Interpreting Victim Testimony:
Survivor Discourse and the Narration of History[*]

Karen Slawner
Department of Political Science
The University of Toledo

INTRODUCTION

Accounts of horrific human rights abuses have dramatically increased since the Second World War. The Nuremberg Trials inaugurated official consideration of this problem, and continuing especially in the last twenty-five years, the extent of evil human beings are capable of committing towards one another in the name of an ideal or a political campaign has been brought to the attention of the world. Through personal memoirs, novels, poetry and reports issued by governmental and non-governmental organizations have alerted international observers to numerous cases of torture, disappearance and murder. Often at personal risk and always at great emotional cost, survivors have come forward to bear witness to their experiences[1]. These accounts of survivors have been used by activists, politicians and scholars in variety of ways: to persuade states to alter their behaviour, to alter the foreign policies of countries with respect to abusive regimes and to measure and compare human rights abuses across time and between states. While laudable, such uses are insufficient. In addition to these measures it is also necessary that witness testimony contained in contemporary memoirs, human rights reports, and truth commissions, describing the abuses of regimes worldwide, be studied as a type of counter-memory or counter-history[2] that contradicts the perpetrators' grand narratives -- the "war against Communism" and "national security" being the most common in recent decades -- and the meta-narratives of those who rely on the perpetrators' history and the official one. Survivor testimony, with its relentless focus on tortured, broken bodies, demonstrates the duplicity of the perpetrators' justification that they served a high and noble cause.

The purpose of this article is two-fold. First, it consists of an investigation into the mechanics of how history comes to be constructed as a narrative about "great men" and their "great deeds." Secondly, I argue that accepting this construction of history results in overlooking the material effects of those deeds on ordinary people, whose lives, albeit not the stuff of biography, are nonetheless precious, and should not be reduced to an abstract figure documenting the number of victims in their thousands. Consequently, I take the unusual step of studying in detail the survivors' descriptions of their experiences of torture. This analysis identifies the body as the site of the production of history and thereby jams the traditional mechanism of history-writing. This jamming should alter our understanding of history, and therefore also of the present and the future. Situating the body as the site of history requires also that we pay attention to it in the present and ask how we can work to stop contemporary torture and prevent it in the future. Survivor testimony is a genre of historical document that must be studied in the spirit of Walter Benjamin's warning that "even the dead will not be safe from the enemy if he wins. And this enemy has not ceased to be victorious." [3]

The importance of studying counter-history is dramatically highlighted by the case of Argentina. During the "Dirty War" (1976-1983) the police and especially the military tortured and killed many thousands of unarmed civilians in the name of national security. Further humiliation has been added to their pain and that of their families by the pardoning of the perpetrators by the democratically elected presidents Raúl Alfonsín and Carlos Menem. The pardons, issued in the face of military pressure and threats of coups, lent public legitimacy to the military's claims that its behaviour was warranted and justifiable because its interpretations of reality and national security were correct. As will be discussed below, the government rescinded early attempts at prosecuting the military and declared that the torturers must not be arrested because they were "just following orders." Survivor testimony must be seen as an act of political resistance to the dominant historical narrative perpetuated by the military and the government.

I will first briefly discuss the concept of counter-memory as a response to dominant historiographic practices. Secondly, I will analyze the historical interpretation advanced by the Argentine junta and by the government which succeeded military rule and then counter-pose their rationalizations of their actions to the account of history presented by taking victim testimony seriously as a historical document in its own right. In conclusion, I will argue that the consideration of victim testimony is vital not only for historians but is crucial for the prevention of the return to power of abusive regimes. For when the perpetrators' narrative dominates and is accorded public legitimacy, a significant obstacle to the resumption of abusive behaviour is removed.

