Guest article by Gastón Chillier, Executive Director of the Centre for Legal and Social Studies (Centro de Estudios Legales y Sociales, CELS), Argentina
Protest tradition meets with harsher responses
Social protest has played a central role in Argentina since the time of the 1976 to 1983 dictatorship, when a group of valiant mothers met in the Plaza de Mayo to demand information about their forcibly disappeared children. They reclaimed the country’s most important public square as a space for expressing dissent - a phenomenon that flourished towards the end of the dictatorship with massive rallies, consolidating the ties between street mobilisation, human rights and democracy.
Largely because of its power to mobilise, Argentine civil society has played a leading role in gaining and defending rights-related victories in the last 35 years. These range from the hard-won progress made on memory, truth and justice for the dictatorship’s crimes to, most recently, significant advances in the debate on legalising abortion. Strong trade unions and workers’ associations have been a crucial part of civil society’s vibrancy, along with human rights, feminist, indigenous and rural movements, among others.
In response to social protest, successive democratic governments have combined repression, negotiation and control of police violence in different ways, depending on each situation. In the 1990s, state repression of demonstrations intensified amid an economic recession, culminating in dozens of deaths during the crisis of 2001 and 2002. Subsequent restrictions placed on the use of police force in the context of protests and social conflicts - advocated for by human rights and social organisations - meant that between 2003 and 2009, the federal security forces did not cause the death of any demonstrator. However, since 2010, that has no longer held true.
Since President Mauricio Macri took office in December 2015, government measures and judicial action aimed at curtailing the right to protest have intensified. Heightened social conflict linked to rising poverty, unemployment and inequality has been increasingly met by police repression, in both urban and rural settings. At the same time, the judiciary has stepped up the criminalisation of demonstrators and people recording protests, and of labour and social organisations generally. In a growing number of cases, instead of promoting dialogue or negotiating to address social disputes, authorities directly resort to the criminal justice system.
In addition, the current government took pre-emptive action to reduce civil society participation in an international forum when, in December 2017, it rejected the accreditations of 65 people whom the World Trade Organization (WTO) had already approved to participate in its Ministerial Conference in Buenos Aires, citing shaky “security” grounds.
In a world where crackdowns on civil society are increasingly common and severe, the situation in Argentina is comparatively benign. But by its own yardstick, the country is consolidating rollbacks in some key areas of social contestation, with cases of violent police responses to public assemblies, increased judicial persecution of activists and organisers, and a political discourse supporting them both. Although dissent continues to flourish in Argentina and these criminalising and repressive practices are not employed across the board, they send disturbing signals that serve to discourage street mobilisations and limit the right to protest, which is an essential component of any democracy.
Repression and criminalisation of street protests
In 2017, Argentine security forces repressed a number of mass protests, a few of which had attracted hundreds of thousands of demonstrators. These episodes involved violent and irregular police operations, arbitrary detentions, the filing of federal criminal charges against demonstrators and passers-by, and a stigmatising political discourse against protesters.
On the night of 8 March 2017, after a demonstration related to the International Women’s Strike had concluded in the capital, Buenos Aires, the federal and municipal police rounded up people at random for arrest. Fifteen women and five men were arbitrarily detained in police operations characterised by the presence of plainclothes officers and the disproportionate and illegal use of force. The women were violently detained and subjected to degrading searches. All 20 detainees were charged with crimes, for purportedly having assaulted security force agents and caused property damage around the Plaza de Mayo, even though they were nowhere near the plaza at the time of arrest.
Eleven months later, in February 2018, the charges were dismissed due to a lack of evidence. This confirmed what numerous organisations and demonstrators had indicated right after the repression: that the police had detained people haphazardly, for having participated in the march or simply for having been in the same vicinity. It is worth noting that during this 11-month period of criminalisation affecting those detained, the judiciary did very little to investigate the state’s responsibility for the incidents of police violence.
