Argentine Military Officers Face Trial in Spanish Courts
December 19, 2003
On October 3, 2003, Spanish investigating judge Baltazar GarzÃ³n 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. GarzÃ³n 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. 
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 MecÃ¡nica 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 GarzÃ³n 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..  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.  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 acusaciÃ³n 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 GarzÃ³n 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."  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.
 Belgium: Amendment to Law of June 15, 1993 [August 7, 2003) (English Translation), 42 I.L.M. 1258 (2003).
 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).
 Spanish Supreme Court: Guatemala Genocide Case, 42 I.L.M. 686 (2003); Spanish Supreme Court: Peruvian Genocide Case [May 20, 2003], 42 I.L.M. 1200 (2003).
 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.