VI. Amnesty voided: The Cavallo Decision
Argentina. Reluctant Partner - Human Rights Watch, December 2001
It was a court investigation into the theft of a child abducted with her parents in 1978 that led to what was unquestionably the most significant decision in recent years in Argentina on the impunity issue. On March 6, 2001, Federal Judge Gabriel Cavallo ruled that Argentina's amnesty laws were unconstitutional and null, reopening the prosecution of two police agents accused of the "disappearance" of the young couple. Cavallo's decision reflected the growing international consensus that crimes against humanity cannot be shielded by amnesties. The decision dealt a severe blow to the wall of impunity in Argentina.50 It was followed in October by a similar ruling by another Argentine judge.
On November 28, 1978, a police task force abducted José Poblete Roa, of Chilean nationality, and his wife, Gertrudis Hlaczik, along with their eight-month-old daughter, Claudia Victoria. They were held, and tortured, in "the Olympus," a secret detention center in the Floresta district of Buenos Aire. During their secret detention, Claudia was taken from them on the pretense that she would be handed over to her grandmother. The "disappearances" of Poblete and Hlaczik were entered as cases no. 93 and 94 in the trials of the military juntas. After a long investigation assisted by the Abuelas, the grandmother found Claudia Poblete living with a retired police lieutenant colonel and his wife, who had hidden her real identity for twenty-two years.
Judge Cavallo indicted police agents Juan Antonio del Cerro (alias "Colors") and Julio Simón (alias "Julian the Turk") for stealing and giving the baby to the couple, and charged them with concealing her and hiding her true identity. The case would have progressed like other theft of minors cases, were it not for a legal action brought by CELS in October 2000, asking Cavallo to invalidate the full stop and due obedience laws and to charge Del Cerro, Simón, and seven other military and police officers also for the torture and "disappearance" of Poblete and Hlaczik. Cavallo ruled that the full stop and due obedience laws, which had prevented this case from coming to trial earlier, indeed violated Articles 29 and 118 of the Constitution, as well as Argentina's obligations under international human rights law. Cavallo charged Simón for the couple's illegal arrest and torture. Only his ill-health prevented Del Cerro from being indicted also. Both men appealed, and on November 9, 2001, the three-judge Federal Court unanimously confirmed Cavallo's verdict both in regard to the charges, which the court deemed to be crimes against humanity, and with regard to the amnesty laws which it agreed were unconstitutional and without legal effect.
At this writing, the two accused were expected to appeal to the Court of Cassation, a criminal appelate court, but the Argentine Supreme Court will eventually rule definitively on the validity of the amnesty laws. In Argentina a nullification ruling, once confirmed by the Supreme Court, not only invalidates the application of the law to the case in hand, but also overturns decisions taken when the law was in force. A final confirmation of the Cavallo decision would, therefore, open the way for prosecution of the police officers accused, and encourage the opening of other prosecutions. As noted in Chapter II, in December 1987 the Supreme Court ruled Argentina's amnesty laws to be constititional. The court, whose size has increased and composition changed significantly since then, would have to pronounce, in the final instance, against or in favor of its earlier decision.
Cavallo's 188-page verdict provided a comprehensive legal analysis of Argentina's amnesty laws, as well as of the political circumstances in which they were enacted. His first step was to demonstrate that the human rights crimes committed during the military dictatorship were of sufficient gravity and scale to be classified as "crimes against humanity," or international crimes subject to universal jurisdiction with no statute of limitations:
They offend juridical norms that reflect the most fundamental values which humanity recognizes as inherent to all its members as human persons . . . To analyze the events exclusively from the perspective of the Criminal Code would be to ignore or discard a series of legal tools designed by the consensus of nations especially for cases of extreme gravity like the present one.51
The norms of international human rights law, he argued, far from being foreign to Argentina's legal system, are integral to it and based on Argentina's long tradition of involvement in and contribution to the international legal system. Respect for these norms was expressly prescribed in the Constitution and laws. By contravening their express provisions, the impunity laws violated the Constitution.
