensify efforts to detain opponents of the military regimes who were exiled in other countries.Footnote ¹⁵⁰

The plan did not end there. While collaboration between dictatorships and their security and intelligence bodies continued (both inside and outside Condor), another cooperative plan emerged from an initiative by the Chilean, Argentine, and Uruguayan regimes: Operation Teseo. Its purpose was to expand activities beyond the boundaries of the Americas. As various coups d’état occurred in South America, many exiles who initially went to Uruguay, Chile, and Argentina sought new places of refuge, particularly in Europe. Paris and Lisbon concentrated the largest number of regime opponents. Operation Teseo was a plot intended to enable the assassination of exiles living in Europe.

The Chilean regime already had some experience in operating outside its own borders. Dina (Dirección de Inteligencia Nacional), Chile’s political police, had been active on European territory. In Rome, on October 5, 1975, Chilean agents, with the backing of militants from an Italian extreme right-wing group, shot Bernardo Leighton, a Christian Democrat politician and former interior minister of Chile, and his wife Anita Fresno. Both survived the attack, albeit with serious injuries. In addition to Dina agents, Stefano Delle Chiaie, a known member of the radical right-wing group Avanguarda Nazionale, also participated in the assassination. Delle Chiaie, who had met with Pinochet in Madrid a month earlier, was assisted by Michael Townley, a US citizen who was a Dina agent.Footnote ¹⁵¹ Townley had also been involved in the murder of the Chilean general Carlos Prats and his wife in Buenos Aires on September 30, 1974.Footnote ¹⁵²

An equally well-known case was an operation executed outside of Condor’s channels that resulted in the killing of Orlando Letelier, who had served as minister in Allende’s government. Letelier was murdered in Washington DC on September 19, 1976; the assassination was organized and executed by Dina, again with the participation of Michael Townley, among many other agents. Armando Fernández Larios, one of these agents, was present at the attack on September 11, 1973, on the Palacio de la Moneda, the seat of the Chilean government, occupied at the time by Salvador Allende. Fernández Larios had also taken part in several repressive actions by a group that became known in Chile as the “Caravans of Death,” and he traveled throughout Brazil in 1976 before heading to Washington to be part of the Letelier killing.Footnote ¹⁵³

Although there were transnational collaborative networks involving Chilean, Argentine, and Uruguayan agencies (with most operations originating in Chile), some of these networks were fragile. The US government was visibly upset with the operation against Letelier, which resulted in the death of a US citizen, Ronni Moffit, who had been working with Allende’s former minister. In addition, after a group consisting of Argentine and Uruguayan military was sent to Paris with the purpose of assassinating Uruguayan opponents living there, the French intelligence services became aware of their presence (as part of Operation Teseo), alerted the possible targets, and protested the situation to the Chilean Embassy in Paris.Footnote ¹⁵⁴

The extension of collaboration between South American dictatorships, which ranged from persecuting opponents on the American continent to collaborating in their elimination even on European territory, was made possible through the participation of European extreme right-wing groups. Pinochet, while in Spain for Franco’s funerals, contacted extremist groups in order to obtain support for killings across Europe.Footnote ¹⁵⁵ As Branch and Propper rightly point out, the timing was symbolic, as Pinochet sought to be identified with the legacy of Francoism and considered himself “the historical re-creation of Franco.”Footnote ¹⁵⁶

In the early 1980s, in the context of intensified Cold War clashes, and driven by the election of Ronald Reagan as president of the United States, Argentina became the leading country in transnational political repression. How this complex and intricate situation came about illustrates the impressive ability of the United States (and its allies in Latin America) to interfere in the political struggles fought in countries located in the US sphere of influence.

When Reagan took office, there were several areas of tension with the Soviet Union. The Cold War theater of operations was about to shift into a higher gear after a period of relative stability. One of Reagan’s main targets was the new Sandinista regime in Nicaragua, which was established following a civil war that culminated in the removal from power of the then-dictator Anastasio Somoza. Members of the US government planned to provide training to the so-called contras, who opposed the Sandinista regime. The US Congress, with the Democratic Party holding the majority, vetoed the sale of arms to the Nicaraguan opposition. To tackle this situation, the solution chosen was to activate sectors of the repressive apparatus in Latin America. Argentine military offered training to paramilitary groups in Guatemala and sold weapons to the contras with the support of the US government. Sectors of the collaborative network that had already been activated in the 1970s in Europe were once again put into action. Stefano Delle Chiaie, the Italian far-right militant who, as we have already seen, assisted the Chilean dictatorship in actions in Europe, traveled to Bolivia and Argentina where he collaborated directly with members of the Argentine government in their joint efforts with the United States to supply weapons and training to the Nicaraguan contras. The partnership between Argentina and sectors of the US government came to an end in 1982, when the Falklands (also known as Malvinas) War broke out and the United States supported Britain.Footnote ¹⁵⁷

According to the data collected by Francesca Lessa in the database on South America’s Transnational Human Rights Violations, between August 1969 and February 1981, 805 people fell victim to this transnational repression (which, as we have seen, was broader than Operation Condor). Among these were 382 cases of illegal detention with torture, 367 deaths or disappearances, and 25 kidnappings of babies. The victims’ nationalities were distributed as follows: 384 Uruguayans, 191 Argentineans, 115 Chileans, 40 Paraguayans, 33 Brazilians, 13 Peruvians, 17 Bolivians, and 12 others (the United States, Italy, France, Cuba, Great Britain, and Spain).Footnote ¹⁵⁸

Operation Condor, given its scope and the countless human rights violations it inflicted, was the subject of important lawsuits in several countries that sought to establish the responsibility of the perpetrators. These cases – which have the potential to raise new questions because of the emergence and disclosure of previously unknown sources – are central to understanding different features of the operation, but they are also an important source for legal history. It is well established that authoritarian regimes tend to lack transparency and publicity in their actions. Secrecy becomes the rule, and there is no public control over governmental actions. Hence, lawsuits concerning the criminal accountability of agents who have perpetrated human rights violations play a central role, also in the writing of legal history. With instruments such as universal jurisdiction and doctrines such as the imprescriptibility of crimes against humanity, the judicial authorities are able – when the political circumstances of each nation permit this openness – to carry out an impartial investigation and examination of the authoritarian past.Footnote ¹⁵⁹

Lawsuits can recreate factual contexts, draw attention to collected documentation and testimonies, and bypass restrictions, for example, in crimes against humanity, where statutory limitations don’t apply. Criminal judges have broad powers to collect evidence – they can summon witnesses, request documents, carry out inspections, and ask that technical evidence be produced. In this way, judicial institutions play multiple roles. They hold agents accountable for rights violations, they contribute to the knowledge of history, and they can also provide reparation, as survivors, as well as descendants of victims, are eligible to receive restitution for past events.

