The most striking advances in court investigations in recent years have concerned the theft of babies born to mothers held in secret detention and the illegal adoption of these babies by military couples under false identities. Cases dealing with the theft and concealment of babies and the substitution of their civil identity were excluded from the full stop and due obedience laws, nor were these crimes covered by the pardons decreed by President Menem.
There is no argument between the military and civil society about the obligation of the courts to find these children and to bring to justice those responsible for these crimes including the couples who falsified birth certificates and raised the children as their own. Even the army, the branch of the armed forces that has opposed and tried to limit the truth trials, has repeatedly declared its support for these investigations. The human rights office of the Ministry of Justice and Human Rights (formerly of the Ministry of the Interior under the Menem government) continues to support a national genetic data bank, set up by President Alfonsín to identify the missing children.36 The formation in 1992 of a National Commission for the Right to Identity (CONADI), which includes the Association of Grandmothers of the Plaza de Mayo (Abuelas) and their attorneys, state prosecutors, and the undersecretary for human rights of the Menem government, centralized and coordinated the search for the missing children.
After information emerged showing the systematic nature of the crimes involved, court investigations led to the arrest and second prosecution of former members of the military juntas pardoned by Menem for other crimes. This issue has revealed an anomaly at the heart of Argentina's amnesty laws: while former officers may be prosecuted for crimes committed as a result of a decision to preserve the lives of children, they are currently protected from prosecution for the murder of children and parents who "disappeared." This anomaly formed one of the most powerful arguments advanced by Judge Gabriel Cavallo to annul the amnesty laws, as we note in the next chapter.
Out of 240 cases of missing children, the Abuelas, with the support of forensic experts and aided by the National Genetic Data Bank, have tracked down seventy-one children, most of them now young adults.37 Some have been reunited with their grandparents, others, who were handed over to couples acting in good faith, remain with thecouples that raised them. By dint of this patient legal work, many of the couples who received the babies and lied about their identity were arrested and sentenced to jail terms.
Strong coincidences in the circumstances of the clandestine birth of these children and their subsequent "disappearance" led to the arrest and prosecution of former members of the military juntas pardoned by Menem. In July 1998, Federal Judge Roberto Marquevich ordered General Videla arrested and held in custody pending trial in connection with the theft of babies born in army detention centers at Campo de Mayo, El Pozo Banfield, and Automotores Orletti. The former leader of the first military junta was accused of five counts of theft and concealment of minors under ten years of age, nine counts of forgery, and five counts of "suppression of the civil status of a minor." Among other senior army officers charged were the head of the Campo de Mayo, Gen. Santiago Omar Riveros, the commander of the First Army Corps; Suárez Mason, and Suárez Mason's second-in-command, Gen. Juan Sasiaín. At this writing, all of the above remained under house arrest.
In September 1999, Judge Adolfo Bagnasco of the Seventh Federal Criminal Court indicted the other surviving member of the first military junta, Admiral Massera, on similar charges. Bagnasco charged Massera and six other officers with the theft of fifteen babies born to mothers secretly detained in the ESMA between December 1976 and November 1978. Among the other officers charged were Jorge Eduardo Acosta, Antonio Vañek, and Hector Antonio Febres. Acosta was the supreme commander of ESMA, Vañek chief of the Naval Operations Command, Febres the officer in charge of the detained mothers-to-be. Jorge Vildoza, the operational chief of ESMA, who himself appropriated one of the children, was a fugitive from justice at this writing.
The court cast its net beyond those officers directly implicated in the theft of babies (the great majority of cases occurred during the first military junta, from 1976-1978). Judge Bagnasco also indicted the last president of the military government, Gen. Reynaldo Bignone, and the three members of the last military junta, Lt.-Gen. Cristino Nicolaides, naval commander Rubén Franco, and air force chief Brig. Gen. Augusto Hughes. They were charged with covering up the crimes. In April 1983, during their administration, the junta issued its Final Document on the War against Subversion and Terrorism, which declared the "disappeared" to be dead for legal purposes. Five months later the government promulgated a Law of National Pacification, a self-amnesty decree protecting the military from prosecution.38 In January 1999, Nicolaides testified to Judge Bagnasco that he had given orders on November 22, 1983, for the destruction of all the documentation pertaining to the war against subversion.39 General Balza sent the judge a copy of Nicolaides' original telegram to the Federal Police (ultimately responsible to Bignone as Head of State) ordering the destruction of the documents.
At this writing twelve officers are in prison or under house arrest awaiting trial for various crimes related to the theft of minors. In 1999 the Federal Appeals Court confirmed the indictments on appeal. The Supreme Court has not yet ruled on appeals moved by the defendants. If the indictments are upheld, the cases will proceed to oral hearings and sentence.