Article 29 of the Constitution prohibits the legislature from giving the executive branch special powers that put the "life, honor, and fortunes of Argentines at the mercy of whatever government or person." Legislative acts of that kind are irremediably void, and those who propose, consent to them or sign them are guilty of "infamous treason." In Cavallo's assessment, by stripping the courts of their powers to provide remedy and justice to victims of the dictatorship, the amnesty laws were examples of legislative acts prohibited under Article 29.
Article 118 provides that crimes against international law (Derecho de Gentes), if committed outside Argentina's borders, must be judged by an Argentine court in the place designated by Congress in a special law. Crimes against humanity and universal jurisdiction are thus recognized and allocated a special conceptual place in the Argentine legal system. In a long analysis of precedent, Cavallo argued that the concept of Derecho de Gentes was a forerunner of the modern concepts that include that of crimes against humanity.52 The content had evolved with time, he argued, but even so had always reflected a common core, namely that such crimes are offenses against people wherever they may live, that their punishment is part of jus cogens ("peremptory norms"of a universal and binding nature);53 that they may be tried by courts anywhere (universal jurisdiction); and are not subject to any statute of limitations.54
There was also backing in Argentine jurisprudence for this interpretation, Cavallo argued. In an August 1989 decision of the Federal Appeals Court of La Plata to allow the extradition to Germany of Nazi war criminal Franz Schwammberger, Judge Leopoldo Schiffrin cited Article 118 to show that Argentina recognized international norms governing crimes against humanity. In the Priebke case, the majority view of the Supreme Court was that the warcrimes of which the former Nazi was accused were crimes against humanity under the meaning of Article 118, and consequently not subject to a statute of limitations in Argentina. This permitted Priebke's extradition to Italy. Having determined that the torture and "disappearance" of Poblete and Hlaczik were crimes against humanity in the meaning of Article 118, Cavallo concluded that the amnesty laws violate that article by preventing the courts from investigating the crimes and bringing those responsible to justice.
Cavallo noted certain questionable assumptions in the due obedience law. First, he pointed out that the law was based on the hypothesis that those who committed atrocities were powerless to understand the immorality of the actions that they were ordered to commit, or to resist the orders. Both the fact that an order was actually given and that it was not possible to resist it are treated by the law as premises, rather than questions of fact. Moreover, the due obedience law expressly excludes some crimes from its scope, such as theft of property and the concealment of babies, without stating whether these crimes are excluded because they did not follow from orders, or whether the perpetrators received orders but, in the case of these crimes, had the option of refusing to obey them. Whatever the underlying assumptions, they led to absurd conclusions: the law exculpates those who kidnap, torture, and kill, while allowing those that steal property to be tried and convicted. The perpetrator of a murder and infanticide gets off, while the officer who saves a baby's life and hands her over to a military family goes to prison. The Poblete-Hlaczik case perfectly exemplified this anomaly.
Cavallo pointed out that international law and treaty obligations take precedence over domestic laws in Argentina by express provision of reforms introduced into the Constitution in 1994.55 To avoid any doubt as to whether such norms may be applied retroactively, he noted that the Supreme Court had stressed the precedence of international law in successive rulings, in the light of Argentina's obligations under the Vienna Convention on the Law of Treaties (incorporated in Argentine law in 1980). Article 27 of the Vienna Convention states that "[a] party may not invoke the provisions of its internal law as justification of its failure to perform a treaty." Having established this key principle, Cavallo went on to point out the incongruence of Argentina's impunity laws with human rights treaties ratified by Argentina, including the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the American Convention on Human Rights, and the American Declaration on the Rights and Duties of Man. These treaties all oblige states parties to guarantee and protect human rights and require them to adapt all their internal legislation in order to comply with that objective.
