On the 22nd December 2011, Congress approved a package of modifications to Argentine law aimed at combating terrorism and financial crime.
The changes implied tough penalties for a range of financial crimes, including tax evasion, bribery and money laundering, as well as any action that might disrupt the country’s economy, such as a run on the banks.
Furthermore, they included an attempt at a new definition of terrorism, and a doubling of the minimum and maximum sentence attributed to crimes that are deemed to be motivated by terrorist intention.
The incorporation of such legislation came, according to local media, as an attempt to maintain the country’s seat at the G20 table. It was also a response to demands made by the Financial Action Task Force (FATF), for Argentina to address its “strategic AML/CFT [anti-money laundering /combating the financing of terrorism] deficiencies.”
These deficiencies were discovered during two previous onsite evaluations conducted by the FATF in 2004 and 2009. They included technical legislative shortcomings in addressing money laundering and the financing of terrorism, and inadequate control by the county’s Financial Information Unit (UIF) over financial institutions and their compliance with regulations. Ignoring the obligations could mean ‘blacklisting’, potentially making trade to and from Argentina more complicated and more costly.
The Problem of Ambiguity
This new definition, coupled with the harshening of the punishment for terrorist acts, has been fiercely criticised by human rights and social organisations, both national and international, for a number of reasons.
One that appears most frequently relates to the failure of the government to clarify exactly what it is that defines a terrorist act in the law. Instead, their broad definition includes any crime whose “purpose is to terrorise the population,” or that obliges the authorities to perform an act or abstain from performing one.
The question as to why the government adopted such vague terms in the first place has no clear answer. Paula Litvachky, from the Centre for Legal and Social Studies (CELS), believes at least in part that it has to do with the difficulty of arriving at a concrete definition of terrorism in global terms.
For Beatriz Busaniche, secretary of civil and digital rights advocacy group Fundación Via Libre, the ambiguity is worrying because it means people are unsure where they stand with the law: “The law leaves a criminal classification open to discussion. And when we talk of the criminal right, and about criminal classification, we have to be clear about what the conduct is that is being criminalised.”
Furthermore, due to this lack of specific classification in the law, the final decision as to whether an act constitutes terrorism or not is left up to the federal judge presiding over the case.
With such a vague definition at hand, the worry is that judges could effectively mould the law to suit any ulterior motives they might have, leaving open the possibility for a criminalisation of social protest. According to Litchvaky, in a country with “very serious experiences” of this in the past, a reoccurrence cannot be considered unlikely.
The Right to Protest
The government has, however, steadfastly denied that such criminalisation would occur, with Miguel Angel Pichetto, head of the PJ Frente para la Victoria block, assuring critics that “social protest could never be considered terrorist activity.”
In response to the concerns voiced by human rights and social organisations, the government also added a clause to the bill before approving it, preventing its use against “an exercise of human and/or social rights or any other right.”
José Sbattella, head of Argentina’s Financial Information Unit (UIF), focused on the law’s implications for financial crime during an interview with La Red radio station: “The law is not there to persecute. What is being prevented [with this law] is the possibility that a group of people with a large economic power could coordinate a policy that empties the country’s reserves, or terrorises the population in such a way that it causes them to withdraw their funds, which is what has happened historically with market crashes.”
For Busaniche, however, these government’s assurances are not enough: “The government has defended itself by saying that it does not repress social protests. Up to a certain point, here in the city of Buenos Aires, this is true. But it cannot be thought to be the case throughout the provinces.”
In the past year there have been cases of repression of social protest throughout Argentina, despite a concerted effort from the government to tackle the problem. Even after the creation of the Ministry of Security, and the implementation of such measures as a revised police training programme, examples of police repression persist. In July of last year, land occupiers in Jujuy were violently evicted by police, while CELS has condemned the suppression of indigenous protests in the north of the country.
For Jorge Carpio, from the Citizens’ Participation Forum for Justice and Human Rights (FOCO), of the utmost importance is a recognition of Argentina’s history in the law – a point on which this legislation falls down – with specific reference to the human rights violations suffered during the military dictatorship of 1976-83. “If we don’t take into account the history of the country we risk falling into popular repression in more modern but equally savage forms. We have, after all, a very old tradition of fascist culture.”
According to Carpio this “tradition of fascist culture” is still very much alive. “It is precisely in this country’s courts where there are the strongest nucleuses of fascism. And we are leaving the definition of terrorism up to them?” Ultimately, he explains, having gone to great lengths to achieve a successful democracy, Argentina should be extremely careful in the things it does.
According to Busaniche, it is not just disturbing precedents set in Argentina’s history that have caused anxiety: “The closest experience we have had with anti-terrorist legislation is with the Chilean law, which was used against the Mapuche community.” The existence of this type of law already, and its application to resolve social conflict does not have a calming effect on the critics, she explains. In fact, the opposite is true.
In Chile, anti-terrorism legislation created during the Pinochet dictatorship of 1973-1990 has been used in a number of cases to prosecute Mapuche Indians involved in land disputes, sparking allegations that they are being employed as a tool to silence political opposition groups. The worry is that Argentina could follow these “regional lines”, as Litvachky puts it, that tend towards criminalisation as a way of calming social conflicts.
What should be avoided in any case, she says, is the masking of real progress by repeated reforms. “Argentina must not fall victim to the regulations fallacy: the thought that by reforming the law, the problems will be solved. It is totally the opposite.”
Topics such as terrorism and its financing, as well as organised crime, should be addressed instead using existing legislation, and continued work on the part of the government “to make sure that these types of organisations don’t infiltrate public spaces, Argentine institutions, or Argentine economics.”
They should not, Litvachky maintains, be addressed through the introduction of such a “problematic” definition “which could cause very serious and extended problems in internal politics.”
For Jorge Carpio, the law is unnecessary because the threat of terrorism is not one that is relevant to an “uncontaminated” Latin America. “To incorporate an antiterrorist law in this continent does not respond to its interests because there is no indication that these antecedents to terrorism exist. The terrorist acts that we have seen in this country, even though there was internal complicity, were a response to outside situations.” The terrorist acts referred to are the bombings of the Israeli embassy and Argentine Israelite Mutual Association (AMIA) building, that took place in 1992 and 1994 respectively.
Carpio’s sentiment has been echoed by prominent public figures including Estela Barnes de Carlotto, president of the Grandmothers of the Plaza de Mayo Association. In an interview with La Red radio station, she insisted “there is no terrorism in Argentina”, blaming previous attacks on “external interference,” and concluded that “there is no network [of terrorism] that we should worry about.”
For her part, Litvachky believes it has to do with so-called “new threats” – unconventional conflicts, against crimes like terrorism or drug trafficking, that generate internal and regional destabilisation. Reforms, and a general tightening of legislation, are to be expected with such conflicts as governments struggle to fight an undefined enemy.
In some cases these “new threats” have been confronted with a military response, most notably in the war against drug trafficking in countries like Columbia, Mexico and the United States – something that Litvachky is very keen to avoid.
With such widespread protest, it is highly unlikely that this issue will simply be brushed over as time passes. Indeed, Carpio insists there will be a “constant rejection” until the law is revised
Whether this will actually happen is still unclear, although there are suggestions that an adequate number of votes to approve a modification are there. What is certain is that the government will have to tread extremely carefully when it comes to using the law for the first time.