Pardon for Argentina's "Dirty War" Declared Unconstitutional
    By Sam Ferguson
    t r u t h o u t | Report

    Tuesday 24 July 2007

    Buenos Aires, Argentina - The Argentine Supreme Court declared unconstitutional last Friday a presidential pardon granted to Santiago Omar Riveros in 1989 for his participation in Argentina's "dirty war." The decision opens the door to void a series of presidential pardons granted to Argentina's dictators and top military officials, paving the way for dozens to return to prison and hundreds to face new criminal trials.

    From 1976-1983, Argentina was ruled by a military dictatorship. The Junta, the commission of military officials that ruled the country, engaged in one of the most repressive campaigns of the 20th century, in which as many as 30,000 people were "disappeared" by the government in a clandestine campaign known as the "Dirty War."

    After the military government collapsed in 1983, then-President Raul Alfonsin promised the new democratic government would investigate human rights violations committed under the dictatorship and prosecute the highest officials responsible for the atrocities. By the end of Alfonsin's tenure, dozens of top officials had been convicted, including five of the nine members of the military juntas, and more than one hundred cases were in process. The police and military, however, retained significant power within Argentine society after the formal transition to democracy. Throughout the '80s, rebel military officials staged political insurrections to protest the ongoing cases against the military. In an "act of pacification," President Carlos Menem, who succeeded Alfonsin in 1989, granted a series of presidential pardons. Convicted officials, accused members of the military and police, former guerrillas, right-wing paramilitary forces and the political rebels of the democratic era all were pardoned and released from prison, or had their ongoing trials suspended.

    Reversing a decision from 1990, Argentina's Supreme Court overturned the pardon granted to Riveros, who was in charge of the Campo de Mayo clandestine detention center during the Dirty War. "War crimes and crimes against humanity," said the court, "wherever and whenever they may be committed, must be investigated, and those with evidence against them for the commission of a crime must be sought, arrested, tried, and, in the case of being found guilty, punished." Riveros was pardoned in 1989 before a judgment was released as his trial was still proceeding.

    The Kirchner government hailed the decision. Alberto Fernandez, Kirchner's chief of cabinet, commented that "[a] real country is a country without impunity, a country that does not liberate perpetrators of genocide with pardons or other legal devices."

    Menem, in a released statement, claimed that the pardons were "a constitutional power of the president. Our goal was to pacify the country, and the truth is life was tranquil during my government." Menem also criticzed the current Kirchner government, who has made overturning the amnesty laws and pardons a centerpiece of his tenure. "This government, from the moment they came to power, has unleashed a revisionist politics slanted towards the past that does nothing more than relive hatred. It is a partial, unilateral vision, more like revenge than a balanced and considered position."

    Menem is currently seeking re-election, after having spent eight years out of office.

    The court's decision, though applicable to pardons granted in trials before a judgment was issued, may well open the doors to send the convicted, and later pardoned, back to jail. Those include Jorge Videla, the Junta's first president, and Emilio Massera, the former commander in chief of the navy. Both were sentenced to life in prison after "Causa 13," the first trial against the dictatorship in 1985. Both were pardoned by President Menem in 1990.

    The decision, however, affects only members of the police and military who were pardoned for their actions during the Dirty War. The court has interpreted human rights violations as requiring "state action" or substantial support from the state. Therefore, left-wing guerillas, right-wing paramilitary groups and leaders of the insurrections in the '80s will remain free, because they acted contrary to federal code, but did not use the state apparatus for the systemic suppression of human rights.

    The decision can also be read as a rebuke to the Supreme Court of the '90s, known as Menem's "automatic majority." In 1990, Menem augmented the court from five to nine members, and successfully sought the resignation of two other justices. The six appointed members essentially functioned as a rubber stamp for the Menem government.

    The Kirchner government, however, has subsequently appointed a new majority. Four of the current seven members - the court will once again be reduced to five as members leave - were appointed by Kirchner.

    The Kirchner majority, however, may be more independent of the executive branch than Menem's, an important development in a country where judicial independence is weak. In a surprise dissenting vote, Justice Carmen Argibay, who had previously sat on the international criminal tribunal for the former Yugoslavia and was appointed in 2005 by Kirchner with an eye towards re-opening prosecution of Argentina's Dirty Warriors, argued that the case constituted double jeopardy. In other words, because the Court had already upheld the constitutionality of the pardon in Riveros' case, Argibay refused to join the majority.

    In an interview with Pagina 12, Argentina's left-leaning daily, two days after the decision, Argibay commented that "for me, the pardons were always unconstitutional, because you cannot pardon someone while their trial is still in process." However, she continued that the decision "hurt my stomach. It cost me blood, sweat and tears, but I'd prefer to prioritize a state of rights," referring to the fact that the court had already decided the case 17 years earlier.

    The practical impact of the decision, however, may be limited. Nearly 25 years have passed since the pardoned crimes and alleged crimes were committed. Beneficiaries of the pardons are of advanced age or dead. Of the original five members of the Junta convicted, only two are still alive. Under Argentine law, those who are sick or of advanced age (over seventy years) do not go to prison, but instead, are placed under house arrest. Additionally, many of the worst offenders, such as Videla and Massera, have been placed under house arrest or sent to prison on other charges. The kidnapping and trafficking of babies was never granted amnesty or pardoned. A case against Videla for child kidnapping and trafficking is ongoing; he has been placed under preventative house arrest. Massera, who faced similar charges, suffered a massive stroke and was ruled unfit to stand trial in 2005.