Although this surge of activity to hold accountable those responsible for crimes committed a quarter of a century ago enjoys wide public support in Argentina, these initiatives have met with resistance from the armed forces and evident unease in government circles.
Constitutionally, the armed forces are directly subordinate to the president of the republic, who is commander in chief of each branch.104 As the hiercharchical superior of each of the service chiefs, the president's orders have to be obeyed. The official position of the De la Rúa administration on all judicial decisions is to respect the autonomy and independence of the courts. The president, then, has the powers to enforce this rule in the military ranks by issuing clear orders to the service chiefs to ensure that serving officers cited to appear do so. In practice, however, military esprit de corps continues to be a potent bulwark against accountability, and the president has often seemed timid or unwilling to exert his authority to oppose it.
Army Chief of Staff Ricardo Brinzoni has frequently complained in public about human rights in contrast to the silence of the other service chiefs. During the year 2000, the Defense Ministry often seemed to be endorsing these complaints, or at least to be giving Brinzoni free rein to express them. Lately, however, the ministry appears to have taken some corrective measures to limit his interventions, which were undoubtedly bringing the government bad publicity. 105
Hard core pro-junta officers, now mostly senior citizens in retirement, considered Balza's April 1995 acknowledgment of the army's institutional responsibility for the coup and the atrocities that followed it little short of treasonous.106 Indeed, in January 2000, the Military Circle, an association of retired officers still dominated by those who participated in the repression, expelled Balza. It is more difficult to assess the reaction to Balza's stance among the current army leadership, now made up of officers in junior ranks at the time of the coup. Balza himself has stated that Brinzoni supported his public apology on behalf of the army, and since he replaced Balza as army chief-of- staff, Brinzoni has repeatedly confirmed this support. However, according to Human Rights Watch's sources, including within the military, many officers who were on active service during the "dirty war" remain very critical of Balza's statement, and feel that the army is being made to "carry the burden" of its past, despite the efforts made to modernize it and however much contrition its leaders express. Brinzoni also referred to this.107
The vice-minister of defense told Human Rights Watch that the army today is more concerned about the drastic reduction in budget and salaries that it has suffered than it is about human rights. Other government officials, however, described both issues as equally sensitive. According to the vice-minister, only about 8 percent of current army and navy personnel are old enough to have potentially participated, as very junior officers, in abuses from 1976-1983.108
Brinzoni has publicly criticized the "truth trials" aimed at discovering the fate of the "disappeared." During the first six months of 2000, more than two hundred active service and retired members of the military were questioned in the hearings. As noted in Chapter IV, concern in the army grew when serving officers began to receive court summonses and were arrested when they refused to testify under oath. Not only did the army publicly defend the arrested officers, it backed their successful appeals to the higher courts to lift the detention orders and relieve them of their obligation to testify. Apparently underlying these legal moves was a strategy to remove the cases from the orbit of federal judges, widely seen as favoring the cause of victims of human rights violations. Some government officials have also voiced skepticism. For example, Alicia Pierini, under secretary for human rights under the Menem government, told Human Rights Watch that she was skeptical about the effectiveness of court investigations.109 Her successor, Diana Conti, also expressed reservations about due process in the truth trials.110
Although concerns about the courts are expressed in terms of their alleged investigative inefficiency, slowness, and lack of coordination (all objections related to their capacity to advance the cause of "truth"), there are undoubtedly other reasons for them as well: notably the resentment of serving officers forced to appear, negative publicity for the armed forces, and the effect of the trials on civil-military relations.
Last year, government human rights officials seemed to broadly agree with the armed forces on the need to explore alternative political channels for obtaining information about the fate of the "disappeared."111 The example of the Chilean civil-military dialogue, which aimed to reconstruct such information, had been widely noted. The agreement reached in June 2000, by which the Chilean armed forces agreed to search for information from their members on the fate of the "disappeared" in exchange for guarantees of "professional secrecy," sparked proposals for a similar solution in Argentina. However, the human rights community vehemently rejected Brinzoni's proposal to create a civil-military round table. Brinzoni's widely published comment that "partial memory is as unjust as forgetting" did nothing to inspire confidence. When it was evident that the idea was politically unviable, the then-ministers of defense and interior, Ricardo López Murphy and Federico Storani, immediately distanced themselves from it.