With respect to Operation Condor, at least two cases are of particular historical interest. The first one is a trial held by the Argentine judiciary – Oral Court in Federal Criminal Court No. 1 – which concluded on May 27, 2016. This was a major criminal lawsuit, which was initiated in 1999 and encompassed a variety of related cases. Of the seventeen defendants who were tried, fifteen were sentenced to terms ranging from 8 to 25 years in prison. The victims were of many nationalities: There were Argentineans, Bolivians, Chileans, Paraguayans, Peruvians, and Uruguayans.Footnote ¹⁶⁰ The second significant criminal case regarding the accountability of agents involved in Operation Condor was brought before Italian courts, since some of the victims held Italian nationality and the Italian Penal Code allows the persecution of crimes committed outside Italy. In a first trial, the III Corte di Assise di Roma condemned several of the defendants to sentences up to life imprisonment. However, in the judgment released on January 17, 2017, most of the accused (nineteen out of twenty-seven) were acquitted. An appeal was filed, and the first-instance decision was reversed by the Corte di Assise di Appello di Roma, Sezione 1 bis. The grounds of the decision were published on December 27, 2019. In addition to the eight life sentences already handed down by the lower court – including life imprisonment for Luis Garcia Meza, former president of Bolivia – the appellate court ordered the conviction of sixteen further defendants, leaving only one acquitted. The defendants – of Uruguayan, Chilean, Bolivian, and Peruvian nationalities – were held accountable for the murder of forty-three people. After this ruling, an appeal was filed with the Corte Suprema di Cassazione, which, through the I Sezione Penale, upheld the convictions imposed (with the exception of one defendant who had died during the trial) and modified only part of the civil reparations.Footnote ¹⁶¹

As Francesca Lessa pointed out, these trials revealed the depth and complexity of the transnational network of repression, torture, killings, and disappearances that was built up in the 1970s. Moreover, these cases prompted national judicial authorities to carry out new investigations into human rights violations committed against victims from various countries.Footnote ¹⁶²

Transnational Legal Mobilization: The Second Russell Tribunal for Latin America

As explained previously, the thinking of regimes in Latin America was influenced by the decolonization process in Africa and Asia; the Cold War – and even more so the Cuban Revolution – pushed the region into a position of global prominence. The strategic importance of what transpired across the continent became clear in the 1970s, when a transnational mobilization of solidarity with Latin American peoples emerged, initially as a byproduct of the so-called Russell Tribunal. This extra-judicial “International War Crimes Tribunal,” held between 1966 and 1967 and charged with investigating the US-American intervention in Vietnam, was an initiative of the philosopher Bertrand Russell, who invited Jean-Paul Sartre and Simone de Beauvoir to head the tribunal’s formation. Several other political and cultural figures, mostly from western Europe, joined the tribunal, which held two sessions in Sweden and Denmark in 1967.Footnote ¹⁶³

One of the participants of this first Russell Tribunal, the Italian politician Lelio Basso, was a member of the Italian resistance, acted as a representative on the Constituent Assembly formed in the post-war period, and served as a deputy and senator. During a visit to Chile in 1971, Basso instigated contact with Brazilian exiles who opposed the dictatorship, such as Theotonio dos Santos, Almino Affonso (who had been a minister in the João Goulart government, overthrown in 1964 by the military), Herbert de Souza, and José Serra (a former student leader). This group of exiles asked Basso to set up a new tribunal, similar to the one created to investigate the American intervention in Vietnam, but with the purpose of inquiring into and prosecuting the military dictatorship in Brazil.Footnote ¹⁶⁴

Basso returned to Italy convinced of the need to set up a second Russell Tribunal. Initially, this was intended to hear only the Brazilian case. However, with the coup d’état staged by Pinochet and the Chilean armed forces on September 11, 1973, it became clear that the military spread of dictatorships in Latin America had reached a point that required an expansion of the tribunal’s scope. Accordingly, the cases of the dictatorial regimes in Chile and, subsequently, Uruguay and Bolivia were included. One of the tribunal’s main lines of investigation was US intervention in local political affairs and the role of transnational companies in supporting the military and civilian sectors willing to break away from democratic regimes (particularly those of Brazil and Chile, which had a statist orientation and engaged in the nationalization of foreign companies).

CIA-produced documents indicate that the move to establish the second Russell Tribunal was closely monitored by the United States. Three reports, written between November 1973 and March 1974, outlined the minutiae of the tribunal’s formation. In November 1973, a communiqué from the American Embassy in Brussels noted: “Although the tribunal had been conceived originally to investigate allegations of torture and political repression in Brazil, it was the unanimous decision of the participants in the Brussels meeting that the tribunal should extend its investigations to Chile and other Latin American countries.”Footnote ¹⁶⁵ Another US intelligence report, written in the last days of March 1974, disclosed that the tribunal had designated a session to “hear testimony and accept documentation and reports assembled by various commissions on violation of human rights in Brazil, Chile, Uruguay, Paraguay, Bolivia, and Guatemala.” The document then went on to list some of the participants, among them Lelio Basso, Vladimir Dedijer, Gabriel Garcia Marquez, Herbert Marcuse, Albert Soboul, Pierre Vidal-Naquet, and François Rigaux. Later, the report added that “Simone de Beauvoir and Jean-Paul Sartre would be unable to continue their tribunal activities because of ill health.”Footnote ¹⁶⁶

After considerable efforts by Lelio Basso, Linda Bimbi (an Italian nun who had lived in Brazil for many years), and other collaborators, the financial means to convene the second Russell Tribunal were secured. The tribunal held three sessions: in Rome from March 30 to April 6, 1974, in Brussels from January 11 to 18, 1975, and again in Rome from January 10 to 18, 1976.Footnote ¹⁶⁷ The proceedings produced abundant evidence regarding the dictatorial regimes in Latin America. This evidence enables an understanding of the global dimension of the political struggles that were waged in the region. The tribunal’s conclusions had considerable repercussions in the international sphere, but curiously enough, until now, there is no significant literature describing and analyzing its activities. As Umberto Tulli points out, “the ‘second’ Russell is a neglected and overlooked field of research,” especially when compared with the Vietnam War Tribunal.Footnote ¹⁶⁸ Yet, as Tulli himself makes clear, there were substantial differences between the two iterations, even if many of the members were the same. The first Russell Tribunal scrutinized the United States’ behavior as a country that had initiated an armed conflict with another nation, which led to the perpetration of war crimes. The second tribunal, however, depicted another form of US-American intervention, which included economic influence and the role of large multinational corporations. What was under discussion here was the economic model itself, as well as the emergence of networks of solidarity and resistance. Thus, Tulli concludes, “the first Russell Tribunal was a specific expression of a global movement against the Vietnam War, whereas the second drew inspiration from transnational activism for human rights.”Footnote ¹⁶⁹

Transnational mobilization of solidarity was evident not only in the activities of the tribunal, but also in the efforts to establish it. Simona Fraudatario reports a proliferation of international committees that supported the creation of the tribunal: following Lelio Basso and Linda Bimbi’s trips to several European countries, committees were formed in the Netherlands, Belgium, West Germany, and France. The mobilization spread to other countries and continents: In the United States, student groups in Chicago and Philadelphia came up with supporting manifestos. In Toronto, a Bertrand Russell Tribunal Canadian Support Committee was created, and similar bodies were established in Panama, Puerto Rico, and Argentina – the latter in 1975, before the military coup that would drag the country into a new dictatorship took place.Footnote ¹⁷⁰

The verdict issued by the second Russell Tribunal was published at the closing of the first session, which took place in Rome between March 30 and April 5, 1974. In the concluding part of the ruling, the tribunal “declares guilty of serious, repeated and systematic violations of human rights, the authorities who in fact exercise power in Brazil, Chile, Uruguay and Bolivia.”Footnote ¹⁷¹ Lelio Basso, the jury’s president, produced the closing passage, in which he paid tribute to the victims of the dictatorships and their families. Basso stated that “tragic faces” had been present in the tribunal, bearing witness to the atrocities committed by the authoritarian regimes. However, the text ended in an uplifting tone:

Urban Interventions in the Post-Dictatorship Period: Memory Sites

The dictatorships’ brutal actions created a topography of repression. As Francesca Lessa remarked regarding Operation Condor, “[o]ne major location of crimes was Buenos Aires, due to the large number of political exiles living there since the 1960s,” but other cities also accommodated locations (usually secret) for the practice of human rights violations. In 1976 Argentina, a clandestine detention center called Automotores Orletti was the site for activities related to Operation Condor. Other secret locations were Pozo de Banfield and Pozo de Quilmes. In Chile, there were the Villa Grimaldi and Londres 38; in Uruguay, the Punta Gorda house, a site called 300 Carlos, and the Intelligence and Defense Service (SID) building; and in Paraguay, the Department of Police Investigations in Asunción. All these places fulfilled the same role.Footnote ¹⁷³

South American dictatorships were overcome, and processes of re- democratization began in the 1980s. In some countries, politicians linked to the dictatorships accumulated sufficient political capital during the re-democratization process to remain influential even after the dictatorships ceased to exist. The most striking examples are Brazil and Chile. But even where this kind of continuity was possible, spaces of memory connected to the time of repression emerged. Torture centers, clandestine detention camps, secret places for the interrogation, torture, and execution of opponents had become part of the landscape of South American cities; now questions were raised as to what should be done with these repressive structures, which epitomized the state terror inflicted by the dictatorial regimes.

The subsequent fate of these places varied greatly. In many countries, a number of military and police facilities involved in the repression continue to fulfill their original functions. Others, however, carried greater symbolism and stood as reminders of the oppression, and consequently underwent a re-dedication of their purpose. In Chile, two sites were converted into memory sites: Londres 38 (a house located in central Santiago) and Villa Grimaldi (a property located on the outskirts of the Chilean capital) had served as clandestine sites for the detention, torture, execution, and disappearance of hundreds of opponents of various nationalities. After the dictatorship, and mainly at the initiative of former president Michelle Bachelet, these places have become memory museums that seek to reconstruct the resistance to the Chilean dictatorship and bear witness to the trajectories of the victims. They are joined by the “Museum of Memory and Human Rights,” also located in Santiago, which is renowned for its innovative use of transparent materials and the various shades of light inside and outside, creating an architectural and museological ensemble that focuses on remembering the victims of the Chilean regime.Footnote ¹⁷⁴

In Argentina, the Parque de la Memoria or “Memorial Park,” which is located in the Belgrano neighborhood of Buenos Aires and includes the Monumento a las Victimas del Terrorismo de Estado or “Monument to the Victims” fulfills the same task. The park is situated near the estuary of the Río de la Plata, into which the bodies of opponents who have disappeared have been thrown; it is also in close proximity to one of the most notorious detention, torture, and execution centers of the Argentine regime, the ESMA – Escuela de Mecánica de la Armada, which has also been transformed into a memory museum (Espacio Memoria y Derechos Humanos). By providing these kinds of memory sites, urban interventions can shift the memory of oppression, reconnect the city to the river that is one of its main symbols, and enable a public display of recollection and remembering.Footnote ¹⁷⁵

In a seminal text, Andreas Huyssen highlights the layers of historicity that are revealed in the uncovering and processing of memories of these periods of arbitrary rule, and its unfolding in relation to the global context of human rights violations in the twentieth century. Huyssen connects the architectural and political choices featured in the design of the Memorial Park with two other major memorial sites conceived in a post-traumatic context: the Jewish Museum in Berlin and the Vietnam Veterans Memorial in Washington DC. While Huyssen refuses to draw a direct analogy between the Argentine dictatorship with its state terrorism and the Third Reich or the American invasion of Vietnam, he nonetheless mentions evidently common features between these monuments: for instance, asymmetrical lines that punctuate the tortuous path of the political history of the twentieth century, expressing a fragmentation, an interruption of projects (with the persistence of empty spaces inside the building, a clear option in the Jewish Museum in Berlin); walls with inscriptions of the victims’ names; and the use of underground spaces. With regard to the victims of the Argentine dictatorship (students and workers honored on the walls of the Monument to the Victims), Huyssen notes that the Buenos Aires Park “is also part of the global legacy of 1968, together with the mass shooting of students in Mexico City and the Soviet invasion of Czechoslovakia.”Footnote ¹⁷⁶

Another urban intervention related to repression by authoritarian regimes is the transformation of the Punta Carretas prison in Montevideo. Inaugurated as a regular prison in 1915, it gradually also became a political prison where several members of guerrilla groups were detained before and after the coup d’état of 1973. This penitentiary, which eventually became a maximum-security prison, was abandoned in the late 1980s and then, between 1991 and 1994, converted into a luxury shopping mall.Footnote ¹⁷⁷ In a suggestive analysis, Susana Draper connects the opening of the mall to the failure to recall the crimes of the Uruguayan military regime. She explains that, after the restoration of democracy in Uruguay, the 1986 Ley de Caducidad de la Pretensión Punitiva del Estado granted amnesty for crimes committed during the dictatorship, including those committed by agents of the regime. The law was submitted to a referendum, followed by a plebiscite, in March 1989, with the majority of votes cast in favor of the project. According to Draper, the conversion of the prison into a shopping mall must be understood within this broader historical process, which involved a new vision of the future and a “metaphor for a peculiar form of transition from the carceral past to the consumerist present.” This became clear, according to the author: “After the decision voted in the plebiscite, the new prison-mall became both the paradoxical monument to forgetting and the prized example of the new regime’s discourse, transactions, and measures.”Footnote ¹⁷⁸

Transnational Journeys: Paths of Resistance

The opponents of Latin American dictatorships included peasants, workers, students, dissenting members of the military, and several other social segments. Between the 1960s and 1970s, they reflected an enormous range of ideological tendencies, groups preaching political change, and texts that could inspire acts of resistance. There were various options for action: The opposition could engage exclusively in the “institutional way,” that is, attempt to defeat the dictatorship in a peaceful manner, through the procedures established in the legal system then in force – or follow the path of open defiance, using armed struggle and guerrilla warfare.

This diversity is manifested in the trajectories of three opponents to the Brazilian military dictatorship. As will be demonstrated, each biographical path featured a selection of choices, contact with many different sources of influences, and journeys around the world before and during the Brazilian dictatorship (which began with the coup d’état of March/April 1964). These individual experiences exemplify many of the dilemmas faced by groups that opposed the Latin American authoritarian regimes, as well as many of the possible strategies for combating them.

Concluding Remarks

Latin American dictatorships made extensive use of various legal mechanisms. Parliaments and courts suffered intervention in their institutional operations or were simply closed down. In addition, the legal system was used as a tool for repression, investigation, and the punishment of opponents. This leading role of legal institutions can be explained by two factors, both addressed throughout Section 6.2: the attempt to legitimize the regimes (which sought to consolidate themselves in institutional terms) and the wish to persecute and punish opponents (through the activation of courts and prosecuting agencies).

It is important, however, to place many of the reasons used by political actors (military and civilian) to justify the institutional break with the preexisting regimes within the context of the Cold War and contemporary geopolitical conflicts, which greatly affected the continent but were nonetheless external to Latin America. These conditions influenced the political and legal practice of the dictatorships and triggered the creation of networks of collaboration and resistance, which then also spread beyond Latin America. In other words, the global element was a central feature of the dictatorships and worked as an active and intense factor for mobilizing both repressive forces and resistance movements. The pivotal role of the Cold War and its aftermath, for example, was crucial to the building and consolidation of dictatorships, as exemplified by Operation Condor, which was one of the modalities employed for expanding repressive activities. At the same time, resistance to authoritarian regimes also relied on an intense transnational mobilization through political actors, organizations, and institutions that reached a global sphere of action on behalf of freedom and human rights.