Countering History

The narration of history is always already an interpretation.[4] Whether narrated by the "professional" scholar or by "amateur" eyewitnesses, historical discourse is always situated within the metaphysical, cultural and political understandings of the narrator. In Hayden White's words, "There is an inexpungeable relativity in every representation of historical phenomena. The relativity of the representation is a function of the language used to describe and thereby constitute past events as possible objects of explanation and understanding."[5] This understanding of the narration of history is advanced in contrast to traditional historiography on the nineteenth century model which considered itself to be "neutral" social science, capable of reporting "facts" denuded of all "interpretation." In this classical model, which persisted into the twentieth century, historians believed themselves to be capable of abstracting themselves from their own historical context. Indeed, such abstraction was deemed necessary for access to truth, defined as objectivity. I would argue also that this demand for "objectivity" is also what motivates the contemporary failure of even those concerned about human rights abuses to study the discourse of torture. Scholars gingerly step around it, referring the reader to Amnesty International reports, in fear that there work will not be considered "academic" and will fall into the fuzzier, subjective, realm of advocacy not appropriate for the university. The social sciences, notwithstanding occasional nods towards postmodernism, are reluctant to give up their claims to objectivity.

The rigid distinction between "fact" and "interpretation" cannot be sustained, however. The "facts" of an event enter into interpretation as soon as they enter into human speech. Jay reminds us that there is "virtually no historical content that is linguistically unmediated and utterly bereft of meaning, waiting around for the later historian to emplot it in arbitrary ways."[6] Any given historical event is subject to multiple meanings, depending on the cultural context of the observer. For example, the Persian Gulf War was "about" at least four issues: oil supplies, world order, Iraq's postcolonial territorial claims, and jobs for United States nationals. Each of the narratives carries historical and contemporary political resonances.[7] The historian (understood in a general sense) thus adds her discourse to the already existing discourse that is understood to be factual.

Despite the existence of competing narratives, it is usually the case that one narrative tends to dominate. To continue with the example of the Gulf War, it is clear that it is only in Iraq and perhaps in its few allied states that the war will be represented as having been "about" the unjust distribution of land after British decolonization. In the rest of the world, the war will be represented as "about" the aggressive imperialism of an evil dictator. Thus the deaths of thousands of Iraqi civilians will enter European and American history books as "collateral damage" required to restore the status quo and deter further aggression. This historical narrative will only perpetuate the "Orientalist" discourse so eloquently described by Edward Said, with which the hegemonic west has usually described the "inscrutable East" with catastrophic consequences for the inhabitants of the region.[8]

While it is true that history is written by the winners, resistant narratives -- counter-memories or counter-histories -- have always existed alongside hegemonic historiography.[9] The losers have never been completely silent, although their manner of entering into discourse has often been overlooked. Thus in order to take account of counter-histories historians and theorists have recently begun to study enslaved peoples' songs, women's diaries, and the works of subaltern groups of various kinds. Postcolonial critics, diasporists, African-American theorists and feminist theorists have analyzed these counter-narratives and opened up critical spaces for the retelling of history. Their work has served to expose the institutional processes whereby historiography has constituted marginalized, subaltern identities, then created the conditions under which the abjected groups can represent themselves in the public sphere. Changing the relations of representation permits the objects of discourse to become subjects possessing political agency.

In the case of the Argentine Dirty War we can identify two institutions that have dominated the production of historical representation: the military and the democratically elected government. In the face of this hegemonic discourse, resistant narratives have been propounded by human rights activists, but above all by the victims. Retelling history from the victims' perspective is an act of resistance against the victimizers that transforms them from being mere objects of the regime's terrible campaign to participants in the telling of their country's history. Their testimony destabilizes the perpetrator's claims to justice and legitimacy.