President De la Rúa has generally kept a low profile on the human rights question, but his ministers barely conceal their disapproval of a reopening of human rights trials. Defense Minister Horacio Jaunarena, who served in the same post under Alfonsín when the impunity laws were promulgated, reacted to the Cavallo decision by claiming the impunity laws to be constitutional "because Congress approved them." In a speech at a military ceremony in Córdoba, Jaunarena said the prolongation of the trials was "not beneficial for anyone, neither for the victims or for those who might be accused."112 These views closely reflected those expressed by the head of the joint chiefs of staff, Lt.-Gen. Juan Carlos Mugnolo, and the commanders of the navy and air force.113 The government appeared to signalsolidarity with the embattled junta leaders when Galtieri, Menéndez and Videla's minister of the interior, Albano Harguindeguy, appeared in public close to the presidential box at a military ceremony on May 29, 2001.114
Also troubling the military have been the frequent vetos of army promotions on the basis of information submitted by human rights organizations to the annual Senate review process, and the effects of the surrounding publicity on the questioned officers' careers. 115 In early March 2001, 663 army officers presented habeas data demands against CELS, the Permanent Assembly for Human Rights, and the Justice Ministry's under-secretary for human rights, enjoining them to turn over information in their possession that might implicate the officers in human rights abuse.116 The officers' concern was apparently also based on fears that that they could be arrested on trips abroad. CELS alleged that, far from being spontaneous, the officers were encouraged to sign the petitions by the army's secretary general, Gen. Eduardo Alfonso, acting on behalf of General Brinzoni, and with the knowledge and support of then-Defense Minister Ricardo López Murphy. To facilitate its habeas data search, CELS requested information from the army on the officers' rank and service history, which the army refused to provide. Replying to the demand in April 2001, CELS revealed that it possessed evidence of human rights abuse against only nine of the officers. The undersecretary of human rights replied that it did not possess registers of military officers implicated in human rights crimes.117
General Brinzoni was himself on CELS's list of officers under question for their alleged participation in human right abuse. CELS alleged that, by promoting the habeas data action, Brinzoni had dragged officers with a clean past into the defense of a small minority whose records had been impeached, including himself. 118 On May 28, 2001, CELS filed a criminal complaint against Brinzoni and about thirty other soldiers and policemen, local government, and legal officials in connection with a notorious massacre of twenty-two political prisoners in Margarita Belén, Chaco province, on December 13, 1976.119
Brinzoni, then with the rank of captain, and secretary general of the Chaco provincial government at the time, has recently admitted that the killings were extrajudicial executions, while denying personal responsibility. For any prosecution to proceed, Federal Judge Carlos Skidelsky will first have to pronounce the due obedience law without legal effect in the case, upholding the opinion of his colleague, Gabriel Cavallo. Indeed, the removal of all legal obstacles to a trial of those responsible for the Margarita Belén massacre is the only way that Brinzoni could establishhis innocence, or conversely be removed from his command on the basis of evidence tested in court, in which he would have the opportunity to defend himself against the charges.104 Article 99:12 of the Constitution. According to Article 99:14, the armed forces are at the president's "disposal." 105 Human Rights Watch requested Angel Tello, vice-minister of defense, to arrange a meeting for us with General Brinzoni. We were told that Brinzoni was no longer authorized to make statements about human rights issues. 106 Former navy intelligence officer Alfredo Astiz, for example, called General Balza a "cretin" for stating that army personnel had no obligation to obey immoral orders. See Gabriela Cerruti, "El asesino esta entre nosotros," Tres Puntos, January 15, 1998. 107 Brinzoni's phrase was cargar la mochila (carry the backpack). 108 The defense budget was between 4 and 5 percent of GNP at the time of the military juntas; it is less than 1 percent today. A director at a government ministry earns about $5,000 Argentine pesos (U.S. $5,000) a month, while a chief of staff of one of the three branches of the armed forces earns about $3,300. Human Rights Watch interview with Vice-Minister of Defense Angel Tello, July 25, 2001. 109 Human Rights Watch interview with Alicia Pierini, Buenos Aires, April 15, 2001. 110 Ms. Conti, however, stressed that it was government policy to support the trials. 111 It is not known how much information on the fate of the "disappeared" remains on file in the hands of the armed forces, but since 1995 both the army and the navy have repeatedly denied to the courts that they have it. Appeals by both Balza and Brinzoni to active and former soldiers who participated in the repression to come forward with information, with guarantees that their identity would be withheld, produced no result. As noted in Chapter V, in January 1999, retired Gen. Cristino Nicolaides, army chief of the last military junta, 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. The navy, the other branch of the armed forces most implicated in "disappearances," has denied having files on detainees held at its notorious torture camp at the ESMA. 112 "La vía armada esta totalmente descartada: el fallo del juez Cavallo," La Nación, April 3, 2001. 113 "Aumenta la protesta de los militares," La Nación, March 10, 2001. 114 "Fueron todos los que no están presos: De la Rúa defendió la inocencia de Brinzoni en el Día del Ejército," Página 12, May 30, 2001. 115 Under Article 99:13 of the Constitution, the president's proposals for promotions must be approved by a Senate vote. 116 Article 43 of the Constitution allows anyone to file such an application to a court "to obtain information about the data about him or her and its purpose that may be held in public registers or data banks, or private ones used to provide reports." The procedures are established in Law No. 25,326. 117 Affidavit dated March 8, 2001. 118 CELS revealed that the lawyer representing Brinzoni in the habeas data action, Juan Torres Bande, was a close associate of a prominent neo-Nazi, and had appeared on television in September 2000 sharing a political platform with him. When Torres Bande's neo-Nazi connections were revealed in the press, Defense Minister Horacio Jaunarena ordered Brinzoni to dispense with his services immediately, and to send a letter of apology to the Association of Argentine Jewish Delegations (Asociación de Delegaciones Israelitas Argentinas, DAIA), which represents Argentina's large Jewish community. The question of possible links between some army officers and neo-Nazi activists, which has troubled civil-military relations in the past, is still a pressing and unresolved issue in Argentina. 119 The prisoners were taken from their cells during the night, tortured in turn, and taken away in cars in the direction of Formosa. The cars took a side-road, halted, and soldiers shot the prisoners dead by the roadside . Even though there were no survivors, the army claimed that the deaths had occurred in a "firefight with subversive delincuents," according to CELS.