Another crackdown on protest occurred in September 2017, when tens of thousands of people took to the streets in Buenos Aires to demand that missing activist Santiago Maldonado be found. Once again, after the vast majority of demonstrators had left, the police began pursuing those who remained, cornering and hitting them once they had separated them from the crowd. They also shot rubber bullets at people’s faces. Many officers bore no identification or uniform, which is explicitly banned under municipal law. Among those beaten and detained were journalists and other people recording the repression.
More than 30 people were taken to various police stations after the crackdown, but for nearly five hours, no information was given regarding how many people had been detained, where they were being held or on what grounds. It was later revealed that they had been charged with the federal crime of “public intimidation” in addition to other offences. The judge ordered that the detainees be held incommunicado for more than 36 hours, an arbitrary and disproportionate decision aimed at intimidating those detained and dissuading social protest more generally.
Finally, in December 2017, the Argentine government upped the ante in response to mass protests against a proposed pension system reform, ordering the unprecedented deployment of four distinct security forces. They surrounded Buenos Aires’ city centre and erected barricades outside Congress, from behind which they shot rubber bullets indiscriminately, aiming at people’s bodies. They also made abusive use of teargas and pepper spray, and tried to prevent journalists from capturing images of injuries and arrests.
Although this security force operation was notable because of its size and high degree of violence, many of the practices used previously were repeated, including the unjustifiable application of the crime of “public intimidation” to demonstrators. The prosecution of people for federal offences exposes them to prolonged detention and stiffer penalties, and in the case of migrants. can trigger deportation procedures.
On the judicial front, there are also recurring problems: there is no judicial oversight of police operations, the courts often unquestioningly validate the arguments used by security forces to detain people, and demonstrators and passers-by are charged with serious offences despite a lack of evidence.
This scenario is compounded by messages on the part of government officials that seek to delegitimise many of those involved in demonstrations and their demands. The governing Cambiemos (‘Let’s Change’) coalition takes a security approach to social protest, prioritising the notion of public order over protection of the rights involved in demonstrating.
One disturbing aspect of this relates to the impact on journalists, photographers, camera operators and other people recording police repression of protest. At least 45 such people were hit by rubber bullets in protest situations in 2017, according to a joint report by CELS and the SiPreBA (Sindicato de Prensa de Buenos Aires) media workers’ trade union. In some cases, photographers were targeted directly and from a short distance, even when they identified themselves as members of the press and had their equipment in sight. Also, at least 13 journalists or photographers were arbitrarily detained, spending several hours - and in some cases days - deprived of their liberty.
Media coverage and other recordings in the context of social protest are fundamental for the exercise of protesters’ freedom of expression, and for the prevention, denouncement and effective investigation of state violence. For these reasons, journalists must be allowed the greatest possible freedom to cover demonstrations and social conflicts.
Deaths during protests related to land disputes
The repression of indigenous protests and land claims, often in remote rural areas, has been the historical norm in Argentina. CELS sought the intervention of the Inter-American Commission on Human Rights (IACHR) in two such cases that occurred in Formosa province: the brutal repression of the Nam Qom community in August 2002, which included arbitrary detentions and torture, and a crackdown against the Qom Potae Napocna Navogoh (La Primavera), in November 2010, in which community member Roberto López was killed. No progress has been made to hold the perpetrators of this violence responsible in Argentine courts, and both communities have faced further repression and criminalisation of their leaders.
In 2017, two more deaths occurred, with the notable difference being that now the current government’s discourse openly defends security force actions, without question or investigation. This toughening of rhetoric provides cover for violent police intervention in social conflicts and protests. It also reflects the government’s embrace of the ‘new threats’ doctrine, which identifies terrorism and drug trafficking among the new threats that countries must fight, ideally with the military’s help. Some officials have depicted Mapuche indigenous groups protesting to reclaim their ancestral lands in the Patagonia region as “terrorists” who pose a threat to national security or sovereignty. It was precisely in the context of repression of Mapuche land demands that Santiago Maldonado and Rafael Nahuel died in 2017.