Argentina's Dirty War and the Judicial Aftermath

Between 1976 and 1983 Argentina suffered under military dictators who carried out a campaign that came to be known in Argentina and abroad as the "Dirty War" due to the extent of human rights abuses committed. Under a policy called the "Process of National Reorganization" or the "Proceso," successive juntas waged war against armed guerrillas and unarmed civilians.[10] The guerrillas were quickly vanquished yet the torture, disappearance and murder of civilians continued for several more years thereafter. Estimates of the number of people killed by the military range from 9,000, the figure cited by the Argentine Truth Commission, to 15,000 cited by various human rights groups. Thirty thousand more were imprisoned under inhumane conditions, including extreme torture, and half a million citizens were exiled.[11] Even while the military was still in power the Organization of American States documented the extent of human rights abuses in a report issued after an investigation conducted in 1980.[12] During the same period Amnesty International, Americas Watch, and the Lawyers Committee for International Human Rights all issued reports detailing the repression, torture and disappearances perpetrated by the military and its death squads.[13] After the return to democracy the newly elected president Raúl Alfonsín formed the "National Commission on the Disappeared," (known by its Spanish acronym CONADEP, that published the report for which it is best known, Nunca Mas) to investigate the abuses conducted under the prior regime. The commission performed a fairly extensive investigation, reviewing the files of human rights groups, interviewing thousands of people and inspecting secret prisons and cemeteries.[14] Its report, as well as reports published by above-mentioned non-governmental organizations and published personal memoirs, contain extensive transcriptions of witness testimony.

Accounts by survivors of Argentina's Dirty War must be positioned against two hegemonic narratives, the doctrine of national security propounded by the military while in office and during the trials which followed its ouster, and against the pardons issued by presidents Raúl Alfonsín and Carlos Menem that declared that the perpetrators of human rights abuses could not be prosecuted because they had been following orders. The testimony of the victims, while ultimately futile in the courts of law, is a counter-narrative to the interpretation of history that has come to be granted public legitimacy through the act of pardonning.

1. The Dirty War

The first military junta took power in a coup d'état following a period of civil unrest and guerrilla insurrection. The junta justified its rule by appeals to national security doctrine in discourse couched in spiritual and metaphysical terms in addition to the more predictable references to guerrilla violence. A consensus exists among North and South American scholars that national security doctrine was the ideology behind the Dirty War.[15] While in office, members of the juntas and top-ranking officers explained and rationalized their behaviour through speeches and interviews, and during the trial which followed their ouster. They repeatedly stated that the military held national security doctrine to be its guiding ideology.

It is important to trace the concrete inter-relationships between the people who developed the doctrine, which perhaps reached its apogee in Latin America in the sixties and seventies, and those who governed the country. In fact, they were often one and the same. National security doctrine was transferred from the battlefield to academic settings where it was refined and subsequently put into place in the governmental realm. The military rulers of the Southern Cone countries usually had attended their country's military colleges as students and their careers frequently included teaching positions at those same colleges before taking control of the state. For example, prior to leading the coup against Salvador Allende, Augusto Pinochet taught at the Chilean War College where he wrote an exposition of the doctrine entitled Geopolitica. On the third anniversary of the coup, Pinochet declared that national security doctrine was the official ideology of Chile.[16] The Brazilian leader General Carlos de Meira Mattos taught at La Escuela Superior de Guerra where he also developed a version of national security doctrine (Lopez, 1986, 77). Many members of South American militaries had also studied in the United States at the notorious School of the Americas and learned the U.S. military's concept of national security, which they adapted to indigenous circumstances.[17]

The doctrine is linked to the so-called social science of geopolitics. Based upon theories developed in the earlier part of the century, contemporary geopolitics "accepts the basic concept of the state as a living organism that responds to geographic, political, military, economic, demographic, and psychological pressures in its struggle to survive in competition with other states."[18] The state is viewed as an organic entity that must grow in order to be healthy. This organic dimension of the concept is what is supposed to give the state its legitimacy, as it presents the state as "natural" and therefore destined to exist and to grow, as an organism naturally would. The organic analysis, reminiscent of medieval theories of sovereignty, engenders a situation where the leaders come to believe that they personally embody the state.[19] The state is consequently reified and opposition to state policies becomes treasonous. Opponents of governmental policies are identified as enemies not just of the government in power, but of the nation as a whole.

