II. BACKGROUND

From 1976 to 1983, Argentina was governed by a military dictatorship that committed horrendous human rights crimes, including torture, extrajudicial executions, and the imprisonment of thousands without trial. The hallmark of political repression in Argentina, however, was the practice of enforced disappearance. During what Argentines call the "years of lead" (años de plomo), military task forces in unmarked cars (usually Ford Falcons) snatched defenseless men and women (sometimes with their children) from their homes or places of work, took them to clandestine camps, tortured them mercilessly, murdered them, and disposed secretly of their bodies. On March 24, 2001, the twenty-fifth anniversary of the 1976 military coup, tens of thousands of Argentines took to the streets to protest these atrocities. The size of the turn-out showed that feelings about this tragic period of Argentinian history were as deep as ever.

In its report Nunca Más ("Never Again"), the National Commission on Disappeared Persons (Comisión Nacional Sobre la Desaparición de Personas, CONADEP), set up by elected President Raúl Alfonsín in December 1983, listed 8,960 victims of "disappearance." The most recent official figures put the number at about 14,000. Many experts believe it to be even higher, due to unreported cases, especially in rural areas. It far exceeded the number of "disappeared" in any of the neighboring countries ruled by military governments at the time, and dwarfed the number of victims whose bodies were found and identified (1,898).1 Nunca Más described 365 clandestine detention centers under the jurisdiction of the army, navy, and airforce and of various police forces, which were used to interrogate prisoners in secret under torture. Recent government information lists more than 600 such centers.

Five days after being sworn in on December 10, 1983, President Alfonsín ordered the prosecution of all the members of the first three military juntas for the human rights atrocities committed since the 1976 coup.2 His ability to take this bold step, unprecedented before or since in a country emerging from authoritarian rule in the region, was largely due to the discredit and unpopularity of the military following their recent defeat in the Falklands/Malvinas conflict. In a twin decree, Alfonsín ordered that the leaders of the left-wing guerrilla organizations whose violent activities the military had cited to justify its intervention in 1976, the Peronist Montoneros and the Revolutionary Peoples' Army (Ejercito Revolucionario del Pueblo, ERP), also be brought to trial.3 By doing so, Alfonsín hoped to signal to the armed forces that his government was not embarked on an anti-military crusade.

Alfonsín's strategy to neutralize military opposition to human rights trials included two other elements: trial by military court and exemption on grounds of "due obedience." First, he determined that the trial of the military juntas should be conducted, at least in the first instance, by a military tribunal, the Supreme Council of the Armed Forces, using procedures established in the Code of Military Justice. In theory, this strategy would give military courts the opportunity to put the armed forces' house in order without civilian intervention, while avoiding the appearance of a "political trial." As a safeguard, however, decisions by the Supreme Council could be appealed to Federal Courts of Appeal, and if the Supreme Council failed to complete each trial within six months, the Courts of Appeal were empowered to take over jurisdiction. As it turned out, the Supreme Council refused to cooperate, and the trial was eventually transferred to civilian jurisdiction. The trial, known as "Case 13," was held in oral proceedings by the Federal Court of Appeals for Buenos Aires, starting in April 1985.

At the conclusion of the historic eight-month hearings, the Federal Court unanimously sentenced Videla and Massera to life imprisonment. Agosti received a prison sentence of four-and-a-half years; Viola, seventeen years; Lambruschini, eight years. Their crimes included aggravated homicide, torture, unlawful arrest, robbery, violence, and threats. Graffigna, the air force commander of the second junta, was acquitted, as were all three members of the third military junta. The trial was based on only 700 of the thousands of cases to which the court had access.