Building his evidence on the cases of five children, Judge Marquevich concluded that these practices were part of a centrally coordinated plan ordered by Videla. According to the testimonies of nurses and orderlies, the Military Hospital in the Campo de Mayo ran a makeshift maternity ward disguised as an epidemiology unit, in which women were held, tied, and blindfolded. Strict orders were given for their identity to be concealed. Marquevich basedVidela's personal responsibility for the orders on his chain-of command responsibility for the units in which the crimes were perpetrated. Regarding the motives, key evidence was provided by the deposition of Jorge Eduardo Noguer, a naval lieutenant whose daughter, María Fernanda, and granddaughter "disappeared." Noguer testified that the former commander of Campo de Mayo, Gen. Santiago Riveros, told him that the purpose of the plan was "to avoid the children of leftist parents (zurdos) from ending up in any but ideologically well-constituted homes." Other testimony came from human rights leader Emilio Mignone, who described a meeting he held with General Baquero, a subordinate of Videla, after the "disappearance" of his daughter Mónica, in May 1976. Baquero told him that "a problem that we have to face is that of the children of the subversives, to avoid them from growing up with a hatred of the military."
Judge Marquevich concluded that:
these crimes were not, at least not exclusively, intended to facilitate "illegal and clandestine" adoptions by childless members of the armed forces, but had a wider and deeper purpose: probably to snatch the infants from the bosom of families considered linked to the activity of guerrilla groups or political opponents of the de facto regime, thereby preventing them from growing up in an environment "contrary" to the prevailing system of rule. Coupled with the psychological impact on the family group, its environment, and on the social fabric in general, this systematic practice was one more tool using terror as part of a system of social control imposed by an illegitimate de facto regime with hegemonic pretensions.40
Whether or not this ideological motive was uppermost, there is no doubt that the babies were considered coveted war booty. Their abduction not only caused lasting anguish to their legal grandparents, but presented the children themselves with distressing conflicts of loyalty as they came of age. Several judges who have had to reveal to children their true identity told Human Rights Watch that the relationships that developed over the years between child and "parents" were sometimes as close as in normal adoptions. Now young adults, many children refused to submit to DNA tests to establish their true identity for fear that their surrogate parents would go to prison.41 The former under-secretary for human rights in the Menem government described the issue poignantly: "what these young people are saying is: the State first murdered my real parents, and now it wants to send my adoptive parents to jail. When will the State think of me?"42 This troubling dilemma faced by the children was yet another of the tragic consequences of the criminal scheme devised by the military.
Military officials, including army chief Brinzoni, have denied that there was a systematic plan to kidnap babies.43 Judge Bagnasco acknowledges that explicit and detailed orders regarding the children born to detainees have not been found. Nevertheless, these abductions were a systematic practice shielded by impunity. The maternity units set up in the Campo de Mayo and ESMA received pregnant mothers detained in other parts of the country or by otherforces. Numerous former staff at these units testifed that a strict rule of anonymity was enforced to conceal the identity of the mothers and children.44
Judge Marquevich argued, furthermore, that the crimes were of such gravity that they should be considered crimes against humanity.45 As such, under international law they are not subject to any statute of limitations, even though the laws and treaties establishing this principle were not in force at the time the crimes were committed.46
In September 1999, the Federal Criminal Appeals Court dismissed appeals by Videla and Massera against the charges. The defendants argued that they had been tried and acquitted on the same charges in the trials of the military juntas, and were therefore being subjected to double jeopardy (non bis in idem). In the Massera case, the court accepted this partially, in regard to the cases of four children.47 However, that decision only covered the crime of the children's concealment until December 30, 1986, the date the sentence of the junta members was confirmed by the Supreme Court. Their concealment thereafter, and the theft and concealment of other children not mentioned in the earlier trial, were therefore new crimes to which the double jeopardy objection was inapplicable. Consequently, for these crimes Massera's indictment held firm. The court used similar arguments against the double jeopardy argument to reject Videla's appeal.
