Prosecutions of former Argentine officers accused of crimes against humanity have continued in several European countries at a quickening pace over the last year. Close historical ties between Argentina and Spain, Italy, and France, and the pressure of activists from the sizeable Argentine immigrant and exile communities in these countries have been an important factor in these developments. Differences in the extraterritorial jurisdiction recognized in the legal systems of the countries concerned has influenced the scope of these investigations and the charges on which they have been based.
Spain's highest court, the Audiencia Nacional, derives its authority to try Argentines for human rights violations committed in Argentina from the rule of "universal jurisdiction": the principle that every state has an interest in bringing to justice the perpetrators of particular crimes of international concern, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims. Spanish laws give its courts powers to try the crime of genocide wherever and by whomever it is committed. The trials conducted in Italy and France have been based more narrowly on the principle of "passive nationality," which gives their courts jurisdiction to try those responsible for crimes committed against their citizens wherever the crimes are committed.
Successive Argentine governments have refused to cooperate with these prosecutions. President Menem categorically opposed them as an unwarranted interference by other states in Argentine sovereignty. He claimed that Argentine courts had sole jurisdiction to try crimes committed in Argentina, even while domestic legislation and his own presidential pardons made such trials all but impossible. The position of the De la Rúa government, although discreetly muted, has been the same. Its August 2001 refusal to extradite naval intelligence officer Alfredo Astiz --protected by amnesty laws at home -- all but guaranteed him immunity from prosecution for numerous cases of "disappearance."
By contrast, Argentina has given strong support to the establishment of the International Criminal Court (ICC) to deal with war crimes, genocide, and other crimes against humanity. As a signatory to the Statute of Rome and a member of the group of "like-minded countries" that played a key role in drafting the court's mandate (finally approved at the Rome Conference on July 17, 1988), Argentina insisted that enforced disappearances should be included as "crimes against humanity" and favored giving the court's prosecutors wide powers of investigation. Argentina ratified the statute on February 8, 2001, making it one of the first thirty-one countries to have done so. (Sixty ratifications are required under the treaty to bring the court into operation.)
Nonetheless, both the courts and the governments have mustered an array of political and legal arguments to justify their lack of response to the requests of foreign judges in cases with Argentine defendants. They have questioned the jurisdiction of foreign judges over crimes committed in Argentina, disputing the relevant laws of the countries concerned.
Where international crimes like torture and "disappearances" are concerned, a state is not justified in refusing, on territorial grounds, to cooperate with prosecutions in other countries if domestic legislation prevents such trials being mounted in its own territory. As noted above, where crimes against humanity are concerned, courts are bound under international law by the principle of aut dedere aut judicare (either extradite or try). A government is faced, in effect, with a choice between removing domestic obstacles to such trials or cooperating with prosecutions conducted elsewhere.75
Argentine politicians have advanced various arguments to oppose the jurisdiction of foreign courts. Fears have been expressed about juridical chaos, violation of sovereignty, the politicization of justice, or deprival of due process. In certain circumstances, such concerns might be justified. However, international law requires that they be founded on legal argument in each particular case. Sovereignty is usually an invalid reason for refusing the extradition of someone accused of a crime against humanity which is subject to universal jurisdiction, but it might be valid in other cases. Argentine extradition law actually prohibits extradition "where special reasons of national sovereignty, security or public order" are involved. While the government may have latitude in interpreting when these special curcumstances may be invoked, such latitude cannot be limitless.76 Argentine law also prohibits the extradition of anyone for political crimes, but explicitly states that war crimes, crimes against humanity, assassinations of heads of state and members of their family, and acts of terrorism, are not to be considered political crimes.77 Further, extradition law normally prohibits extraditions to countries where the defendant would not receive a fair trial, or would be subject to the death penalty if convicted.
