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Argentina faces the recall of impunity

by Cesar Chelala and Alejandro M. Garro

NEW YORK — In August the Argentine Congress voted to annul two statutes aimed at halting criminal prosecutions against military officers. These “impunity laws,” in essence, had granted a blanket amnesty for past human rights abuses committed by the military during their rule. The goal of the annulment is to re-create the rule of law and may have far-reaching consequences for countries that have gone through similar situations.

This move against impunity has proven to be highly contentious. Not only is it unusual for Congress to invalidate laws (in general Congress enacts or abrogates laws), but many Argentines would have preferred to leave the past behind. Opening old wounds may be interpreted by some as a divisive distraction from more pressing social and economic woes besieging Argentina. But, at the same time, other citizens, equally besieged with horrible memories and personal outcomes caused by human rights violations, believe that not dealing with them is a poor foundation on which to continue to build a new rule of law.

The impunity laws have been widely censured under international law. The Inter-American Commission on Human Rights has consistently condemned impunity measures depriving victims of any remedy to vindicate their rights in court. Also, the Inter-American Court of Human Rights (to whose supranational jurisdiction Argentina and two dozen Latin American countries are subject), affirmed that widespread, systematic and state-sponsored violations of human rights should be prosecuted. It also held that state parties were bound to abstain from giving any legal validation to blanket amnesties. Thus, the Argentine Congress, which two decades ago also annulled a self-amnesty that the military had granted to itself before leaving power, was merely carrying out its international obligations.

The annulment was one of several anti-impunity measures promoted by the Kirchner administration, such as the abrogation of a decree, supported by two previous administrations, blocking the flurry of requests seeking the extradition of military officers accused of serious crimes. The executive branch also approved an international treaty ratified by Congress in 1995 declaring crimes against humanity outside the scope of any statute of limitations.

In the meantime, several retired officers are threatened with prosecutions and a few have been recently re-arrested. Perhaps the most notorious among those is Capt. Alfredo Astiz, also known as “The Angel of Death.”

Among many other crimes, Astiz is accused of having assassinated a 17-year-old Swedish woman, Dagmar Hagelin, and of having participated in the deaths of two French nuns, Leonie Duquet and Alice Domon, who were thrown out of an airplane into the Atlantic Ocean.

The highest-ranking former military leaders remain under house arrest, accused of having kidnapped and given over for adoption babies of the “disappeared.” While extradition requests continue to flow from France, Spain, Italy and Germany, federal circuit courts of appeal continue staging “truth trials” aimed at finding out the fate of thousands of the “disappeared.”

Can these egregious human rights violations be forgiven and forgotten under international law, as expressed not only in treaties ratified by Argentina but also under customary rules of international law? Can the rules laid down in human rights treaties apply to crimes committed before those treaties were adopted or to the consequences of those atrocities? There is more than one answer.

There are other, not less relevant, questions concerned not with justice and accountability but rather with Argentina’s future. What will the “truth trials,” the annulment of the impunity laws, the pending cases and the extradition requests mean to hundreds of criminals, their victims and dear ones? What will this effort mean to the consolidation of democracy and the rule of law?

It is hard to predict the outcomes. Yet, seizing the opportunity to hold proper trials once again gives Argentina another chance to come to terms with its past, and to establish a stronger foundation on which to build its future.