Transitional Justice, Democratization and the Politics of the Death Penalty in Argentina

Abstract

This chapter locates the abolition of the death penalty in Argentina in the context of the country’s processes of transitional justice over the course of the last three decades. Following the transition to democratic government in 1983, the abolition of the death penalty took place during two different stages and in two connected but distinct political contexts. First, in the immediate aftermath of the democratic transition the death penalty was abolished for ordinary crimes as part of a broader set of institutional and legal reforms. Second, in 2008 the death penalty was fully abolished for all crimes for members of the armed forces in both peacetime and in war. The abolition was again part of a broader set of reforms of military jurisdiction that constituted the culmination of a drawn-out and contentious process since the early transitional period of imposing civilian control over the military in Argentina.

In the case of Argentina therefore, the abolition of the death penalty took place over an extended period of time and was not the result of an explicit and sustained abolitionist government policy since the transition to democracy. Yet, as this chapter demonstrates the prolonged process of abolition of the death penalty for all crimes and in all circumstances in Argentina was deeply embedded in broader political dynamics of transitional justice and institutional reforms. The abolition of the death penalty in the immediate transition to democracy was intended to signal the commitment of the new civilian government to a break with the repressive laws and practices of previous political regimes. The reform of the military jurisdiction that brought about the full abolition of the death penalty in Argentina was a result of protracted efforts to strengthen civilian control over the military.

This chapter is divided into three main parts. The first outlines the historical context of the death penalty in Argentina. The death penalty has been in force periodically in Argentina since independence, though applied very infrequently, and it has been legally abolished during prolonged periods. The second part examines the transitional justice policies adopted and criminal justice reforms implemented during the initial transitional period, including the abolition of the death penalty in 1984 for common crimes. The third part traces, on the one hand, the evolution of transitional justice over time as momentum is lost during the 1990s, and, on the other, more recent developments surrounding the prosecution of individuals for past human rights abuses in Argentine courts. It explicitly links these recent post-transitional justice trends with a detailed analysis of the reform of the military code of justice that eventually led to the abolition of the death penalty in military jurisdiction. The chapter concludes with some brief reflections on the broader socio-political context and its implications for the continuing repressive character of the Argentine criminal justice system and the current status of the death penalty in the country.

Keywords: Argentina, Transitional Justice, Democratization, Death Penalty