A full stop to amnesty in Argentina: The Simón case

Journal of International Criminal Justice

Volumn 3, Issue 5, 2005, Pages 1106-1120

  Bakker, Christine A E ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 31144470166     PISSN: 14781387     EISSN: None     Source Type: Journal    
DOI: 10.1093/jicj/mqi078     Document Type: Article

References (84)

1. Simón, Julio Héctor y otros s/privación ilegítima de la libertad, Supreme Court, causa No. 17.768, (14 June 2005) S.1767.XXXVIII. Full text in Spanish available online at: www.derechos.org/nizkor/arg/doc/nulidad.html (last visited on 3 August 2005).
2. Law No. 23.492, published in the Boletín Oficial on 29 December 1986 or the so-called Full Stop Law.
3. Law No. 23.521, published in the Boletín Oficial on 9 June 1987 or the so-called Due Obedience Law.
4. Juzgado Criminal en to Criminal Federal y Correccional N.4, Judge Gabriel Cavallo, Simón, Julio y Del Cerro, Juan s/sustracción de menores de 10 años, No. 8686/2000 (6 March 2001), available online at: Www.derechos.org/nizkor/arg/ley/juezcavallo03mar.html (last visited on 3 August 2005).
5. Law 25.779, promulgated on 2 September 2003.
6. Although the Supreme Court also analysed the parliamentary powers in this respect under the national Constitution, this point will not be further addressed in this note, which focuses on questions which are directly related to international criminal law.
7. Justice Don Augusto Cesar Belluscio.
8. Justice Don Carlos Fayt.
9. Cámara Nacional en lo Criminal y Correccional Federal de la Capital Federal, 'Causa 13' (9 December 1985) and 'Causa 44' (2 December 1986).
10. Article 2 of Law 23.521 establishes that it does not apply to the rape and kidnapping of minors or the substitution of their civil status, nor to the appropriation of real estate.
11. Supreme Court, Camps, 310:1162 (1987), opinions of Judge Petracchi and of Judge Fayt, cited by A. Alvarez, E. Bertoni and M. Boo, 'Droit argentin', in A. Cassese and M. Delmas-Marty (eds), Juridictions nationales et crimes internationaux (Paris: Presses Universitaires de France, 2002) 299-331, at 316.
12. The only exceptions are some convictions by federal courts for the abduction of minors, e.g. Massera s/excepciones, Federal Appeals Court of Buenos Aires, No. 30514 (22 September 1999), cited by Human Rights Watch, Reluctant Partner: The Argentine Government's Failure to Back Trials of Human Rights Violators, Section V, at 2, available online at: www.hrw.org/reports/2001 (last visited on 3 August 2005).
13. Simón y Del Cerro, supra note 4;
14. Juzgado Nacional en lo Criminal y Correccional Federal No. 12, Judge Claudio Bonadio, Astiz, Alfredo y otros s/delito de acción pública, No. 326:4797 (1 October 2001);
15. both judgments were confirmed by the Sala II de la Cámara de Apelaciones en lo Criminal y Correccional Federal de Buenos Aires (9 November 2001).
16. Such extradition requests were presented to Argentina by Spanish Judge Garzón on several occasions between 1997 and 2001, formally backed by Spain in July 2005, by Italy and France in 2001, and by German courts in 2001 and 2003. These requests were all rejected. Some Argentine former military officers have been convicted in absentia in France (Alfredo Astiz, convicted in 1990 for his involvement in the disappearance of two French nationals) and in Italy (Suarez Mason and six others were convicted in Rome in December 2000). In Spain Adolfo Scilingo, who voluntarily came to Spain, was convicted for crimes against humanity in April 2005. The trial of Ricardo Miguel Cavallo, extradited by Mexico to Spain in June 2003, is still ongoing;
17. see Human Rights Watch, available online at: www.hrw.org/reports/2001 and 2004 (last visited on 3 August 2005).
18. In particular the UN Human Rights Committee, which monitors implementation of the International Convention on Civil and Political Rights (ICCPR) of 1966, and the Committee against Torture, established under the UN Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, adopted in 1984.
19. Supra note 5.
20. The Argentine Parliament had already terminated the amnesty laws in 1998, but such termination does not entail any retroactive effect (Law 24.952 of 25 March 1998, promulgated on 15 April 2005).
21. The Court in first instance considered the Ley de Obediencia Debida to have violated arts 1, 2, 8 and 25 of the American Convention on Human Right, arts 2 and 9 of the ICCPR, as well as the 1984 Convention Against Torture;
22. supra note 4.
23. This conclusion is repeated in each of the seven opinions, supporting it in the same terms.
24. Conclusion, repeated at the end of each of the seven opinions, 3rd point (free translation). Original text: (Se resuelve:) '3. Declarar a todo evento, de ningún efecto las leyes 23.492 y 23.521 y cualquier acto fundado en ellas que pueda oponerse al avance de los procesos que se instruyan, o al juzgamiento y eventual condena de los responsables, u obstaculizar en forma alguna las investigaciones llevadas a cabo por los canales procedentes y en el ámbito de sus respectivas competencias, por crímenes de lesa humanidad cometidos en el territorio de la Nación Argentina.'
