The Slow Demise of Impunity in Argentina and Chile
January 05, 2005
A series of extraordinary and closely inter-related judicial and non-judicial developments have unfolded in Chile and Argentina during the course of the past 12 months. Some thirty years since State-orchestrated civilian repression led to the disappearance, torture and death of thousands of individuals in both countries, leaving profound and still unhealed societal scars, the heretofore seemingly entrenched impunity for those offenses is only now being eroded.
2004 witnessed a series of key events in Argentina, some perhaps unimaginable only a few years ago. On 16 March, a federal court in Buenos Aires ordered the re-opening of a case investigating crimes committed by the former Head of Police of the Province of Buenos Aires and his subordinates during the "Dirty War" period.  Only three days later, a judge found that the presidential pardons granted to certain military officials in 1989 and 1990 were unconstitutional.  On 20 March, an Argentine court found two police officials guilty of arranging the theft of a baby from murdered detainees during the country's last military dictatorship.  Several days later, on 24 March, Argentina's Naval School, which operated as a torture center during military rule, was handed over to the Government to become a museum. 
Then, on 24 September 2004, the Supreme Court of Argentina found itself having to consider whether or not the principle of non-retroactivity arose, as the United Nations Convention on the Non-Applicability of Statutory Limitations for War Crimes and Crimes against Humanity only became part of the Argentine Constitution in 2003 pursuant to Argentine law no. 25-778, many years after the commission of the crimes in question. In an historic decision,  and by a 5-3 margin, the Court held that:
This Convention only affirmed the non-applicability, which means the recognition of a norm already in existence (jus cogens) as part of customary international law. In this way the prohibition on the retroactivity of criminal law is not being challenged, but rather a principle established by customary international law is reaffirmed as being already in existence at the time of the commission of the actions" (Â¶ 28).As a consequence, the actions for which Arancibia Clavel was convicted, were already subject to a non-applicability of any statutes of limitation under international law at the time they were committed; therefore no retroactive application is being made of the Convention, as this was already customary international law, to which Argentina adheres, in the 1960s. (Â¶ 33)
This decision upheld the life sentence given to the murderers of General Carlos Prats, an ex-Chilean army chief killed in Buenos Aires in 1974. While a final decision by the Supreme Court is still awaited in connection with an August 2003 decision of the Argentine Senate to annul certain amnesty laws  (the constitutionality of this decision of the Argentine Senate was subsequently upheld by a federal court judge in December 2003),  the September 2004 decision, given its provenance, will nevertheless be interpreted by many as a hopeful portend.
Developments in Chile, as compared with its transandino neigbour, have been no less tumultuous and, as in Argentina, these events have transpired both inside and outside of the courtroom. In May 2004, the Court of Appeals of Santiago, sitting in plenary session, and by a vote of 14-9, stripped General Augusto Pinochet of his immunity from prosecution in a ruling relating to a 1970s and 1980s regional military crackdown on dissidents in Operation Condor.  On two previous occasions the Court of Appeals had rejected similar appeals on the basis of Pinochet's alleged failing health. This decision of the Court of Appeals was upheld three months later by a 9-8 vote by the Supreme Court.  In addition, the Supreme Court confirmed in mid-November 2004 the prison sentences of General Manuel Contreras and four other military officers in respect of a case of forced disappearance that took place 29 years.  While acknowledging the broad nature of the amnesty law, the Court nevertheless held that:
. it would not seem reasonable to invoke the application of an amnesty...when in practice the crime has not been carried out with finality.[t]he kidnapping continued to be perpetrated when the period covered by the extinguishment of criminal responsibility expired..
The Court concluded that in order for an amnesty to apply, it would be necessary to determine if the actual date of commission of the crime in question fell within the period covered by amnesty. As this could not be determined in relation to those who have "disappeared" and remain unaccounted for (i.e. this was an ongoing crime, it not being known whether the individuals in question were alive or dead), the amnesty could not apply.
In tandem with these judicial developments, Chilean President Ricardo Lagos received a Government Commission's Report in November 2004 that chronicles the extensive institutionalized torture that was carried out under the former military regime. There was also a recognition of sorts on the part of the Chilean Armed Forces that human rights violations committed under the dictatorship were not merely the acts of a few individuals, but were, at least to some extent, orchestrated.  Legislation regulating compensation for victims of torture during this era was also adopted, although not without some controversy of its own.  In addition, General Pinochet's personal banking arrangements with a United States bank have been the subject of considerable media attention in recent months. 
On 04 December 2004 the Court of Appeals of Santiago decided to strip General Pinochet's immunity so that he could be investigated specifically in relation to the assassination of the former Chilean General Carlos Prats and his wife in Buenos Aires in September 1974. Certain ex-members of the Chilean Internal Security Service (DINA) have already been convicted as the authors of the Prats murder. The case was opened following a rejection by the Supreme Court of an extradition request of the members of DINA by an Argentine judge, Maria Servini de CubrÃa, who nevertheless prosecuted them in absentia. 
