I. Summary and Recommendations

Argentina. Reluctant Partner - Human Rights Watch, December 2001 

A decade ago, Argentina seemed to have closed the books on the grave and systematic human rights violations committed under the military juntas that ruled the country from 1976 to 1983. But now, Argentina has a rare opportunity to finally provide truth and justice for thousands of relatives of victims who have suffered for decades with neither. Like Chileans, who are now at last bringing to account military human rights violators responsible for atrocities in the 1970s, the Argentine courts have revitalized cases that seemed utterly stagnant just a few years ago. Courageous efforts by victims' relatives, human rights organizations, prosecutors, and judges in Argentina have been reinforced by the determined efforts of their counterparts in Spain, France, Italy, Sweden, and Germany to see justice done for their own citizens who were "disappeared" and murdered by the military in Argentina.

On November 9, 2001, the Federal Court of Buenos Aires made history by nullifying Argentina's "full stop" and "due obedience" amnesty laws. The three-judge appeals panel unanimously affirmed a March 6 decision by Federal Judge Gabriel Cavallo that found the 1986 and 1987 amnesty laws to be unconstitutional and contrary to Argentina's international human rights obligations. The Federal Court ruling allowed the first trial since 1987 of an officer for torture and "disappearances" committed during Argentina's so-called dirty war to proceed, and opened the door to further prosecutions.

While dispensing justice is a matter for the judiciary, the executive branch of government must cooperate in the process. Government officials have a duty to support the actions of the courts, by removing legal obstacles to prosecutions and ensuring the full cooperation of their institutions and of the armed forces. Unfortunately, the government of Argentine President Fernando De la Rúa lacks a clear policy of support for the vital efforts now being made to bring truth and justice. Government officials have expressed unease over the new judicial efforts and, perhaps more importantly, have failed to ensure that the military cooperates with the courts. Equally damaging, the government has refused to cooperate with non-Argentine courts. On August 14, 2001, it denied extradition requests from Italy and France for naval intelligence officer Alfredo Astiz, wanted for the "disappearance" of French and Italian citizens living in Argentina during the military dictatorship. On November 16, 2001 it rejected other requests from Spain and Germany for the extradition of nineteen former officers accused of murder and torture.

The denial of extradition dealt a severe blow to the unfolding process of justice for military atrocities in Argentina. There is an urgent need for the Argentine government, now, itself, to initiate promptly the prosecution of those accused. In addition, the government must extend its full support for ongoing court efforts for other human rights crimes and insist that the Argentine military do the same.

When Argentina first confronted the issue of human rights trials after the return to civilian government in 1983, society had just emerged from seven years of brutal military rule. Democratic institutions were understandably weak and easily intimidated by military threats. Now, eighteen years later, Argentine democracy is much stronger, while the military has lost much of its power and influence. It is time for Argentina to exorcise the ghost of its tragic and brutal past.

In a historic trial beginning in 1984, a civilian court tried the military rulers and sentenced Gen. Jorge Videla, the first military president, and naval commander Adm. Emilio Massera to life imprisonment on charges of murder and torture. Three other junta leaders also received prison sentences. After the hearings ended, the courts continued to investigate criminal complaints involving hundreds of senior and lower level officers. In 1987 hard-liners in the army rebelled in protest. Faced with this challenge, the government of Raúl Alfonsín passed two laws - the full stop ("punto final") and due obedience laws - in the name of restoring democracy and protecting order, which brought most of the trials to an end. After another violent army revolt, in 1989 and 1990, Alfonsín's successor as president, Carlos Menem, issued pardons benefiting all those who had been convicted and many whose trials were continuing. Altogether, the courts had convicted ten senior officers since the last military junta stepped down, yet all were freed.

Societies that have experienced traumatic episodes of state violence are not easily reconciled, especially if the truth about the past is concealed. A complicity of silence and impunity have a corrosive effect on the legitimacy of successor governments and the credibility of democratic institutions. The only effective antidote in the long run is for the judicial institutions, which have the onerous task of deciding guilt and innocence, to function, and be seen to function, impartially and without impediment. The renewal of this process in Argentina is cause for hope for long-term reconciliation. For the sake of democracy and human rights, the government should do all that it can to protect and promote this process.