25. Opinion of Justice Dr Don Enrique Santiago Petracchi, at § 14 and 15. In her opinion (at §17), Justice Dra Doña Highton de Nolasco recalls that the precedence of international treaties was already set in the previous Constitution, which dates back to 1853.
26. National Constitution of the Argentine Republic, 1994, Art. 75, 22nd indent.
27. Inter alia, Supreme Court, Ekmekdijan, 315: 1492 (7 July 1992);
28. Supreme Court, Fabrica Constructora S.C.A.c/Comisión Técnica Mixta Satto Grande (7 July 1993);
29. Supreme Court, Cafés La Virginia S.A. s/apelación (13 October 1994);
30. Supreme Court, Giroldo, Horacio D. y otro (7 April 1995);
31. Federal Appeals Court of Buenos Aires, Massera s/excepciones, No. 30514 (15 September 1999).
32. Supreme Court, Arancibia Clavel, Enrique Lautaro s/homicidio calificado y asociación ilícita y otros, Causa No. 259, A.533.XXXVIII (24 August 2004).
33. Justice Petracchi refers to the case Velázquez Rodríguez, Judgment of 29 July 1988, IACHR (Ser C) No. 4 (29 July 1988), at §18.
34. IACHR, Chumbipuma Aguirre et al. v. Peru (Ser C) No. 75 (2001).
35. Ibid., at §43, 44.
36. Justice Petracchi stated that the main reason for the IACHR to condemn the Peruvian amnesty laws was not the fact that these laws were adopted by the government under whose regime the crimes were committed, but rather the material content of the laws, which aimed to prevent the investigation and prosecution of serious human rights violations. Therefore, laws pursuing the same objective adopted by subsequent governments, such as the Argentine laws, violated the same principles of the American Convention, in particular the obligation to ensure the right to an effective remedy before an impartial and independent court (at §24).
37. Opinion of Justice Fayt, at § 53-61 and 81-82. In his view, norms of international law have the same priority as the Constitution. In the event of a conflict between an international legal rule and a constitutional principle - such as the principle of legality - priority must be given to the latter. Moreover, according to the dissenting Judge, the Peruvian amnesty rules were of a fundamentally different nature from that of the Argentine amnesty laws, first because the laws in Peru were 'self-amnesty laws', and secondly because the Peruvian laws completely prevented any investigations, whereas in Argentina, a period was granted during which judicial proceedings could still be initiated.
38. Opinion of Justice Dr Don Juan Carlos Maqueda, at §57.
39. Justice Boggiano also stated that jus cogens norms prohibiting crimes against humanity have been in force 'from time immemorial', Opinion of Justice Dr Don Antonio Boggiano, at §43.
40. At § 45-57. Justice Maqueda referred to the definition of jus cogens given by the IACHR, according to which jus cogens derives from ancient legal concepts of a superior order which the laws of man or nations cannot contravene; in this definition, jus cogens norms are rules which have been accepted either explicitly by treaties or tacitly by custom in order to protect the public morals recognized therein (Report No. 62/02, case 12.285, Domingues v. United States, 22 October 2002). While referring to Art. 53 of the Vienna Convention on the Law of Treaties, he states that an imperative international public order prohibiting certain crimes already existed prior to the Second World War. In his view, jus cogens is subject to an evolution whereby there has been an increase in the number of crimes so atrocious that they cannot be tolerated any more or go unpunished. Justice Maqueda refers to authors including Bassiouni and Cassese to support his opinion that the prohibition of crimes such as genocide, war crimes and crimes against humanity has evolved into a norm of jus cogens (at §49).
41. Ibid., at §62.
42. The jus cogens nature of the prohibition of torture was recognized by the ICTY judgment in Furundžija (IT-95-17/1-T), Trial Chamber II, 10 December 1998, §155. For a discussion of the jus cogens nature of the prohibition of crimes against humanity and the duty to prosecute their authors,
43. see C. Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd edition (Dordrecht: Nijhoff, 1999);
44. C. Bassiouni and E. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Dordrecht: Nijhoff, 1995);
45. A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), at 301-311;
46. C. Tomuschat, 'The Duty to Prosecute International Crimes Committed by Individuals', in H.-J. Cremer et al. (eds), Tradition und Weltoffenheit des Rechts: Festschrift für Helmut Steinberger (Berlin: Springer, 2002), 315-349;
47. P.-M. Dupuy, 'Normes internationales pénales et droit impératif (jus cogens)', in H. Ascensio et al. (eds), Droit International Pénal (Paris: Pedone, 2000), 71-80.
48. Justice Maqueda, at § 30-44;
49. Justice Boggiano also refers to this conception at § 40-43.
