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When
Spainish Judge Baltasar Garzón determined to call for Augusto
Pinochet's extradition, he essentially used the template from his
Argentine investigation. In this regard, the charge of genocide
is worth special scrutiny, for even within human rights circles
it has engendered controversy and criticism.
The 1948 UN Convention on the Prevention and Punishment of the Crime
of Genocide (ratified by Spain in 1968) covers systematic acts intended
"to destroy, in whole or in part, a national, ethnical, racial
or religious group." When Spain first codifed genocide as a
domestic crime in 1973, it expanded on the Convention's definition,
to include "national ethnic, social or religious group."
In 1983, there was further adjustment to the Criminal Code, such
that "racial" came to replace "social" group;
"national ethnic" remained an undivided, implicitly social,
unit. In 1995, the Criminal Code was again amended, and the definition
of genocide was made congruent with that of the 1948 Convention.
However, as Spanish human rights lawyers make clear, genocide victims
have historically been associated in Spain with social, not just
racial or national, groups. Indeed, when the Spanish National Court
issued its final ruling on whether Spain had jurisdiction in the
Pinochet case, its decision reflected that orientation.
Garzón first made the accusation of genocide in 1996 against
the Argentine perpetrators of the "Dirty War." In line
with Article II (e) of the 1948 Convention, the regime did systematically
steal the babies of pregnant desaparecidas and give or sell them
to "suitable" Argentine families. Garzón argued
that what happened in Argentina constitutes "auto-genocide"
(the official UN term for the Khmer Rouge massacres in Cambodia);
in other words, the terrorist regimes themselves created a profile
of the enemy — "the subversive"— and eliminated
individuals they believed fit these criteria. In Argentina, the
regime was intensely verbal and its rhetoric made clear its genocidal
intentions. The generals repeatedly stressed that, "the repression
is directed against a minority we do not consider Argentine."
The "subversive," likened to the Antichrist, was the destroyer
of "Western, Christian civilization" and of the ser nacional
(the collective national essence, soul, or consciousness.) Argentines
commonly refer to the repression as "the genocide."
When Garzón transferred the genocide accusation to Chile,
he presented evidence showing that a preponderance of the victims
were intellectuals, activists, leftists — i.e., that they constituted
an identifiable "national group." Still, many scholars
held that it was a serious — even embarrassing — mistake,
given the wording of the 1948 Convention, the absence of genocidal
rhetoric from the Chilean military, and no evidence that the dictatorship
engaged in baby stealing.
Although prolonged debate on genocide was ruled out of the Pinochet
proceedings in London, the issue will doubtless be revisited in
the future. Genocide has become a "definitional minefield,"
in the words of one prominent scholar. Most experts insist on respecting
the exact language of the Convention. To do otherwise, they say,
would radically weaken its power in court. It is perverse, they
argue, to undermine its "bite" when the Convention is
finally being applied. Others — like Baltasar Garzón
— hold that the definition of genocide needs to be expanded
to reflect that "genocide has attained its modernity."
The contemporary practice of genocide, he reasons, goes beyond the
narrow wording of the Convention. With genocide now a "hot"
topic in academic circles, the polemics will likely intensify.
Marguerite Feitlowitz is the author of A LEXICON OF TERROR: Argentina
and the Legacies of Torture (Oxford University Press), a 1998 New
York Times Notable Book and a Finalist for the PEN New England/Winship
Award. She has had two Fulbrights to Argentina, most recently as
a Senior Scholar in 1999 when she taught her book and lectured widely
around the country. She was a Mary Ingraham Bunting Fellow in Nonfiction
at Radcliffe in 1992-93, and taught at Harvard from 1994-1999.
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