None of these arguments should be used in the abstract as a pretext for shrugging off extradition requests. Appeals to national sovereignty may have rhetorical power when extradition requests originate in former European colonial powers, like Spain, but they have no legal justification. Since most extradition requests have been launched from Europe, it was heartening that a Latin American state, Mexico, was the first to grant the extradition to Spain of a notorious Argentine torturer, in February 2001. The portrayal of the issue by many Latin American governments as interference by meddling European nations, has been a convenient excuse for governments unwilling to confront their responsibility to hold former officials accountable.
Supreme Court justices in Chile and Argentina have been dismissive and uncooperative in response to requests for the detention and extradition of citizens of both countries wanted for human rights violations. Among trial court judges, however, cooperation and cross-fertilization in the application of human rights doctrine and jurisprudence has become increasingly common. The arguments used by Judge Marquevich in the Videla case, for example, applied for the first time in Argentina doctrines used by Spanish judge Baltasar Garzón in his indictment of Argentine officials for genocide and terrorism. The June 30, 2001, decision by Judge María Servini de Cubría to comply with the request of an Italian judge for the arrest of naval officers Alfredo Astiz and Jorge Vildoza, both implicated in "disappearances"of Italian nationals at the ESMA, was the first time that an Argentine court had ordered the arrest of a national on the orders of a foreign judge. These developments are encouraging.
On November 2, 1999, Judge Baltazar Garzón of the Fifth Central Court of Instruction in Madrid filed charges against ninety-eight members of the Argentine armed forces for the crimes of genocide and terrorism. On December 21, 1999, orders were issued via Interpol for the arrest of forty-eight of them, including Videla, Massera, Galtieri, Suárez Mason, Bussi, Menéndez, Vildoza, Acosta, Astiz, and Pernías. The case originated in a complaint filed on March 28, 1996,78 by Spain's Progressive Association of Prosecutors (Unión Progresista de Fiscales) jointly with Argentine human rights groups in Spain and the political party Izquierda Unida (United Left). Initially, the investigation focused on some 600 Spanish nationals or Argentines of Spanish descent who were abducted and "disappeared" from 1976 to 1983.79
Under its domestic law, Spain has jurisdiction to try certain serious crimes committed outside its territory. These include genocide, terrorism, piracy and the highjacking of aircraft, forgery of foreign currency, prostitution, and drug-trafficking.80 Jurisdiction is exercised by the Penal Chamber of the Audiencia Nacional, Spain's highest court. Genocide is a crime against humanity under customary international law, and is proscribed by the Convention for the Prevention and Punishment for the Crime of Genocide, which Spain ratified on September 13, 1968.81
On November 5, 1998 the eleven members of the Penal Chamber of the Audiencia Nacional confirmed unanimously that Spain was qualified to investigate crimes of genocide, terrorism, and torture committed by members of the military governments of Chile and Argentina. The Audiencia Nacional also confirmed that the Spanish courts could exercise universal jurisdiction to try a non-citizen for crimes against non-citizens committed outside of Spain's national territory. This decision allowed the charges to be expanded to include crimes against non-Spaniards.82
Argentine courts refused to cooperate with the Spanish arrest orders. During the following year, 2000, Garzón's counterpart in Argentina, Federal Judge Alfredo Literas, stonewalled by raising formal defects and forwarding repeated requests for information to the Spanish court. Despite a bilateral judicial cooperation treaty in force between the two countries since 1987, Justice Minister Ricardo Gil Laavedra refused to comply with the arrest orders, citing the time that had passed since the crimes were committed. This foot-dragging by the De la Rúa administration was a less open rejection than Garzón's petitions had received from the Menem government, but its effects were the same.83 (On January 26, 1998, Menem had issued a decree denying judicial assistance on grounds that the Spanish prosecution entailed a violation of Argentina's sovereignty.)84
In September 2001, Argentine Judge Gabriel Cavallo ordered the arrest of seventeen former military and police officers, and a civilian, Victor Brusa, implementing another warrant issued by Judge Garzón. Brusa, who was a federal judge until he was fired by a judicial review body in 2000, was accused of forcing tortured prisoners to sign incriminating confessions. On November 16, 2001, barely days before this report went to press, Defense MinisterHoracio Jaunarena, acting for the Foreign Minister who was absent from the country, reasserted the territorial argument to deny Judge Garzón's request. Jaunarena asserted that, in some of the cases, it was impossible to continue with their trial "due to laws in force that were approved by the constitutional authorities of the Republic," a clear reference to the amnesty laws of 1986 and 1987.85
As a result of this refusal to cooperate, most of those on Garzón's list of indictees are still at large in Argentina, the only haven left to them while international arrest warrants remain in force. An exception was naval officer Adolfo Scilingo, who appeared voluntarily to testify before Garzón on October 7, 1997. After Scilingo confessed that he had participated in "death flights" in which detainees held at the ESMA had been drugged and thrown from planes into the Atlantic, the Spanish judge promptly ordered him arrested and taken to the Madrid prison of Carabanchel. On April 19, 1999, Garzon indicted Scilingo on charges of genocide and terrorism. Since January 1998 he has been free on bail, but prevented from leaving Spain. So far, Scilingo has lost all of his appeals. His trial continues.
