On March 28, 1996, Spanish prosecutors, later joined by private citizens, filed criminal charges of
genocide and terrorism against former military leaders of Argentina and their collaborators.(1)
The action, which began with less than 10 named victims, now includes more than 300 persons of
Spanish nationality or their relations lost in the Argentine Dirty War (1976-1983), in which up to
30,000 persons were murdered or disappeared. On July 1, a similar action was undertaken against
the Chilean military junta, which held control there between 1973 and 1989, by prosecutors in
Valencia, Spain.(2) Magistrates Baltazar Garzón and Manuel
García-Castellón, well-known,
aggressive and incorruptible judges who are pressing the prosecutions in the Argentine and
Chilean cases, respectively, in separate Madrid courtrooms. Judge Garzón became famous in
Spain when he directed investigations into allegations of state involvement in death squad activity
against Basque separatist group ETA and its supporters in the mid-1980s, which led, according to
many, to the fall of the government of former Socialist Prime Minister Felipe Gonzalez.(3)
On July 25, 1996, Judge Castellón accepted Spanish jurisdiction over the Chilean case and began
an investigation, while Judge Garzón has done the same, with 14 investigators assigned to the
case.(4) Not surprisingly, the Argentine authorities recently rejected formal cooperation in
the
investigation, noting "serious formal deficiencies" in the transmission of the Spanish judge's
request for assistance in his investigations there. The message from Argentine President Carlos
Menem's office left little doubt of its ultimate intentions when it stated that the investigation
would not be opened "even if the formal errors are corrected."(5)
The prosecutor who formally filed both actions was Miguel Miravet, acting as president of the
Progressive Association of Prosecutors of Spain. That action was enough to set the criminal
process in motion, but did not constitute an official, public decision to prosecute. The later private
criminal action, filed by United Left, the third-largest political party in Spain, is known in Spanish
law as the acción popular, or popular action, and may be brought by any Spanish citizen,
regardless of injury or other standing, in the public's interest.(6) It permits the party
filing to
continue to pursue the matter as a private prosecutor, whatever may be the public prosecutor's
position. In fact, Spanish Board of Attorneys, which oversees operations of the Attorney
General's office, initially opposed the action, but ultimately cleared the way for the popular action
by voting to "neither oppose nor support the prosecution."(7) In the Chilean action, a 1958
Spanish-Chilean convention on dual citizenship permits any Chilean, whether resident in Spain or
not, to file suit in Spanish court with the same rights as any Spanish citizen.(8)
The private Spanish lawyers have worked closely on the Argentine case with Peace and Justice
Service (SERPAJ), the well-known NGO in Argentina headed by Nobel Peace Prize- winner
Adolfo Pérez Esquivel. Mr. Pérez Esquivel has testified in the Spanish case to his own story of
illegal detention and torture as evidence in the Spanish case. The Spaniards traveled to Argentina
to take evidence in the case, and have been told that some of the ranking military veterans of the
Dirty War would be willing to testify in Spain if their protection could be guaranteed. Among the
most prominent of the now-remorseful soldiers is ex-navy officer Adolfo Scilingo, who publicly
confessed his own role in airplane or helicopter flights in which thousands of suspected leftists
detained at the Navy School of Mechanics were thrown to their deaths in the Plate River, which
flows through Buenos Aires.(9)
The actions are name military leaders of Argentina and Chile and others for their involvement in
the kidnaping, torture, murder or disappearance of Spanish nationals and their families. The
Argentine complaint names, among others, Generals Jorge Rafael Videla, Reynaldo Bignone and
Leopoldo Galtieri, as well as the current governor of Argentina's Túcuman province, retired
General Antonio Bussi.(10) The Chilean complaint names army chief General Augusto Pinochet,
as well as retired Admiral Toribio Merino and Generals Gustavo Leigh and Cesar Mendoza, all
part of the ruling junta in that era.(11) The defendants include not only military leaders of
both
countries but also intelligence chiefs, commanders of clandestine jails, and doctors who attended
and monitored victims during torture sessions. The Chilean actions further accuse Chilean security
police, principally the DINA (National Directorate of Intelligence), of involvement in the killings
or attempted assassinations of such notables as Chilean General Carlos Pratts in Buenos Aires in
1974, former Vice-President Bernardo Leighton in Rome in 1975, former senator Carlos
Altamirano in Madrid in 1976, former foreign minister Orlando Letelier and his aide, Ronni
Moffitt, in Washington, D.C. in 1976, as well as Spanish diplomat Carmelo Soria, killed in
Santiago in 1976.
