EQUIPO NIZKOR |
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17Jun05
Communiqué concerning the decision to annul the laws of impunity and
the conviction for crimes against humanity.
Equipo Nizkor is issuing this communiqué following an analysis of the decision of the Supreme Court of Justice of Argentina in the case entitled Simón, Julio Héctor et al. with reference to the illegal deprivation of liberty, etc. Case N° 17,768, dated 14th June 2005.
The decision has been digitalised and edited and its full text - together with an index prepared by us - can be found on-line on our web page concerning human rights reports on Argentina, under the section headed "Impunity".
With regards to this jugment we wish to state as follows:
With respect to the decision to annul the laws of impunity:
1) It is an important step in the dismantling of models of impunity such as that established by the State of Argentina - by enacting laws such as the well-known laws of Due Obedience and Full Stop - that the Court held that "the enforcement of these laws should be considered a breach of international law".
2) It is worth highlighting the fact that the Public Prosecutor's Office actively participated in the case given that, as expressly stated in its previous opinion, it is the function of that Office "as the custodian of the law and the general interests of society and as an inescapable moral imperative, to guarantee the victims their right to jurisdiction and the clarification of the truth with respect to the events of the period 1976-1983 in the context of a systematic violation of human rights, and to watch over the performance of those obligations concerning criminal prosecution assumed by the Argentinian State.
This must be done consistently with the duty incumbent on the Office, when it finds itself faced with controversial legal issues, to elect in principle for the interpretation which keeps the action alive and not for that which leads to its dismissal".
3) We consider that this is an international precedent with respect to the laws of impunity, immunity and of any other kind of prerogative law which enables the State to avoid its responsibility and the individual criminal responsibility of the perpetrators and planners of crimes against humanity.
It is important that the State of Argentina, by means of its Supreme Court, has finally given effect to the declaration of the Inter-American Commission on Human Rights which stated in its Report 28/92 of October 1992, that the laws of Full Stop and Due Obedience, together with the Presidential Decree of amnesty 1002 of 7th October 1989 were incompatible with the American Declaration of the Rights and Duties of Man and with the American Convention on Human Rights.
With respect to crimes against humanity:
4) The use of the category of crimes against humanity is an important advance in the history of the law of Argentina in that the decision uses principles of international law in a systematic and rational way relating these principles to domestic law and converting them into effective laws which can be applied in a way that has not been done hitherto.
5) The use of the category of crimes against humanity as well as the imposition of the punishment for this kind of crime in the internal state jurisdiction is a contribution of particular importance to international law and most especially in the struggle against impunity.
6) The sentence also addresses one of the elements of crimes against humanity, affirming the fact that they are not barred by any statute of limitations because of the nature of such crimes. This, apart from providing a technical legal solution to the problem also constitutes a clear warning to potential perpetrators of such crimes. We wish to emphasise this particular aspect of the decision as we consider that this deterrent approach is a necessary condition to ensure the non-repetition of crimes of this kind.
7) Similarly, we consider it particularly important the statement made in the decision that "With respect to the existence of crimes against humanity at the time when these acts were committed, it is my opinion that the development of international law from the Second World War permits the conclusion that, when the acts in question were committed, international human rights law already condemned the forced disappearance of persons as a crime against humanity.
The expression "forced disappearance of persons" is no more than legal terminology for the systematic violation of various human rights which the State of Argentina has agreed to protect under international agreements from the commencement of the development of such rights in the international community following the termination of the Second World War (United Nations Charter of 26th June 1945, the Charter of the Organization of American States of 30th April 1948, the adoption of the Universal Declaration of Human Rights of 10th December 1948 and the American Declaration of the Rights and Duties of Man of 2nd May 1948).
8) We agree with the characterization of these crimes and their relation to internal law and in particular with the statement that "Indeed, there are numerous international instruments which, since the evolution of international human rights law commenced, have evidenced the interest of the community of nations that war crimes and crimes against humanity be duly tried and punished.
It is precisely the consolidation of this view which led, in the course of the following decades, to the incorporation into international instruments of this principle in various instruments as an indissoluble consequence of the concept of war crimes and crimes against humanity. We can mention here, among others: the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, adopted by Resolution 2391 (XXIII) of the United Nations General Assembly on 26th November 1968 (Law 24,584) ; The Principles of International Co-operation in the Identification, Arrest, Extradition and Punishment of Persons Guilty of War Crimes or Crimes against Humanity, of the 3rd December 1973, adopted by Resolution 3074 (XXVIII) of the United Nations General Assembly on 3rd December 1973; The European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes, signed in the Council of Europe on 25th January 1974; The Draft Code of Crimes against the Peace and Security of Mankind of 1996 and the Rome Statute of the International Criminal Court (Law 25,390)".
