RIGHTS: Argentina Recognises Spain’s Jurisdiction to Try Rights Abuser

By Tito Drago Reprint | | Print |

Tito Drago

MADRID, Apr 18 2005 (IPS) - The Spanish courts have jurisdiction to try former Argentine Navy captain Adolfo Scilingo, on trial in Spain for genocide and torture, Argentina’s Human Rights Secretary Eduardo Duhalde said in an interview with IPS.

The Audiencia Nacional, Spain’s highest court, is to hand down a verdict Tuesday in the case of Scilingo, who is in prison in this south European country. A source at the court told IPS that an appeal that was recently filed by Scilingo challenging the testimony given by witnesses would be thrown out.

On a visit to Madrid, Duhalde said it would have been more logical for Scilingo to have been tried in Argentina for human rights crimes committed there during the 1976-1983 military dictatorship.

But he pointed out that the two amnesty laws passed in the South American country in the 1980s, which put an end to prosecutions of members of the military charged with human rights abuses, continue to stand in the way of legal action.

The laws of “due obedience” and “full stop” were enacted under the government of Raúl Alfonsín (1983-1989) after the trials that led to the conviction and imprisonment of the former members of the ruling military junta, who were later pardoned in 1990 and 1991 by then-president Carlos Menem (1989-1999).

Although the Argentine Congress repealed the two laws in 1998, legal challenges questioning the constitutionality of the congressional move are still pending a Supreme Court decision.

Because military human rights abusers were let off the hook in Argentina, the principle of “universal justice” came into play, which has given rise to trials abroad like those of Scilingo and Miguel Cavallo, another former Argentine naval officer in prison in Spain, said Duhalde.

(Cavallo, an alleged former torturer who was living in Mexico, was extradited in 2003 by that country to Spain, where he is facing charges of genocide and terrorism).

In international law, the concept of universal jurisdiction holds that every state has an interest in bringing perpetrators of the worst crimes against humanity to justice, regardless of where the crime was committed, or of the nationalities of the perpetrators or victims.

“Our government (led by President Néstor Kirchner) couldn’t very well reject these trials, which were born of the Argentine state’s responsibility for failing to try the perpetrators of crimes against humanity,” said Duhalde.

But the official also said things were now changing in his country, because “practically all of the cases that were brought to a halt by the law of ‘due obedience’ are being reopened today.

“The ideal would be for all of those who were responsible (for human rights violations) to be tried in (Argentina), because it sets a bad example for the international community when the country is not able to bring to justice those who break the law,” he added.

In his appeal, Scilingo argues that “the detentions, abductions, searches of homes, interrogations involving physical or mental pressure, and physical…elimination of the so-called subversives were carried out according to the military statutes in effect since 1968/1969.”

The appeal was described as “unfounded and meaningless” by Argentine lawyer Carlos Slepoy, who lives in Spain and is representing the families of victims of the Argentine dictatorship in the case against Scilingo.

“There can be no legitimate obedience to the laws and statutes enacted or applied by the dictatorship, or orders arising from them, because a provision that runs counter to human rights should never be obeyed,” the human rights attorney argued.

In 1995, Scilingo shocked the world when he confessed to participating in several “death flights”, during which leftists and other political prisoners were drugged, stripped naked and thrown out of military aircraft alive into the Atlantic Ocean, as part of a strategy to “disappear” the victims.

The former naval officer’s account was published in the book “The Flight: Confessions of an Argentine Dirty Warrior”, by Argentine journalist Horacio Verbitsky, who will testify in the trial.

Scilingo travelled to Spain in 1997 to provide information to prosecuting Judge Baltasar Garzón – who the following year became famous when he unsuccessfully attempted to try former Chilean dictator Augusto Pinochet – and was arrested.

Under Spanish law, Scilingo can be tried in Spain since some of the victims of the Argentine dictatorship were Spanish citizens, and because no legal action has been brought against him in Argentina.

An estimated 30,000 people became the victims of forced disappearance at the hands of Argentina’s security forces during the de facto regime.

Duhalde (no relation to former Argentine president Eduardo Duhalde, who preceded Kirchner from 2001 to 2003) lived in exile in Spain from 1976 to 1983.

With regard to the future of the struggle for human rights, the official said “it is indispensable to clarify the pending cases and punish the perpetrators through the justice system.”

Left-leaning “President Kirchner and those of us who are working with him are convinced that a new society cannot be built on the foundations of impunity, lack of justice, pain that has gone unredressed, and truth that has gone uninvestigated,” he stated.

But it is very important today, he added, “to guarantee the civil, political and, fundamentally, economic, social and cultural rights of the upcoming generations.

“We have to focus on the insertion of Argentina in the modern world as a country of respect, dignity and solidarity, where it is worth living and feeling like an Argentine,” said Duhalde.

When asked about Argentina’s recovery from the devastating 2001-2002 economic crisis, the official said his country would not be returning any time soon to the economic and social well-being enjoyed by the population just a few decades ago.

“Things have improved a great deal, the indicators point to a significant recovery, but, as President Kirchner says, we didn’t just hit bottom – we were in the subsoil, so there is still much to do, and we’re working on it.”

Duhalde also said there is a long way to go “to reach a world of peace, security and respect for human rights.”

To move in that direction, “there is a task in which Latin America and Europe should work together: strengthening the United Nations mechanisms for combating violence.”

When asked if he meant violence in general, Duhalde told IPS that “there are many kinds of violence: institutional violence, state violence, and also the violence of groups that use it as a form of political pressure.”

Duhalde differentiated between guerrilla and terrorist organisations, “although at times guerrilla groups have also resorted to terrorist techniques.”

However, “guerrillas are generally insurgent forces that are critical of the political structure in certain states, and are fighting for power,” he underlined.

In response to a question on the main causes of violence, Duhalde said “There is no worse violence than hunger and social marginalisation; there is no worse terrorism than condemning women, children and the elderly to die of starvation.”