While the military in both countries has generally enjoyed domestic protection from prosecution
due to broad grants of amnesty and weak judicial systems,(12) Spanish law recognizes the
concept
of universal jurisdiction for criminal offenses(13) and codifies international crimes in its
domestic
statutes. Spanish law includes the offences of genocide(14) and terrorism.(15) Although Spain does
not explicitly recognize the crime of disappearance, the complaints charge the underlying offenses
of illegal detention, kidnaping and murder with regard to those factual situations. Both
complaints include allegations of "child snatching" regarding efforts to discover the whereabouts
of some 40 infants who were sold or given away after being born to disappeared pregnant women
who were killed in custody. Another innovative charge is air piracy with regard to the Argentine
military's practice of pitching political opponents from airplanes over open water.(16)
Because of long US involvement in the Letelier investigation and prosecutions, the Spanish
prosecutors have asked the US, through letters rogatory (17) to the Attorney General and the
Justice
Department, to turn over any information which they might have about crimes against humanity in
Chile and the region. News accounts indicate that testimony in the cases will include that of
former FBI agent Carter Cornick, who was involved in the Letelier investigations.(18) After
some
initial indications of US knowledge in the matter, the investigations have been expanded to include
FBI files on Operation Condor, a military intelligence network covering the Southern Cone
countries and centered in Santiago, Chile, one of the explicit goals of which was the elimination of
political adversaries in other countries.(19)
The Spanish authorities have requested extradition, but the authorities in both Chile and Argentina
thus far have refused to cooperate. Spain cannot force the generals to appear, and they cannot be
tried in absentia in Spain, as has been the case in some of the other prosecutions which preceded
this one in Europe. The Spanish government has wholly supported the actions of the judges, and
if evidence is sufficient, arrest warrants could issue for the accused through INTERPOL, thus
effectively confining them to their home countries.
Despite the fact that it has gone largely unnoticed in the US, the Spanish prosecutions are the
continuation of a series of criminal actions in Europe and elsewhere over many years:
* In Italy, prosecutions have been pursued since the mid-seventies, all for involvement of the
Argentines in the killing of Italian nationals. It is estimated that more than 600 persons of Italian
descent were disappeared during the dirty war.(20) The litigation is coordinated by the
League for
Rights and the Liberation of Peoples, which has been influential in advancing the prosecution of
Erik Priebke, the accused Nazi SS officer, for his involvement in the Ardeantine Caves massacre
in Italy.(21) The Preibke action has revived interest in the Argentine litigation there, on
which
hearings were scheduled for January 14, 1997;
* In France, Argentine Captain Alfredo Astiz, the so-called "Blond Angel," was convicted and
sentenced in absentia to life imprisonment in 1990 for his role in the torture and disappearance of
two French nuns whose bodies have never been found. He is unable to leave Argentina now
without running the risk of arrest by INTERPOL agents.(22) New calls for his extradition
followed assertions by Capt. Scilingo that he knew of the nuns' disappearance and Astiz's public
denials of any role in the killings;(23)
* Sweden filed legal actions in Argentina and requested the extradition of Astiz for his role in the
murder of Dagmar Hagelin, a 17-year old Swedish student who disappeared in 1977, but the legal
action remains unresolved;(24)
* In Honduras, human rights ombudsman Leo Valladares has accused Argentine military
officials and the CIA of involvement in the training of Honduran military officials in methods
which violate international humanitarian and human rights law. Although promised information
by Argentine President Menem on the full extent of his country's military involvement in such
activities, the government has refused to reveal it to date. The U.S. President, Bill Clinton, has
been more forthcoming, stating that the Department of Defense is "in the final stages" of its
review of documents to be declassified for Dr. Valladares ;(25)
* In the United States, although no criminal prosecutions have been pursued, private attorneys
have made effective use of the Alien Tort Claims Act(26) to prove civil liability and to win
large
awards for damages against Argentine military figures involved in violations of international
human rights.(27)
The Chilean case took on greater urgency when, in August of last year, the Chilean courts applied
the 1978 national amnesty law to close their investigations into the death of the Spanish diplomat
Carmelo Soria, killed there in 1976, despite strong evidence of DINA involvement in his death
and the assertion, by family members, that murder of a diplomat was not covered by the
amnesty.(28) In December, the Spanish cases were given moral support by a strongly worded
resolution of the European Parliament in support of human rights enforcement.(29) The Spanish
lawyers are actively talking with lawyers from other European countries, particularly Germany,
about what further legal actions can be taken.