Over the last three years a second wave of human rights prosecutions has gathered momentum, not only in Argentina, but also in its Southern Cone neighbors, Chile, and to a much lesser extent, Uruguay. The three countries were all governed by repressive military regimes in the 1970s and 1980s, suffering a similar pattern of human rights violations: political imprisonment on a huge scale, denial of due process, torture, extrajudicial executions, and "disappearances." (The number of "disappearances" in Argentina was much higher than its neighbors. Although the precise numbers are disputed, the Argentine military is believed to have committed more than 15,000 "disappearances.") Many political dissidents from Chile and Uruguay were also abducted in Buenos Aires, where the Argentine security forces cooperated with their counterparts in other countries in a secret plan known as Operation Condor. In Chile, over the past two years, courts have accomplished what would have been hard to imagine a decade ago: they have indicted former dictator Augusto Pinochet and key army generals responsible for abductions and murder. A parallel dynamic has been evident in Argentina. At this writing, both Videla and Massera were under house arrest facing prosecution for organizing the theft of babies born of mothers held in secret detention, crimes excluded from the Alfonsín amnesty laws. Also in detention and facing similar charges were former Commander of the First Army Corps Gen. Carlos Guillermo Suárez Mason; the last president of the military junta, Gen. Reynaldo Bignone; two other members of the last military junta, and some lesser rank officers. A Buenos Aires court, meanwhile, was seeking Pinochet's extradition from Chile to answer for his role in Operation Condor.

The new impetus that has driven the courts once more into action has come in part from the new tide in favor of international justice affecting countries in four continents. The watershed for Latin America was the arrest of Pinochet in London in October 1998 at the request of Spanish Judge Baltasar Garzón. Almost overnight, this landmark event transformed issues of state sovereignty and extraterritorial justice from largely academic issues into matters of global debate. In terms of justice and the accountability of former dictators and their cohorts, the world has grown smaller and frontiers more permeable since Pinochet's arrest. It is now increasingly recognized that those who commit crimes against humanity may in principle be judged anywhere.

Of all countries in Latin America, Argentina has been the most affected by the tide of transnational justice. Over the past few years extradition requests have crossed the Atlantic with unprecedented frequency, deriving from Garzón's criminal investigations and other cases under study in Italy, France, and Germany, while, at this writing, others were being prepared in Switzerland and Sweden. Even in the United States, one of the countries least sympathetic to transnational justice, Argentine cases helped shape the jurisprudence which led in 1992 to the Torture Victims Protection Act, a major advance in international accountability. Moreover, the flow of extradition traffic has not been limited to the highways linking developed and developing countries. Over the last two years, Argentina has asked for the extradition of Chileans, Uruguayans, and former Paraguayan dictator Alfredo Stroessner, in exile in Brazil, for crimes committed in the context of Condor. Mexico has agreed to extradite an Argentine torturer to Spain.

It would be an exaggeration, however, to explain the revitalization of Argentine justice entirely as resulting from a demonstration effect of actions by foreign courts. Most of the credit must go to the country's vigorous human rights organizations, a free and inquisitive press, and a small, but apparently growing number of judges who take the principles of international human rights law seriously and have tried to reflect them in their judicial decisions.

In the early 1990s the full stop and due obedience laws, passed by the government of Raúl Alfonsín in 1986 and 1987, seemed to have foreclosed any hope of the successful prosecution of the thousands of human rights crimes then facing the courts. The full stop law prevented the initiation of any new criminal complaint, while the due obedience law automatically exempted from prosecution all but officers who had been in top positions in the armed forces. Between them the laws had benefited an estimated 1,180 people accused of human rights crimes. Some of the officers who were excluded by their rank from the due obedience law had been tried, convicted and pardoned. None could be tried twice for the same offenses. In January 1998, the Argentine Congress repealed the full stop and due obedience laws, but the repeal did not have retroactive effect, meaning that judicial decisions based on the laws were safe from challenge.

In 1995 the horrifying confessions of former officers who had participated in the so-called death flights - in which the military drugged defenseless prisoners and dropped them alive from planes into the Atlantic - reopened the public debate about the past. Relatives of victims and human rights attorneys grasped the opportunity to present cases once more to the Federal Appeals Court in Buenos Aires (which had tried junta leaders ten years before). They demanded not sentences and punishment, but merely judicial investigations to search for the truth about the fate of the "missing." Thus began the so-called truth trials, a legal innovation apparently without precedent in the continent. While individual judges in other countries had sought to pursue judicial investigations despite sweeping amnesty laws (Chile is a case in point), their efforts were frowned on, and even penalized, by their seniors.

Currently, at least twenty-eight courts across Argentina are conducting such investigations, with powers to subpoena military witnesses to appear and testify under oath, but with no powers to charge or convict them. Most military witnesses, however, refuse to testify, and the truth that has emerged has owed little to them. Yet, the trials have established the principle that judicial investigation of crimes against humanity such as "disappearances" must continue, regardless of laws passed to prevent the prosecution of those responsible. This principle was upheld by the Inter-American Commission on Human Rights in a friendly settlement with the State of Argentina signed in November 1999, by which Argentina agreed to "accept and guarantee the right to truth, which consists in the exhaustion of all means to obtain clarification of what happened to disappeared persons."

