Abstract
World Trade Center attacks implied that Enemy Criminal Law (ECL) shifted from being a descriptive theory (Jacobs, 1985) to prescribing how to punish, in Abu Ghraib (2003) or Guantanamo (2004). We pose that this ius puniendi power is directly related to the preceding Terrorism of State (Garzón Valdés), in which enforced disappearance (ED) of persons practices in Latin America stand as its main antecedent. Our intention is to analyse the ECL metamorphosis and the relevant elements it shares with ED in the case of Tucumán (Argentina, 1975–1983) as well as the theories pretending to legitimise the ED and the ECL. In addition, given the fact that necrophilia was a practice with ED, we find it pertinent to complete the concept of bio-politics (Foucault) with that of necropolitics (Mbembé), which, as a normative regulation, would result in a necro-law.
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Notes
- 1.
“… imprisoning someone or detaining that person in any way is illegal if it is not done in accordance with the order of justice, either by punishment, or by prevention in order to avoid any harm” (ST. II-II.q.65, a.3). On judicial procedure, it also describes the functions and duties of the judge (q.67), the victim (q.68), the witnesses and the evidence (q. 70).
- 2.
Treatise on Laws, Book V. Different human laws, and especially those of a hateful nature. This admits the legality of the escape of a person sentenced to death, or of someone who is imprisoned in unsanitary conditions.
- 3.
“In recent years, the so-called ‘National Security Doctrine’ has taken hold on our continent, which is in fact more of an ideology than a doctrine. It is linked to a certain economic-political model, with elitist and top-down characteristics, that suppresses the broad participation of the people in political decisions. It even tries to justify itself in certain Latin American countries as a doctrine in defence of Western and Christian civilization. It develops repressive systems in accordance with its concept of ‘permanent war’. In some cases, it expresses a clear intention of political leadership” CELAM (1979): Puebla Document #547 (Rovetta 1991, p. 16).
- 4.
For a more detailed analysis of these events, I refer the reader to the Bicameral Commission Report that investigated human rights in Tucumán province (1974–1983), henceforth (ICBDH), whose edition I coordinated. I also refer the reader to the complaint that I presented before the Federal Court of Tucumán Province on February 20, 1987, regarding all those who were detained and disappeared from the National University of Tucumán (UNT), as Coordinator of the Human Rights Commission of its High Council. This was published on the UNT website as the “Informe Rovetta” from 2005 to September 28, 2017; henceforth: (IRUNT).
- 5.
Briefly, the coups d'état in the Southern Cone occurred in: Paraguay (1954), Brazil (1964), Bolivia (1971), Chile and Uruguay (1973) and Argentina (1976).
- 6.
ICBDH, Annex X, entitled Most named individuals, refers to the perpetrators: Provincial Police, Armed Forces and Civilians.
- 7.
ICBDH, Annex I. Repressive methodology (pp. 37–93), which includes as subtitles: Kidnapping, looting, transfer to clandestine detention and torture camps, subsequent proceedings, coordination between security organisations … confusion, misinformation and terror.
- 8.
E. Cameron, an American physician, whose treatment for chronic paranoid-schizoid patients was published in the Canadian Medical Association Journal. vol. 78, 15. He proposed the advisability of giving them electric shocks in their frontal lobes to convert their minds into clean slates on which one could re-write from scratch.
- 9.
Operation Condor, devised by Henry Kissinger, was put into action from Santiago de Chile on November 25, 1975 in a meeting between the head of the DINA (Chilean secret police), and the heads of Argentina’s military intelligence services (SIDE), Bolivia, Chile, Paraguay and Uruguay. Robert Plummer (June 8, 2005). “The Condor Legacy Haunts South America”. BBC. Consulted August 26, 2017.
- 10.
It is worth highlighting the work of the Abuelas de Plaza de Mayo (Grandmothers of May Square) in Argentina, who managed to create the world’s first National Genetic Data Bank (BNDG, 1977), and who have already managed return the identity to 130 people, until May 2020.
- 11.
An example of resilience is found in José Mújica, who after 12 years of incommunicado captivity became president of Uruguay (2010–15), the only case of a ruler-philosopher who would agree with Plato in his Seventh Charter.
- 12.
His argument continues: “Once that limit is crossed, everything is lost, and whatever happens is justified. It is the theory of the so-called ‘areas with no rights’, which has caused so much damage and pain, along with dictatorships, repression, death squads, the GAL, the Iraq war, and so on. It is the failure of democracy and ethics and the triumph of the irrationality of arbitrary power, without any limit other than the will of the person who exercises it”. A similar criterion was expressed in 1986 by the deputies of Tucumán Alejandro Sangenis and Arturo Sassi: “Terrorism, whatever its political ideology, right or left, (…) must be brought down to its last consequences within what the law regulates. Otherwise, we will do what they want: use their own and aberrant methodologies” ICBDH, 34.