As we reach the final stage of our historical reconstruction, one question remains to be asked: How did the dictatorships come to an end?

The decline of authoritarian regimes was shaped by a mix of different elements. Foreign policies, economic issues, and actions by opponents all contributed to this demise. Nevertheless, the patterns, speed, and outcomes of this demise were different in each case. As noted earlier, Latin American dictatorships, notably the ones in Chile, Brazil, and Argentina, shared a foundational element: the search for a legal justification. Institutional acts, bandos, decree-laws, secret acts, in short, a series of rules established by military juntas all sought to translate into legal terms the violent break with the rule of law. These disruptive measures were followed by attempts at institutionalization of varying intensity, form, and time, as observed earlier.

This authoritarian legacy had to be confronted. Persecution, torture, executions, and disappearances presented a huge challenge for transitional justice policies (see, in this regard, Section 6.3). Moreover, these practices cast a shadow over the institutionalization of the post-dictatorship legal order. Doubts have arisen as to how to deal with the remaining elements of the authoritarian legal order. What to do with the constitutional documents produced by the dictatorships? What type of continuity or disruption must be established between the practices of legal professionals in the authoritarian and the democratic periods?

Naturally, the answers will be diverse. Consider, briefly, as a mode of example, the challenges involved in the constitution-making process. At first glance, Brazil and Chile seem to have followed similar paths. In both cases, intense negotiations took place between the military occupants of power and civilian politicians interested in re-democratization. In both countries, the military retained a considerable share of the political power even at the end of the authoritarian regime. The similarities end there, however, as the chronology was very different. In Brazil, a constitution was enacted immediately after the end of the dictatorship, with significant democratizing elements. In Chile, the 1980 constitution, drafted by a commission directly controlled by the military junta and led by jurists loyal to the regime, was upheld.Footnote ¹⁸³ Evidently, factors other than a constitution are also involved in defining the continuity or rupture of the legal system, such as the efficacy of amnesties granted during the dictatorship, the permanence of authoritarian practices in democratic periods, and many others.

In all these cases, a time-driven operation came into play. First, the most essential question was how to overcome mechanisms granting exceptions, which were typical of authoritarian regimes. But the new democratic regimes also faced another risk – which, to a certain extent, persisted throughout the post-dictatorial period in Latin America – namely the normalization of the authoritarian rule, that is, incorporating legal practices developed during the dictatorships into democratic regimes.

The literature on the demise of dictatorships tended not to center on this risk of normalization. Instead, a persistent topic in the historical literature related to authoritarian regimes, especially in Latin America, included narratives of transition. For a long time, the end of dictatorships was associated with the form, duration, and characteristics of political processes labeled “transitions.” An extensive literature has built up on the subject, including a discrete field of political science, the so-called “transitology.”Footnote ¹⁸⁴ Nevertheless, narratives of transition have their pitfalls; they grant a special status to the supposed “time of transition,” which should enable societies that lived under dictatorships to prepare for a transition to democratic rule. But what constituted this time of transition? Historical observation indicates that Latin American nations that faced dictatorships in the context of the Cold War were affected (and still are) by the political struggles waged between the regime (and its civilian and military supporters) and the various forms of resistance (articulated both internally and through transnational mobilization). As a result, there are no qualitative differences between the “time of dictatorships” and the “time of transitions.” Instead, there are different phases of political dispute, with the “transition” being merely a stage in this struggle, in which the political actors seek to maintain a certain amount of power and influence.Footnote ¹⁸⁵ Naming a particular time “transition” may confer greater density to this period, but it tends to overemphasize the willingness to negotiate by those occupying power. Suffice it to consider the cases of Chile and Brazil, where the military retained political capital even after the end of the dictatorships. In these cases, the transition concealed strategies by the exiting regime to exert influence in the ensuing political arena. The time of transition lingered after the dictatorial regime and projected its effects into the immediate future.Footnote ¹⁸⁶ This issue, transition, illustrates the complexity of the debate surrounding dictatorships, their frequent use of legal institutions and emergency measures, and their impact on the democratic regimes that were established thereafter, often bringing to the forefront their particular features, setbacks, and uncertainties.

. . .

The Southern Perspective

Global agreements on civil and political rights can work as valuable tools to prevent violations of human rights through early denunciation or, when these violations have already taken place, to bring awareness both locally and internationally to these breaches. Most particularly, international human rights and humanitarian law can be used by engaged social actors to push forward democratic transformations after periods of political violence, to bring perpetrators to justice before either domestic or international courts, to secure reparations for victims, and even to help develop public policies aimed at avoiding the repetition of such crimes.

Given these characteristics of modern geopolitical history (colonization, neocolonization) and the experiences with massive violence, resistance, and transition to democracy, it is not surprising that the South has been a true laboratory of transitional justice, especially in the 1980s and early 1990s. Yet as Carozza points out:

Identifying the problematic logic behind this structural silencing or systemic diminishment of Southern contributions, the field of Southern/Decolonial Studies seeks to shed light on how such views hinder the democratization of knowledge and limit the story that can be told. Because research has generally excluded the experiences and perspectives of the Global South, we still lack a deeper analysis of fundamental issues that would enrich our understanding of violations in the Global North and, potentially, worldwide.Footnote ¹⁹³ Among other things, this is the case because neither human rights instruments nor the jurisprudence emanating from regional and global tribunals can be understood as politically neutral or informed solely by legal and/or constitutional principles. Instead, it is inevitably shaped by struggles and interests based on criteria of class, gender, race, and ethnicity, among others.

A Marxist critique to the first universal normative instrument, the Declaration of the Rights of Man and the Citizen passed by the French revolutionary National Assembly in 1789, argued that reality was ignored in the text.Footnote ¹⁹⁴ According to this critique, while the “citizen” (the abstract figure) was conceived as a rights holder who represents the ideal version of the law, the “man” (the concrete person) was the real person, conditioned by the socio-economic context that may well inhibit the enforcement of the proclaimed rights.Footnote ¹⁹⁵ For example, the Declaration established the formal freedom to work, but the market imposes limits that may leave many unemployed; the Declaration recognized freedom of speech and association, but exercising it requires the appropriate means, which are often not readily available, hence resulting in the silencing of many views.Footnote ¹⁹⁶ Similarly, international law also generally assumes the formal equality of all actors, requiring states and individuals to comply with the same globalizing normative order despite the radically varying situations and the consequently different efforts demanded of each member state to achieve the stipulated aims.Footnote ¹⁹⁷ In other words, international law speaks to the global, but it tends to overlook structural differences and diversity in local contexts.