The second concept of the doctrine is security, which is held by the military leaders as the paramount value.[20] It is only after security has been assured that pursuit of other values, such as freedom and democracy, is possible. According to the doctrine, the values and rights espoused by liberalism lead to "decadence, licentiousness, demagogy, inefficiency, anarchy and corruption."[21] Military leaders argue that rights and freedoms are not universal but are gifts given by the state to its citizens only when merited and can be suspended when necessary. Individual security must be always be subordinated to national security. Under this conception of security the possible identifications of the enemy are virtually limitless, as it is the leaders who define the national goals and determine who is opposed to them. Anyone who threatens the security of the state, either through opposition to the government, its purported moral standards, or its economic policies becomes an enemy to whom the laws of war apply.[22] And it is a total war, with no assertion of neutrality possible. One is either is an enemy or a patriot.

If national security doctrine was the ideology, then counter-insurgency was the strategy. While first Prussian then German influence on Argentine military training was crucial prior to World War II,[23] French and especially American national security and counter-insurgency doctrine increasingly dominated the post-war period. French military missions to Argentina in the 1950s were responsible for importing doctrines of counter-insurgency the French had developed in Vietnam and Algeria.[24] This doctrine particularly influenced younger Argentine officers who had been exposed to it during their time at military school.

Roger Trinquier's influential theory of counterinsurgency is representative of the French doctrine. Drawing upon his experience fighting revolutionary forces in Algeria he argued that military strategists must realize that they are facing a new, modern type of warfare and must develop new tactics to wage it.[25] Modern warfare differs from the traditional kind because it is now "an interlocking system of actions -- political, economic, psychological, military -- that aims at the overthrow of the established authority in a country and its replacement by another regime."[26] Because rebels take advantage of conflicts existent in the country under attack, the war must be fought in the religious, social and economic domains, in addition to the customary battlefields.

The two most important military characteristics of rebel forces are their clandestine organization, which makes their suppression so difficult, and their weapon of choice, terrorism, which allows them to wage war with limited resources (Trinquier, 9). The destruction of their organization requires extraordinary measures because of the secrecy with which the rebels operate and the unconventional tactics they use. According to Trinquier, the captured terrorist must be treated differently from the criminal or even the captured soldier, because of the dishonourable nature of his activities and because his most important information is knowledge of his organization.[27] Unconventional warfare must be met with unconventional responses. How is the army to identify its enemies? It is very difficult to do so when they are not wearing uniforms and in the absence of an official declaration of war. In Trinquier's view, the difficulty can be surmounted be stating simply that "any individual who, in any fashion whatsoever, favors the objectives of the enemy will be considered a traitor and will be treated as such."[28]

Transformations in international politics during the nineteen-sixties resulted in a shift of influence on Argentine military training, from France to the United States. The French "lost" Algeria, despite the efforts of Trinquier and his colleagues. The counter-insurgent war they were waging in Vietnam was taken over by the United States. In the throes of Cold War paranoia and in response to its experience in Vietnam the U.S. also developed and refined a counter-insurgency doctrine and attempted to export it around the western hemisphere.[29] Klare and Aronson counted 4,017 Argentines who were trained under the Military Assistance Program and the International Military Education and Training Program between 1950 and 1979 (Klare and Aronson, 48). Members of the Argentine military did not hesitate to give credit to their trainers. Writing in the newspaper La Razon (reprinted in Nunca Mas), General Ramon Camps stated:

Argentina of the sixties and seventies was characterized by a period of social unrest in which the Cuban revolution was viewed by many, especially the young, as an attractive option. The Vatican had radically transformed Catholic practice, discomfiting many conservative Argentines. The shock was compounded by the election of Salvador Allende in Chile. The Argentine right and the military began to see subversives everywhere.[30] At the same time, the national security doctrine being taught in the military schools, including counter-insurgency tactics, provided a procès de mise en acceptablité, that is, a process of "making acceptable what is not considered normal, decent, or adequate in the first place."[31] The doctrine provided a justificatory ideology for the military's practices of torture and disappearances.

