Argentine Military
Officers Face Trial in Spanish Courts
By Richard J. Wilson
December 2003
On October 3, 2003, Spanish investigating judge
Baltazar Garzón completed his examination of
crimes committed during the "dirty war" years
in Chile and Argentina. He officially closed
the investigation and referred two cases for
oral trial before a panel of judges in the Audiencia
Nacional, Spain's special court for serious
international crimes. Garzón sits as an investigating
judge in the Audiencia. In October of
1998, the same group of cases gave rise to the
arrest in London of Chile's ex-head of state,
Augusto Pinochet. Pinochet's arrest was followed
by prolonged efforts to extradite him to Spain
for trial. The British government ultimately
returned General Pinochet to Chile on grounds
of ill health, where he was stripped of legislative
immunity but has yet to stand trial for alleged
crimes during his military control of the country
between 1973 and 1989.
Adolfo Scilingo and Miguel Angel Cavallo, both
mid-ranking Argentine naval officers, face charges
in Spain for their complicity in crimes committed
during military rule in Argentina from 1976-1983.
If the trial proceeds, it will be only the second
such trial in domestic courts for major international
crimes committed in a third country. The most
recent was the trial in Belgium of Catholic
nuns for their complicity in the Rwandan genocide
of 1994, for which they were convicted and sentenced
to long prison terms. Since the time of that
trial, Belgium has seriously scaled back universal
jurisdiction for international crimes, in part
after strong criticism from United States government
officials.
[1]
The Scilingo and Cavallo cases were joined,
based on the officers' common involvement in
the administration and activities of one of
the most notorious of the clandestine detention
centers in Buenos Aires, the Escuela Mecánica
de la Armada, or Naval Mechanics School,
known widely as the ESMA. The two men are in
Spain together, however, through very different
procedural histories. Adolfo Scilingo achieved
a measure of notoriety in Argentina when he
stepped from behind the wall of collective silence
and amnesty laws protecting the military and
gave graphic and detailed accounts of his and
others' involvement in systematic detention,
disappearance, murder and other intimidation
of perceived opponents of the government during
military rule. Deaths in Argentina during the
era are estimated at some 30,000, some ten times
the number disappeared and killed in Chile during
the same time period.
In 1995, Scilingo appeared on national television
in Argentina to recount his involvement in so-called
"death flights," in which the Navy would take
live but drugged suspects into helicopters before
throwing them, still alive, into the open waters
of the River Plate, which flows through Buenos
Aires. He openly recounted his own involvement
in two flights, during which 30 detainees were
tossed into the river. His public revelations
created a new discourse on truth, accountability
and impunity in Argentina, and after some years
of harassment and threats there, Scilingo chose
to travel to Madrid in 1997, where he voluntarily
appeared before Judge Garzón to more fully explicate
his crimes. In several days' testimony that
produced a massive and detailed statement on
the workings of the ESMA, he related the structures
and criminal activities of the armed forces.
He was later charged with his own complicity
in the ESMA crimes. Although he has recanted
his statement and been provided counsel through
the Argentine government, he has remained in
custody through a series of appeals.
Miguel Angel Cavallo was arrested in Mexico
on suspicion of importing stolen cars in his
role as director-general of Mexico's National
Registry of Vehicles. After the arrest, he was
recognized by victims as one of the perpetrators
of the Argentine crimes, and after protracted
legal challenges in the Mexican courts, he was
extradited to Spain in June of this year.
The arrest of Pinochet in London in 1998 made
world-wide front page news, both because it
involved the detention and potential trial of
an ex-head of state and because it involved
what was then a little-used concept: universal
jurisdiction. The formal legal context of that
case was extradition, a relatively simple and
straightforward set of rules governed by treaty
between countries in Europe, but the implications
of which were immense, with deep political resonance.
The case was all the more dramatic because much
of it took place in the British House of Lords,
whose judges faced difficult legal questions
of immunity and potential liability for some
of the worst crimes on earth: torture, terrorism
and genocide. During the three years previous
to Pinochet's arrest, however, the Spanish courts
were quietly but systematically documenting
the criminal activities by many of the Chilean
and Argentine military leaders of the Pinochet
era.. [2] While the courts in England and
Spain resolved the legal issues in such a way
as to permit Pinochet's extradition to proceed,
the ultimate resolution was political; British
Home Secretary Jack Straw permitted the general
to return to Chile for health reasons.
The issue for the Argentines facing trial in
Spain is no longer jurisdiction or immunity,
but innocence or guilt. Immunity is not likely
to be a serious issue in the case because these
officers are mid-ranking career officers, not
former heads of state or diplomatic officials.
Moreover, jurisdiction in the Spanish courts
has been settled, albeit seriously limited,
by two decisions of the Spanish Supreme Court
sitting in review of prosecutions of alleged
crimes in Guatemala and Peru before the Audiencia.