On 1 August 2017, dozens of members of Argentina’s National Gendarmerie illegally and violently entered the territory claimed by the Pu Lof Mapuche community in Chubut province to pursue protesters. In the framework of this operation riddled with irregularities, one of the protesters - Santiago Maldonado - disappeared. Instead of leading efforts to find Maldonado and investigate what had occurred, the national government sided unconditionally with the Gendarmerie and delayed handing over information to the courts. Nearly three months after his disappearance, Santiago Maldonado’s body was found in the Chubut river within the indigenous territory, in the same place reached by the gendarmes during their pursuit of demonstrators, according to their own statements. The autopsy revealed that he died due to hypothermia and subsequent drowning. The precise circumstances of his death are still under investigation.
In November 2017, Rafael Nahuel was killed when federal security forces entered the lands occupied two months earlier by members of the Mapuche community known as Lafken Winkul Mapu, in the Nahuel Huapi National Park. Under court order, several community members were detained, including women and children, who were held for several hours. Reports at the time indicated that others had fled into the mountains and were being pursued by the federal forces. Ultimately, members of the Argentine Naval Prefecture fired the lead bullets that killed 22-year-old Rafael Nahuel, and injured four other people.
Criminalisation of labour and social organising
With workers taking to the streets to protest against firings and worsening labour conditions, there has been an intensified push to criminalise social, political and trade union organising via judicial and administrative means. This has included strategies such as detaining leaders, filing charges against them, reactivating dormant judicial cases, levying fines on individuals and organisations, and even shutting institutions down, in many cases for actions related to making demands and exercising human rights.
Such measures have a disciplining effect on people and on the way they express themselves, assemble and organise. They also enable stigmatising discourses that reinforce discriminatory attitudes toward different social groups. This criminalisation has affected groups ranging from unionised teachers in Buenos Aires province and Tierra del Fuego province to organised sugar workers in Jujuy and Salta provinces and the Qom indigenous communities in Formosa province.
The arbitrary detention of social leader Milagro Sala in Jujuy province gave an early indication of the governing coalition’s approach. Just one month after Macri assumed the presidency, his political ally at the head of Jujuy’s provincial government led a systematic campaign to persecute Sala and the Túpac Amaru neighbourhood organisation she led. Sala was jailed for acts related to a social protest on 16 January 2016, and later charged with a string of other crimes in an attempt to justify her prolonged pre-trial incarceration. Túpac Amaru was subjected to an unprecedented onslaught of actions, including judicial proceedings, legislative persecution, public policy restrictions, the use of police force, stigmatisation and public discredit, revealing coordination among the different branches of the provincial state.
Another notable case of criminalisation relates to metro workers in Buenos Aires, grouped in the Trade Union Association of Subway and Pre-Metro Workers (AGTSyP). After workers protested to demand wage increases and recognition of AGTSyP as their representative in collective bargaining negotiations, the company operating the city’s metro system filed judicial complaints and took disciplinary action against them. The situation came to a head on 22 May 2018 with the violent repression of a protest near the metro platforms and the detention of 16 workers, among them the trade union association’s deputy secretary. We alerted the IACHR to this persecution and requested that it press for more information from the state.
It is not a new tactic to use the criminal justice system to persecute members of certain social and political organisations. But this practice has intensified since 2016 and converged with government officials’ discourses and decisions against social protest, labour strikes and organisational leaders. As the violent repression of social protest has increased, so has the criminalisation of activists.
Reducing space for civil society participation
2018 sees Argentina hosting a series of G20 meetings, culminating in a presidential summit in late November. In late 2017, the government set a troubling precedent with regard to civil society participation in such international gatherings when the WTO held a ministerial conference in Buenos Aires.