The military junta that came to power in 1976 viewed itself as being engaged in a war against subversion. This despite the fact that they refused to declare war officially against the guerrillas because this would have required ascribing a degree of legitimacy to the movement and adherence to international laws of war.[32] The war the officers believed they waged was aggrandized to near mythological proportions wherein Argentina was the privileged battle site for World War III. The right in Argentina believed itself to be under attack by guerrillas who were acting under orders from Moscow and especially Havana.[33] During the trial of the junta members that followed the overthrow of military rule, the defendants argued that the armed forces had defended Argentina from a terrible threat; they claimed that a virtual state of war existed and that they had been facing 30,000 guerrillas.[34] The junta believed it was the sole defence against the defeat of Western and Christian values in the face of devastating onslaught from the atheistic communists.

2. The junta speaks and the victims respond

An examination of the statements issued by the military immediately after taking power reveals how their European and United States training combined with indigenous Latin American geopolitical concepts were adapted to produce a doctrine that imagined Argentina as an organic state threatened by the disease of subversion, a disease perceived to be a weapon in the on-going third world war. The doctrine provided the rationale for the demonization of and utlimately the murder of thousands of people.

The analysis of the military's rationale must begin with the speech given by General Videla immediately following the coup which explained the junta's stated reasons for overthrowing the civilian government.[35] According to the armed forces, "all constitutional mechanisms" had been "exhausted," and no possibility for "rectifications" or "recovery" existed within the current framework, making it necessary for the military to "put an end to the situation." The situation is described as "anarchy and dissolution," which the previous government had been unable to control due to the "total absence of ethical and moral examples." The general described Argentina as society plagued by immorality and disorder that only the military was capable of rectifying.

The general claimed that the decision to stage the coup was taken to fulfill the goal of "ending misrule, corruption, and the scourge of subversion." However, it is "only directed at those who are guilty of crimes or abuse of power," "without discrimination."[36] He promised that the military's rule will be "imbued with a profound national spirit and will only respond to the most sacred interests of the nation and of its inhabitants." The Argentine state is not only reified, but sanctified, and individual inhabitants are mentioned only as an afterthought to the interests of the nation itself.

The armed forces also issued a call to the citizenry, declaring that "there is a battle post for each citizen." The public was warned that sacrifices will be necessary in the course of the "rigorous task of eradicating, once and for all, the vices which afflict the nation." Dissent was associated with moral failing; consequently the war will be fought "without quarter." This war will be directed at open and secret subversion, demagoguery, corruption, venality, criminality, and, "any opposition to the process of restoration which has been initiated." Only those who initiated the process can determine who is opposing it, because the junta deemed itself the embodiment of the nation and the state.[37]

A few weeks after the coup, General Videla announced that Argentina was entering a new historical cycle (suggesting the organic rhythms of nature) that represented more than the "mere overthrow of a government." The junta represented itself in religious terms and considered itself capable of inaugurating a new spiritual period within a sanctified state.[38] The right in Argentina imagined a political community that was ordered, moral, obedient, Western and Christian. The myth appealed to a time, prior to the introduction of popular democracy, when these values supposedly dominated. The introduction of democracy, which coincided with massive immigration of non-Spaniards at the end of the nineteenth century (Italians and Eastern Europeans predominated), was deemed to be responsible for the decline of Argentina.[39] The new immigrants, with their anarchist, communist, democratic and non/anti-Christian beliefs had disrupted the allegedly utopian time of the post-independence period.[40] The image of Argentina as a nation of landed elites was undermined by the growing industrialization and proletarianization of the urban areas. In announcing a new "historical cycle," the junta sought to re-establish this time, to re-enact the originary myth of the Argentine nation. In doing so they demonized the groups they perceived as having threatened the nation and labeled them all subversives: workers, democrats, human rights activists, progressive Catholics, Jews, socialists, Jehovah's Witnesses, and anyone who objected to the process of demonization.[41] The destruction of all these "subversives" would usher in the new historical cycle, after which civil and political rights could be restored. The restoration of "order" was, however, the first priority as it would serve to anchor Argentine identity in the mythical past.[42]

