VII. Impunity Under International Law

Argentina. Reluctant Partner - Human Rights Watch, December 2001 

Judge Cavallo's decision is probably one of the fullest legal expositions dealing with the applicability of international human rights law to domestic criminal law in Argentine judicial history. On June 1, 2001, Amnesty International, Human Rights Watch, and the International Commission of Jurists presented an amicus curiae brief to the Federal Court in support of Judge Cavallo's findings.59 Our legal arguments are summarized below.

The Amicus Brief

Under the human rights treaties which Argentina has ratified, the obligation to investigate and punish grave violations of human rights is considered to be an essential aspect of the state's duty to guarantee or ensure respect for human rights.60 Over more than a decade, the Inter-American Court of Human Rights has repeatedly stressed this obligation.61 The state must also offer an effective remedy to victims; provide just and adequate reparation to them and their relatives; and establish the truth about what occurred. These components of the duty to guarantee respect for human rights are not optional alternatives, but are complementary and interdependent obligations, all of them mandatory.62

The duty to enforce respect for human rights overrides domestic legislation and even imposes limits on national sovereignty, as was explicitly recognized by the Inter-American Commission on Human Rights in the Chumbivilcas case:

In other words, the States have a duty to respect and to guarantee the fundamental rights. These duties of the States, to respect and to guarantee, form the cornerstone of the international protection system since they comprise the States' international commitment to limit the exercise of their power, and even of their sovereignty, vis-a-vis the fundamental rights and freedoms of the individual.63

Failure to investigate human rights violations and bring to justice those responsible for them amounts to a denial of justice and entails impunity. This latter concept is understood as "the total lack of investigation, prosecution, capture, trial, and conviction of those responsible for a violation of the rights protected by the American Convention."64 A state that maintains a situation of impunity violates its international obligations and incurs international responsibility.

Amnesties and other similar measures which prevent the authors of grave violations of human rights from being brought before the courts, tried, and convicted, are incompatible with the state's obligations under international human rights law. The United Nations' Human Rights Committee has repeatedly reaffirmed this principle when examining amnesties adopted by state parties to the International Covenant on Civil and Political Rights, including Chile, Lebanon, El Salvador, Haiti, Peru, Uruguay, and Yemen. In the Barrios Altos case, the Inter-American Court recently ruled Peru's amnesty law to be null and devoid of legal consequences. It held that amnesty laws were, in principle, inconsistent with the letter and spirit of the American Convention on Human Rights:

Provisions for amnesty, statutes of limitation, or the establishment of exemptions from criminal responsibility which seek to prevent the investigation and punishment of those responsible for grave human rights violations like torture, summary, extrajudicial, or arbitrary executions, and enforced disappearances, all of which are prohibited for contravening non-derogable rights recognized by international human rights law, are inadmissable.65

Argentina's full stop and due obedience laws have also been scrutinized by international human rights bodies. The U.N. Human Rights Committee concluded in 1995 that these laws contravened paragraphs 2 and 3 of Article 2 and paragraph 5 of Article 9 of the ICCPR.66 According to the Committee:

The Committee is concerned that amnesties and pardons have impeded investigations into allegations of crimes committed by the armed forces and agents of national security services and have been applied even in cases where there exists significant evidence of such gross human rights violations as unlawful disappearances and detention of persons, including children. The Committee expresses concern that pardons and general amnesties may promote an atmosphere of impunity for perpetratorsof human rights violations belonging to the security forces. Respect for human rights may be weakened by impunity for perpetrators of human rights violations.67

The Committee pointed out in its consideration of Argentina's report in 2000 that:

Gross violations of civil and political rights during military rule should be prosecutable for as long as necessary, with applicability as far back in time as necessary to bring their perpetrators to justice. The Committee recommends that rigorous efforts continue to be made in this area and that measures be taken to ensure that persons involved in gross human rights violations are removed from military or public service.68

The U.N. Committee against Torture concluded that the full stop and due obedience laws were "incompatible with the spirit and purpose of the [Convention against Torture and Other Cruel, Inhuman or Degarding Treatment or Punishment]."69

The Inter-American Commission on Human Rights considered that by passing and applying these laws, together with Decree 1002/89 pardoning those convicted of, or charged with, human rights violations, Argentina had failed to meet its obligation to provide access to a hearing by a competent, independent and impartial tribunal (Article 8:1 of the American Convention on Human Rights) as well as the right to judicial protection (Article 25).70

Given the Argentine government's frequent claim that domestic laws in force override the jurisdiction of courts, national or foreign, to try human rights offenders, it is important to note that the Inter-American Court of Human Rights has repeatedly stressed that domestic laws may never be invoked to justify the non-observance of treaty obligations. In a 1994 advisory opinion, the court found unanimously that:

the promulgation of a law in manifest conflict with the obligations assumed by a state upon ratifying or adhering to the Convention is a violation of that treaty. Furthermore, if such violation affects the protected rights and freedoms of specific individuals, it gives rise to international responsibility for the state in question.71

Judges and governments often argue that courts cannot be held responsible under international law since they are constitutionally obliged to apply the laws in force. They contend that, in a democracy that respects the separation of powers, only the legislative branch may repeal, annul or modify the laws. Customary international law, however, considers all the branches of the state to be responsible for compliance with the state's international obligations. As Article 6 of the United Nations' Draft Articles on State Responsibility, under preparation by the International Justice Commission since 1955, states:

The conduct of an organ of the State shall be considered as an act of that State under international law, whether that organ belongs to the constituent, legislative, executive, judicial or other power,whether its functions are of an international or an internal character, and whether it holds a superior or a subordinate position in the organization of the State.72

The judiciary, in particular, must comply with the state's international obligations by administering justice independently and impartially; observing judicial guarantees; investigating, prosecuting and punishing the perpetrators of human rights violations; and guaranteeing the right to justice and an effective remedy to victims of grave human rights violations and their families. The courts are still obliged to carry out these functions even when to do so would mean refusing to apply legislation in force. By applying laws that prevent them from guaranteeing internationally protected rights, they incur the state's international responsibility.