This Northern conception of human rights has been characterized in the following way:

Yet, from a Southern viewpoint, rights are often understood to be contextualized, with civil and political rights conceptualized as indivisibly attached to socio-economic ones. In the South, rights are often considered a collective, not an individual enterprise. It is often the case that fundamental rights for the South (e.g., debt relief as a human right) are ignored by Northern member states. Often ignored phenomena in the North can be incorporated as fundamental rights in the South, including a stand for debt relief, historical justice for the colonial past, and global equality.Footnote ¹⁹⁹ The expansion of human rights to include collective and historical claims is a result of the crucial particularities regarding normative knowledge in the South, where it is not conceived in abstract academic settings and detached from social suffering, but, on the contrary, is generally “born in struggles against capitalism, colonialism, and patriarchy, produced by the social groups and classes that have suffered most from the injustices caused by such domination,” and where expertise is entwined with social processes on the ground.Footnote ²⁰⁰

Drawing attention to Southern contributions to human rights thinking and transitional justice does not seek to displace or negate but rather aims to complement prevailing knowledge of Northern legal developments. Santos conceptualized this view as an “ecology of knowledge.”Footnote ²⁰¹ Contrary to “knowledge transfers,” a term often used to describe how knowledge evolves and spreads, stressing disequilibrium, tensions, contradictions, and conflict, Santos uses the expression “ecology of knowledge” to highlight stability and equilibrium. The phrase also expresses an aspiration to redress the balance in our knowledge cosmovision, as it views Northern or Southern “bits” of knowledge in and of themselves as partial or incomplete, and acknowledges this reciprocal incompleteness as a necessary condition for summing up in order to build comprehensive knowledge.Footnote ²⁰²

When applied at the jurisprudential level, “ecology of knowledge” can be framed as “cross judging,” that is, the regular reference to jurisprudence of courts and tribunals from other legal systems, often outside hierarchic or other conventions relating to uses of precedent or sources of law.Footnote ²⁰³ In the context of international law, cross-judging describes the transfer of legal knowledge to and from the different regional courts and international bodies. It takes place even when the various courts do not explicitly cite each other, and reveals how approaches taken by different tribunals can strengthen each other’s arguments. Thus, while international law is often characterized as decentralized, fragmented, and lacking in legal integration vis-a-vis domestic law, cross-judging provides a counter-narrative,Footnote ²⁰⁴ emphasizing the existence of a network of global interactions through a dialogic process in which Latin America both draws from and informs law and legal practices elsewhere around the globe.

Human Rights and Transitional Justice in Latin America: The Crime of Enforced Disappearance and the Centrality of Grassroots Organizations

Human rights are strongly entangled with the contemporary history of Latin America. Of particular importance are Latin American contributions to the development of transitional justice in the 1970s and 1980s. Though transitional justice as an area of study only emerged around twenty years ago, it has rapidly acquired recognition as an independent field.Footnote ²⁰⁵ This recognition is based on the observation that similar experiences in dealing with the aftermath of periods of state repression and atrocities “travel” from one country and region to another and very often use the language and the instruments of the law in general and human rights in particular. In other words, norms, legal practices, and networks from one region are replicated, transformed, and vernacularized in others under new and local premises. Transitional justice seeks to capture these entanglements as well as to adopt a forward-looking emphasis that wishes to transform cross-knowledge into mechanisms that would guarantee non-recurrence through prevention.

The term “transitional justice” was coined by Ruti Teitel, who defined it as “a distinctive conception of law and justice in the context of political transformation.”Footnote ²⁰⁶ The leading Global North NGO working on the topic, the International Center for Transitional Justice (ICTJ), refers to transitional justice as “a branch of justice that states a different approach to the conventional, assumed by societies to address the legacy of widespread and systematic violations of human rights.”Footnote ²⁰⁷ Another key definition relates to the forms of justice. The UN Secretary-General’s report The rule of law and transitional justice in conflict and post conflict societies defined transitional justice as comprising “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses,”Footnote ²⁰⁸ Stanley Cohen described it as “how societies going through democratic changes should deal with atrocities committed by the previous regime,”Footnote ²⁰⁹ and, according to Jon Elster, it is “made up of the processes of trials, purges, and reparations that take place after the transition from one political regime to another.”Footnote ²¹⁰ Overall, transitional justice encompasses the broad range of mechanisms and practices that make it possible to transition from a period of massive persecution or related abuses to a more human rights-protective aftermath.

Latin American contributions to transitional justice are tied to the political situation in the 1970s and 1980s. During this period and amid the geopolitics of the Cold War, the so-called “Operation Condor,” a network of collaborations between dictatorships in the region orchestrated with the support of the United States, aimed at eliminating left wing movements. Argentina, Bolivia, Brazil, Chile, Paraguay, Uruguay, and, to a lesser extent, Colombia, Peru, and Venezuela were involved in this continental program of military terror. Meanwhile, Panama was under the dictatorship of Manuel Antonio Noriega; Colombia was struggling with a long-lasting armed conflict, and Guatemala and the Dominican Republic were amid civil war.Footnote ²¹¹ The regional policy of terror was predicated on extrajudicial killings and torture, but also on a novel method later labeled “enforced disappearances”: a pattern of abductions of civilians followed by governmental cover-up and a blackout of information about the victims.

In these cases, the state was the perpetrator, and therefore would not be the one pushing for accountability, nor could the criminal justice system be employed to stop these violations. Instead, a bottom-up movement emerged, even amid the state terror, which sought justice abroad by appealing to organizations and public opinion on the international level. In an important legal strategy of resistance, civil society organizations promoted and defended the notion of “disappearance” as a specific legal category of atrocity, describing those subjected to this unlawful practice as the “disappeared” or desaparecidos. Particularly active were the “Mothers and Grandmothers of Plaza de Mayo” in Argentina, who realized early on the political potential of the term.Footnote ²¹² Accepting the lack of information as proof of the death of their children, they argued, would be to absolve the state from the responsibility of accounting for their lives. Sticking to the category of “disappeared,” therefore, became an act of resistance and a tool for sustaining claims before the state.Footnote ²¹³ Through systematic claims-making and denunciation of the kidnappings, relatives of the victims helped give a new name to state terror by creating a new legal category that established the concept of “enforced disappearance.” In other words,

Latin American human rights activism also led to additional developments. Relatives of the forced disappeared in Latin America gathered in a continental network, FEDEFAM (Federación Latinoamericana de Familiares de Detenidos-Desaparecidos), and gave the definitive impulse to the creation of a UN Working Group on Forced and Involuntary Disappearances in the 1980s, the first thematic mechanism on this crime with a universal mandate.Footnote ²¹⁵ This working group, in turn, fostered the approval of a treaty specifically focused on this crime. In 2006, the UN General Assembly issued the International Convention for the Protection of All Persons from Enforced Disappearance, which in article 2 defines the crime as “the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.” The implementation is monitored by the Committee on Enforced Disappearances.

Latin American activism has also been crucial in promoting the development of other practices, such as forensic examinations, to prove enforced disappearances. In more philosophical terms, this activism also made it possible to distinguish death, even murder, from disappearance, by illuminating the consequences of the ongoing denial or cover-up, which impedes closure and the possibility of mourning.Footnote ²¹⁶

Born out of grassroots usage as part of civil struggle against Latin American dictatorships, denunciations of forced disappearances ultimately gave way to the transitional justice processes of the 1980s.Footnote ²¹⁷ When the transitions to democracy took place, these grassroots actors also occupied a central role in fostering transitional justice remedies that would seek justice for victims of enforced disappearances – as well as of other crimes, including extrajudicial killings and torture – in a particular manner that would set new paths worldwide. It is generally agreed that the modern history of human rights began with the Nuremberg Trials in the aftermath of the Second World War along with associated developments, such as the United Nations Charter, the Universal Declaration of Human Rights, and subsequent covenants.Footnote ²¹⁸ Notwithstanding the horrors of the Holocaust, the focus at Nuremberg and related war crimes trials was on the perpetrators rather than the victims. By contrast, transitional justice as it evolved in Latin America, and to some extent South Africa in the 1990s, was distinct because it explicitly referred to the needs of victims and these actors were involved in the deliberations. The aim was to express “an awareness of the centrality of victims/survivors and their needs throughout the process.”Footnote ²¹⁹