The second element in the government's strategy related to to the controversial concept of "due obedience."4 Alfonsín distinguished three levels of responsibility for human rights violations: those who gave the orders, those who followed them, and those who exceeded the orders, committing aberrant and atrocious acts or benefiting for personal gain. Alfonsín's position was that those who merely followed orders had less criminal culpability than those who gave the orders, and those who committed excesses. Although international human rights law explicity rejectsthe doctrine of "due obedience,"5 the policy appeared to have some practical advantages. By favoring middle and lower-ranking officers on active duty, it lessened the possibility that the military would close ranks to protect itself from what could be perceived as an anti-military crusade. It might produce chinks in the pact of silence that so far had prevented details of counterinsurgency operations, particularly information on the fate of the "disappeared," from being revealed. Accordingly, a "due obedience" clause was written into the legislation establishing the judicial procedures for the trial.6

In the congressional debate, however, concerns raised by human rights groups led to amendments to ensure that this clause not be used indiscriminately to block prosecutions. In its final version, the law established that subordinates were not to be held legally accountable for crimes committed in the execution of orders unless, among other circumstances, they involved the commission of atrocious and aberrant acts. Since most of the acts in question were clearly atrocious and aberrant, but were also committed on official orders, the law contained a fundamental ambiguity: should pleas of immunity be accepted in such cases? It was left to the courts to determine whether or not the clause was applicable in individual instances. For this reason, its legal effect was unpredictable and it was far from an iron-clad guarantee of impunity.

With regard to the prosecution of subordinates of the military commanders, the Federal Court resolved to request the Supreme Council of the Armed Forces to file charges against those accused who were superior officers in command of military zones or with operational responsibilities. This decision, known as Item 30, implied that those officers would not benefit from "due obedience" immunity. By opening the door to further prosecutions, Item 30 frustrated the government's hope that the trial of the military juntas would close the books on the "human rights question."7

Under Item 30, hundreds of officers ran the risk of being out on trial. When the trial of the juntas ended, some two thousand criminal complaints were already pending against members of the military and police forces, involving up to 650 defendants, one third of whom were estimated to be on active duty. Particularly important were the trials involving those responsible for the illegal detention, torture, and murder of prisoners in the notorious Navy Mechanics School (ESMA), where an estimated 5,000 "disappeared" prisoners had been held. Another emblematic case was "Case 44," concerning crimes committed by Gen. Ramón Camps, chief of police of the province of Buenos Aires. On December 2, 1986, the Federal Court sentenced Camps to twenty-five years in prison; his successor, Ovidio Ricchieri, to fourteen years; Miguel Etchecolatz (ex-director general of the police investigations branch) to twenty-three years; and Jorge Bergés, a police doctor, to six years. Apart from Case 13, this was the only human rights trial that resulted in convictions. Meanwhile, Gen. Carlos Guillermo Suárez Mason, commander of the First Army Corps and chief of Security Zone 1 during the "dirty war," faced trial for thirty-nine murders.

However, action by the Defense Ministry in April 1986 set off a chain of events that would soon bring prosecutions to a grinding halt. The ministry's controversial "instructions" to the military prosecutor required the dropping of charges in all cases where "due obedience" was invoked. The "instructions" stipulated that officers should be held responsible for aberrant acts only if they exceeded orders, greatly reducing the number of possibledefendants. Applying the "instructions," the Supreme Council of the Armed Forces acquitted two well-known defendants, Alfredo Astiz, a notorious undercover agent who operated from ESMA, and Luciano Menéndez, former commander of the Third Army Corps. The controversial new rules provoked dissent and resignations both in the judiciary and in the ruling Radical Party, forcing the government to restate its commitment to human rights trials.8

As pressure from the military mounted, Alfonsín decided to effect by law what attempts to influence the trials had failed to achieve. At his insistence, two laws were rushed through Congress on December 24, 1986, and June 5, 1987. The first of these, the so-called full stop law (Law No. 23,492), set a sixty-day deadline for the initiation of new prosecutions, and required the Supreme Council of the Armed Forces to submit cases to the Federal Appeals Courts within forty-eight hours for a decision to be made on whether to press charges. Undaunted, the courts and Argentine human rights groups set to work to meet the deadline. By the time it expired more than three hundred officers, including more than forty generals and eight admirals, were facing charges.9 Many others on whom information was incomplete, however, escaped justice.