One of the most tragic and unsavory aspects of the repression under the military juntas was the fate of at least 240 children and unborn infants who "disappeared" with their parents. Many babies born while their mothers were held in secret detention were given to military couples who falsified birth certificates and raised them under their own names. Each government since the military relinquished power in 1983 has devoted state resources to the recovery of these children. In 1992 a National Commission for the Right to Identity (Comisión Nacional por el Derecho a la Identidad, CONADI), which includes the Association of Grandmothers of the Plaza de Mayo (Abuelas de la Plaza de Mayo, hereinafter Abuelas), their attorneys, state prosecutors, and the undersecretary for human rights of the Menem government, centralized and coordinated the search for the missing children. A National Genetic Data Bank has enormously helped efforts to identify the children. The crimes of baby theft and falsification of public documents were expressly excluded from the amnesty laws, making this one of the few crimes for which prosecution and punishment are still possible. Trials aimed at recovering the stolen children began in the early 1990s and led to the conviction of some of the couples responsible after the children had been traced and identified. The major advances, however, came in the late 1990s.

Piecing together the evidence, two judges, Robert Marquevich and Adolfo Bagnasco, concluded that the practice had been planned by top commanders. In July 1998, Marquevich ordered the arrest of the first chief of state of the military government, Gen. Jorge Videla. The following November, Judge María Servini de Cubría placed in custody Admiral Emilio Massera, who had ultimate responsibility for a clandestine maternity unit at the notorious detention center of the Navy Mechanics School (Escuela Superior de Mecánica de la Armada, ESMA). Both had received life sentences in the trial of the junta leaders in December 1985, but had been pardoned by President Carlos Menem. Judge Bagnasco cast his net wider and also ordered the arrest and prosecution of Gen. Reynaldo Bignone, president of the caretaker government before the election of Alfonsín, and two members of the final junta, army chiefLt.-Gen.Cristino Nicolaides and naval commander Rubén De Franco, accusing them of attempting to conceal the crimes. Also arrested and charged were ten army and navy officers implicated in the day-to-day operation of the clandestine camps where the babies were born.

In September 1999 the Federal Appeals Court in Buenos Aires rejected appeals by Videla and Massera, who both argued that the crimes had been included in their earlier trial and were subject to a statute of limitations. The appellate court's decision broke new ground in several respects. The most important was that it considered the crimes involved to be crimes against humanity, noting that under international law prosecution could not be barred by a statute of limitations. Moreover, invoking a constitutional amendment introduced in 1994, the court considered that international human rights law principles overrode domestic legislation and were binding. It also ruled that the indictments did not violate the rule of double jeopardy and confirmed the jurisdiction of civilian judges (the defendants had insisted on being tried by military tribunals). The court decision endorsed many of the same legal concepts employed by Judge Garzón in his pathbreaking investigation of the military juntas. It also made abundant reference to precedents in other countries on the justiciability of international crimes, such as the British House of Lords decision on the Pinochet case, and the Forti v. Suárez Mason case in the United States (described in Chapter XI). Appeals lodged by the defendants against the appellate court await a decision by the Supreme Court.

In a landmark decision on March 6, 2001, Federal Judge Gabriel Cavallo, investigating the "disappearance" of a couple and the theft of the pair's daughter, accepted a plea entered by human rights attorneys and became the first Argentine judge to declare the amnesty laws unconstitutional and null. His 188-page ruling, solidly based on international human rights law and precedent, argued that the full stop and due obedience laws violated Articles 29 and 118 of the Constitution, and conflicted with Argentina's obligation to bring to justice those responsible for crimes against humanity. The two police agents who were defendants in the case became the first officers to be charged for "disappearances" since 1987. Since the annulment of a law is retroactive, if Cavallo's decision is upheld on appeal by the Supreme Court, those exonerated under the amnesty laws before their trial was completed could in principle be indicted again and eventually convicted.

The commander of the Army has publicly criticized these court developments, which have also caused evident unease in government circles. If there have been advances in the courts, the army's position on human rights investigations has gone into reverse since Gen. Ricardo Brinzoni replaced Martín Balza as chief-of-staff in December 1999. In April 1995, Balza made an historic announcement on television acknowledging the army's responsibility for systematic human rights violations and ordering his troops to disobey immoral orders in the future. Balza fired officers who continued to vindicate the actions and goals of the military juntas, and ordered the troops to respect court summonses. By contrast, Brinzoni has stated publicly that the truth trials "led to nothing"; dispatched army officials to express solidarity with in-service officers detained for refusing to testify before the courts; backed their legal appeals; appeared in public at army ceremonies with members of the military government; and filed legal actions to gain access to the files of both governmental and nongovernmental human rights organizations. Moreover, Brinzoni himself currently faces criminal accusations for his alleged role in a notorious massacre of prisoners in December 1976.