1. Richard S. Serrill, "Dirty War" Crimes: A Resolute Spanish Judge Seeks Justice for the Victims of
a
Shameful Episode in Argentina's Past", TIME, Oct. 21, 1996; Marlise Simons, Unforgiving Spain Pursues Argentine
Killers, N.Y.
TIMES, Oct. 24, 1996, at A3.
2. Tito Drago, Chile: Pinochet Accused of Genocide Before a Spanish Court, Inter-Press Service,
July
4, 1996.
3. Giles Tremlett, Spanish Party Urges Argentine Prosecution, BC Cycle, May 7, 1996.
4. Entrevista con el abogado
español, representante de la acusación popular en el jucio
contra
Pinochet [Interview with the Spanish lawyer, representative in the popular accusation in trial against Pinochet], 5
Sept.
1996. Extremely useful information and background on the materials in this article can be found (mostly in Spanish) in a web
site created by a Spanish and US group of human rights activists known as Equipo Nizkor. The site is
<http://www.derechos.org/nizkor>. Within the site are country materials from
Argentina and Chile, from which many references
are made here, and for which more specific hard-copy references are unavailable. Unless otherwise indicated, all cites to the
Spanish-language materials in these footnotes are to the Equipo Nizkor site, and all Spanish translations are my own.
5. Gobierno rechaza petición española para abrir investigación [Government rejects
Spanish request to open
investigation], Jan. 16, 1997.
6. The popular action is embodied in several provisions of Spanish law. The
Constitution, in its article 125, says, "Citizens may exercise popular action and participate in the Administration of
Justice. . .". Constitution of Spain [in English] (as amended, 27 Aug. 1992). In the Law of Criminal Procedure, Article 101
provides that "[t]he criminal action is public. All Spanish citizens may exercise it in accordance with the Law." Ley de
Enjuiciamiento Criminal (14 de septiembre de 1882). Article 270 states that "[a]ll Spanish citizens, whether or not they are
victims of the crime, may file an action [querellarse], by exercising the popular action established in article 101 of this
Law." Article 270 extends the right to access to the criminal process even to foreigners, if certain minimum prerequisites
are met. Article 20.3 of the Organic Law of the Judicial Branch guarantees that the popular action can be exercised without
cost. Ley Orgánica del Poder Judicial, Ley orgánica 6/1985, de 1 de julio.
7. Tremlett, supra, n. 3; see also, Ejerce la Acción Popular la Coalición Izquierda
Unida
en España
[United Left Coalition Files Popular Action in Spain], May 6, 1996.
8.
Tito Drago, Human Rights: Spanish Judges Press Latin American Dictators, Inter Press Service, Sept. 15, 1996.
9.
Argentine Dirty War Vets May Give Evidence, Reuters North American Wire, Sept. 24, 1996.