The Federal Appeals Court also endorsed two important points of doctrine: that "disappearance" is a permanent crime that continues to be committed until the moment the victim is found or established to have been killed; and that crimes against humanity may be judged at any time.48 International human rights law, the court contended, "is not something set in stone, but is in permanent and dynamic development . . . implying an appreciable change of the juridical panorama on the basis of which this case must be decided."4936 The right of children to their own identity is expressly protected in Article 8 of the Convention on the Rights of the Child, ratified by Argentina in 1990, which requires governments: to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. The Convention was incorporated into the Argentine Constitution (Article 75:22) by a 1994 law. 37 Human Rights Watch interview with Estela de Carlotto, President of the Abuelas de la Plaza de Mayo, July 24, 2001. 38 The so-called Law of National Pacification was issued on September 23, 1983, two weeks before the election that brought President Alfonsín to power. Congress abrogated it unanimously on December 27, 1983. 39 Nicolaides also claimed that an inventory had been kept of the documents destroyed, shifting the blame for concealing the information onto the army leadership of the time. In a public statement, the army under Balza vigorously denied that any such record had been left, and accused Nicolaides of having decided to erase any trace or record of what was done. "Balza suspendió las vacaciones y volvió para desmentir a Nicolaides," Clarín, January 20, 1999 (available at http://ar.clarin.com/diario/99-01-20/). 40 Poder Judicial de la Nación, Roberto José Marquevich, Juez Federal: Videla, Jorge Rafael y otros, July 13, 1998, p. 2869 (translation by Human Rights Watch). 41 Twenty-three-year-old Claudia Poblete Hlaczik, the daughter of José Poblete and Getrudis Hlaczik, a Chilean-Argentine couple who "disappeared" in 1978, appeared in court in June 2001 as a witness for the defense of the couple who raised her (Ceferino Landa and Mercedes Moreira). Claudia Poblete did not discover her true identity until February 2000. After identifying herself by her real name to the court, she told the judges, "for twenty-two years they were my parents and I love them." Poblete continued to live with her seventy-one-year-old "mother," who was under house arrest. Her grandmother, the mother of José Poblete, explained that she could not ask her to do more: "like her, we, too, are rebuilding a relationship." Victoria Ginzberg, "La confesión de identidad, Página 12, June 23, 2001. The case is discussed in the next chapter. 42 Human Rights Watch interview with Alicia Pierini, April 3, 2001. 43 Brinzoni made the declaration to journalists in Buenos Aires on March 13, 2000. 44 Human Rights Watch interview with Judge Adolfo Bagnasco, April 24, 2001. 45 "They consist of profoundly inhumane acts based on a systematic methodology, which, because of the scale of their brutality, offend against the humanitarian conscience of the international community as a whole which forms part of jus cogens, thus being exempt from any statute of limitations." Poder Judicial de la Nación, Judge Roberto Marquevich, July 13, 1998. 46 Argentina ratified the Convention on the Nonapplicability of Statutory Limitations to War Crimes and Crimes Against Humanity in 1995 (Law No. 24,584). Article 1 of the Convention states that "No statutory limitation shall apply to . . . Crimes against humanity, whether committed in time of war or in time of peace . . . even if such acts do not constitute a violation of the domestic law of the country in which they were committed." As precedent, Marquevich cited the cases of two Nazi war criminals, Josef Franz Schwammberger and Erich Priebke, whom Argentina extradited to Germany and Italy respectively in 1990 and 1995. In the extradition hearings the courts held that international law did not permit statutes of limitations for crimes against humanity, and that international law trumped domestic legislation in such cases. Invoking articles 75 and 118 of the Argentine Constitution (as amended in 1994), which refer, respectively to the supremacy of human rights treaties over domestic law, and international law (Derecho de Gentes), Marquevich held that the same principle must be applied to international crimes committed in Argentina itself. As we note in the next chapter, Judge Cavallo developed these arguments further. 47 Massera and Videla had been previously acquitted in the abduction of Claudia Victoria Poblete, Simón Antonio Riquelo, the child of Alicia Elena Alfonsín de Cabandié and the child of Susana Beatriz Pegoraro. 48 In ruling on an appeal by Videla claiming that the crimes were covered by a statute of limitations, the court found that the effects of the theft and concealment of a baby continued until the child was located and returned to its legitimate family, and that in the cases in which this had occurred insufficient time had expired for a statute of limitations to enter force. The court then argued that this point was made "almost redundant" by relevant international human rights norms, which declare "disappearances" to be subject to prosecution at any time. 49 Cámara Federal de Apelaciones en lo Criminal y Correccional de la Capital Federal, Expdte. 30312 "Videla, J.R., s. Prisión Preventiva, September 9, 1999 (translation by Human Rights Watch). Among the standards cited by the court were the Declaration on the Protection of All Persons against Enforced Disappearance, approved by the General Assembly of the United Nations on December 18, 1992; the Inter-American Convention on the Enforced Disappearance of Persons; the Statute of Rome establishing an International Criminal Court, which Argentina signed on July 17, 1998; and the Convention on theNonapplicability of Statutory Limitations to War Crimes and Crimes against Humanity, which entered force in Argentina in 1995. As jurisprudence, the court cited a successful punitive damages claim against Suárez Mason in the United States (Forti v. Suárez Mason, Nro. C-87-2058-DLJ, United States District Court of the Northern District of California) and the hearings of the extradition of Chilean Gen. Augusto Pinochet in the British House of Lords in November 1998). The Suárez Mason hearing in the U.S. is discussed below, in Chapter XI.