Santiago Cantón: "It's unlikely the former president's claims in international courts will succeed."

-You mentioned that the Inter-American Commission on Human Rights, within the OAS, and the Committee on Civil and Political Rights, in Geneva, are the main international bodies to which Cristina Kirchner can turn. Can you elaborate on this?

Both the Commission and the Committee have two procedures. One is the case system, meaning a complaint is received and processed, and the other is the request for urgent action, known as precautionary measures. Cases take a very, very long time. Obviously, they can go to court and file a complaint and publicly state that they filed a complaint and that the complaint was accepted. But ultimately, it's very difficult for these bodies to rule on this issue, given the lengthy due process that followed in this case. Honestly, I definitely see it as extremely difficult for the Inter-American Commission or the Committee on Civil and Political Rights to intervene.

Former Foreign Minister Santiago Cafiero considered it possible to take the case to the Commission and then, from there, to the Inter-American Court of Human Rights. What do you think?

Well, yes, you can go to the Inter-American Commission, but as I said, it's very difficult for that to succeed. And if it's a case before the Inter-American Court of Human Rights, the only way to get there is to first go to the Commission. This takes several years, at least four years, but generally much longer. And only then can the case go to the Court. In other words, a case presented to the Inter-American Commission on Human Rights can eventually reach the Court and be decided by the Court after seven, eight, nine, or ten years.

-Other sources close to the former president reported that she was going to go to the International Court of Justice in The Hague, and there was even talk of appealing to the International Criminal Court. Is that possible?

The International Court of Justice doesn't hear complaints of this kind, only between states. A state would have to sue the Argentine state for failing to fulfill its obligations by sentencing Cristina. Therefore, that's practically impossible. And I can say that if they truly consider the International Criminal Court as a possibility, they are either demonstrating a dangerous ignorance or admitting that their objectives are more media-related than legal.

-The sentence basically has two parts: six years in prison and a lifelong ban from holding public office. Can international organizations rule on only one of the two? Which one is more likely to be changed by those bodies?

The bodies can rule on both issues. Each body decides that. But as I said before, I find it very difficult for them to rule on either of those two issues. The one that might perhaps have a greater chance is the one related to disqualification from holding electoral office. But Article 23 of the American Convention, which deals with political rights, establishes that a State may regulate the exercise of those rights for various reasons, and among those reasons is a conviction by a competent judge in a criminal proceeding. Those situations clearly arise here.

-There are two Argentines on both the International Commission on Human Rights and the OAS Inter-American Court of Human Rights, one of whom is a recognized Kirchnerist militant, Andrea Pochak. Could that influence Cristina's case for or against her?

In principle, no, because there is a long-standing practice of the Inter-American Commission on Human Rights, which is that Commission members do not participate in decisions regarding their respective countries, and this has always been strictly respected. So, in principle, these bodies are not easily influenced in general.

-I reiterate as a summary, you see it as very difficult for the path that prospered an international ruling in favor of Cristina

I've been hearing for a while now that they're going to turn to international organizations and try to reverse the decision made in Argentina. Honestly, I don't see any of these organizations, whether the Inter-American Commission or the Committee, saying that there's a decision that violates human rights, considering the entire procedure followed in Argentina over several years. Furthermore, with different stages and different courts making decisions, and finally, with the Supreme Court making this final decision. Something important is that these organizations, whether the Commission or the Committee, are what are known as subsidiary or complementary. What does this mean? They can't act unless national justice systems fail to act, or act incorrectly, or make obvious errors. So, it's a very important principle of international law applied by all these types of organizations. And, in principle, can they turn to it? Yes, they will definitely be able to turn to it, and they will publicly say that they did so, to gain some media attention. But I see a favorable outcome as extremely difficult.

-Do you know of any similar precedents?

During my time at the Inter-American Commission, as in previous years, there were numerous cases of former presidents who appealed to the Commission, and truthfully, I don't recall them generally being successful. There have been numerous cases of presidents of different ideologies who have appealed to the Inter-American Commission without generally obtaining favorable decisions.

