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Hilversum, Netherlands
Hilversum, Netherlands

Twenty years on, amnesty end

Published on : 26 June 2005 - 11:00pm | By International Justice Tribune
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The Argentine Supreme Court changed the course of history on 14 June by abolishing the two amnesty laws known as "due obedience" and "full stop" passed in the late 1980s. Until now, the laws have shielded officers suspected of having committed crimes against humanity. The high court ruling could clear the way for prosecutions of 400 formerly low-ranking officials, accused of abduction, torture and murder during the military dictatorship of 1976 to 1983. The Supreme Court found the amnesty laws unconstitutional, and threw out its associated benefits, including the clause of dismissal for lack of evidence that protected many officers. Charges can now be brought against them, and they can no longer invoke the legal principle of res judicata. Human rights groups have announced that they are lodging complaints against the 400 officers, 20 to 30 of whom are still in office. The now-abolished amnesty laws had essentially served to protect officers directly involved in the "dirty war" that shook the country at the end of the 1970s, when government troops battled with left-wing guerrilla groups trying to overturn them. During the period, over 10,000 people disappeared after being abducted by military and paramilitary patrols.

The weight of international law

The Supreme Court ruling recognised the principle in international law that crimes against humanity cannot be the subject of an amnesty. In the "Barrios Altos" case in 2001, concerning a massacre committed by Peruvian officers, the Inter-American Court of Human Rights (ICHR) found that crimes against humanity were inalienable and may not be the subject of an amnesty as this would violate the principles enshrined in the American Convention on Human Rights. In 1994, Argentina incorporated the Convention into its constitution, making the ICHR case law a norm of reference for the country's courts.

An exercise of sovereignty

The Court reaffirmed the case law in a 400-page ruling detailing the differing opinions of its nine members. The vote was carried by seven to one, with one abstention. The seven judges who voted in favour of abolition based their decision on the Barrios Altos case together with international treaties incorporated into the constitution in 1994, in particular, the American Convention on Human Rights and the United Nations International Covenant on Civil and Political Rights. Judge Eugenio Zaffaroni, who spearheaded the majority vote, made it clear that Argentina has often used the argument of domestic sovereignty to protect criminals on its territory from extradition to other countries. The judge argued that voluntarily deferring to universal jurisdiction in international treaties is, on the contrary, an exercise of sovereignty. Dissenting from the majority, judge Carlos Fayt considered the constitution to be above international treaties and that abolishing laws after the fact threatens legal stability. Fayt stressed, however, that his opinion "does not seek in any way whatsoever to justify the enormous scale of atrocities committed during the military dictatorship, nor does it preclude prosecutions". Judge Augusto Belluscio, who leaves the Supreme Court at the end of the month, abstained.

Twenty years of struggle and setbacks

The Supreme Court ruling has provoked a strong public reaction in Argentina, despite the fact that the judges' opinions were known. It was also well publicised that they had been working on the issue for months. Argentine president Nestor Kirchner, who made it one of his priorities to obtain compensation for the victims of the military dictatorship, showered praise on the judges for their work [see IJT 23]. "This is a ruling that renews our faith in justice. This is the beginning of the end of impunity," he said. Former president Raul Alfonsin, who initiated the amnesty laws during his transitional government, after the threat of a military putsch, also defended the court's decision, commenting that "democracy has been strengthened".

Alfonsin was elected in 1983 to succeed the military dictatorship after the catastrophic Falklands war. Two years later, Alfonsin's government became the first since democratic Germany to convict former military leaders of atrocities. It was also the first in Latin America to create a truth commission (Conadep) that documented over 9,000 cases of people who disappeared under the military dictatorship. But in spite of massive popular support, Alfonsin paid a heavy price for his political audacity in human rights by two military putsches. He managed to negotiate a truce with the armed forces, which was sealed by the passing of the amnesty laws in 1986 and 1987 for low-ranking soldiers acting under the orders of their superiors. The laws were "valuable and indispensable as tools to protect human rights in the future" the former president says today.

In 1989, Carlos Menem succeeded Alfonsin. One of his first measures was to pardon the military leaders that Alfonsin had excluded from his amnesty laws. He also pardoned the guerrilla chiefs accused of terrorism. In total, Menem sanctioned about 300 immunities from prosecution in his first two years of presidency. Most of the measures benefited soldiers accused of human rights violations, but also exonerated a group of guerrilla leaders and a military group who led the uprising against the Alfonsin government.

Menem's legal immunities declared unconstitutional

Recently, several judges have declared Menem's legal immunities unconstitutional, for similar reasons invoked by the Supreme Court to abolish Alfonsin's amnesty laws. It is now argued that the Supreme Court could, much earlier than expected, apply the same criteria to the military leaders and take a similar approach for their subordinates. Commander-in-chief of the army, Roberto Bendini, said he fully accepted the Supreme Court's ruling and that the abolition of the immunities "is the right approach to ensure that the lower-ranking officers are not imprisoned while their officers remain free".

The end of the military "pact of silence"

Military and legal sources say they have witnessed a change in the military legal strategy after recent developments in international justice. Only a few months ago, the military was still standing by its "pact of silence", in which no member of the armed forces would admit that the disappearances had happened. But since learning that the Supreme Court was planning to abolish the pardon laws, those officers most compromised by the testimony of survivors have began to admit taking part in abductions and torture. They stress, however, that they were following the instructions laid down in military handbooks that were later destroyed to protect their superior officers. The same ex-soldiers have presented the courts with copies of the handbooks that they managed to save.

The Argentine Supreme Court's decision is likely to have repercussions throughout South America, where many countries continue to apply amnesty laws for those who committed atrocities during the military juntas of the 1960s to the 1980s. Some of these were passed by the military government themselves; others were approved by fledgling democracies under more or less explicit military pressure. Experts say that the Buenos Aires ruling could encourage other countries in the region to reform their impunity laws. "The past keeps coming back to us" declared Alfonsin, in support of the ruling that abolished the amnesty laws he himself initiated nearly twenty years ago.

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