Supreme Court’s Long-Awaited Ruling Allows Prosecution of ‘Dirty War’ Crimes
June 15, 2005
The crimes of the ‘dirty war’ are far too serious to be amnestied and forgotten.
José Miguel Vivanco, Americas director at Human Rights Watch

(Buenos Aires) — The Argentine Supreme Court’s decision today to strike down the country’s amnesty laws is a landmark victory against impunity for gross human rights violations, Human Rights Watch said today. The two amnesty laws had blocked the prosecutions of crimes committed under the country’s military dictatorship.

The long-awaited ruling, by a majority of 7-1, confirms lower-court decisions that had declared the laws to be unconstitutional. The trend in Argentina toward accountability has also been evidenced by Congress’s August 2003 passage of a law that annulled the laws.

“The crimes of the ‘dirty war’ are far too serious to be amnestied and forgotten,” said José Miguel Vivanco, Americas director at Human Rights Watch. “The Supreme Court’s ruling shows that no matter how many years go by, laws that block justice for gross abuses of human rights remain a thorn in the side of democratic governments.”

At least 14,000 people “disappeared” when Argentina was under military rule from 1976 to 1983. After democracy was reestablished, prosecutors began trying members of the military juntas for abductions, killings and torture, but the trials and sentencing of junta leaders and military and police officers led to a violent military backlash. Then-President Raúl Alfonsín rushed two laws through Congress on December 24, 1986, and June 5, 1987, hoping to appease military objections to the prosecutions.

The full stop law of 1986 (Law No. 23,492) set a 60-day deadline for the initiation of new prosecutions. When that law failed to thwart the prosecution of large numbers of defendants, the due obedience law (Law No. 23,521) was passed in 1987, granting automatic immunity from prosecution to all members of the military except top commanders. On June 22, 1987, the Supreme Court ruled that the due obedience law was constitutional, effectively putting a stop to the prosecution of “dirty war” crimes.

For years, the amnesty laws blocked the prosecutions of crimes committed under the military dictatorship except for rape and the theft of babies born to mothers who had “disappeared,” crimes specifically exempted from the due obedience law. In 2001, however, Federal Judge Gabriel Cavallo reopened a case against two police agents accused of the torture and disappearance in 1978 of a Chilean-Argentine couple. In a landmark ruling that opened the gates to more such prosecutions, Judge Cavallo held the amnesty laws to be unconstitutional.

Judge Cavallo’s ruling was upheld in 2001 by the Federal Court of Buenos Aires. But the possibility of real progress in the trials of “dirty war” crimes has awaited the Supreme Court ruling on the laws’ constitutionality.

Regional as well as international human rights bodies have criticized blanket amnesties for grave human rights crimes. In 2001, in a ruling on the Barrios Altos case in Peru, the Inter-American Court of Human Rights declared that two amnesty laws introduced by the government of Peruvian President Alberto Fujimori in 1995 were incompatible with the American Convention on Human Rights and hence without legal effect.

The Argentine Supreme Court cited the Barrios Altos ruling as a legal precedent for its decision today. Apart from allowing human rights trials to advance in Argentina, the Supreme Court decision will have a significant impact in other countries where amnesty laws exist or are under debate, like Chile, Uruguay and Colombia.

“The era of sweetheart deals for the military, extracted at gunpoint from democratic leaders, is over,” said Vivanco. “Hopefully, this ruling marks the beginning of a new era in which everyone, no matter how powerful, is subject to the same standard.”