A crucial means of meeting victims’ needs for information and recognition are truth commissions, which have evolved into mechanisms for victims to bear witness. The first modern commission was the 1983 Argentine truth commission, also known as the National Commission on the Disappearance of Persons (Comisión Nacional sobre la Desaparición de Personas, CONADEP). Since the creation of this commission, over forty others have been established worldwide to investigate massive human rights violations, with more than a third taking place in Latin America.Footnote ²²⁰ CONADEP’s success, which paved the way for similar commissions elsewhere around the globe, was tied to the commitment of civil society organizations.Footnote ²²¹ Grassroots activism not only helped raise awareness of the centrality of the crime of enforced disappearance, it also supported CONADEP’s work while pushing the scope of its mandate. For example, during the commission’s investigative period, the victims’ organizations pushed it to search for the disappeared in different locations. Later on, they also pressed the commission to issue more ambitious recommendations. Once the final CONADEP report, entitled Nunca Más, was released, the victims’ networks helped disseminate the commission’s findings and established them as the authoritative record. Subsequently, these findings led to further accountability by providing the basis for the initiation of criminal cases.Footnote ²²² Subsequent truth commissions have followed the example of CONADEP by moving away from expert and forensic-led truth-gathering processes to emphasizing survivor testimony, civil society participation, and grassroots projects.Footnote ²²³ In fact, CONADEP’s findings led to the Junta Trial (1985), the first criminal process carried out by domestic judges and deploying domestic law that judged the Argentinean perpetrators of massive human rights violations. This process was made possible by the testimonies of courageous survivors and relatives of victims who dared to testify – despite the ongoing risks, given that there was still military opposition, which later led to limiting the prosecutions.Footnote ²²⁴

Chile supplies another pathbreaking example of influential transitional justice practices involving strong grassroots organizations and two truth commissions that elaborated detailed recommendations and produced broad memorialization. Indeed, even during Pinochet’s dictatorship, human rights groups and relatives of the victims documented and called international attention to the pervasiveness of enforced disappearances and demanded these be recognized as human rights violations.Footnote ²²⁵ After the transition to democracy in 1990, a first truth commission was convened. However, civil society organizations, particularly the Cómisión Etica contra la Tortura y la Organización de Defensa Popular, demanded that the government go beyond the institution of a simple truth commission and instead create a new mechanism with a broader scope. The result was the Investigative Commission on Truth, Justice and Reparation (Comisión Investigadora de Verdad, Justicia y Reparación), which was instituted a decade later.

Later on, the truth commissions in Peru and Guatemala marked another milestone by including – though not without shortcomingsFootnote ²²⁶ – the voices of indigenous peoples and rural communities, who had been systematically marginalized from the political discussion despite the fact that they had been targeted by massive violence during the civil conflicts:Footnote ²²⁷ For example, 75 percent of the 69,000 people forcibly disappeared and murdered in the Peruvian conflict had Quechua or other indigenous languages as their mother tongue.Footnote ²²⁸

An even more recent example of how Latin American grassroots involvement produced legal innovations regarding the crime of enforced disappearances comes from Colombia, where it is estimated that there were between 80,000 and 120,000 victims of such crimes. There, in light of the indifference of the state, relatives of the victims and entire communities developed their own legal and fact-finding methods to seek out the disappeared. Among their many successes was their ability to push the government to legally recognize this crime in 2000 and to create a special unit aimed at tracing those whose whereabouts are unknown, the Unidad de Búsqueda de Personas dadas por Desaparecidas (UBPD).Footnote ²²⁹

This normative creativity and legal innovation persists in Latin America, drawing from its immediate political past and giving birth to what some have termed a “justice cascade” in human rights, that is, a sustained imperative for accountability and human rights enforcement in the region and globally.Footnote ²³⁰ The use of human rights discourse helped ensure that these local developments transcended their place of origin and shaped the understandings both of repression and of responses to it globally, leading to the creation of unprecedented legal mechanisms.Footnote ²³¹

The Inter-American Human Rights System

Particularly significant within the Latin American grassroots legal innovations has been the deployment of the Inter-American Human Rights System. Even before the transition to democracy, civil society organizations throughout Latin America valued the role of regional legal bodies, most particularly the Inter-American rights system, which they identified as an important resource that would enable them to amplify their demands in the international arena and to redress the lack of sufficient support from local legal institutions. Members of civil society organizations demanded justice but also wished to generate awareness of extrajudicial killings, gender-based and other crimes by looking for specific legal solutions. Within a few decades, these demands generated jurisprudence, which in turn inspired change worldwide.Footnote ²³²

The Inter-American Human Rights System was born in 1948, when the Ninth International Conference of American States approved the American Declaration of the Rights and Duties of Man as well as the Charter of the Organization of the American States (OAS), which were both aimed at ensuring full respect for human rights on the American continent. The Charter created the Inter-American Commission on Human Rights (IACHR), which was established a decade later in 1959. The Commission, headquartered in Costa Rica since its foundation, has three functions: It receives individual complaints on human rights violations, monitors the situation of human rights in member states by issuing an annual report, and has developed “priority” thematic areas. In 2019, transitional justice became one of these priority areas through the establishment of the Rapporteurship on Memory, Truth, and Justice, which supports “contributions to the fight against impunity and the promotion of comprehensive reparation, truth, and memory in the continent, evidencing the structural links between the past and the present.”Footnote ²³³

In 1979, the OAS also established the Inter-American Court of Human Rights as a regional body with jurisdiction to interpret and apply the American Convention of Human Rights in cases presented by individuals or groups from the member states. The Court, also located in Costa Rica, is composed of seven judges and has jurisdiction within twenty-five of the thirty-five member states of the OAS. The judges meet in at least seven sessions per year, during which they host hearings and issue resolutions. The cases they hear can involve adjudication, in which the Court determines if a state has incurred in international responsibility for violating a right included in the American Convention or other human rights treaties that form part of the Inter-American System. The Court’s decisions can include provisional measures when there is a serious, urgent risk that irreparable harm will occur; can consist of advisory opinions, answering questions posted by member states on the interpretation of the American Convention; and can assess compliance with the issued judgments. The Court’s judgments are binding and not subject to appeal.Footnote ²³⁴ From its very early days, the Inter-American Court of Human Rights has been adjudicating cases involving transitional justice. Its first contentious case, Velasquez Rodriguez v. Honduras, decided in 1988, remains a landmark in jurisprudence, establishing rights for the disappeared and their kin to truth and other reparatory measures.Footnote ²³⁵

The Inter-American Human Rights System was informed by, benefited from, and developed because of the engagement by Latin American civil society. From relatively humble beginnings as a fledgling entity for rights-related adjudication, over time, the IACHR and the Inter-American Court of Human Rights became solidly established bodies on equal footing with their counterparts in other world regions (the European Court of Human Rights and the African Court of Justice and Human Rights), initiating and engaging in continuous dialogue with these other bodies.

