update: the right to truth eaaf – special sectioneaaf.typepad.com/pdf/2003/righttruth.pdf ·...

UPDATE

Congress Annuls Amnesty Laws,Awaits Supreme Court Ruling

Argentina returned to democracy in 1983. After the

1985 trials of five top junta members for human

rights abuses committed during their rule, two

amnesty laws, the Full Stop and Due Obedience laws,

were passed during the government of President Raul

Alfonsín in 1986 and 1987, respectively. These laws

were meant to quell increasing restlessness in the

armed forces in response to the prosecution of lower-

ranking officers. Since then, the laws have impeded

the prosecution of military officers for most human

rights abuses committed during the military

repression of the 1970s and 80s. In 1989, then-

President Menem pardoned several members of the

military junta who were serving sentences. Two years

later, he issued a broader presidential pardon that

covered 39 people still liable to stand trial for the

human rights abuses they committed and 164 officers

and other military personnel who were involved in

three military uprisings against President Alfonsín.

However, while military officers were protected from

standing trial for human rights abuses from the past

in Argentina, they had been prosecuted for other

crimes related to these atrocities which were not

directly covered in the two laws, such as the abduction

of children and the misappropriation of assets of

detainees. Nor have the laws impeded attempts to

prosecute high-ranking military officers abroad for

crimes committed against dual citizens. (Please see

EAAF 2003 report on extradition request and annual

reports 2000-2002.)

Trials overseas have not halted national efforts to

abolish these laws, which have intensified under the

current government of President Nestor Kirchner.

Indeed, Kirchner has made overturning the laws one of

his top priorities and receives substantial support from

a majority of congress members.

128 • E A A F 2 0 0 3 A N N U A L R E P O R T • T h e R i g h t t o T r u t h

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N UPDATE: The Right to TruthSupporting the right to truth and justice is fundamental to EAAF’s work. A key

component of the team’s work is to provide evidence of what happened and how it

happened to families and the local organizations that support them. This right is

particularly crucial in cases of political disappearances, where substantial attempts

are often made to erase or hide material traces of crime and silence witnesses. EAAF

currently supports a number of recommendations on the right to truth, particularly

the right to a proper and independent investigation, including the implementation of

all possible forensic procedures and analyses to identify remains and provide

information about the cause and manner of death. This special section includes

judicial and investigative processes in Argentina in 2003 and builds upon EAAF’s

2002 report on the Right to Truth.

In mid-August 2003, both houses of the Argentine

Congress, the Chamber of Deputies, and the Senate voted

by large majorities to annul the Full Stop and Due

Obedience amnesty laws with retroactive effect, clearing

the way for reopening major criminal cases against

military officers that had been shelved following the

imposition of these laws. The Supreme Court will make

the final decision on the amnesties. Supreme Court

decisions are also pending on decisions by Argentine

lower court judges Cavallo (2001), Bonadio (2001) and

Skidelsky (2003), who also ruled the amnesties null, void

and unconstitutional. In 2003, after nearly two years

without a decision, the Supreme Court referred the issue

of the constitutionality of these laws back to a lower

appellate court.1 Once the appeals court makes a

decision, which is expected in the coming months, the

issue will return to the Supreme Court.

The Supreme Court has delayed ruling on prior

attempts to strike the amnesty laws for over two years.

The Court is currently in turmoil due to national

pressure to force judges loyal to ex-President Menem

— who increased it from five to nine members — to

step down. The Court is widely believed to play a key

role in covering up corruption scandals that took place

during Menem’s presidency. During the crisis of

December 2002, where elected President De La Rua

resigned and four other presidents took his post in the

next two weeks, there were massive demonstrations

demanding the resignation of the entire Supreme

Court. Although the issue was largely shelved

following the crisis, President Kirchner is once again

addressing matters of the current Supreme Court and

implementing revamped mechanisms for appointing

new judges, with the support of Congress.

T h e R i g h t t o T r u t h • E A A F 2 0 0 3 A N N U A L R E P O R T • 129

Buenos Aires, December 8, 2003. A majority of the members of the House of Representatives voting to approve the annulment ofthe Full Stop and Due Obedience amnesty laws. Photo courtesy of Candelaria Lagos/Telam.

In August 2004, Argentina’s Supreme Court upheld the life

sentence given to one of the murderers of General Carlos

Prats, an ex-Chilean army chief killed in Buenos Aires in

1974. Five of the current eight judges ruled that the there

is no time limit when it comes to prosecuting crimes against

humanity. This decision is understood by many legal experts

to indicate that the Court may be preparing to rule on the

unconstitutionality of the amnesty laws.