50. See, e.g. the opinion of Justice Petracchi, at §33;
51. opinion of Justice Highton de Nolasco, at §22.
52. Opinion of Justice Highton de Nolasco, at §32;
53. and opinion of Justice Boggiano, at §38.
54. Opinion of Justice Dr Don Carlos Fayt, at §74.
55. On statutory limitations, see hereafter, point D.
56. Opinion of Justice Dr Don Antonio Boggiano, at §42;
57. opinion of Justice Lorenzetti, at §30.
58. Boggiano stated that the acts of the case amount to the forced disappearance of persons, which was already prohibited under customary international law in the 1970s. Therefore, the question of the retroactive application of penal law does not even arise. Lorenzetti argues that there is no violation of the principle nullum crimen sine lege in that 'crimes against humanity have always existed in the legal order and could be recognized by any person who acted honestly and in conformity with the principles of the state of law' (at §30).
59. Opinion of Justice Lorenzetti, at §30, stating that torture was also prohibited by Art. 18 of the Argentine Constitution.
60. Opinion of Justice Maqueda, at §89.
61. Streletz, Kessler and Krenz v. Germany, ECHR (2001-II) Series A, No. 34044/96, 35532/97, 44801/98, 34044/96.
62. Opinion of Justice Maqueda, at §84;
63. opinion of Justice Lorenzetti, at §30.
64. Opinions of Justice Maqueda, at § 86-88, where reference is made to international declarations and resolutions condemning the forced disappearance of persons and to an IACHR decision stating that this crime already constituted a crime against humanity in the 1970s (IACHR, Hermanas Serrano Cruz v. El Salvador, 23 November 2004) and of Justice Highton de Nolasco, who argued that the forced disappearance of persons constitutes the violation of several human rights which were already protected under international conventional and customary law (at §31).
65. Supra note 23.
66. As stated by Justice Maqueda (at §89).
67. Opinion of Justice Boggiano, at §40, stating that in earlier decisions, the Court decided that crimes against humanity have never been subject to statutory limitations, neither under international law, nor under domestic law.
68. See also the opinion of Justice Maqueda, who argued that the principles which, at the national level, are upheld to justify statutory limitations are not applicable to crimes against humanity because the objective pursued in the domestic realm is precisely the punishment of their authors, wherever and whenever they are found. The non-applicability of statutory limitations to these crimes functions as a sort of safety clause, preventing the other mechanisms adopted under international and national law from being set aside by the mere passage of time (at §92).
69. Ibid., and opinion of Justice Highton de Nolasco, at §31.
70. Opinion of Justice Argibay, at §17. She points to the travaux préparatoires of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity to prove that the drafters explicitly intended for this Convention to have a retroactive effect.
71. Furundžija, supra note 33;
72. for an analysis of the concept of statutory limitations and its applicability in the case of international crimes, see Cassese, supra note 33, International Criminal Law, at 316-319;
73. M. Delmas-Marty, La responsabilité pénale en échec (prescription, amnistie, immunités, in Cassese and Delmas-Marty (eds), supra note 11, at 613-653.
74. In his dissenting opinion in Simón, on the other hand, Judge Fayt argued that the Convention concerning statutory limitations cannot be applied retroactively, at §39.
75. Opinion of Justice Lorenzetti, at §29;
76. Opinion of Justice Zaffaroni, at § 32 and 33.
77. Opinion of Justice Zaffaroni, at §32 and 33.
78. Ibid., at §37.
79. Only certain decisions by appeals courts adopted unanimously may constitute obligatory precedents, but this is an exception and does not apply to Supreme Court decisions.
80. See the decision in the Sandoval case of 17 November 2004, and the comment on that decision by F. Lafontaine, 'No Amnesty or Statute of Limitation for Enforced Disappearances: The Sandoval Case Before the Supreme Court of Chile', 3 Journal of International Criminal Justice (2005) 469-484.
81. Including Peru, Uruguay, Brazil, El Salvador, and Colombia. For an analysis of such amnesty laws and their violation of international law, see K. Ambos, Impunidad y derecho penal internacional, 2nd edition (Buenos Aires: Ad Hoc SRL, 1999).
82. For more details on the legal situation in Latin-American states concerning the prosecution of international crimes, see K. Ambos and E. Malarino (eds), Persecución penal nacional de crimenes internacionales en America Latina y España (Montevideo: Konrad Adenauer Stiftung, 2003);
83. and K. Ambos, E. Malarino and J. Woischnik (eds), Temas actuales del derecho penal internacional: Contribuciones de América Latina, Alemania y España (Montevideo, Konrad Adenauer Stiftung, 2005).
84. IACHR, Barrios Altos Case, Interpretation of the Judgment on the Merits, Judgment of 3 September 2001.