I first became interested in transitional justice in Uruguay when I heard the story of Macarena Gelman. Gelman was twenty-three years old in 2000 when she learned that she was born in a secret Argentine prison in 1976. Argentine and Uruguayan operatives extrajudicially abducted and murdered Gelman’s parents, transferring Gelman to live for the next twenty-three years as the unwitting daughter of a Uruguayan policeman and his wife. Sadly, the abduction and transfer of babies born in covert prisons was a widespread and systematic practice during the regional dirty war. There are likely numerous young adults across Latin America’s Southern Cone who today remain unaware that they, in effect, disappeared at birth.
Amnesty and the Disappearance of Children
In the 1990s, Uruguay’s Peace Commission received forty denouncements involving children; eight were alleged by young people doubting their biological identities. Given methodological limitations and challenges confronted by the Peace Commission during their investigation, disappearances of children are woefully underreported. Indeed, when Gelman and her grandfather brought a case against the Uruguayan state, the Inter-American Court of Human Rights recognized the systematic forcible transfer at birth of the children of detained political dissidents. While increasingly acknowledged in Argentina, the ICC’s recognition of forced infant disappearance reveals how the practice remains Uruguay’s dirty little secret.
So I became interested in transitional justice in Uruguay—particularly prosecutions, or the absence thereof. As a dual degree Law and Master’s student focusing on human rights in Latin America, I am interested in studying the role that amnesty laws play in negotiating the transition from authoritarianism to democracy in the wake of the region’s military regimes of the 1970s and 80s. The field of transitional justice— worldwide—has been partially shaped by debate surrounding the efficacy of amnesties as “necessary evils” for negotiating peace in the war torn nations of Latin America and Africa. Whatever the outcome of this ongoing theoretical debate, I am convinced that three decades of impunity in Uruguay must come to an end.
Democracy and Impunity in Uruguay
From 1973 until 1985, Uruguay was the prototypical Orwellian state. Military personnel entrenched themselves in most public offices. Police records classified citizens into categories of ideological trustworthiness, greatly limiting the opportunities for work and travel of those who were arbitrarily blacklisted. Worse still, the prime method of repression was mass-incarceration and torture. For much of the period, Uruguay was responsible for the highest per capita incarceration rate on the planet. The military locked away—without due process—student activists, professors, union organizers, journalists, lawyers, doctors, social workers, and Communist party members. Meanwhile, children like Gelman were born in military prisons and disappeared.
When the military stepped down in the mid ‘80s, the leaders of the fledgling democracy agreed to immunize the prior regime from future prosecution. In 1986, as victims and their families filed civil human rights lawsuits in Uruguayan courts, Parliament passed a retroactive amnesty resolution: the Ley de Caducidad (“Expiry Law”). Ignoring threats from the military, Uruguayans gathered over a half-million signatures to overturn the Expiry Law by referendum. Still, to the dissatisfaction of many Uruguayans and international human rights observers, the law survived. The architects of the dirty war were thus insulated from civil and criminal penalties.
Between the 1980s and 2005, four Uruguayan presidents sponsored policies of “silence and oblivion” regarding past crimes. Many citizens felt that Uruguay’s transition to democracy was incomplete without justice. As one Uruguayan told journalist Lawrence Weschler, “You can’t pardon someone who’s convinced he has behaved well.”
The Inter-American human rights regime has denounced impunity in Uruguay. In the early 90s, the Inter-American Commission on Human Rights published a report concluding that the Expiry Law violated several articles of the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights—including the right to justice, the duty of state parties to respect and ensure rights, and the right to judicial protection. In 2011, the Inter-American Court condemned Uruguay for the Gelman disappearance, ordering the State to guarantee that the Expiry Law would no longer impede investigation into past crimes. In response, on October 27, 2011, Uruguay negated its Expiry Law, purportedly ending nearly thirty years of amnesty for the aging generals of the military regime.
But impunity remains. In February of 2013, Uruguay’s Supreme Court ruled that portions of the law that derogated the Expiry Law were unconstitutionally retroactive, prompting the UN’s High Commissioner for Human Rights to remark that the “shadow of impunity” was potentially being restored in Uruguay. While many observers remain hopeful that past crimes will soon be investigated, I propose that it may be time for the international community to step in.
Prosecuting Uruguay's Generals in the International Criminal Court
Perhaps one strategy for forcing investigations and combatting impunity in Uruguay is to prosecute those responsible for the enforced disappearance of persons in the International Criminal Court (“ICC”). As a legal matter, the ICC is not bound by domestic amnesties or statutes of limitations. Crimes against humanity are considered nonderogable jus cogens, which cannot be insulated from prosecution by domestic law. The ICC’s arrest warrant for Joseph Kony in Uganda, for example, demonstrates that the ICC prosecutor can and will determine that a domestic amnesty has no legal effect on extraterritorial prosecution.
A more difficult obstacle is that the ICC has temporal jurisdiction only over crimes that occurred on or after July 1, 2002, the date that the statute establishing the ICC went into force. But enforced disappearance is a continuing crime—“continuing” in the sense that withholding information about the identities and fates of the disappeared is itself a crime that leaves families and entire communities of victims in a state of frozen mourning. The crime thus continues until the State identifies the whereabouts or fates of the disappeared.
Participants at the Rome Conference (the “framers” of the ICC) had considerable difficulty drafting Article 24, which eventually provided: “[N]o person shall be criminally responsible under this Statute for conduct prior to [July 1, 2002].” Some participants suggested that “[c]are should be taken not to bar prosecution” of acts that “began before but continued after the entry into force of the Statute.” One delegate even proposed to append the words “unless the crimes continued after that date” in order to ensure jurisdiction over continuing crimes, like enforced disappearance. This interpretation of Article 24 would permit ICC prosecution of pre-2002 disappearances in Uruguay, so long as the whereabouts or fates of the disappeared remain concealed. According to William Schabas, the chair of the Working Group on General Principles eventually resolved the highly contentious and “unresolvable” question of temporal jurisdiction over continuing crimes by avoiding the issue altogether and essentially leaving the issue open for interpretation.
An analysis of the proceedings at the Rome Conference and reconsideration of the temporal and legal status of criminal enforced disappearance suggests that there may be no concrete legal bar to prosecuting Uruguay’s generals in the ICC. The normative issues are much more difficult as extraterritorial prosecution arguably tramples Uruguay’s sovereignty and calls into question the viability of amnesty as a tool for negotiating transition to peace after civil conflict. Questions arise: Would future repressive regimes be willing to cede power knowing that amnesty laws will have no effect in the international sphere? Is it appropriate for the ICC, with its mandate to promote peace as well as justice, to assume the risks associated with the investigation of crimes that occurred decades ago? The real question, in other words, is what type of international court do we want?
 Mark Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge University Press, 2009).
 Lawrence Weschler, A Miracle, A Universe: Settling Accounts with Torturers (University of Chicago Press, 1998), 198.
 William Schabas, An Introduction to the International Criminal Court (University of Chicago Press, 2011), 198.