The importance of civil society activism in the promotion of the Inter-American Human Rights System can be demonstrated, for example, by the outcomes of Report 28/92, written by the IACHR.Footnote ²³⁶ The report concluded that two Argentine impunity-related laws – the Full Stop Law (Law no. 23,492 of December 12, 1986) and the Due Obedience Law (Law no. 23,521 of June 4, 1987) – as well as the pardon decrees that followed at the end of the 1980s and beginning of the 1990s, were incompatible with the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights. The document recommended that the Argentine government award compensation to the victims of the dictatorship and that it “adopt the necessary measures to clarify the facts and identify those responsible for the Human Rights violations.” The report was used by civil society organizations to fight impunity and sustain the struggle for truth, justice, reparations, and guarantees of non-repetition, thus becoming a milestone in the transitional justice process. When in 1995, an army official, Captain Adolfo Scilingo, confessed on a radio broadcast that he had thrown people out of government jets into the sea, the Center for Legal and Social Studies (CELS) – a leading human rights organization in the country – invoked the Commission’s Report 28/92 to pressure the Argentine justice system to prosecute in order to obtain information about what had transpired.Footnote ²³⁷ While the case would ultimately necessitate transnational action in the form of Spanish intervention, it was enormously consequential in Argentina in reopening the question of accountability and another phase of trials. Although the IACHR issued similar reports in reference to other Latin American countries, the victims’ organizations there did not use these to pressure for accountability.Footnote ²³⁸

The judges of the Inter-American Court have demonstrated a strong commitment to the protection of human rights. In 2006, they ruled that human rights provide a significant basis for normative interpretation and that international human rights law also includes the judgments of the Court, including both the judicial opinions as well as their rationale.Footnote ²³⁹ The Inter-American Court has continuously asserted that international law can operate as a normative constraint on positive law.Footnote ²⁴⁰ Judge Cançado Trindade, for example, offered in 2001:

This understanding embodies an approach to legal interpretation that considers the effective transformation of deeply entrenched structures toward a more egalitarian or democratic society one of the paramount goals of interpretative practice, which has been conceptualized by some as “Latin American transformative constitutionalism.”Footnote ²⁴²

The Inter-American Court of Human Rights has also systematically recognized the centrality of grassroots actors, particularly of victims, in promoting these rights-related changes. Judge Cançado Trindade stated that “it is the International Law of Human Rights that, clearly and decidedly, comes to rescue the central position of the victims, as it is oriented towards their protection and the satisfaction of their needs.”Footnote ²⁴³ Similarly, in other cases, the Inter-American Court pointed out that the state’s obligation to provide reparations to victims constitutes the cornerstone of the system of international human rights protection.

The Transmission of Knowledge: Latin American Usage and Innovation and European Jurisprudence

The jurisprudence of the Inter-American Court of Human Rights, most particularly regarding the crime of enforced disappearance, relied on the American Convention on Human Rights. It has drawn extensively on an innovative continental legal framework that puts human rights and victims at the center, and has also engaged with global and regional legal developments, an array of international conventions, and the use of comparative law across judicial systems.Footnote ²⁴⁴ The Court adopted the judicial practice of interpretation across jurisdictions,Footnote ²⁴⁵ relying in part on the case law of the European Court of Human Rights (ECHR).Footnote ²⁴⁶ For example, it referred to the ECHR’s verdict in Kurt v. Turkey, which emphasized “the fundamental importance of the guarantees contained in Article 5 [of the European Convention of Human Rights] for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities” or the obligation to interpret narrowly any exception to “a most basic guarantee of individual freedom.”Footnote ²⁴⁷

Drawing on these European precedents, the Inter-American Court of Human Rights developed distinctive doctrines regarding the legal dimensions of enforced disappearance, most particularly, concerning the responsibility of the state for crimes committed by individuals who complied with its orders. In one of its seminal decisions, La Cantuta v. Peru in 2006, the Court distinguished its novel analysis from the prevailing understanding of state responsibility whether under international law, international criminal law, or domestic law:

In another seminal decision (Goiburú et al.), the Court turned to highlight the relevance of the context of the crime for its impact on the “increase in State’s international responsibility.”Footnote ²⁴⁹ In this case, the relevant context was “Operation Condor” and the regional collaboration between dictatorships in 1970s Latin America, when “the intelligence services of several countries of the Southern Cone … established a criminal inter-State organization with a complex assemblage, the scope of which is still being revealed today; in other words, there was a systematic practice of ‘State terrorism’ at an inter-State level.” This transnational practice was understood by the court as being in “absolute contradiction to the principal objects and purposes of the organization of the international community in both international bodies and the American Convention itself.”Footnote ²⁵⁰ The Court also stated that it had verified that a “general situation of impunity” had existed at the time, which had “conditioned the protection of the rights in question.”Footnote ²⁵¹ Even after the fall of the dictatorial regime in 1989, the practice of enforced disappearance had “reproduce[d] the conditions of impunity.”Footnote ²⁵² The Court’s recognition of this context became the basis for shedding light on the transnational dimension of the crimes of enforced disappearance, conceived as violations towards all (erga omnes), and therefore triggering also the responsibility of other states, and the international community.Footnote ²⁵³

In its interpretation of the American Convention, and in drawing yet also innovating on what the ECHR had established, the Inter-American Court of Human Rights also concluded as early as 1988 that enforced disappearance constituted a complex offense because it involves multiple ongoing offenses, including systemic denials and failure to prevent, investigate, and punish.Footnote ²⁵⁴ Thus, as explicitly stated in the case of Gomes Lund, it can be defined as “the unlawful detention by agents or governmental agencies or organized groups of private individuals acting in the name of the State or counting on its support, authorization or consent,”Footnote ²⁵⁵ but also as “the refusal to acknowledge the detention and to reveal the situation or the whereabouts of the interested person.”Footnote ²⁵⁶ On this basis, the Court concluded that the state’s refusal “to acknowledge the detention and to reveal the situation or the whereabouts of the interested person” constitutes the crime of enforced disappearance regardless of whether the original act can be attributed to the state or not.Footnote ²⁵⁷ This was a significant shift in the understanding of accountability: Even where states may not be the direct perpetrators of the crimes, they can still be found accountable in terms of their ongoing obligation to investigate the offenses and to search for the whereabouts of those who had disappeared, among other duties.

An added distinctive dimension of the Inter-American Court of Human Rights’ characterization of the complex character of the crime of enforced disappearance was the judicial determination that this violation could be conceived as a continuous offense: an “autonomous offense of a continuing or permanent nature with its multiple elements”;Footnote ²⁵⁸ a “permanent and ongoing” crime.Footnote ²⁵⁹ The crime of disappearance, the Court ruled, begins with the “deprivation of liberty …, followed by the lack of information regarding the whereabouts, and continues until the whereabouts of the disappeared person are found and the true identity is revealed with certainty.”Footnote ²⁶⁰ Here too, the Court elaborated its jurisprudence based on precedents in the ECHR, most particularly, in Varnava and Others v. Turkey, where the ECHR found that Turkey was obliged to provide an account of the fate of disappeared people and that this obligation was of a continuing nature regardless of the passage of time.Footnote ²⁶¹

In line with this comprehensive definition, the Inter-American Court of Human Rights offered what would become a jurisprudential landmark in terms of the characterization and timing of the remedy requested, solving some of the difficulties entailed in questions of retroactivity and impact on the pursuit of remedies in cases after the passage of time. Once the Court introduced its interpretation of enforced disappearances as both a complex and continuous crime, it cleared the way for a ruling that human rights litigation was possible for kidnappings that had occurred decades (in some cases half a century) before. For example, in the milestone case of Heliodoro Portugal, the Court evaluated whether it had jurisdiction to hear a case involving an abduction that occurred at the hands of state officials in 1970, long before Panama had accepted the jurisdiction of the regional human rights court. Notwithstanding the arguable jurisdictional issues as well as the passage of time, the Court concluded that the offense at stake should not be considered as merely involving detention or loss of life, but rather that “the deprivation of liberty of the individual must be understood merely as the beginning of the constitution of a complex violation that is prolonged over time until the fate and whereabouts of the alleged victim are established.”Footnote ²⁶² For the Court, the violation, in this case, was considered to be ongoing until the victim’s remains were identified in 2000, even though this was three decades after the abduction.Footnote ²⁶³ The Court further observed that “the general obligation to ensure the human rights embodied in the [American] Convention [on Human Rights], contained in article 1(1), gives rise to the obligation to investigate violations of the substantive rights that should be protected, ensured or guaranteed….”Footnote ²⁶⁴ It also established that the extended passage of time in and of itself demonstrated the need for accountability, and ultimately set the basis for supranational judicial intervention of the sort provided by the regional rights court, as it pointed to the political failure and/or deeply rooted pathology of impunity that justifies judicial review as both plausible and legitimate.Footnote ²⁶⁵

The Transmission of Knowledge: European and International Law Usage and Innovation on Latin American Jurisprudence

The earlier discussion has demonstrated how the Inter-American Court of Human Rights has both used European jurisprudence to inform its decisions and subsequently introduced important innovations that developed it further. To what extent have international law and regional bodies, such as the ECHR, in turn, learned from the jurisprudence generated in Latin America?

