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
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000061004
1
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).
1
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
To continue reading
Request your trial