Redefining the Abduction of Children: Legal Truth in Post-Dictatorial Argentine Courts of Law

• Published date: 29 April 2013
• DOI: https://doi.org/10.1108/S1059-4337(2013)0000061004
• Date: 29 April 2013
• Pages: 1-23
• Author: Natacha V. Osenda

REDEFINING THE ABDUCTION

OF CHILDREN: LEGAL TRUTH IN

POST-DICTATORIAL ARGENTINE

COURTS OF LAW

Natacha V. Osenda

ABSTRACT

This chapter demonstrates how Argentine law court sentences have

constructed a ‘‘legal truth’’ regarding the unlawfully appropriated

children of people ‘‘disappeared’’ during the last military dictatorship

(1976–1983). There are two discursive processes involved in the construc-

tion of that truth. On one hand, the courts reinterpret the crime of

‘‘abduction of minors’’ to emphasize the damage done to families in the

exercise of their rights, and on the other hand, they link illegal appro-

priation to the military government’s counterinsurgency policies. Lastly, in

the construction of this ‘‘legal truth,’’ the sentences employ other dis-

courses, particularly those of genealogy, psychoanalysis, and human rights.

INTRODUCTION

In this chapter, I demonstrate how Argentine law court sentences have

constructed a ‘‘legal truth’’ regarding the unlawfully appropriated children

Studies in Law, Politics, and Society, Volume 61, 1–23

Copyright r2013 by Emerald Group Publishing Limited

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ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000061004

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of the people ‘‘disappeared’’ during the last military dictatorship (1976–1983).

In particular, I study two discursive processes involved in the construction

of that truth. I show, on one hand, how the courts’ sentences have reinter-

preted the crime of ‘‘abduction of minors,’’ emphasizing the damage done to

families’ ability to freely exercise their rights, and on the other hand, how they

have linked illegal appropriation to the military government’s counter-

insurgency policies. Ultimately, I point out how, in the construction of

this ‘‘legal truth,’’ the courts’ sentences employ other discourses, particularly

those of genealogy, psychoanalysis, and human rights.

This study is one-half of a two-part project that examines the construction

of the ‘‘children of the disappeared’’ problematic on two stages where it has

been especially important, the courts of law and the theater. This chapter

focuses on only one of those stages – the courts of law – and second, the

scope is reduced to the discourse of just one of the multiple groups of actors

that, for more than 20 years’ time, have participated in the construction of

this legal truth – the judges. Of course, the discourse of the judges is

heterogeneous, and it would be ideal to study the multitude of voices and

different actors that shape their sentences. However, the sheer volume of

that body of discourse makes it necessary to choose, so in this chapter,

I focus on the judges’ discourses and on how they are shaped by the

testimony of expert witnesses (psychoanalysts, academics, etc.) and by

certain conceptual frameworks (genealogy and human rights). I have left

many voices out, most notably the arguments of the interested parties, as

they did not directly shape the ways in which the judges phrased or justif‌ied

their sentences; perhaps they could be taken up in another study.

To this end, I have examined a body of some 15 cases from f‌irst and

second instance courts (akin to district and appellate courts), f‌ive of them

from the 1980s (the only f‌ive that were resolved in the 1980s) and the other

ten from the 1990s (a large part of the cases resolved in the 1990s).

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Considering the length and complexity of the documents and cases, the f‌ive

most representative and most important sentences – important because of

the complexity of ideas present in the judges’ f‌indings and because they have

been cited repeatedly in other judges sentences – will be utilized in detail here

to exemplify what I have observed in general. The cases from the 1980s are

of interest because they set important doctrinary bases in the legal

framework for later trials, and because the judges at that time had relatively

few precedents on which to base their f‌indings. For their part, the cases from

the 1990s are interesting, in part because they allude to the earlier cases –

although with a different perspective – but also because they contribute to

NATACHA V. OSENDA2