10. Serrill, supra, n.1.
11. Drago, supra, n.2.
12. See, Jaime Malamud-Goti, Punishing Human Rights Abuses in Fledgling Democracies: The Case of
Argentina, and Jorge Mera, Chile: Truth and Justice under the Democratic Government, in IMPUNITY AND HUMAN RIGHTS
IN
INTERNATIONAL LAW AND PRACTICE 160, 171 (Naomi Roht-Arriaza ed. 1995).
13.
Ley Orgánica del Poder Judicial, Ley orgánica 6/1985, de 1 de julio, Art. 23.4 (a) and (b). That statute
permits the exercise
of Spanish criminal jurisdiction, "although the offense may have been committed outside of national territory, if committed by
a national or foreigner" and if specifically codified in Spanish law. Genocide and terrorism are listed specifically in the
statute.
14.
Código Penal, Ley Orgánica 10/1995, 23 de noviembre, Art. 607. Genocide can be charged when anyone, "with
the
objective of
total or partial destruction of a national, ethnic, racial or religious group," commits the following acts: "killing of
some
of its members; sexual assault on some of its members; submission of the group or any of its individual members to living
conditions which put their lives in danger or seriously endanger their health; carrying out forced relocation of the group or
its members, or adoption of any measure which tends to impede its regeneration or reproduction; or any forced movement of
individuals of one group from another." The complaint takes great pains to develop the statutory antecedents to the
current
offense of genocide in effect during the relevant time periods involved. At this time, the author does not have access to the
text of those historical provisions.
15. Article 571 punishes as terrorists "those who, acting in the service of or collaborating with
armed bands, are members of organizations or groups whose objective is subversion of constitutional order or grave alteration
of public peace, and who commit the offenses of havoc (estragos) or arson." The penalty is raised if the offense causes
injury or death occurs to persons. Article 572.
16. Serrill, supra, n. 1.
17.
28 U.S.C. §1782. The U.S. also has a Mutual Legal Assistance Treaty (MLAT) with Spain, which permits broader investigative
requests. See, Jordan J. Paust et al., INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS 558 (1996).
18. Giles Tremlett, Spanish Courts Give Hope to Latin America, U.P.I., Dec. 11, 1996.
19.
Ampliación de la Denuncia por otros asesinatos cometidos durante la Operación Condor, [Expansion of
criminal
complaint
for
other assassinations committed during Operation Condor], 20 de septiembre de 1996.
20. Argentine Junta Accused of Role in Italian's Deaths, Agence France Presse, May 7, 1996.
21.
Italian Supreme Court to Rule Feb 10 on Court to Try Priebke, Agence France Presse, Jan. 14, 1997.
22. Serrill, supra, n. 1
23. Argentine Captain Sentenced in Absentia for Torturing Nuns, Reuters, March 16,
1990.
24. Argentina to Question Dirty War Man on Swedish Girl, Reuters North American
Wire,
July 10, 1996.
25. Juan D.W., Honduras: la CIA y los Militares Argentinos Responsables de la
Represión,
[Honduras: the CIA and the Argentine Military Responsible for Repression], Nov. 1, 1996; Letter from Pres. Bill Clinton to
Congresswoman Elizabeth Furse, Jan. 7, 1997.
26. 28 U.S.C. § 1350 (1988).
27. See, e.g., Quiros de Rapaport, et al., v. Suarez-Mason; Forti v. Suarez-Mason;
Martinez-Baca
v. Suarez- Mason; Seiderman v. Argentina, cited in Beth Stephens and Michael Ratner, INTERNATIONAL HUMAN RIGHTS LITIGATION
IN
U.S. COURTS, Appendix K, at 343-345 (1996).
-
28. Chile Closes the Book on Spanish Diplomat's Murder, Reuters North American Wire, Aug. 23,
1996.
29. European Parliament, Resolution on Human Rights Throughout the World in 1995-1996
and
the Union's Human Rights Policy, A4-0400/96, Dec. 12, 1996.