What other leaders can you compare Cristina Kirchner's judicial situation and her defense in international courts and commissions with?

The IACHR has handled dozens of cases and precautionary measures related to former presidents and political leaders in Latin America. For example, Alan García, Fujimori, and his wife; (Jean-Bertrand) Aristide, (Manuel) Zelaya, Fernando Lugo, Evo Morales, Hugo Chávez. Often, these were requests for urgent precautionary measures for the protection of personal integrity. That is, beyond the fact that when they were presidents they harshly criticized the IACHR, when they were out of power, they quickly responded to it to defend themselves. Our inconsistencies. Beyond the fact that each case should be analyzed individually, I would say there are two cases that are more similar to the situation of the former president. I clarify that while Argentina, from (Raúl) Alfonsín onward, has always staunchly defended the IACHR, Cristina's government modified that practice of more than two decades, becoming the first Argentine government since 1983 to criticize the IACHR. But it went much further; At an Extraordinary General Assembly of the OAS in Washington, D.C., he requested that the IACHR be prohibited from granting precautionary measures. The very same measures they now appear to be seeking.

-Which cases are most similar?

First, the precautionary measures requested from the IACHR by former Mexican Foreign Minister Jorge Castañeda Gutman. Second, the case before the UN Human Rights Committee filed on behalf of President Lula da Silva. These two cases are similar in that the State refused to register them for electoral purposes, either due to a legal interpretation, in Castañeda's case, or due to a judicial decision, in Lula's case. In Castañeda's case, although the request for precautionary measures was accepted by the IACHR, it was later ruled in favor of the Mexican State by the Inter-American Court. And in Lula's case, the Human Rights Committee ruled in favor of Lula, considering that he had not received a fair trial. It should also be noted that the Brazilian Supreme Court had already ruled in favor of Lula a year earlier, considering that the trial against him had been fair.

-How should Cristina make her appeal to international organizations?

As I was saying, these are subsidiary or complementary bodies, and the first thing to do is exhaust all domestic remedies (in each country), and that has been done (in the Argentine case). In other words, they can go. I've received hundreds of politicians, in particular, who went to the Inter-American Commission on Human Rights to speak out, but knew they had no chance of making progress. If they go to the Inter-American Commission on Human Rights, they have to do two things. They can file a complaint or they can file a request for precautionary measures. The complaint is a lengthy process; the decision on precautionary measures is made relatively quickly. And they'll likely file both: file a case and file a precautionary measure.

As for the deadline she has to present the case, it's six months from the last decision. Therefore, the six-month period for her to present a case before the Inter-American Commission on Human Rights begins now. If she's going to request a precautionary measure, for the commission to ask for her release, she can do so at any time. Now, she has no chance of success.

-Does every complaint always go through the Inter-American Commission on Human Rights, and then go to the Court?

Every complaint always goes to the Inter-American Commission on Human Rights, the Commission processes it and issues a decision, and notifies the State. If the State doesn't comply with the decision, the Commission can send the case to the Court. We're talking about a period that can last five or six years just at the Commission and then a couple more years before the Inter-American Court. But the gateway to all cases is the Inter-American Commission; you can't go directly to the Court to present a case; it's impossible.

-He clarified that these bodies are subsidiary if the internal bodies fail, which is what the former president's defense is arguing: that they convicted her to remove her from the political arena, which is arbitrary and flawed.

Yes, what they're mainly going to argue is that there was no due process, that this was more of a political trial than anything else, and that there are flaws in due process, which, well, they'll eventually have to prove. But that's the typical argument. It's Articles 8 and 25 of the American Convention, which is what's in place in almost all cases of this nature, let's say.