With respect to the Inter-American system of Human Rights:
9) The application of the jurisprudence of the Inter-American Commission and Court to internal law is clear support for the protection of human rights in the entire American continent and constitutes a clear response to those states who refuse to apply the decisions of the Inter-American Court on Human Rights to their internal law, as for example in the well-known cases in El Salvador, Guatemala and Colombia.
10) On this point it is worth highlighting the statement that "the nullity of these laws can be approached more usefully from the perspective of international law which has already been recognized as being part of internal law. As has been stated, it is clear that the laws which are at issue directly conflict with international law. By virtue of art. 75 para.22 various texts forming part of our Constitution can be cited, but one need only recall the said jurisprudence of the Inter-American Court on Human Rights in its decision of 14th March 2001 in the case of "Barrios Altos (Chumbipuma Aguirre y otros vs. Perú" (serie C Nº 75):
"This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law".
The Inter-American Court held that "the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the American Convention have been violated".
"This jurisprudence is, without doubt, applicable to the case of those laws rendered null and void by law 25,779 and accordingly it is clear that the enforcement of these would be considered as in breach of international law. Whatever opinion one may have with respect to the laws in question, the enforcement of laws 23,492 and 23,521 would implicate the State of Argentina in an international injustice punishable by the Inter-American Court of Human Rights according to the criterion expressly set out in the Peru case, a case in which that country after serious opposition was forced to comply."
"As has already been indicated it is not sufficient to argue that the American Convention was not in force at the time of commission of the crimes the prosecution of which is prevented by laws 23,492 and 23,521. Whatever their nomen juris and the true legal nature of these laws, it is clear that the principle of legality, however broad, does not allow that the perpetrator of a crime be amnestied by or otherwise benefit from the cancellation of a type of offence or the imposition of a procedural obstacle by a law that is enacted at some point in the future. What is clear is that the American Convention was ratified in 1984 and in the same year the full jurisdiction of the Inter-American Court of Human Rights was recognised. Therefore the enactment of those laws clearly occurred after the ratification of the Convention and as a result whatever view one may have of them, according to the criterion of the said jurisprudence, they are prohibited by the Convention. The offence committed at international law - for which only the State of Argentina can be held responsible - is that of enactment of these laws after the ratification".
With respect to the victims:
11) We believe that the judgement not only sets out an effective form of protection for victims of crimes against humanity but also provides a precedent in its application of international criminal jurisdiction within a national jurisdiction, thereby constituting a useful instrument in the struggle against impunity.
12) The decision provides a possibility to those victims who have not been included historically in the proceedings initiated by Case 13/84, as for example in the ESMA Case and Case 601, to commence proceedings based on the commission of crimes against humanity and thereby obtain access to their right to justice.
13) It is essential in the judicial process to review and re-classify all open proceedings to consider the applicability of crimes against humanity, in order to ensure that all offences covered by this category are investigated, the perpetrators are prosecuted and, if found guilty, convicted.
14) It is essential that the State of Argentina also now annuls the Presidential Decree of Amnesty nº 1002 of 7th October 1989 in view of the fact that, applying our analysis of the arguments used in the decision, it is clearly unlawful under international law.
Our involvement:
15) Equipo Nizkor is particularly pleased by this decision as it is consistent with our position over the last ten years that it is necessary to apply international law principles to deal with models of impunity.
The applicability in internal law of the category of crimes against humanity and of punishments of this kind is also completely compatible with the position we have taken and in particular with the accusation which we prepared in the Scilingo Case, the complete text of which is also available on our specialised website concerning that case.
16) We would point out that the decision of the National Court of Spain in the Scilingo Case also used the category of crimes against humanity and convicted the Navy officer on this basis.
17) We believe that it is necessary that these types of decision be widely disseminated to ensure that the day comes when crimes against humanity are incorporated as part of the internal law of all states and international human rights law is widely understood. This would have a deterrent effect which is based on justice or, expressed differently, it would help to maintain a world in peace.
Madrid, 17th June 2005
Equipo Nizkor
 | This document has been published on 24Jun05 by the Equipo Nizkor and Derechos Human Rights. In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. |