There is no disputing the fact that Argentina was suffering from numerous armed attacks by admittedly leftist groups. However, the threat was perceived to have been coming from more sources than simply the guerrillas. The junta developed what Graziano calls the Myth of the Metaphysical Enemy. The enemy was ubiquitous and waged war in nefarious ways. In Admiral Massera's words: "During the last thirty years a true world war has been developing, a war that has man's spirit as its battleground."[43]

The identification of the human spirit as the site of battle resulted in providing the military with enormous leeway in defining the enemy, such as the following in Marcial Castro Castillo's handbook of military ethics:

It is important to note how little the definition of the enemy reflected the real armed threat to the state. Rather, it reveals the military's preoccupation with the "true" nature of Argentina, horribly illustrated by an occasion when a severely disabled student who was restricted to a wheelchair was abducted by the military. When asked by journalists how the young woman could possibly have been a terrorist, General Videla responded, "a terrorist is not just someone with a gun or a bomb, but also someone who spreads ideas that are contrary to Western and Christian civilization."[45]

This broad definition of subversion and terrorism produced by the military resulted in the arrest, abduction, torture and disappearance of people who had never participated in violent or armed attacks. A favoured target was academics. Over three thousand university professors were dismissed from their posts and many of them were arrested on charges of subversion during the first six months of military rule.[46] Amnesty International reported on the disappearances of two hundred intellectuals and students. Another favoured target was journalists who dared to report on disappearances or criticize the regime in any way. Psychiatrists were also considered dangerous because they were believed to support subversion, offer criticism of society and encourage "free thinking."[47]

The victim testimony collected by the OAS, Amnesty International and indigenous human rights organizations acted as a counter-narrative or counter-history to the interpretation of history and reality advanced by the junta to the country at large and to the international community. The survivors' accounts dramatically undermined the government's claim to be governing for the good of the people. The descriptions of pain-wracked bodies revealed that the supposed quest for national security actually resulted in the destruction of the physical integrity of the people who were supposed to be protected from a dangerous threat.

Jacobo Timerman, perhaps the most famous of the "subversives" tortured and imprisoned by the military published his memoirs after an international outcry secured his release. The book was published while the military was still in power. He was never an armed guerrilla, nor even an arm-chair Marxist. He was the publisher of the newspaper La Opinión, who initially publicly supported the military take-over but later condemned its abuses and ultimately became one of its victims. He described his treatment at the hands of the military:

The sheer number of descriptions of torture, in all their gruesome detail, demonstrated the hypocrisy of the regime's claims to be protecting security while violating the bodily security of thousands. The military frequently abducted persons whom they believed to be dangerous, but on the flimsiest of evidence, such as being listed in the address book of a person previously abducted. Numerous completely innocent victims, who had never engaged in activity that could remotely be considered political, let alone subversive, were abducted, tortured and murdered. In one case, the military arrested and tortured a person who had merely lived in a town in which an attack on an army regiment had occurred. The military claimed he had planned the attack, but as he describes the events in Nunca Mas, he had no knowledge even of the vocabulary used by the guerrillas:

After almost a year of incarceration and torture, the victim, Antonio Horacio Miño Retamozo finally discovered the reason for his capture:

The relentless concentration on the physical body of the individual victim also resisted the regime's "metaphysical" and spiritual claims of saving the soul of the Argentine nation. In reference to a similarly abusive regime in Chile, Hernan Vidal suggests that the concentration on the body has an important political effect.[51] In response to the military's "metaphysical" claims, in which "human totality is reduced to a spirituality animated and dignified exclusively by the divine," studying the details of torture

The victims' accounts also demonstrate the falsity of the junta's claim that Argentina's enemies were lacking in ethics or morals. In the most extreme circumstances of the secret prisons, where the guards required few excuses to beat prisoners, the inmates helped one another:

In response to the regime's claim to be guarding Christian virtue, the victims' testimony present bodies crucified by that very regime.