Extraterritoriality and Universal Jurisdiction

In the three years that have passed since the arrest of General Pinochet in London in October 1998, the principle of universal jurisdiction for grave human rights crimes has become ever more widely accepted. According to this principle, some crimes (defined as "crimes against humanity") are so serious that any court may prosecute those responsible for them, regardless of the nationality of the perpetrators or victims, or where the crimes were committed. A principal pragmatic reason why international law provides for universal jurisdiction is to make sure that there is no "safe haven" for those responsible for the most serious crimes. Although deeply rooted in international law since the Second World War, universal jurisdiction was exercised very sporadically until the late 1990s, when the number of such prosecutions multiplied.

Prosecutions conducted by non-Argentine courts into abuses committed by Argentine state agents in Argentina also grew in number during the 1990s, as a result of legislation blocking further human rights trials inside the country. Just as the impunity laws were introduced to stave off military revolt, successive governments have refused to cooperate with these trials for the same political reasons. So far, Argentina has failed to extradite a single defendant. Those who face, or have faced, justice in foreign courts have been arrested during trips or while living abroad, or have been tried in absentia.

As is usual in other countries, the law favors domestic courts over foreign ones if the extradition crime was committed by an Argentine in Argentina. An Argentine citizen facing extradition may opt, as an alternative to extradition, to be tried by an Argentine court.73 If a crime for which extradition is requested also falls under the jurisdiction of an Argentine court, extradition would only be allowed if the collection of evidence were clearly easier in the foreign country.74

In short, the legal, as well as the political cards, are stacked against the extradition to foreign countries of former Argentines accused by foreign courts of human rights abuses committed in Argentina. However, this in no way diminishes the importance for accountability of prosecutions conducted in other countries. Under the principle of aut dedere, aut judicare (either extradite or judge), governments that refuse for whatever reason the extradition of citizens wanted for crimes against humanity are obliged to try them at home. Conducting such trials is the only satisfactory response of a government that consistently turns down extradition. This is why prosecutions by foreign courts advance accountability even though the obstacles to such trials being held abroad may be overwhelming.

60 The duty to try and punish those responsible for grave violations of human rights has its legal basis in the International Covenant on Civil and Political Rights (Article 2); the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (Articles 4, 5, and 7); the American Convention on Human Rights (Article 1); the Inter-American Convention to Prevent and Punish Torture (Articles 1 and 6); the Inter-American Convention on the Enforced Disappearance of Persons (Articles 1 and 4).

61 See, for example, Velásquez Rodríguez (July 24, 1989); Godínez Cruz (July 21, 1989); El Amparo (September 14, 1996); Castillo Páez (November 3, 1997); Suárez Rosario (November 12, 1997); Nicholas Blake (January 24, 1998).

62 See Juan Méndez, "Derecho a la verdad frente a las graves violaciones a los derechos humanos," in Martín Abregu, Christian Cortis (eds.), La Aplicacion de los Tratados de Derechos Humanos por los Tribunales Locales (Buenos Aires: CELS, Editores del Puerto, 1997), p. 526.

63 Inter-American Commission on Human Rights, Annual Report 1995, Case No. 10,559, Chumbivilcas (Peru).

64 Inter-American Court of Human Rights, Paniagua Morales and others, Sentence of March 8, 1998, Series C: Decisions and Judgments, No. 37, para. 173.

65 Corte Interamericana de Derechos Humanos, Sentencia de 14 de marzo de 2001, Caso Barrios Altos, para. 41 (translation by Human Rights Watch).

66 Final Observations of the Human Rights Committee: Argentina, April 5, 1995. U.N. document CCPR/C/79/Add.46; A/50/40, para. 153.

67 Ibid.

68 Final Observations of the Human Rights Committee: Argentina, November 3, 2000. U.N. document CCPR/CO/70/ARG, para. 9.

69 Committee Against Torture, Communications No. 1/1988; 2/1988 and 3/1988, Argentina, November 23, 1989, para. 9.

70 Inter-American Commission on Human Rights, report no. 28/92 (Argentina), October 2, 1992, para. 50.

71 Advisory Opinion OC-14/94 of December 9, 1994. International Responsibility for the Promulgation and Enforcement of Laws in violation of the Convention (Arts. 1 and 2 of the American Convention on Human Rights), para. 50.

72 Report of the U.N. International Law Commission on the work of its forty-eighth session, May 6-July 26, 1996, U.N. Document A/51/10, p. 6.

73 Article 12 of the Law on International Judicial Cooperation.

74 Articles 5 and 23 of the Law on International Judicial Cooperation.