Alleged torturer Ricardo Miguel Cavallo is the only one of Garzón's indictees who has been detained by a third country outside Spain and Argentina. According to the indictment, Cavallo, alias Serpico, Marcelo, or Miguel Angel Cavallo, was a member of the so-called 3.3.2. task force (charged with carrying out abductions at ESMA) in 1977 and 1978. From January 1979 until January 1980 he was in charge of the "fishtank," a special zone of the ESMA in which prisoners were forced to use their skills to promote the political campaigns of Admiral Massera.86
Members of Mexico's Federal Judicial Police arrested Cavallo, who held the job of director at Mexico's National Vehicle Registry, on August 24, 2000, at Cancún airport. Cavallo was trying to escape to Buenos Aires, after his real identity had become known.87
On January 12, 2001, Mexico's Sixth District Criminal Judge, Jesús Guadalupe Luna Altamirano, accepted a petition for Cavallo's extradition to Spain after confirming the extra-territorial jurisdiction of the Spanish court. Judge Luna also agreed with the Spanish court that the charges did not violate the principle of non-retroactivity, although he excluded torture as an extraditable charge on grounds that under Mexican law this crime was subject to a statute of limitations.
Argentina's initial silence at the decision was broken when then-Minister of Defense Ricardo López Murphy announced on February 1 that "things that have happened in Argentina must be judged in Argentina," and that no country "should be recognized as having the capacity to be a court of appeals for decisions adopted freely by Argentines."88 On the following day, Mexican Minister of Foreign Affairs Jorge Castañeda, invoking an extradition treaty in force between Mexico and Spain, announced that the Mexican government had approved Judge Luna's extradition request. The Foreign Ministry decision was broader than Judge Luna's, since it did not exclude his extradition for torture, as well as the other crimes. Cavallo immediately lodged a habeas corpus appeal (known in Mexico as amparo). The appeal hearing was expected to reach the Mexican Supreme Court at this writing.
Just over two weeks before Cavallo's arrest in Cancún, on August 6, 2000, Interpol and Italian police arrested retired army Maj. Jorge Olivera in Rome's Fiumiccino airport, as he was about to board a flight back to Argentina. Olivera, a former carapintada and defense attorney for Massera and Suárez Mason, had been in Europe to file a complaint at the International Court of Justice against former British Prime Minister Margaret Thatcher for the sinking of the battleship General Belgrano in the Falklands/Malvinas war.
On the previous July 20, French Judge Roger Le Loire had issued an arrest warrant for Olivera as the prime suspect in the "disappearance" of a French national, twenty-two-year-old Marianne Erize Tisseau, in the province of San Juan, in western Argentina on October 15, 1976.89
On September 19, after Olivera had been held for forty-two days in Rome's Regina Coeli prison, the Fourth Chamber of Rome's Criminal Appeals Court dismissed the French government's request for his extradition on grounds that the crime in Italy was subject to a statute of limitations. Olivera immediately flew back to Argentina. A throng of former comrades-in-arms welcomed him home in the VIP lounge of Buenos Aires' Ezeiza airport.