Extradition

New developments in the arena of international

criminal law, including increased willingness to use

universal jurisdiction, broaden the possibilities for

prosecution for past human rights abuses. Cases where

crimes were committed against citizens of other

countries, or people with double citizenship, are

increasingly addressed through judicial processes

outside of Argentina. These processes frequently result

in extradition requests for high-ranking military

officers to stand trial for crimes in other countries.

Decree #1581/01, issued by the outgoing government

of Fernando de la Rúa in December 2001, prohibited

the extradition of these officers. In August 2003,

President Kirchner repealed this presidential decree,

opening a legal avenue for those accused of human

rights violations to be extradited to other countries for

trial. This is especially significant because a number of

countries, including France, Spain, Italy, Sweden and

Germany, have called for the extradition of high-

ranking military officers found responsible for the

deaths of dual citizens during the “Dirty War.”


Buenos Aires, April 24, 2004. While President Nestor Kirchner (not pictured) looked on, the head of the Army, Roberto Bendini,removed the photos of former dictators Jorge Rafael Videla and Reynoldo Bignone in one of the galleries of the Military College at ElPalomar. Photo courtesy of Jorge Vidal/Telam.

Kirchner’s renewed consideration of this matter was

spurred through arrest warrants issued by Spanish

judge Baltasar Garzón for 46 military officers and a

civilian accused of torture and disappearances to stand

trial in Spain. Garzón appealed to the Spanish

government for extradition on the basis of universal

jurisdiction: in Spain, crimes against humanity may be

tried regardless of where they were committed. In his

judgment he argued that the Argentine military junta

tried to wipe out dissent and that this amounted to

attempted genocide — the systematic elimination of an

entire group of people. Noting the repeal of the

amnesty laws by the Argentine Congress and the

possibility that these defendants might be tried in

Argentina, Garzón stipulated that the requests would

be dropped if the amnesty laws were annulled.

Garzón’s appeal prompted the detention of nearly all of

the 46 officers named in the request, including General

Rafael Videla and Admiral Emilio Massera, who were

already under house arrest on other charges not covered

by the amnesty. In addition, Captain Alfredo Astiz,

arrested in late July 2003, is the subject of extradition

requests by Italy and Sweden, and was convicted in

absentia in France in 1999 and sentenced to life in

prison. France has renewed an earlier request for his

extradition. (For further information on these cases,

please see EAAF’s 2000 Annual Report.)

The repeal of Decree 1581 allows Argentine judges to

decide the merits of extradition requests for the first

time. Judge Rodolfo Canicoba Corral, who issued the

detention orders for those named in Garzón’s appeal,

noted that the process of sorting out various extradition

requests and deciding which ones to honor and in

which order is likely to be complicated, but may be

avoided by a Supreme Court decision upholding the

striking of the amnesty laws.

The Spanish government ultimately refused Garzón’s

appeal for extradition on the basis of the Congressional

repeal of the Due Stop and Full Obedience laws, basing the

decision on the principle of territoriality, which Argentina

has used in the past to deny extradition requests: crimes

should be tried in the country where they were

committed, if at all possible. Following this decision,

Judge Canicoba released all of the people who were

detained and were not awaiting trial on other charges.

In December 2003, the Nuremberg Prosecutor’s Office

in Germany issued an international arrest warrant for

former Argentine President Jorge Rafael Videla and

two former members of the armed forces. The three

men were accused of involvement in the killing of

German citizens Klaus Zieschank in 1976 and

Elisabeth Kasemann in 1977.

Trials in Argentina

In early September 2003, the Federal Chamber Court of

Buenos Aires ordered the reopening of trials for crimes

committed in the Navy Mechanics School (ESMA), a

notorious torture and secret detention center. Among

the fifteen former agents accused is Captain Astiz, a

formal naval intelligence agent who escaped extradition

to France as well as previous requests (i.e. by Sweden and

England). In addition, Suarez Mason, a former army

general in charge of Military Zone 1 where the majority

of the people disappeared during the repression, was

extradited from the US to Argentina in 1988 and

pardoned by then-President Menem. His extradition has

also been requested by Germany, Italy and Spain in

relation to the deaths of dual Argentine citizens during

the dictatorship. In Córdoba, Argentina, the chief of

Military Zone 3, General Menendez is also jailed with

other high-ranking officers who will be prosecuted for

human rights abuses partially confirmed through

EAAF’s investigation of the San Vicente Cemetery (see

the Córdoba section in Argentina 2003.) The progress of

these trials has been further assisted by the Kirchner

cabinet’s ratification of the U.N. Convention on the

Non-Applicability of Statutes of Limitations to War

Crimes and Crimes against Humanity in August 2003.