It is important to note also that Jews suffered disproportionately under the junta. Nazi sympathies were prevalent in the Argentine military and were combined with a virulently distorted version of conservative Catholicism. Reports indicate that Jewish victims were subjected to particularly vicious and frequent torture. Timerman, Partnoy and many others report being interrogated about their religious affiliation and alleged membership in a "Zionist conspiracy." The list of the detained and disappeared contains many Jewish names, well out of proportion to the actual percentage of Jewish citizens. More analysis is required to determine to what extent these people were detained because of their religion alone, and to what extent their persecution was a result of their membership in other suspect groups, such as progressive organizations, academia or psychiatry.

3. Judicial Aftermath

The history of the demise of the military regime and the period immediately following the return to democracy demonstrates the necessity of paying attention to the existing counter-narratives to the orthodox narrative promulgated by the military which came to be legitimated by the presidential pardons handed out to the architects of the dirty war. Immediately prior to its departure from power and transition to democracy, the fourth and final junta published the "Final Document on the War Against Subversion and Terrorism," in which the military admitted that some (sic) abuses of human rights were committed, but that they were justified as they were carried out by military personnel in the line of duty. The junta also enacted the "Law of National Pacification," granting immunity from prosecution to suspected terrorists and to every member of the armed forces for crimes committed between May 25, 1973 and June 17, 1982.[54]

Despite the self-amnesty, in 1983 the new civilian president, Raúl Alfonsín, issued an executive decree (Law 23049) ordering the arrest of the members of the first three juntas for crimes defined by the legal code in place while they were in power.[55] In order to carry out the prosecutions, the Argentine Congress repealed the self-amnesty law in December 1983. The trial began on April 22, 1985 and lasted until the handing out of sentences on December 5, 1985.

The defence lawyers presented a peculiar argument. On the one hand, they claimed that the disappearances had not taken place and that the defendants had not ordered them. On the other hand, they argued that the policy was justified and necessary.[56] Secondly, they argued that crimes the military was accused of committing had been in fact legal, because they had been ordered by an executive decree passed by the constitutional government of Isabel Peron that had remained in effect during the Proceso. This decree ordered the "annihilation" of subversion and terrorism. The defence also argued that the policy was necessary to restore order. Third, the self-defence argument was invoked, a reference to the (mythical) 30,000 guerrillas they claimed to have faced. Fourth, they claimed that a state of war existed and that conventional laws of war do not apply in a counter-insurgency campaign.[57] The court did not accept any of these arguments and five former commanders were convicted and given sentences ranging from four and a half years to life imprisonment.

By the middle of 1984 victims' friends and families had filed about 2,000 criminal complaints against the military.[58] Trials for junior officers were in process when in December 1986, Alfonsín bowed to military pressure and passed the "law of full stop" to speed up the trials and reduce the number of people eligible for prosecution. This was only the first of the democratically elected government's capitulations to military pressure. Following a number of military rebellions in April 1987 Alfonsín agreed to put a stop to military prosecutions and passed the law of "due obedience."