The court based its decision on a photocopy produced by Olivera's defense team during the hearing as evidence of Erize's death, now known to be a forgery. Far from being a valid death certificate, the document photocopied was a request for a death certificate lodged with the Civil Register of the City of Buenos Aires, on which the date and place of death had apparently been typed in afterwards. A comparison of the record concerned and the document produced in court pointed to a blatant adulteration.90 On October 5, the City of Buenos Aires filed a criminal complaint for forgery of a public document against Olivera and his lawyers. The investigation ground to a halt, however, after the paper that helped Olivera gain his release mysteriously disappeared from the file of the court proceedings.91
The Argentine government and the Supreme Court have denied the legitimacy of trials of Argentine torturers completed in absentia in Italy and France. The Supreme Court has ruled that trials in the absence of the accused violate due process guarantees in the Argentine Constitution, in particular the right to a defense.
As a general principle, Human Rights Watch believes that everyone charged with a criminal offence has the right to be tried in their presence so that they can follow and challenge the prosecution case and present a defence. However, many countries allow trials in absence under exceptional circumstances. Italy, for example, allows such trials when the defendant is in "contumacy," that is, has refused to appear despite receiving sufficient advance warning of the trial. Before such a trial can start, the court must establish that the defendant received advance notification sufficient to mount a defense, and that the decision not to appear was voluntary and not the result of force
majeure. Finally, the defendant must have normal rights of access and communication with a chosen defense lawyer. 92
The U.N. Human Rights Committee has held that in absentia trials may be held in exceptional circumstances, similar to those permitted under Italian law. The committee pointed out:
The right to be present at trial imposes duties on the authorities to notify the accused (and defence counsel) in sufficient time of the date and location of the proceedings, to request the presence of the accused and not to improperly exclude the accused from the trial.93
If these conditions are fulfilled, trials in absence may be justified, particularly when the extradition of the defendant is denied by the country in which they reside, and domestic laws make their trial in their own country impossible. However, Human Rights Watch believes that if the defendant is apprehended and extradited to the country where a verdict was rendered in their absence, the trial should be subject to a judicial review, and, if appropriate, a new trial conducted to ensure that the accused receives due process.
In 1983 court investigations began in Italy into the murder or "disappearance" during the military government of 117 Argentines of dual Italian nationality or Italian descent. The Argentine government failed to respond to a rogatory letter sent in 1994 requesting assistance. When Roman judge Antonio Capiello arrived in Buenos Aires to interview relatives in the court office of a federal judge who had offered to help his Italian colleague, the Menem government reportedly stepped in to prevent the interviews from taking place. Despite this lack of cooperation, the Italian consulates in Argentina and elsewhere took testimony from numerous relatives of the victims. The court eventually filed charges against former Naval Prefect Juan Carlos Gerardi, and four seamen of the Naval Prefecture, Luis Porchetto, Alejandro Puertas, Roberto Rossín, and Héctor Maldonado for the "disappearance" of trade unionist Astarsa Martín Mastinu and his brother-in-law, Mario Marras.
In addition, Guillermo Suárez Mason and Santiago Omar Riveros were charged for the disappearance of Pedro Mazzocchi, Norberto Julio Morresi, Luis Alberto Fabbri, Daniel Jesús Ciuffo, Laura Carlotto, and Carlotto's son, Guido.94 On December 6, 2000, Rome's Second Criminal Court sentenced Suárez Mason and Riveros to life imprisonment, and Gerardi and his four co-defendants to twenty-four years in prison, all in absentia, on charges of kidnapping, torture, and premeditated murder. Army chief Ricardo Brinzoni told reporters afterwards "If the Italian courts think they have the powers to do it, that is their point of view. I don't share it."95
Before President De la Rúa took office, he stated that if his government received requests for the extradition of Argentine human rights violators he would submit them to the courts for a decision on their legal merits. In practice, however, he has failed to do this. Indeed, there has been nothing to distinguish the policy of his government on this matter from that of Menem. This was clearly seen in August 2001, when the Foreign Ministry rejected a request by Italy and France for the extradition of former naval intelligence officer Alfredo Astiz.
