WORLDVIEW

Doug Cassel's Commentaries

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The Supreme Court of Argentina this week struck down amnesty laws that shielded those responsible for forced disappearances of political dissidents during that country's “dirty war” three decades ago. The ruling is not only a landmark in the fight against impunity for crimes against humanity, it also provides a model—which the United States Supreme Court might study—for a national court's use of international human rights law.

According to the 1984 report of Argentina's truth commission, Nunca Mas (Never Again), the military junta during 1976 to 1983 committed at least 30,000 forced disappearances. After democracy was restored, top officials were prosecuted and jailed for these crimes.

By the mid-1980s, however, amid fears that prosecutions would move down the ranks into the heart of the Argentine officer corps, small uprisings on military bases threatened the new civilian government. It responded by passing two laws, known as “due obedience” and “final stop,” that effectively blocked further prosecutions.

But times have changed, both regionally and in Argentina. Regionally, in the last decade courts in several Latin American countries, including Chile, El Salvador, Honduras, and Peru, have struck down laws that gave amnesty for crimes against humanity and other gross violations of human rights.

During the 1990s the Inter-American Commission on Human Rights advised governments in the region against such laws. And in 2001 the Inter-American Court of Human Rights (in the case of the Barrios Altos massacre of civilians by security forces of the authoritarian regime of President Alberto Fujimori) issued a legally binding judgment that Peru's amnesty laws violated the American Convention on Human Rights and had no legal effect.

Meanwhile in Argentina, the aging colonels of the dirty war generation continued to lose political and moral credibility, as revelations of their atrocities continued to leak out. In 1998 the Argentine Congress repealed the amnesty laws. In 2003, urged to do so by new President Nestor Kirschner, Congress declared both laws unconstitutional.

In 2001 a lower court declared the amnesty laws unconstitutional as applied to cases of crimes against humanity. An appeals court affirmed that ruling, and this week by a vote of 7-1, the Supreme Court agreed.

The question of whether to grant amnesties for atrocities committed by prior regimes has long been contentious. Proponents argue that amnesties may be necessary in order to achieve a peaceful transition of power or, as in the case of Argentina, to keep the military from destabilizing a fragile democracy.

International courts and human rights bodies, on the other hand, have increasingly taken a hard line against amnesties for gross violations of human rights. If such amnesties were to be accepted as legally valid, every bloody regime in the world could insulate itself from ever being brought to justice.

Argentina's experience illustrates the role of timing in resolving this impasse. In the 1980s it might have been argued—although some would disagree—that Argentina's civilian government had little choice but to cave into military blackmail and grant an amnesty.

But two decades later the threat from the military has dwindled; Argentina's top general publicly supports the Supreme Court ruling that struck down the amnesty. As a result, justice now has a better chance.

In practical terms, however, justice today cannot fully make up for impunity years ago. Evidence has been lost, witness memories are stale, some suspects have died. Justice delayed is, to some degree at least, justice denied.

Nonetheless the Supreme Court ruling is not for naught. Not only is the principle important, but prosecutions of dozens of former members of the army and police can now go forward.

In reaching their decision, the Argentine judges relied mainly on interpretations of human rights treaties by international courts and commissions. They cited, above all, the Inter-American Court's judgment in Barrios Altos invalidating Peru's amnesty laws.

Human rights treaties ratified by Argentina are part of its national law, enforceable by domestic courts. In addition, the Supreme Court majority reaffirmed that interpretations of those treaties by international courts bind Argentine courts.

In this respect Argentina's Court is not entirely comparable to our Supreme Court. Argentine domestic institutions have proved so weak in defending human rights—witness the dirty war and ensuing amnesty laws—that the Argentine Court understandably invokes international law and courts for support.

Even so, at a time when the majority of our Court is under attack by some in Congress for taking international human rights law into account—for example, in recently striking down the juvenile death penalty—our justices would do well to study the opinions in the Argentine case. Lengthy and erudite, they cannot simply be photocopied into our different legal system, but they illustrate the growing practice of courts in other democracies to respect their nations' international commitments.

Doug Cassel is Director of the Center for International Human Rights of Northwestern University School of Law.

Views expressed are those of the author, and not necessarily those of Northwestern University, the Center of International Human Rights, or Chicago Public Radio.

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