Just over one week later, Judge Juan Guzman Tapia of Chile ruled that General Pinochet was competent to stand trial for human rights abuses that occurred during his time in power, charging the dictator with nine counts of kidnapping and one of murder.  The finding was prompted in part by a lucid interview given by Pinochet to a media outlet in the United States that had the presumably unintended effect of calling into question prior assertions and findings regarding his alleged dementia. On 20 December 2004, the Court of Appeals of Santiago upheld this ruling.  An appeal against this decision was rejected by the Chilean Supreme Court, in a 3-2 vote, on 04 January 2005.  The Supreme Court's decision not to vacate Judge Guzman's earlier judgment, even if it may not end further attempts to shield General Pinochet from prosecution,  nevertheless represents a significant judicial milestone that may also have an impact on other concurrent proceedings pending against the former Chilean head of state. 
About the author:
Peter Barcroft is currently on an elective career break from his position as an Assistant Legal Adviser with the Department of Foreign Affairs of the Government of Ireland. He divides his time as a Visiting Scholar at Columbia University Law School and as Program Officer in International Law & Human Rights with Parliamentarians for Global Action (PGA) in New York. Any views expressed are personal.
 Reapertura de la causa Camps (44) CÃ¡mara Federal de Buenos Aires, marzo de 2004 - See www.geocities.com/apdhlaplata/juridica/juridicac17.htm
 DeclaraciÃ³n de inconstitucionalidad de los indultos a seis represores - Juez Rodolfo Canicoba Corral, Buenos Aires, marzo de 2004 - See www.geocities.com/apdhlaplata/juridica/juridicac.htm and 'Judge annuls 'Dirty War' pardons' at http://news.bbc.co.uk/2/hi/americas/3551895.stm
 See 'I was one of Argentina's stolen babies' - http://news.bbc.co.uk/2/hi/americas/3585031.stm
 See 'Argentina Dirty War museum hailed' - http://news.bbc.co.uk/1/hi/world/americas/3566301.stm
 A. 533. XXXVIII. Arancibia Clavel, Enrique Lautaro s/homicidio calificado y asociaciÃ³n ilÃcita y otras - causa nÂ° 259 - replicated in full at www.derechos.org/nizkor/arg/doc/arancibia1.html; see also 'Vital Rights ruling in Argentina' - http://news.bbc.co.uk/1/hi/world/Americas/3596316.stm
See 'Argentina scraps Amnesty law' - http://news.bbc.co.uk/1/hi/world/americas/3169297.stm
 See DeclaraciÃ³n de constitucionalidad de la ley 25.779 (nulidad insanable del Punto Final y la Obediencia Debida) Juez Rodolfo Canicoba Corral, Buenos Aires, diciembre de 2003 at www.geocities.com/apdhlaplata/juridica/juridicac.htm and www.voxpopuli.com.ar/diario/politica11.shtml
 See 'Desaforado Pinochet' - http://news.bbc.co.uk/low/spanish/latin_america/newsid_3758000/3758501.stm
 See 'Chile: la Corte habilitÃ³ que Pinochet sea juzgado' - www.terra.com.uy/canales/internacionales/96/96268.html and 'Chile' Supreme Court Removes Pinochet's Immunity - www.hrw.org/english/docs/2004/08/26/chile9269.htm
 See 'Texto completo de la sentencia de casaciÃ³n que resuelve la no aplicaciÃ³n de la aministÃa en el caso de los desaparecidos' - www.derechos.org/nizkor/chile/doc/krassnoff.html and 'Chile: Secret Police Convictions Upheld - Supreme Court Declares Amnesty In applicable'- www.hrw.org/english/docs/2004/11/17/chile9689.htm
 See 'Chile's Lagos receives Torture Commission Report' - http://abcnews.go.com/International/wireStory?id=242327 ;The full text of the Commission's Report is available at www.servicios.gov.cl/comision/; and 'Tortura: Texto Completo de la DeclaraciÃ³n de la Armada' - www.lanacion.cl/prontus_noticias/site/artic/20041130/pags/20041130135334.html
 See 'Chile Torture Victims to get Compensation' - www.guardian.co.uk/worldlatest/story/0%2C1280%2C-4643420%2C00.html; 'Torture Victims slam Chile payout' at http://news.bbc.co.uk/2/hi/americas/4053777.stm and 'Chile Congress passes Torture law' - http://news.bbc.co.uk/2/hi/americas/4100905.stm; but this law contains a controversial provision on keeping testimonies secret - http://hrw.org/english/docs/2004/12/16/chile9898_txt.htm
 See 'Riggs: Juez consulta a CDE y SII por desafuero de Pinochet'- www.elmostrador.cl/modulos/noticias/constructor/noticia.asp?id_noticia=150428
 But see also 'Corte posterga peticiÃ³n de desafuero de Pinochet' at www.lasegunda.com/ediciononline/cronica/detalle/index.asp?idnoticia=195137
 See 'A Trial for General Pinochet' - www.iht.com/articles/2004/12/15/opinion/edchile.html
 See 'Pinochet rights case to proceed'
 See 'Chile Supreme Court Rules Pinochet Can Face Charges' - www.reuters.com/newsArticle.jhtml?type=worldNews&storyID=7232681
 See 'Chile: Supreme Court Confirms Pinochet Indictment' - www.hrw.org/english/docs/2005/01/04/chile9943.htm
 See 'Chile's Supreme Court upholds indictment, house arrest of former dictator Pinochet on kidnapping, murder charges' - www.sfgate.com/cgi-bin/article.cgi?file=/news/archive/2005/01/04/international1022EST0511.DTL