RIGHTS-ARGENTINA: Loophole May Pave Way for Bringing Military to Trial

By Marcela Valente Reprint | | Print |

Marcela Valente

BUENOS AIRES, Feb 21 2001 (IPS) - A weak spot in the legal structure and an international context that favours condemnation for crimes against humanity have led an Argentine human rights group to call for reopening the cases against military personnel who participated in repressive acts under the country’s most recent dictatorship (1973-1983).

Behind the effort is the Centre for Legal and Social Studies (CELS), an entity the courts accepted as plaintiff in a case underway against the perpetrators of the kidnapping and appropriation of a girl during the dictatorship. The victim was ultimately reunited with her biological relatives.

CELS also requested an investigation into the fate of the disappeared parents of the case’s protagonist, María Victoria Poblete. The charges seek punishment for those behind the kidnapping, torture and assassination of the two disappeared adults.

The CELS petition for investigation of these crimes requires a judge to declare null the due obedience and deadline laws. The legislation, enacted in 1986, excused from legal proceedings some 400 military and police agents who allegedly participated in the clandestine repression organised by the dictatorship.

The Argentine parliament derogated the laws in 1999, in other words, no member of the dictatorship’s military force could invoke the legislation to avoid trial for later crimes.

Until now, it had been thought that the repeal of the laws would not be able to be applied retroactively, given that the penal code prevents removing an individual’s legal advantage after it has been granted. Retroactivity would only be admissible in the proceedings if it favours the person accused or sentenced.

But international law is inclined to reject any justification that allows impunity for crimes against humanity, said CELS president, the journalist Horacio Verbitsky, Wednesday.

The court’s acceptance of CELS as a plaintiff in a specific case could lead to the reopening of legal proceedings against those who benefited from Argentina’s amnesty laws – but that depends on the acting judge’s ruling, and whether it is upheld by the Federal Chamber of Appeals and the Supreme Court of Justice, Verbitsky explained.

Given the lack of a constitutional court, each judge in Argentina has the authority to analyse the constitutionality of the related laws and rule on their validity, case by case. As such, the CELS lawsuit, if successful, would be a “pilot case” that opens the way for other similar proceedings.

Verbitsky told the foreign media here that his organisation is optimistic because the Federal Chamber of Appeals already ordered that the results of the investigation into the deaths of Poblete’s parents be included in the proceedings underway.

Poblete was kidnapped along with her parents in 1976 when she was just eight months old. The Grandmothers of the Plaza de Mayo Association tracked down Poblete, who was living with the family of Lt. Col. Angel Landa. He was subsequently charged in the case for which the court accepted CELS as complainant.

Also indicted were two participants in the repression of the dictatorship years, Julio Simón and Antonio del Cerro, who both invoked due obedience, saying they were only following orders.

The crime of appropriating minors was not included in Argentina’s amnesty laws, nor was it considered in the trials of the dictatorship’s military leaders in the 1980s.

Congress approved the due obedience and deadline laws enacted in 1986 because lawmakers believed that the members of the military juntas who had emitted the orders had already been tried and that their subordinates had merely obeyed their superiors.

But later, the military chiefs were pardoned and a mantle of impunity extended over all who had taken part in the dictatorship’s illegal repression.

Official reports indicate that 9,000 people were disappeared during the seven years of the Argentine dictatorship, though most human rights organisations put the toll closer to 30,000.

Verbitsky said that, as far as CELS is concerned, circumstances have changed in Argentina and around the world, and that today – as the 25th anniversary of Argentina’s Mar 24, 1976, coup d’etat approaches – the general climate is more favourable towards bringing to trial those responsible for crimes against humanity.

In 1995, Verbitsky, as a journalist, obtained the confession of former navy officer Adolfo Scilingo, who gave a detailed description of the “death flights” in which political prisoners were thrown from aircraft, live, into the sea.

That year, Spain’s National High Court agreed to go ahead with trials of Argentine military members.

Spanish justice authorities at first intervened in cases in which the victim was a descendant of Spaniards, but later expanded jurisdiction to all Argentine dictatorship victims, based on rulings by some judges who understood the charges as involving crimes against humanity.

The most notorious was the case of former Chilean dictator Augusto Pinochet, arrested in Great Britain in Oct 1998 on a warrant issued by Spanish judge Baltazar Garzón, who sought Pinochet’s extradition to Spain for trial for charges similar to those faced by Argentine military officials there.

Pinochet, whose dictatorship extended from 1973 to 1990, was finally released by the British government, which cited the elderly general’s failing health. But the former dictator has been indicted in Chile, where he is under house arrest pending trial.

Other countries have similar cases on their dockets. Senegal is demanding the trial of a former dictator of Chad, Germany ruled against a former Bosnian leader, and the Netherlands did the same regarding a former dictator of Suriname.

Retired Argentine major Jorge Olivera was arrested in Italy last year for extradition to France, where he faced trial for the kidnapping, torture, rape and disappearance of a French woman during Argentina’s dictatorship.

But using false papers, Olivera was soon free again and returned to Argentina, where he is protected by the due obedience law.

Another former agent of the Argentine dictatorship, Miguel Cavallo, arrested in Mexico in 2000, is the target of Spain’s justice authorities to face legal proceedings for crimes against humanity.

Olivera and Cavallo benefited from the two amnesty laws enacted in Argentina, but can no longer leave the country because Interpol (International Police) holds warrants to deliver the two to the foreign courts that have subpoenaed them.

Verbitsky stresses that the new legal strategy seeks to put an end to military impunity.

“We are more concerned about the present and the future than about the past,” he said, adding that many political, religious and union leaders, and even military officials, have expressed support for the CELS initiative.

“We don’t expect the government to support us… just that it does not interfere,” said the CELS president.