At the Italian court's request, on June 29, 2001, Federal Judge María Servini de Cubría of Argentina ordered Astiz's arrest, and two days later he turned himself in. The arrest order also included former Cap. Jorge Vildoza, alias "Gastón," a fugitive from justice since 1985. Both Astiz and Vildoza were wanted as suspects in the "disappearance"
of three Italian-Argentines, Angela María Aieta, Juan Pegoraro, and his daughter, Susana, who gave birth to a baby daughter in ESMA in 1977. 96 Also wanted by Italy were Massera, Vañek, Acosta, and Febres. No request was made for their arrest, since all of them were already being held for the theft of babies in the Massera case (see Chapter V).
With Astiz in custody, France also filed an extradition request. As noted in Chapter II, Astiz played a key role as an undercover agent in the "disappearance" in 1977 of two French nuns, Alice Domon and Leonie Duquet, and Azucena Villaflor, a leader of the Mothers of the Plaza de Mayo. Astiz infiltrated the organization, won the women's confidence, and gave the signal for the abductions. For this crime, a French court sentenced Astiz in 1990 to life imprisonment in absentia, after Argentina refused either to try or extradite him. Another crime in which Astiz is accused is the "disappearance" on January 26, 1977, of seventeen-year-old Argentine-Swede Dagmar Hagelin, for which a Swedish court has long tried unsuccesfully to obtain his arrest and extradition.97 The British army captured Astiz during the Falklands/Malvinas war, but Prime Minister Margaret Thatcher refused extradition requests by Sweden and France, and sent him home.98
In January 1998, Astiz, who continued to work for naval intelligence, boasted in a magazine interview that he was "the most highly skilled person in the country to kill a politician or a journalist."99 Public outrage was intense and the Menem government finally cashiered him from the navy. In March of that year a court sentenced Astiz to a three-month suspended prison sentence for defending a crime (apología del delito). That conviction apart, he was unscathed by the action of Argentine courts.
Within two weeks of Astiz's detention, a Nuremberg judge issued an international warrant for the arrest of Suárez Mason for the abduction, torture, and murder of German sociologist Elisabeth Kaesemann. Kaesemann, who came to Argentina in 1968 to research an academic thesis, was kidnapped in Buenos Aires on March 9, 1977, and taken to the clandestine detention center known as Vesuvius. She was executed by gunshot on May 23, 1977.100On October 17, 2001, Judge Gabriel Cavallo placed Suárez Mason under arrest, pending receipt of an extradition request from Germany.
As noted in Chapter II, because of his high rank Suárez Mason did not qualify for immunity under the due obedience law, but two years after his 1988 extradition from the United States on thirty-nine counts of murder (see Chapter XI), President Menem pardoned him. However, as noted in Chapter VI, Suárez Mason was charged in November 1998 for the theft of babies, and was already in custody awaiting trial when Judge Cavallo issued his arrestwarrant. Although the Argentine government could deny his extradition on the grounds that Suárez Mason was already on trial by an Argentine court, it could not legitimately stay the extradition permanently unless the defendant was tried in Argentina also for the Kaesemann killing.
On November 16 2001, the Argentine government rejected the German extradition request, asserting that his extradition "would go against the sovereignty of our country, since it would mean invalidating or overriding decisions adopted by legitimate authorities exercising public powers emanating from the national constitution, and would also infringe the principle of "non bis en idem" protected in our constitution." By implication, the decision legitimated the decision of President Menem to pardon Suárez Mason before his trial was completed.101
At this writing, German investigations were continuing into the fate of some twelve other Germans or Argentinans of German descent who "disappeared" under the military government.75 In the proceedings in the House of Lords debating the request by Spain for the extradition of General Pinochet, Lord Browne-Wilkinson described the principle of aut dedere aut judicare (either extradite or try) to be the essence of the United Nations Convention against Torture. Lord Browne-Wilkinson, Judgment - Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen's Bench Division), March 24, 1999. 76 Ley de Cooperación en Materia Penal (Law No.24,767), Article 10. 77 Ibid, Article 9.