- 13.
This refers to A. Gentilli, De iure belli libri III (1588), ed. From J. Brown Scott, at de Claredon Press, Oxford, 1933, Lib. I, p. 12.
- 14.
Quoted by García Amado (2006, pp. 127–128).
- 15.
Quote from the book by Emilio F. Mignone: Witness to the Truth: The Complicity of Church and Dictatorship in Argentina, Buenos Aires, 1986, p. 24.
- 16.
Quote taken from Marcial Castro Castillo’s book: Armed Forces. Ethics and repression. Buenos Aires, 1979 (pp. 32–33), to whom he erroneously attributes the condition of military chaplain (p. 64), when he was in reality a professor at the Air Warfare School. His name was Edmundo Gelonch Villarino (1940-), and he used this pseudonym to publish this work in New Order in 1979. This rectification is found in Esteban Damián Pontoriero: Counterinsurgency and intransigent Catholicism. The sacralisation of the “war against subversion” in the work of Marcial Castro Castillo (1969–1976). National University of San Martín, Aletheia: Journal of the Master in History and Memory of the FaHCE, ISSN-e 1853-3701, Vol. 5, N°. 9, 2014. Pontoriero (2014, p. 4), contributes another ideological source of state terrorism: “Doctrine of the Revolutionary War” which was devised by the French military for their colonial wars in Indochina (1946–1954) and in Algeria (1954–1962) (Ranalletti 2009, p. 252).
- 17.
In the Spanish case, 5 bishops did not sign the Collective Charter of 1937; in Argentina, Bishops Enrique Angelelli and Carlos Ponce de León were assassinated by Task Forces. ICBDH, 33.
- 18.
The Francoist ideology was vindicated by Dr. Gaona, defender of Brigadier Orlando Agosti at the Trial of the Military Juntas once democracy was restored: “because the cry ‘Long live death’ of Millán Astray, whose ideology was here described as perverse, makes sense” (Garzón Valdés 2001, p. 160).
- 19.
According to Roman law, a man was a person only if he complied with the following three statuses: libertatis, civitatis and familiae. The last was denied to women, to whom the term capitis diminutio was applied. On legal, civic or moral entities, they distinguished between: corporations (civitates, universitates …), foundations (pia causae), public treasury (fiscus) and recumbent inheritance.
- 20.
The Universal Declaration of Human Rights uses the expression “person” in 18 of its 30 Articles (2, 8, 11, 13–15, 17, 18 and 20–29), as a synonym for “all human beings” (aa. 1, 6 and 7), individuals (aa. 13, 12 and 29) and in its negative version, nobody (aa. 4, 5 and 9), which is “personne” in French.
- 21.
The current Spanish Constitution, for example, refers to the dignity of the person (10.1) and to the international human rights law (10.2) in its Title I On fundamental rights and duties; and immediately distinguishes between Spaniards and foreigners in Chapter I (aa. 11–13). Chapter II begins with a.14, which guarantees equality before the law and non-discrimination only to its citizens. Perhaps because of this asymmetry in the treatment of citizens and foreigners in state constitutions, Ferrajoli maintains that citizenship (status civitatis) is the last privilege, since slavery (status libertatis) has already been prohibited and equality between men and women is advancing (status familiae).
- 22.
This double death is described by Walter Benjamin as regards the Holocaust. Quoted by Reyes Mate: 2011. pp. 10–11.
- 23.
- 24.
- 25.
Anthological examples of biopolitics can be found in public policies in the current situation of a pandemic.
- 26.
Mbembé argues: “My approach is based on Michel Foucault’s critique of the notion of sovereignty and its links with war and biopower in the course of the Collège de France, 1976, Akal, 2003”.
- 27.
According to the Inter-American Convention on Enforced Disappearance, a.2, “Enforced disappearance is considered to be 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 authorisation, 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”. It is defined in analogous terms by the 2006 International Convention.
- 28.
Quoted by Reyes Mate (2011, p. 16).
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Klyver, F.R. (2023). Enforced Disappearance: A Precedent of the Enemy Criminal Law. In: Demetrio Crespo, E., García Figueroa, A., Marcilla Córdoba, G. (eds) Crisis of the Criminal Law in the Democratic Constitutional State. Legal Studies in International, European and Comparative Criminal Law, vol 6. Springer, Cham. https://doi.org/10.1007/978-3-031-13413-5_4
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