[3] A closely divided (8-7) majority all
but ruled out universal jurisdiction as a basis
for prosecution under Spanish law. Thus, the
trial judges in the Scilingo and Cavallo prosecution
are likely to ground their jurisdiction in large
measure on the principle of passive personality,
which permits jurisdiction if there is proof
that there were victims in Argentina with sufficient
links to Spanish nationality. These links will
include a large number of actual victims with
Spanish nationality or citizenship, victims
or their survivors with dual citizenship in
Spain and Argentina, and victims or survivors
with certain degrees of close familial lineage
of Spanish origin. While estimates some years
ago suggested that there were about 200 Spanish
victims, the evidence now shows nearly 600 victims
with a connection to Spain.
Just as in the investigative stage of these
proceedings, private advocates are handling
the prosecution of the case, not the public
prosecutor's office. In fact, the public prosecutor
has opposed these prosecutions at virtually
every step of the way. New objections to the
conduct of the trial have already been announced
by the public prosecutor's office. At each step,
however, the Audiencia judges have used
their discretionary power to permit these prosecutions
to proceed. The advocates are using a procedural
device called the acusación popular,
or private prosecution, which permits such actions
in parallel with public charges, a well-established
procedural mechanism in civil law countries.
Procedurally, the first step for the lawyers
will be the filing of what is called the calificaciones
del delito, literally the "qualifications"
of the offenses. These detailed pre-trial pleadings
narrow the factual and legal issues in the trial.
The private prosecutors, a small group of lawyers,
many of whom work virtually on a pro bono
basis, had to review the hundreds of volumes
of documents from the written investigation
stage before mid-December, when their calificaciones
are due. Although limited to evidence taken
before the investigative judge, the lawyers
can pursue any charges that can be substantiated
on the evidence adduced at trial.
Judge Garzón found a basis for charges against
all the Argentines for genocide, torture, terrorism
and illicit association, and the reviewing courts
in Spain have affirmed his conclusions in that
regard. The same crimes will be charged at the
trial stage, except in Cavallo's case, where
torture charges cannot proceed because the Mexican
courts found a failure to satisfy standards
of double criminality for extradition purposes.
The advocates also plan to bring additional
charges of crimes against humanity. They will
seek to apply both domestic and international
criminal law concepts to find organizational
liability for the criminal activities of the
command group within the ESMA, as well as the
so-called grupos de tareas, or "working
groups," such as the notorious 3.3.2 group and
others. According to reports, these mobile terrorist
squads were small, flexible and off-the-record
networks of officers and enlisted men organized
under secret orders to commit specific, targeted
crimes and then melt back into the formal command
structure. Arguably, they have their theoretical
and ideological origins in the Nazi SS, Gestapo
and Einsatzgruppen, all of which were
judged to be criminal organizations in the Nuremberg
and Control Council trials after World War II.
Spanish law provides that the trial in the
Audiencia will be heard before three
judges, or five if the reviewing court believes
it necessary. The trial, which would not involve
a jury, is not adversarial in the Anglo-American
style. It is, instead, "for the Judges to clear
up any points of doubt, to hear the main issues
in evidence and for the Advocates to make their
final submissions."
[4] The oral trial begins with a formal
declaration of its public commencement, after
which evidence from witnesses is offered in
a single, continuous and open process, with
few exceptions. Witnesses must be heard in person,
and their statements presented before the examining
judge are not admissible except when they differ
significantly, in which case the witness can
be challenged, although not through the technique
of close cross-examination used by attorneys
in adversarial systems. There is no hearsay
rule, and both documents and expert testimony
as proof are permitted. After closing presentations,
the judges deliberate together in secret, using
a standard of guidance by conscience, or "rational
criteria," rather than the reasonable doubt
standard. Decisions are written in a highly
formalized fashion, and the judges must find
guilt or innocence; they cannot plead lack of
jurisdiction.
Some believe that the trial is unlikely to
take place as planned this winter, either because
of defense and public prosecutor appeals on
jurisdictional or other issues or because of
intervention by the executive branch to return
the defendants to Argentina, where they would
face trial before military courts. The recent
amendment of Argentine law to end longstanding
amnesties for the military may have been motivated,
at least in part, by efforts of the Argentine
military to bring their men home for trial on
more friendly soil.
The trial of the Argentine officers presents
a challenge to long-standing impunity of these
individuals, and potentially a great number
of others, for widespread and serious crimes
against humanity. If they are tried and convicted,
the case may be an important precedent, in Spain
and other jurisdictions, on questions of law
and fact regarding justiciability in domestic
courts for extraterritorial crimes against humanity.
[1] Belgium: Amendment to Law of June 15, 1993
[August 7, 2003) (English Translation),
42 I.L.M. 1258 (2003).
[2] See, Richard J. Wilson, Prosecuting Pinochet:
International Crimes in Spanish Domestic Law,
21 Hum. Rts. Q. 927 (1999); Richard J. Wilson,
The Spanish Proceedings, in The Pinochet
Papers 23 (2000).
[4] Richard Vogler, Spain, in Criminal Procedure:
A Worldwide Study 361, 387 (Craig M. Bradley
ed. 1999).
About
the Author:
Richard J. Wilson is Professor of Law and Director
of the International Human Rights Law Clinic
at the Washington College of Law, American University,
in Washington, D.C.
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