81 Genocide is defined by the United Nations in the Convention for the Prevention and Punishment of the Crime of Genocide (1948) as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
82 Judge Garzón argued that the concept of genocide is applicable not only to the whole or partial elimination of groups based on nationality, ethnicity, race, or religion, but also to minorities sharing the same racial, ethnic or religious characteristics as the rest of the population, singled out solely on political or ideological grounds. The Spanish prosecutor challenged this interpretation as exceeding the terms of the United Nations Convention for the Prevention and Prosection of Genocide, but the Audiencia Nacional upheld Garzón's classification of the crimes as genocide.
83 In a letter to his Spanish counterpart, dated January 15, 1997, Argentine Foreign Minister Guido Di Tella wrote: "Even if these defects are remedied it must be pointed out that the govenment of Argentina has decided to reject the request for judicial international assistance, since it refers to acts that occurred in the territory of our country, which, according to our legislation in force are of exclusive competence of our courts, which have already taken action on them, in some cases duly completing trials and in others declaring penal action to be extinguished on the basis of laws expressly referring to such cases." Providencia del Magistrado Juez Baltazar Garzón, Madrid, January 23, 1997.Available at http://www.derechos.org/nizkor/arg/espana/coop.html
84 Decree 111 of January 26, 1998, published in the Official Gazette on February 9, 1998, with the signatures of Minister of Foreign Affairs Guido Di Tella, and Minister of Justice Raúl Granillo Ocampo.
86 He is accused of the torture of Thelma Jara de Cabezas and the extrajudicial execution of Mónica Jauregui and Elba Delia Aldaya on the night of January 10-11, 1977. The ESMA squad that murdered them kidnapped Jauregui's two children, two-year-old Emiliano Miguel Gasparini and his younger brother, Emilio Benigno. The children were held for two months in order to force their father, Juan Alberto Gasparini, who had been arrested also, to give information. Gasparini was systematically tortured until the children were finally handed over to their grandmother, and was not released until twenty months later.
89 According to witnesses, Erize had been taken to an army camping site used as a clandestine detention center, where she was tortured and raped. Jorge Bonil, a conscript who served in Olivera's unit, the 22nd Mountain Infantry Regiment, told her lawyer that Olivera boasted to the troops of raping "the Frenchwoman" before killing her. Her body was never found, however, and there was no death certificate "Gobierno Argentino mantiene `bajo perfíl' tras detención en Italia de ex-represor," El Mostrador (Chile), August 9, 2000 (http://www.elmostrador.cl); "Olivera de vuelto al refugio argentino," Página 12, September 20, 2000.
96 Angela María Aieta was abducted from her home on August 5, 1976, and was later seen by ESMA survivors in the camp, one of whom testified that she had watched her being taken away, possibly for execution. A task force abducted Juan and Susana Pegoraro in a railway station on June 18, 1977, when Susana was five months pregnant. Her husband, Rubén Bauer, was abducted the same day in La Plata. All three "disappeared."
98 Under the Alfonsín government, navy pressure led to the transfer of the Hagelin case to a military court, which quashed a civilian judge's order for Astiz's arrest. A few months later, the Supreme Council of the Armed Forces acquitted him. On appeal, the Federal Appeals Court of Buenos Aires finally closed the case on statute of limitations grounds on December 5, 1986. The courts dropped charges against Astiz in the French nuns case in June 1987 under the due obedience law. Human Rights Watch, Truth and Partial Justice, pp. 41-44.
100 Two months later, Suárez Mason announced that there had been an "armed clash" in which sixteen people, including Kaesermann, had died. Her father eventually recovered her mutilated body after paying $22,000. An autopsy performed in Tuebingen showed that she had been shot at close range in the back. Victoria Ginzberg, "El Nuremberg para Suárez Mason: Alemania pidió a Interpol la captura internacional del ex-general," Página 12, July 13, 2001.