Because it notably failed to halt the trials, the law failed to appease the military. Over the Easter weekend in 1987, middle-level officers led by Col. Aldo Rico revolted in Córdoba and Buenos Aires demanding a full-scale amnesty law. Although Alfonsín was opposed to an amnesty, he resolved the crisis by conceding essential points to the rebels. On June 5, 1987, Congress enacted a "due obedience" law (Law No. 23,521).

Under the rules governing the trials of the junta, as noted above, "due obedience" only constituted a presumption of innocence, and courts had discretion over its application. However, under the terms of the due obedience law, this presumption was treated as unrebuttable, with no exception for atrocious and aberrant acts. The law granted automatic immunity to all ranks of the armed forces and police below that of colonel, and applied also to more senior officers, unless it could be shown that they had decision-making powers. The law went into effect immediately. Courts had five days to absolve the accused and cancel summonses to testify. On June 22, 1987, the Supreme Court ruled that the due obedience law was constitutional, rejecting an appeal lodged by human rights groups that it violated article 16 of the Constitution, which guarantees equality before the law.

Among the hundreds of military and police officers exonerated under the due obedience law were many who were accused of participating directly in torture and murder, as well as others who had run the clandestine detention centers. The officers in the task force responsible for day-to-day operations at ESMA, Captains Jorge Raúl Vildoza, Jorge Acosta (alias, "El Tigre"), and Luis D'Imperio, as well as many junior officers stationed at the camp, were released from prosecution. The courts dropped charges against navy Capt. Alfredo Astiz, implicated in the "disappearance" of two French nuns, Sister Alice Domon and Sister Leonie Duquet, who were last seen alive at ESMA by others who survived incarceration there. The prison sentences of Etchecolatz, Bergés, and Cpl. Norberto Cozzani for multiple counts of torture were vacated, and they regained their freedom. Many lower level officers accused for human rights atrocities committed by units under the orders of Gen. Carlos Suárez Mason also escaped trial. Other beneficiaries were Colonels Roque Presti, Guillermo Minicucci and police agent Juan Antonio del Cerro(alias "Colores"). Capt. Ernesto Barreiro, the principal interrogator at the clandestine detention center La Perla, whose arrest order provoked the Easter crisis, also gained his freedom.10

Unrest in the armed forces was spearheaded by a small group of commandos, the so-called Carapintadas (painted faces), led by Rico and a charismatic army colonel and Malvinas veteran, Mohamed Ali Seineldín. The Easter rebellion was followed by three other military revolts, the last and most violent of which, in early December 1990, claimed twenty-one lives. The Carapintadas' defiance of the civilian government and the generals over human rights trials and what they considered a campaign to humiliate the armed forces enjoyed wide support in the military. The army's permissiveness toward the rebels made it impossible, as former officials now admit, for the government to enforce discipline without major concessions.11 Human rights increasingly took second place to a more pressing priority: to reestablish order in the armed forces and consolidate the endangered constitutional chain of command.

Amid a serious economic crisis, Alfonsín resigned in June 1989, five months before completing his term. On October 6, his successor, President Carlos Menem, a Peronist, decreed a general pardon. It covered officers convicted of responsibility for the Falklands/Malvinas conflict, others convicted for participating in the military rebellions of the previous years, civilians convicted for politically-motivated crimes, and thirty-nine senior officers facing charges for abductions, torture, and murder. The comprehensiveness of the measure made it look like a magnanimous gesture of clemency benefiting various groups. In reality, it was a major reversal for the the principle of justice and accountability.12 Excluded from the pardon were the convicted junta members, as well as Generals Camps, Richieri, Suárez Mason, and the guerrilla leader Firmenich. However, another decree announced on December 29, 1990, extended the pardon to cover them all.

The firm crushing of the Carapintadas' final rebellion and this final conciliatory measure by Menem ended the military revolt and restored the president's control of the armed forces. By the beginning of the 1990s, all this judicial action had resulted in only ten convictions for human rights abuses and all of those convicted had been pardoned and released.