On March 29, 2004, in a precedent-setting decision

against perpetrators of human rights crimes from the last

military dictatorship, a federal judge in La Plata


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sentenced Jorge Bergés and Miguel Etchecolatz to 7 years

in prison for the falsification of identity and date of birth

of Carmen Sanz (her false name given by the police was

María de las Mercedes Fernandéz), the daughter of Aida

Sanz and Eduardo Gallo Castro, who were disappeared in

1978. Etchecolatz, who had served as head of the police

for the province of Buenos Aires during the last military

dictatorship, was already under house arrest for crimes

committed under the First Army Corps, which was in

charge of the police at the time. Bergés, who had been a

police doctor of the province of Buenos Aires during the

last military dictatorship, was the victim of a 1996

shooting near his home in which gunmen allegedly from

a group called “Revolutionary Organization of the

Community” shot him approximately 20 times. Bergés

had been convicted in 1986 by a federal appeals court to

6 years in prison for his role in torturing and providing

medical oversight to the torture of detained persons

during the dictatorship. A year later he was released

under the partial amnesty law 23.251 and returned to

practicing medicine. After his release, Bergés was

charged with similar crimes against children of

disappeared people which were not covered by the

amnesty. Human rights groups expressed satisfaction

with the ruling, but were disappointed in the short

sentence given the gravity of these crimes.

Cavallo Extradited from Mexico to Spain

Further strengthening the international development

of universal jurisdiction, in 2003 Ricardo Cavallo was

extradited from Mexico to Spain at the request of

Judge Garzón to stand trial for alleged crimes

committed during the Argentine “Dirty War.”

Cavallo’s transfer is the first example of one country

extraditing a person to another country to stand trial

for abuses that happened in a third.

Cavallo, an Argentine citizen who had been living in Mexico,

was accused of participating in over 200 cases of torture and

disappearance during the military repression. Arrested in

Mexico in 2000, he was detained while Spain’s request for his

extradition to stand trial for crimes committed in Argentina

moved through the Mexican courts.

Truth Trials

Truth Trials continue in Argentina. As detailed in

EAAF’s 2002 annual report, “truth trials” are an

innovation particular to the Argentinean judicial system,

in which investigations into amnesty-covered human

rights violations are carried out but criminal conviction

of perpetrators is prohibited. Nevertheless, defendants


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Photo courtesy of Sandra Cartasso.

can be prosecuted if they give false testimony. While

these courts are officially sanctioned they are frequently

criticized for their lack of prosecutorial authority.

Nevertheless, they continue to serve as important centers

in which truths about the past are being uncovered. In

May 2003, two judges from the Federal Court in La

Plata, currently overseeing a truth trial, declared that

crimes against humanity are not subject to any statute of

limitations. According to Amnesty International, “The

judges revoked the dismissal of the case against a former

police officer accused of destroying information from the

morgue of the Buenos Aires Police Headquarters about

the causes of death of people who had ‘disappeared’. The

judges stated that crimes against humanity that occurred

during the military government (1976-1983) can and

should be investigated and punished.”2

In July 2004, the Argentine human rights group,

Centro de Estudios Legales y Sociales, reported threats

and the temporary abduction of prosecutors Carlos

Dumm and Hugo Cañon, both active in the ongoing

truth trials in La Plata and Bahía Blanca.3


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During a march in 2004, images of disappeared persons were posted on the fence of the ESMA compound, where thousands of kidnapped people were taken to be questioned and tortured. Many were killed and thrown into the Argentine Sea.

Financial Reparations Paid for Disappearances

In 1994 the government established blanket reparations

laws paid by the state for all families of disappeared

people, disappeared people who were later released,

political prisoners, and others, in an attempt to pre-empt

civil cases. These indemnification laws partly are related

to a ground-breaking civil case, in which Argentine

courts ordered the payment of indemnification by the

state and former naval admiral Emilio Massera and

Lambruskini first in November 2004, in response to a

suit filed by Daniel Tarnopolsky in 1987 for the

disappearance of five members of his family.

