President Néstor Carlos Kirchner
President of Argentina
Buenos Aires, Argentina AAB1064
I am writing on behalf of Human Rights Watch regarding new initiatives that your government has taken or is actively considering in the field of human rights. We have been greatly encouraged by your recognition of the need for justice and accountability in the construction of a more democratic society, and your insistence that government processes be transparent and open to public scrutiny.
This year may be an important turning point for justice in Argentina. For many years, because of laws designed to shield military officers from prosecution, the relatives of the thousands of victims of the military repression from 1976 to 1983 were denied justice. Recently, however, a few federal judges have recognized that the Full Stop and Due Obedience Laws, enacted in 1986 and 1987 in the face of a threatened military rebellion, are unconstitutional and inconsistent with Argentina's international human rights obligations.
Human Rights Watch, jointly with Amnesty International and the International Commission of Jurists submitted an amicus curiae brief on June 1, 2001 to the National Criminal Court in support of the legal challenge to the laws. We were pleased, therefore, when the court affirmed the trial courts' view that the laws were unconstitutional. Now the cases in question are before the Supreme Court, which must rule soon on the issue. If the court decides that the relatives of the thousands of victims have a right to justice, it will be a historic decision.
If, however, the Supreme Court upholds the amnesty laws, there would little possibility of bringing to trial in Argentina those responsible for the grave and systematic human rights violations committed during military rule. Indeed, it was the prevailing climate of impunity created by those laws that motivated relatives of some victims to seek justice abroad, for example in courts in Spain, France, and Italy. Many of the countries in which cases were brought have since requested that Argentine citizens be extradited to stand trial for the crimes in question.
Regrettably, successive Argentine governments have adopted a policy of rejecting such requests on grounds of "territoriality," arguing that crimes committed on Argentine territory must be judged only by national courts. This doctrine was formalized in Decree 1581, issued by President Fernando De la Rúa in December 2001, days before his resignation. We have learned that your government intends shortly to amend or repeal this decree, a decision that we warmly welcome.
We believe that there are two fundamental principles to be observed in considering extradition requests in cases involving grave human rights violations; first, that these cases should be decided on an individual basis, and second that the decision should be taken according to the principle of aut dedere, aut judicare: either extradite or prosecute. Until now, the trial in Argentina of those responsible for "disappearances" has been impossible for the legal reasons noted above. Effectively, by rejecting extradition requests out of hand on territorial grounds, previous governments reinforced and extended the effects of the amnesty laws. Besides, by rejecting extradition requests in limine, Decree 1581 bars the courts from deciding each case on its merits.
With regard to transparency, we would also like to express our appreciation of other initiatives taken by your government. We welcome, for example, your decision to declassify the files of the Secretariat of State Intelligence (SIDE) on the bomb attack of July 18, 1994, on the Asociación Mutual Israelí Argentina (AMIA), and to make these documents available to the courts. Their declassification is not only important for the light the documents may throw on a horrific crime in which eighty-five persons died. It may also help to clarify the constant allegations of corruption and abuse that have for years surrounded this highly secret government department.
We are also very pleased that your government has ordered an official investigation into allegations that the government of President Juan Domingo Perón colluded in helping former Nazi war criminals escape to Argentina from Germany after World War II. Your predecessors have made such undertakings in past years, but until now the results of official inquiries have yielded meager results. We hope that the National Institute Against Discrimination, the agency placed in charge of investigating immigration documents, will be able to clarify the facts. We trust that all government departments, including the Secretariat of State Intelligence, will cooperate in this effort by making available the documentation required by the Institute.
Finally, with regard to the Supreme Court, we support your position announced on June 19 in favor of increasing the transparency of the appointments process. By allowing civil society organizations the opportunity to comment on Supreme Court nominees, and by requiring nominees to answer questions in public hearings in the Senate, the process of choosing Supreme Court justices will involve greater public debate and hence be more open and democratic. It goes without saying that the nomination of the distinguished jurist and academic, Professor Eugenio Raúl Zaffaroni, as a candidate for the Supreme Court, is excellent news.
Human Rights Watch knows that the effort to achieve justice and accountability in Argentina has been long and arduous. We are hopeful that under your leadership the country will advance significantly so that the thousands of Argentines who suffered human rights violations during military rule will at last find justice in their own country.
José Miguel Vivanco
cc. Dr. Alberto Fernández, Chief of Staff
Dr. Rafael Bielsa, Minister of Foriegn Relations, International Commerce and Culture
Dr. José Juan Bautista Pampuro, Minister of Defense
Dr. Gustavo Osvaldo Beliz, Minister of Justice, Security and Human Rights
Dr. Eduardo Luis Duhalde, Secretary of Human Rights