On October 2, 2001, another federal judge, Claudio Bonadío, issued a second decision declaring the full stop and due obedience laws to be inconstitutional and null. Judge Bonadío, of the Second Chamber of the Federal Court of Buenos Aires, was investigating theft of property belonging to Conrado Gómez, who "disappeared" after his abduction on January 10, 1977 on suspicion that he was bank-rolling the Montoneros guerrillas. His captors, members of an ESMA task force, made off with the contents of his apartment and safe, including the deeds of properties worth almost $U.S. 20 million, and appropriated his car and several racehorses. They then allegedly transferred ownership of the assets to themselves using fictitious names and a realty company owned by Navy Adm. Emilio Massera and his son. The investigation began with crimes that were excluded from the amnesty laws, in this case criminal association and extortion. As in the Poblete case, however, the judge was confronted with the troubling irony that those responsible were immune from prosecution for much more serious crimes, such as Gómez's abduction and murder. Declaring the full stop and due obedience laws to be without legal effect using arguments similar to Cavallo's, Judge Bonadío indicted Adm. Emilio Massera as leader of a criminal association, and four members ofthe task force, Juan Carlos Rolón, Jorge Carlos Radice, Jorge Eduardo Acosta and Francis Whamond, not only for for criminal association, but also for illegal arrest aggravated by violence and threats.56
During the same week as the Bonadío decision, Graciela López de Filoñuk, the prosecutor in the case being heard in the "truth trial" in Córdoba,57 requested Judge Cristina Garzón to declare Menem's presidential pardons of 1989, as well as the two amnesty laws of the Alfonsin government, to be unconstitutional. The only beneficiary of the pardons, in the Córdoba case, had been Gen. Luciano Menéndez, former commander of the army's Third Corps, who was pardoned when he was facing trial on hundreds of counts of torture and murder (all the Third Corps officers under Menéndez's command had been already exempted from prosecution under the due obedience law).58 This was the first time that an Argentine judge had been called to pronounce on the constitutionality of the presidential pardons. If the judge agrees with the prosecutor's reasoning, the trial of Menéndez, a notorious human rights violator, could finally proceed.
50 See Anthony Faiola, "Argentine amnesty overturned: Ruling could bring trials of soldiers involved in "dirty war," Washington Post, March 7, 2001; Colin Barraclough, "Argentina tiptoes toward past," Christian Science Monitor, March 12, 2001.
51 Resolución del Juez Federal Gabriel R. Cavallo declarando la inconstitucionalidad y la nulidad insanable de los arts. 1 de la Ley de Punto Final y 1, 3 y 4 de la Ley de Obediencia Debida. III (translation by Human Rights Watch).
52 Cavallo quoted some prescient writings by nineteenth-century jurist Juan Bautista Alberdi, father of the Argentine Constitution of 1853, to make his point:
when the international rights of one or more individuals in a State are violated, that is, as members of humanity, even though it is by the government of their country, they may invoke international law and ask the world to make it respect their persons.
53 A norm of jus cogens "is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Vienna Convention on the Law of Treaties, Art. 53, May 23, 1969. These "principles and rules concerning the basic rights of the human person," are the concern of all states; "they are obligations erga omnes." International Court of Justice, The Barcelona Traction, Light & Power Co. (Belgium v. Spain), 1970 I.C.J. 3, 32.
54 Ibid., IV.
55 Article 75:22 of the Constitution states that Congress is mandated to "approve or discard treaties subscribed with other nations and with international organizations, and concordats with the Holy See. Treaties and concordats have superior status to laws." There follows a list of the human rights treaties to which Argentina is a Party.
56 Susana Viau and Victoria Ginzberg, "la Justicia tardó pero llegó a los marinos," Página 12, October 3, 2001.
57 The case is described briefly in Chapter IV.
58 "Contesta Vista: Incidente de Nulidad e Inconstitucionalidad, Case No. 9,481, October 2, 2001.