Constitutionally, the armed forces are directly subordinate to the president of the nation as their commander-in-chief. As the hiercharchical superior of each of the service chiefs, the president's orders have to be obeyed. The De la Rúa administration has publicly declared its respect for the independence of the courts. The president has the duty to issue clear orders to the armed forces chiefs to ensure that serving officers cited to appear in court do so without comment or question. Rather than intervene to back the authority of the courts, however, the president has generally preferred to remain silent, while some of his ministers have openly criticized judicial decisions such as the Cavallo ruling.

Like the government of Carlos Menem (1989-2000), the De la Rúa administration has publicly opposed the extradition of Argentines to stand trial for human rights abuses in other countries. Not a single extradition requestso far has been granted, and, as noted above, the Foreign Ministry recently rejected requests from Italy and France for the extradition of Alfredo Astiz. The government must recognize that under international law Argentina is obliged either to try those responsible for crimes against humanity or extradite them, if requested, to a country with jurisdiction to do so. International law does not allow states to have their cake, and eat it, too: that is, preserve impunity within their borders and bar extraditions.

During the period of military government, the United States veered from policies that supported human rights to those that gave comfort to human rights violators in Argentina. After its initial reluctance to recognize the gravity of the human rights situation, the United States under President Jimmy Carter made hundreds of representations to the Argentine government on cases of abuse. In 1978, Congress passed the Humphrey-Kennedy amendment to the Foreign Assistance Act, prohibiting military sales, aid, loans, or training to Argentina because of its human rights record. By contrast, President Ronald Reagan went to great lengths to patch up relations between the two countries damaged by Carter's human rights-based policies, inviting Argentina's military leaders to Washington, exaggerating improvements in respect for human rights, and moving to repeal the Humphrey-Kennedy amendment.

During the early 1980s Argentine army officers participated in U.S. counterinsurgency assistance to governments in Central America, particularly Honduras. According to official Honduran government data, more than one hundred Hondurans "disappeared" while this secret program was underway, a form of human rights abuse not seen in Honduras before or since. Washington's silence about these events is deeply troubling. The U.S. owes an explanation both to Argentina and Honduras as to how Argentine officers implicated in grave human rights abuse were allowed to participate in this training under U.S. auspices.

Recommendations

To the Argentine government:

The recent efforts of Argentine courts to hold accountable those responsible for the gross human rights abuses of the 1970s are a welcome and positive development both for the families of the victims and for Argentine democracy.

These efforts have the potential to destroy the wall of impunity that was erected with the full stop and due obedience laws in violation of international human rights law. Unfortunately, to date, the government of President Fernando De la Rúa has failed to support the process of establishing truth and justice in Argentina.

The investigation and adjudication of crimes against humanity are matters for the courts alone. The government, however, is obliged to ensure that the courts have the resources and independence necessary to function effectively. Moreover, the government must guarantee the cooperation of executive branch officials - including the military - with court proceedings.

To facilitate the courts' work, the government of President De la Rúa should:

· Instruct the chief of staff of each branch of the armed forces to ensure the full cooperation of the military with all court proceedings.

· Initiate the prompt prosecution of former naval officer Alfredo Astiz for the numerous cases of "disappearance" of which he has been accused, or authorize his extradition for trial outside Argentina.

· Propose legislation to annul the full stop and due obedience laws, to ensure that they no longer block court prosecutions.

· Forward extradition requests to the courts, where decisions should be made solely on their legal merits. The government should carry out the findings of the courts unless there are exceptional circumstances involving the security of the state or public order;

· Issue clear orders to the chiefs of staff of the armed forces to avoid making public declarations about court decisions and the circumstances surrounding them, and instruct them to guarantee the full cooperation of the military.

· Pass legislation to ensure the continuation of the National Commission on the Right to Identity (CONADI) and provide it and the National Genetic Data Bank with sufficient funds and other resources to enable them to continue their important work;

To the United States government:

We urge the U.S. government to declassify and release to the public documents, including those of the Central Intelligence Agency (CIA), that contain information on human rights violations under the military governments in Argentina. Classified documents pertaining to the recruitment and participation of Argentine intelligence agents as advisers to the Honduran army and the Nicaraguan contras should also be published to contribute to efforts to bring to justice the perpetrators of grave human rights abuses committed by both these forces.