The recent publication of the book “Against the current. An essay on Jaime Malamud Goti, the Trial of the Juntas and the processes against humanity (Ariel)” brought to the present a debate that seemed definitively closed: the legal and moral validity of the principle of due obedience, the elaboration of which gave support to a of the laws, along with that of Punto Final, the most controversial of the Raúl Alfonsín government.
It is a book that is in part dedicated to paying homage – and doing justice – to Jaime Malamud Goti, a prominent jurist who with Carlos Nino formed the duo that Raúl Alfonsín called “the philosophers” and who made a decisive contribution to architecture. legal that gave rise to the prosecution of state and guerrilla terrorism.
“The most complex and risky judicial operation in Argentine history and one of the most complex in the history of humanity,” said Carlos Pagni during the presentation of the book at the Faculty of Law (UBA), in which the journalist defined the Morgenstern’s work as “a reconstruction of the relationship between politics and human rights.”
In the first part of the book, Morgenstern, current legal secretary of the Supreme Court of Justice of the Nation, in the capacity of Judge Carlos Rosenkrantz, dedicates himself to reviewing the performance of Malamud Goti, highlighting something that is not very common among some intellectuals. who go through politics and then from their ivory tower dedicate themselves to belittling it: he put his body to the bullets when, starting in 1976, he dedicated himself to defending people persecuted by the military dictatorship.
In the strictly legal aspect, in addition to being, together with Nino, the one who put in the role of law the not only electoral promise of Raúl Alfonsín to judge the crimes of terrorism on both sides, Malamud Goti was the author of the laws of Due Obedience and Punto Final and in 1987, fiscal attorney before the Supreme Court of Justice.
Trials limited in scope and time
Contrary to what is pointed out by some sectors that saw it as a surrender in the face of military pressure, according to Morgenstern, with these laws Alfonsín also complied with what he had announced since the campaign, that is, to make judgments limited in scope and in time so as not to spend twenty years investigating, prosecuting and imprisoning lower-ranking military personnel who acted following orders.
To do this, he used the principle of due obedience, the discussion of which occupies the second part of the book, with the idea that it is the basal stone on which a structure as vertical as rigid as the one that supports any military force is based. Obedience, on the other hand, that does not imply compliance with aberrant orders (torturing, kidnapping children, raping women).
Argentina went much further in prosecuting crimes against humanity
The book transcribes in full a memo that Nino and Malamud made to Alfonsín between 1982 and 1983, with what was known as the three levels of responsibility. “I argue in the book that (the sanction of these laws) was not a matter of cowardice or a capitulation of Alfonsín in the face of the events of May 1987. Because Alfonsín had already announced it in the electoral campaign, which is why it is not “It is true that they took it from Alfonsín through some measure of the military forces,” Morgenstern told this newspaper.
In 2001, in the “Simón” case, federal judge Gabriel Cavallo declared the unconstitutionality of what he called impunity laws and ordered the prosecution and preventive detention of Federal Police non-commissioned officer Julio Héctor Simón. That decision confirmed by Chamber II of the federal chamber unleashed the second wave of prosecutions for crimes against humanity. Cavallo equated these laws with the self-amnesty law enacted in September 1983 by the dictatorship.
However, the law of Due Obedience had been validated by the Court in the Camps ruling, with the dissent of Baqué, 18 years before the High Court reversed its own jurisprudence in the “Simón” ruling. That striking turn by the Court is analyzed in the book.
Compared to other experiences such as Spain and South Africa, Argentina went much further in terms of prosecuting crimes against humanity. “Malamud always emphasized that trials did not have value in themselves, but rather were a means to reestablish legality and justice, but above all to consolidate the creation of political communities. And he always said that some countries with enough wisdom went instead to trials, or in addition to trials, to truth commissions and forgetfulness. So sometimes, as in families, forgetting is useful to move forward, to not stay permanently in the past.”
Presences
During the presentation of “Against the Current” in the Aula Magna of the Faculty of Law (UBA), in addition to the author, Malamud Goti and Pagni himself, the Minister of the Supreme Court Carlos Rosenkrantz, the dean of that house of seniors, were present. studies, Leandro Vergara, the professor of Criminal Law, Daniel Pastor and the historian Pablo Gerchunoff.
On June 12, Morgenstern and his book will be at the Di Tella University and on the 13th of this same month at San Andrés.
AGAINST THE TIDE
Federico Morgenstern
Editorial: Ariel
pages: 384
Price: $25,900