Since ending his tenure in the province of Buenos Aires, Santiago Cantón returned to the international arena, first in Washington, where he directed the Rule of Law program of the Interamerican Dialogue think tank. In February 2023, he was elected Secretary General of the International Commission of Jurists (ICJ), based in Geneva. The ICJ is the first human rights NGO since the post-war period, with over 70 years of existence and 60 prestigious jurists from around the world, with offices in every region.

It is said that having gained academic experience as a professor at the Universities of Buenos Aires and Georgetown (USA) and multilateral activity at the Inter-American Commission on Human Rights (IACHR) and the United Nations, he became interested in public policy management. When he was expected to become the Secretary of Human Rights of the Nation under Mauricio Macri's government in 2016, María Eugenia Vidal instead took him to the governorship of Buenos Aires. Those who know him understand that it ended up being a frustrating experience for him, not only because of his work with the former governor, who always supported him, but also because of the enormous difficulty of navigating the provincial government bureaucracy. Cantón, born in Villa Ballester in 1962, pursued a more prominent career in Argentina in the human rights sector, while at the same time, this lawyer's international horizon shifted to international law.

We're in a world at war where leaders no longer consult with organizations before attacking another. Vladimir Putin did so when he invaded Ukraine in 2022. Benjamin Netanyahu did so in Gaza against Hamas terrorism, and in Lebanon against Hezbollah. Donald Trump threatens to take over Greenland. What's your take on this?

Clearly, we are living through the worst period since the end of World War II. In addition to international conflicts, with the ever-increasing risk of nuclear weapons use, we must add the rise of a far-right ideology that seeks to destroy the multilateral organizations created in the ashes of World War II to strengthen international dialogue and diplomacy. The reckless irresponsibility of the leaders of this new far right borders on the criminal.

But isn't there also room for criticism of bureaucratization, the excessive politicization of organizations to the point where there is dissatisfaction based on their excessive progressivism, or what the right calls "wokism," or when a power manages to impose its authority? Cases in point: UN, WHO, WTO, OAS.

For years, civil society and several countries have been proposing the need to reform the international order created in 1945. There is no doubt that changes are necessary. And the UN Secretary-General initiated a reform process, UN80, with a clear objective: "to draw a direct line between the creation of the United Nations eight decades ago and the prevention of a Third World War." But let's not kid ourselves. Beyond the need for change, we cannot ignore the fact that what many are seeking is the end of multilateralism, as proposed by the new right. It is the same line of thinking that a century ago opposed the League of Nations and paved the way for the First and Second World Wars. Today, it seems they want a Third.

Santiago A. Canton is Secretary General of the International Commission of Jurists (ICJ) based in Geneva. He graduated from the University of Buenos Aires School of Law and holds a Master of Laws from the Washington College of Law. He was Director of the Rule of Law Program at the Inter-American Dialogue in Washington, DC, President of a United Nations Commission of Inquiry on Israel and Palestine, Executive Director for Human Rights at Robert F. Kennedy Human Rights, Executive Secretary of the Inter-American Commission on Human Rights (IACHR), Special Rapporteur for Freedom of Expression of the IACHR, Director for Latin America at the National Democratic Institute, and Chief of Mission to the OAS for follow-up to the Inter-American Democratic Charter. He was an Adjunct Professor at Georgetown University and currently teaches at the Washington College of Law and the University of Buenos Aires. In 2005, Canton was awarded the Grand Chapultepec Prize by the Inter-American Press Association.

A leader : in Argentina, Raúl Alfonsin.

A hero : Mariano Moreno

A drink : a good scotch

A society: that of the welfare state and the rule of law, which is unfortunately being trampled on.

A memory : total joy the morning after the '83 elections, buying every newspaper I could find in Villa Ballester. I still have them.

A dream: that the callous love for the new right will disappear before it leads us to repeat the tragic, endless night of 85 years ago.

One film: many. But for these times of racism and discrimination, Blade Runner.

A book: The Western Canon by Harold Bloom

A challenge: to ensure that freedom triumphs over the violence and lies of neo-fascism.