Prior to the December 2017 meeting, some 65 people from civil society organisations throughout the world received an email from the WTO, stating that Argentine security authorities had rejected their accreditations “for unspecified reasons.” When controversy first broke out over this news, the Foreign Affairs Ministry said that the decision had been made because these organisations or people “had made explicit calls via social media for violent demonstrations, expressing their intent to generate intimidation and chaos.” Clearly, the government had been gathering intelligence, very possibly based on people’s organisational affiliations or political opinions - something that is expressly prohibited under Argentine law.
The list of 65 people whose accreditations had been rejected was sent to the National Migrations Office as a security alert. Two activists whose names were listed were barred from entering Argentina and deported. Thanks to legal, diplomatic and media pressure, no other deportations were carried out. Also, the Argentine government announced it was re-accrediting some of the people on the list of 65, including one of the activists who had been deported. However, in broader terms, these pre-emptive actions to stifle dissent sent a chilling message regarding the country’s commitment to civil society participation.
Strategies to fight back
CELS has used multiple strategies to promote policies and practices that protect the right to protest, labour-related rights and the freedoms of association and expression.
One line of action, which we have embraced since our founding in 1979, involves the use of regional and universal human rights protection mechanisms. This has included participation in the hearings convened by the IACHR, for example on increased repression of social protest in Argentina (March 2018), the repression and criminalisation of social protest in Jujuy (March 2017) and the weakening of labour and trade union rights protections (October 2017).
An emblematic case that we took before the protection mechanisms was that of Milagro Sala. As part of a coalition of organisations, we presented her case to the United Nations (UN) Working Group on Arbitrary Detention, which called for her immediate release, although the call was ignored by the national and provincial governments. The IACHR granted precautionary measures on Sala’s behalf, at our request, and the Inter-American Court of Human Rights eventually intervened due to state noncompliance. The Court concurred with other bodies, ruling that Sala had to be released from prison. After a nearly two-year-long battle, she was finally released.
CELS, on its own and as part of the International Network of Civil Liberties Organizations (INCLO), has also worked to promote standard-setting on the policing of protests, in collaboration with UN special rapporteurs and at the IACHR. On a national level, we have long engaged in public policy advocacy, for example by supporting the establishment of a protocol for non-violent police intervention in public demonstrations that was issued in 2011.
In terms of litigation, on the international level we have represented victims of rights violations before the Inter-American Court. In the national arena, we have used two strategies: defending people subject to repression or criminalisation, such as several of the women detained in the feminist march of March 2017, and seeking the criminal prosecution of those who are directly, and politically, responsible for police violence. One paradigmatic ruling in this latter sense relates to the fatal crackdown on demonstrators at the height of a social, political and economic crisis in December 2001. A former national security secretary and three high-ranking federal police officers were ultimately convicted for ordering and leading the repression in Buenos Aires, in the first ruling establishing the criminal responsibility of political officials for the consequences of giving such orders.
A key, cross-cutting element of our work is forging alliances between human rights groups and diverse social movements to articulate strategies for defending civic space. One example of this was the March 2018 IACHR hearing on the repression of protest, where representatives of CELS, several trade unions and the feminist movement participated jointly.
A final strategy to address, and potentially prevent, violent police responses to protest lies in ensuring that journalists and everyday citizens can record the repression. This is of critical importance, in part because it can act as a deterrent against police brutality. However, when repression goes ahead, and people are wounded or even killed, images can be essential for debunking the official version of events, and for denouncing and prosecuting abuses. In Argentina, photographs and videos have served as key evidence in the investigation of several deaths that occurred during protests, including of Darío Santillán and Maximiliano Kosteki in June 2002 and Mariano Ferreyra in October 2010.
Since the democratic transition in Argentina, civil society has been a driving force behind human rights victories and progressive public policies. Given this rich tradition and accumulated political and social capital, Argentina could serve as a beacon in a region where crackdowns on protest and shrinking civic space are on the rise, most notably in Brazil, Colombia, Mexico, Nicaragua and Venezuela. However, unfortunately, there are indications that our country is heading in the wrong direction.