Argentina: Amnesty Laws Declared Unconstitutional, Potential for Human Rights Prosecutions Expands

NotiSur - South American Political and Economic Affairs, June 24, 2005 | Go to article overview

Argentina: Amnesty Laws Declared Unconstitutional, Potential for Human Rights Prosecutions Expands


Argentina's top court struck down 1980s amnesties for members of the country's 1976-1983 military junta on June 14. Human rights organizations and President Nestor Kirchner hailed the Corte Suprema de Justicia (CSJ) ruling as an end to impunity that previous administrations had extended for those accused of crimes during the dictatorship. Hundreds could now face charges of torture, forced disappearance, and child kidnapping during Argentina's "dirty war" against dissidents.

CSJ nullifies Punto Final, Obediencia Debida laws

The Argentine Congress originally annulled the Obediencia Debida and Punto Final (due obedience and full stop) amnesty laws in August 2003. The laws, passed in 1986 and 1987, ended prosecutions against lower-ranking members of the military who argued that they were only following orders when they kidnapped, tortured, and killed political prisoners. Former President Carlos Saul Menem (1989-1999) also handed down a sweeping set of pardons in October 1989, removing the threat of prosecution for hundreds of military officers (see NotiSur, 1989-10-10).

In a 7-1 vote with one abstention, the Corte Suprema affirmed the congressional annulment of the amnesty laws, citing international law and constitutional norms. It was the most important decision to come out of the court that President Kirchner has been restaffing. Kirchner helped to make the ruling possible by recently replacing several members of the CSJ.

The June 14 ruling strengthened a March 2004 decision in which Federal Judge Rodolfo Canicoba annulled pardons for certain military officers (see NotiSur, 2004-04-02). Human rights lawyer and director of the Centro de Estudios Legales y Sociales (CELS) Victor Abramovich said that "sooner or later" new legal precedents would overturn the pardons by Menem, which released the former junta members from prison.

International law guides decision

In their verdict, the justices ruled that, in cases involving crimes against humanity, international human rights conventions to which Argentina is a signatory take precedence over national laws.

"If we commit ourselves to living up to international treaties, we must respect and enforce them," said CSJ Justice Carmen Argibay, who until recently sat on the International Court of Justice (ICJ) in The Hague that brought war criminals from the former Yugoslavia to justice.

The international agreements "are more than just a signature and noble-sounding statements," said Argibay, who added that failure to comply with the treaties could have serious consequences for the state.

Under Argentine law, the decision can be taken as precedent in other cases. Other justices cited war crimes and human rights crimes as the worst the law can deal with and therefore argued against allowing impunity in such cases.

While six other justices voted to overturn the amnesties for reasons similar to Argibay's, Justice Carlos Fayt voted for the amnesties, saying that the Constitution was above international treaties. "That doesn't in any way mean justifying the overwhelming enormity of the horror, nor leaving the crimes committed during the military dictatorship in impunity," Fayt said. He also mentioned military manuals to demonstrate that subordinates were acting on orders of commanders who have already been judged.

Justice Augusto Belluscio abstained from the vote, having handed his resignation to President Kirchner the day before. He will leave the court in September. He did not vote against the amnesties so as not to contradict his vote to ratify the amnesty laws in a previous ruling.

The latest ruling came in the case of Julio Simon, a former policeman accused of involvement in the disappearance of Jose Poblete and Gertrudis Hlaczik and of taking their daughter, Claudia Poblete.

Poblete, a Chilean citizen who moved to Buenos Aires after losing his legs in a train accident, began a political movement, the Frente de Lisiados Peronistas (Peronist Disabled Persons Front). …

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Argentina: Amnesty Laws Declared Unconstitutional, Potential for Human Rights Prosecutions Expands
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