HUMAN RIGHTS-ARGENTINA: Judge Revokes Military’s Amnesty Laws

By Marcela Valente Reprint | | Print |

Marcela Valente

BUENOS AIRES, Mar 7 2001 (IPS) - An Argentine judge declared two amnesty laws “unconstitutional and invalid” Tuesday, potentially revoking the legal protection for 800 members of the security forces accused of committing human rights abuses under the country’s most recent dictatorship (1976-1983), which official reports say resulted in the disappearance of some 10,000 people.

Federal judge Gabriel Cavallo’s ruling, which affects the so- called “Due Obedience” and “Full Stop” laws decreed during the government of Raúl Alfonsín (1983-1989), could trigger a new wave of human rights cases against the military dictatorship’s agents who have so far been protected by the legislation.

Nearly 25 years after the coup d’etat that paved the way for human rights crimes, Cavallo ruled in favour Tuesday of the request filed by the non-governmental Centre for Legal and Social Studies (CELS) to try Julio Simón and Juan Antonio del Cerro.

Cavallo thus agreed to investigate the 1978 kidnapping of Claudia Poblete, who was eight months old at the time, and whose parents, José Poblete and Gertrudis Hlaczik, were “disappeared” by the dictatorship’s military forces.

CELS attorneys asked the judge to expand the case involving the “illegal appropriation” of Claudia Poblete – who has since been reunited with her biological relatives – to include proceedings against those responsible for the disappearance of her parents.

Journalist Horacio Verbisky, CELS president, stated Tuesday that he awaits confirmation of Cavallo’s decision by a higher court, as the Federal Chamber of Appeals has already rejected recourse to the two laws in previous cases of crimes against humanity.

For his part, the new Minister of Defence, Horacio Jaunarena, said he disagreed with judge Cavallo’s ruling. “If, in their time, these laws were promoted and approved by parliament, I believe they are constitutional,” Jaunarena said, as reported by the Internet version of the newspaper ‘Clarín.’

But Jaunarena affirmed that the government would not interfere with Cavallo’s decision.

Human Rights Watch applauded the Argentine judge’s ruling, saying “the court’s decision reflects the international consensus that the perpetrators of the most heinous atrocities cannot be shielded by sweeping amnesties.”

“It means that the wall of impunity in Argentina is crumbling,” stated José Miguel Vivanco, head of the organisation’s Americas Division.

Judge Cavallo based his ruling on the contradictions evident between the two amnesty laws that halted the lawsuits against military and police agents charged with human rights crimes but did not annul the cases. The judge also cited the principle of “universal jurisdiction,” which says that crimes against humanity can be tried at any time in any place.

In this way he declared that the crimes being investigated are not subject to statutes of limitations or amnesties. If the Argentine State were to decide against trying the crimes, they would remain unpunished, but the accused would still be subject to the application of international law in any other country.

At the same time, he argued that the accused cannot be condemned for the kidnapping of a minor and still maintain impunity for the charges of kidnapping, torture and disappearance of the child’s parents. It would be the same as punishing the guilty “for only a portion” of a crime, the judge pointed out.

Lastly, Cavallo affirmed that, according to the Argentine Constitution, international treaties have primacy over national law.

The international legal instruments the judge cited include the American Convention on Human Rights, the International Pact on Civil and Political Rights, and the Convention Against Torture, which define the charges against Simón and Del Cerro as crimes against humanity.

Claudia Poblete was located just a few months ago living with a retired military officer and his wife, who had changed the girl’s identity.

Simón and Del Cerro, who were tried for the illegal appropriation of Claudia Poblete, had argued that they had acted “following orders” from their superiors, and attempted to invoke the Due Obedience law.

The Alfonsín government had supported court cases against the military brass who had been in charge during the dictatorship, putting many of them in prison. But two military uprisings prompted the former president to halt the legal proceedings through the enactment of the Due Obedience and Full Stop laws.

CELS attorneys are confident that Argentina’s Supreme Court of Justice, the maximum legal arena, will uphold Cavallo’s ruling, which would set a precedent for further legal complaints against members of the military who engaged in illegal repression, said Verbisky.

Attorney Horacio Méndez Carreras, sponsored by CELS, presented himself Tuesday as plaintiff in another case for which seven agents of the security forces were tried in 1986, but were subsequently released as a result of the amnesty laws.

Méndez Carreras represents the relatives of French citizens who disappeared in Argentina, including two nuns, Alice Domon and Leonie Duquet, abducted during the dictatorship and never found.

French courts condemned, in absentia, former Argentine military captain Alfredo Astiz for the Domon and Duquet case. Astiz now faces an international arrest warrant.

Argentine judges have the authority to determine the constitutionality of the nation’s laws. But the ruling of one judge in a specific case does not necessarily mean his or her decision will be followed in similar cases.

Every legal complaint paves the way for a new case, though a ruling by the Supreme Court, as the final legal recourse, establishes legal precedence.

The National Commission on Disappeared Persons, created after the dictatorship ended, counted nearly 10,000 cases of abduction and subsequent disappearance, a sum that includes an estimated 500 children.

Other human rights groups assert that the total number of people disappeared under the dictatorship is closer to 30,000.

The Association of Grandmothers of the Plaza de Mayo has so far located 70 children – now adults – who had been kidnapped with their parents or who were born while the mother was being held in the dictatorship’s prisons.

Three years ago, the Grandmothers convinced the courts to hear cases involving the illegal appropriation of minors, a crime not covered by the amnesty laws, and which led to renewed prison sentences for the military dictators who had been pardoned in 1990 by then-president Carlos Menem.