Tarnopolsky’s brother, Sergio, was serving in the military

at ESMA under former naval captain Jorge Acosta, who

was head of the navy intelligence task force 3.3.2. at the

time of the family’s disappearance. (Acosta is currently

under arrest for the kidnapping of babies of disappeared

victims.) From accounts of survivors, Tarnopolsky, who

was at a friend’s house on the night of the

disappearances, discovered that Acosta

had ordered his family to be seized and

boasted about it in ESMA.

In 1994, the court established a fine of 1.2

million pesos, of which the government

paid one million and Massera paid

approximately 200,000 pesos (around

$67,000 USD) to Tarnopolsky. After the

initial 1994 ruling, President Menem

passed the indeminification laws, designed

in part to prevent copycat lawsuits.

Massera appealed the ruling under statute

of limitations laws, but in 1999 the

Supreme Court upheld the sentence,

ruling that the statute of limitations does

not expire in cases of forced disappearance

until the victim — or the body —

appears. After multiple appeals, in August

2004 the final decision was made in favor

of Tarnopolsky, who donated the funds to

the Grandmothers of the Plaza de Mayo.

The Tarnopolsky indemnity is significant in Argentina as

the first case in which individuals responsible for the

crimes of the dictatorship were held liable in civil court for

crimes committed in their role as government officials.

Museum of Memory at ESMA

On March 24, 2004, the 28th anniversary of the start of

the dictatorship, President Kirchner announced a

memorial to victims of the “Dirty War” to be located at

the site of the former Navy Mechanics School, known as

ESMA, a notorious detention and torture center during

the repression. It is estimated that at least 3,000 people

were kidnapped and brought to ESMA during Argentina’s

“Dirty War” (some estimates are as high as 5,000).4 Most

people taken to ESMA were tortured, and many were

killed. Some of those who were kept alive have testified

that they were forced to work as the so-called “Mini-Staff”


La Plata, April 29, 2004. The Oral Federal Tribunal of La Plata tried MiguelEtchecolatz and Jorge Bergés (pictured, seated) in the case of falsification of theidentity of Carmen Sanz during the last military dictatorship. Photo courtesy ofCarlos Cermele/Telam.

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to then Almirante Emilio Massera as political advisors.

According to testimony of former naval officers and pilots,

thousands of others were heavily tranquilized and dropped

from government planes to their death in the Argentine

Sea. This was later confirmed through the discovery of a

body on the Uruguyan coast which corresponded to a 14

year-old boy seen as a prisoner in ESMA.5

Moreover, ESMA was infamous as one of the centers for

pregnant detainees. Dozens of pregnant women were

reportedly held at ESMA until giving birth, then extra-

judicially executed. Their babies were given for

adoption, often to members of the security forces or to

legitimate adoption centers. According to the

Grandmothers of the Plaza de Mayo who are looking for

them, at least 70 of these children have identified their

real parents in recent years.6

In 1998, ex-president Menem proposed tearing down the

ESMA compound and constructing a memorial in its

place, a move that was vigorously opposed by human

rights organizations who argued that crucial evidence

might be destroyed. These groups have requested that

installations used for torture and detention be preserved

within the building, which will also house the National

Archive of Memory. Prior to the official announcement

about the Museum of Memory, Kirchner presided over a

ceremony to remove portraits of former junta leaders

Videla and Bignone from the walls of the military

college. Prompted by the announcement of the museum,

Admiral Jorge Godoy, the head of the Navy, publicly

affirmed for the first time that ESMA had been used to

commit “aberrant acts that offend human dignity.”

ENDNOTES1. Human Rights Watch, “Essential Background: Argentina,” January 2004.

2. Amnesty International World Report, “Argentina,” 2004.

3. Centro de Estudios Legales y Sociales, “Human Rights Defenders: CELS Condemns

Kidnapping and Threats against the Federal Prosecutor in La Plata, Carlos Dumm,”

July 27, 2004.

4. CONADEP, p. 81-89.

5. CONADEP, p. 235. See cases of Floral Avellande and EAAF 2000 and 2001 Annual Reports.

6. Amnesty International World Report, “Argentina,” 2004.


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La Plata, April 29, 2004. The Oral Federal Tribunal of La Plata sentenced Miguel Etchecolatz (pictured, center) and Jorge Bergés to7 years in prison for the falsification of the identity of Carmen Sanz, daughter of disappeared persons, Aida Sanz and Eduardo GalloCastro. Photo courtesy of Carlos Cermele/Telam.

update: the right to truth eaaf – special sectioneaaf.typepad.com/pdf/2003/righttruth.pdf ·...

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