There are numerous illustrations of such cross-judging taking place. For example, in Margus v. Croatia, the ECHR, reviewing atrocities that had been committed in 1991 during the Balkan conflicts/Croatian war, relied on an amnesty doctrine that originated in the Inter-American Court of Human Rights.Footnote ²⁶⁶ Following the logic of the Inter-American Court in Barrios Altos v. Peru, the ECHR found that the Croatian amnesty law constituted an illegal exercise of impunity, because a blanket amnesty aimed at shielding perpetrators from prosecution would be in contravention of multiple provisions of conventions of human rights, including the rights to investigation, truth, and justice:Footnote ²⁶⁷

The European Court seemed to have followed the logic of the IACHR, which had ruled:

Relying on these decisions and recommendations, as well as on a vast array of international law materials, the ECHR thus concluded that a significant doctrine had developed against such amnesties being applicable to violations of human rights of the sort at issue in the case it was reviewing.

With regards to the crime of enforced disappearance, there are various examples of norm transfer from Latin America to Europe and international law relating to the passage of time and issues of retroactivity. In several cases that shared characteristics with Latin American disappearances, the ECHR explicitly invoked the Inter-American Court of Human Rights and the UN Human Rights Committee. For example, in Varnava and others, a case involving the disappearance of Greek Cypriots during the 1970s where adjudication occurred after a considerable passage of time (as discussed earlier), the European Court noted the relevance of dealing with the allegations of denial of justice or judicial protection “even where the disappearance occurred before recognition of its jurisdiction.”Footnote ²⁷⁰ To make its point, the European Court relied on instances from the Inter-American Court as well as the Inter-American Commission of Human Rights dealing with the international law on enforced disappearances. It declared enforced disappearance as a continuing actFootnote ²⁷¹ and stated that the state had a procedural obligation to investigate.Footnote ²⁷² As we saw earlier, this declaration was later taken up by the Inter-American Court, which used it to coin a new doctrine regarding the particular character of the crime of enforced disappearance that entails that “[t]he State still has an obligation to investigate until it can determine by presumption the fate or whereabouts of the person.”Footnote ²⁷³

Somewhat similarly – though without explicitly mentioning the Inter-American Court – the European Court ruled in Timurtaş that Turkey’s investigation of disappearances had been “inadequate and therefore in breach of the State’s procedural obligations to protect the right to life.”Footnote ²⁷⁴ It also found, as the Inter-American Court had done before, that the delay involved in the investigation of the case should be considered part of the basis for judicial intervention:

The European Court was equally inspired by the Inter-American Court and the Latin American Human Rights System when it began insisting on the relevance of context, for example, to justify European jurisdiction over the so-called “war on terror.”Footnote ²⁷⁶ Among other things, the Inter-American Court has helped elaborate new duties of prevention and accountability, investigation, repair, punishment, and other remedies, such as the erection of monuments or establishing museums.Footnote ²⁷⁷ What is still unclear, however, is whether the Inter-American precedents, which have already impacted the international law of state responsibility, would also recognize the duties of the state not only as deriving from the initial offense but also as arising because of the state’s subsequent failure to act.Footnote ²⁷⁸

Thus we can see that there is an evident connection between the jurisprudence of the Inter-American Court and the ECHR, with both sharing an understanding of the central features of the crime of enforced disappearance, as well as of a range of other related issues regarding state responsibility and the existence of a “right of accountability” that can override doctrinal obstacles regarding important questions such as standing, state attribution, evidence, or exhaustion of local remedies. The result is the continuous expansion of state responsibilities deriving from the protection of the core human right to life.

Furthermore, the influence of doctrines and practices originating in Latin America is felt beyond the regional human rights bodies, such as the ECHR, as it penetrates international organs as well. For example, there is an emerging consensus in the UN Human Rights Committee regarding state responsibility and duty of accountability for human rights violations.Footnote ²⁷⁹ Relatedly, the International Court of Justice and the International Criminal Court have been conceptualizing state responsibility for past human rights abuses, including enforced disappearances, equally in terms of the duties to investigate, prosecute, and remedy.Footnote ²⁸⁰ The text of the International Convention for the Protection of All Persons from Enforced Disappearance (2010) builds on the Inter-American Convention on Enforced Disappearance of Persons (dated 1994),Footnote ²⁸¹ defining the offense as “the arrest, detention, abduction or any other form of deprivation of liberty that is perpetrated by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty.”Footnote ²⁸²

Norm transfer, however, is not only operative on the jurisprudential and institutional level. The inputs from the Inter-American System and the normative, activist, and jurisprudential work regarding enforced disappearances have proved pivotal to the exploration of international crimes perpetrated in the Mediterranean in relation to asylum seekers. The UN Working Group on Enforced and Involuntary Disappearances, originally promoted by FEDEFAM, currently focuses on the crimes in the Mediterranean Sea and characterizes disappearances in the context of migration as “an involuntary but direct consequence of the actions of the State.”Footnote ²⁸³ Genuinely global cross-knowledge enables the drawing of these connections, and many more.

Conclusions

Section 6.3 has drawn attention to the role of the Global South, specifically Latin America, in the development of international human rights and transitional justice, most particularly, the legal emergence of a core international crime that has been at the crux of the story of human rights violations both in the region and globally: enforced disappearances. This grievous offense offers a remarkable landmark for the construction of a truly global history of human rights and transitional justice and introduces “an alternative account to the prevailing narrative of the evolution of the human rights idea and movement, one which restores Latin America to its rightful place having a central and leading role in developing a proper framework, which has then been diffused throughout the world.”Footnote ²⁸⁴

Employing the concept of “ecology of knowledge” and observing “cross-judging,” Section 6.3 demonstrated that retrieving Southern knowledges does not necessarily involve disregarding or displacing the contributions of the North, but rather fosters fruitful dialogue in order to elaborate a comprehensive epistemic understanding. In this regard, the section explored how the Inter-American Court of Human Rights learned and incorporated inputs from the ECHR and international law, innovated on them, and in turn influenced European and international norms.

Finally, the section also sheds light on the role of civil society actors and grassroots organizations in pushing forward normative developments, which in turn have been put into force through practices in both the domestic and the international arena. The study of the example of enforced disappearance – a crime against humanity – revealed that the development of this offense, and the related jurisprudence, was largely impelled/driven by the work of NGOs as petitioners, or by lawyers for victims’ families, after successive administrations failed to respond to wrongdoing. Further research is needed to explore the uneven knowledge distribution and silenced contributions in the normative transfers from the regional bodies to each individual state and from these states to the regional bodies.