The seeds of the law of due obedience were planted in the original decree of 1983 ordering the prosecutions (23049). Article 11 of Law 23049 "stated that subordinates who acted without decision-making power and within the scope of superior order were 'presumed to be mistaken' about the legitimacy of the orders."[59] The new law permitting the due obedience defence constituted an "irrebuttable presumption that military and police officers acted following orders and were unable to question the legitimacy of the orders they had received."[60] That is, whereas the original law permitted the defence that the officer had just been following orders and required that to be proven, the law of due obedience presumed that officers were legitimately following orders and therefore declared all offenders to be innocent. This latter law was declared constitutional by the Argentine Supreme Court in June 1987.[61] The consequence of that decision was that all officers subordinate to chiefs of security areas, security sub-areas or security forces were considered to be innocent, even if they had committed acts that they should have known were illegal.[62] The people who had filed personal criminal charges against the military appealed the law of due obedience but the Supreme Court held it to be constitutional. Consequently trials were never held.[63] In 1990 President Carlos Menem pardoned about 280 members of the military who still faced trial for human rights abuses. The military's denials that they had broken any laws or had committed any human rights abuses, and the government's acquiescence to the military's demands for a cessation of prosecutions and the pardoning of those who had been convicted, became less tenable with the publication of Nunca Mas which included the following testimony:

Undoubtedly, post-junta civilian governments faced extreme pressures from the military, including armed rebellion, and have felt compelled to find ways to prevent a recurrence of coups and unrest. It is also true that Argentina is one of the few states to have undertaken full-scale prosecutions after a period of gross human rights abuses, and that despite the pardons, the airing of the history in a court of law was vitally important.[65] Yet victims and human rights activists were justifiably horrified by the due obedience law and the pardons.[66] By its actions, the civilian government legitimated the military's interpretation of history by investigating and then submerging the evidence of torture. The official position in Argentine law is that the many hundreds of murders and tortures were innocent. The victims' testimonies are indispensable counter-narratives that keep the dead safe from the enemy, and prevent him from being victorious.

Conclusion

Scholars are understandably reluctant to analyze victim testimony. It is very hard reading. As Page duBois has suggested, the analysis also risks being criticized as pornographic or sensationalist, as risking traffic in the very obscenity we are trying to combat.[67] In her book on torture she writes that

Unlike this author, duBois never describes torture and indeed restricts her discussion to its use in ancient Greece and refers to contemporary human rights abuses only in a few, final pages. Yet I would argue that failing to listen to the discourse of the victims and to reproduced it in all its horror silences them a second time, after having already been silenced by the torturers and murderers and reproduces the hegemonic mode of writing history. While ruled by a dictatorial regime that abuses human rights, people are silenced in numerous ways through censorship and the suspension of democracy. Indeed, advocates for the victims and the disappeared continue to be harassed and threatened today in ostensibly democratic Argentina. The position of the torture victim is worst, as the person is not gagged but is forced in her pain to utter the unspeakable. This utterance by its very constitution is used to bolster the regime's power. During torture, a person's most direct way of projecting herself into the world, her voice, is made into an instrument of the person's own suffering and is used to inflict suffering on others through forced betrayals of friends and family.[69] Note above how Timerman, for example, refers to himself in the second person when describing his own experience, as if his very ability to speak for himself had been destroyed.

When we refrain from studying their testimony seriously, we risk allowing the "winners" to be the sole historians. Personal memoirs, human rights reports and truth commissions must be studied as historical documents and as resistance texts in order to restore the authors to a status of agency. This restoration is not merely psychological or even historical. It may assist in the prevention of the return to power of abusive regimes. Clearly, other variables are important, such as the strengthening of democratic processes and civil society, but in a state in which the perpetrators' account of history is hegemonic, the risks are greater. The establishment of truth commissions and the publication of their reports is vitally necessary but if the state and other institutions fail to legitimate and publicly uphold their findings and write them into history, or worse, implicitly deny them by pardoning the perpetrators, it will be easier for those who carried out the abuses to argue that they were necessary and justified. In 1995 a handful of former officers have come forward to confess their crimes and have called on their colleagues to do the same. That challenge has not been taken up by the military, and he government's response has been half-hearted. If human rights violations are rationalized once in the name of the pursuit of national security or other "lofty" projects, they can be again. We, scholars, activists, citizens, must listen to the victims, whose accounts of broken bodies contradict the claims of the perpetrators to be pursuing noble goals.

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