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Ipaz SIN JUSTICIA? ARGENTINA's "DIRTY WAR" and GROSS VIOLATIONS of HUMAN RIGHTS: DOES IMPUNITY CONFORM to INTERNATIONAL HUMAN RIGHTS NORMS?

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Ipaz SIN JUSTICIA? ARGENTINA's iPAZ SIN JUSTICIA? ARGENTINA'S "DIRTY WAR" AND GROSS VIOLATIONS OF HUMAN RIGHTS: DOES IMPUNITY CONFORM TO INTERNATIONAL HUMAN RIGHTS NORMS? by NANCY-LOUISE E. HUSTINS B.A., Memorial University of Newfoundland, 1998 LL.B., University of Ottawa, 2001 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA April 2004 © Nancy-Louise E. Hustins, 2004 Library Authorization In presenting this thesis in partial fulfillment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. NANCY-LOUISE E. HUSTINS 16/04/04 Name of Author (please print) Date (dd/mm/yyyy) Title of Thesis: ^PAZ SIN JUSTICIA? ARGENTINA'S "DIRTY WAR" AND GROSS VIOLATIONS OF HUMAN RIGHTS: DOES IMPUNITY CONFORM TO INTERNATIONAL HUMAN RIGHTS NORMS? Degree: MASTER OF LAWS (LL.M) Year: 2004 Department of LAW The University of British Columbia Vancouver, BC Canada ABSTRACT Inadequate laws and the impunity of those who are the perpetrators of gross violations of human rights in past authoritarian regimes fuel the struggle between accountability and social reconciliation in South America. Various incoming governments in Latin America have granted amnesty or impunity to the authors, under one or more previous governments, of gross violations of human rights, ostensibly in order to ensure a smooth transition of power from dictatorships to new democracies. The question of how to deal with past violators of human rights in a transitional justice context is important to international human rights law as it raises complex questions of international legal theory and practice. During the 1970s, Argentina witnessed state-sponsored terrorism on an unprecedented scale. Violations of human rights, such as abductions, torture and disappearance were rampant in everyday society. The military carried out these crimes in a culture of impunity. In this thesis, the author argues that the reign of impunity that existed and continues to exist after Argentina's "dirty war" is in violation of the state's domestic and international obligations. Successor regimes have an obligation in international law to investigate, prosecute, and punish the authors of gross violations of human rights. This duty is reflected in current trends in international law toward furthering accountability by a variety of mechanisms. The author argues that this duty has not been fulfilled by the Argentine government. The author provides a historical analysis of the 'dirty war' and gross violations of human rights that occurred in Argentina. The author presents a doctrinal argument supporting the emerging norm in international law that requires states to investigate, prosecute and provide redress for gross violations of human rights, drawing upon conventional treaty law and customary international law. Finally, the author considers recent events in Argentina reflective of diminishing impunity for crimes against humanity. iii TABLE OF CONTENTS ABSTRACT II TABLE OF CONTENTS Ill ACKNOWLEDGEMENTS AND DEDICATION V CHAPTER ONE: INTRODUCTION 1 1.1 BRIEF OVERVIEW OF CONCEPTS AND HISTORY 1 1.1.1 State-Sponsored Terrorism 1 1.1.2 Impunity in Transitional Justice Situations 2 1.1.3 Culture of Impunity Reigns in Argentina 4 1.1.4 Recent Developments Provide Culture of Accountability 8 (a) International Law 8 (b) Effect on Domestic Law 10 1.2 LITERATURE REVIEW 13 1.2.1 State-Sponsored Terrorism 14 1.2.2 Impunity 17 1.2.3 Transitional Justice 20 1.2.4 International Law 24 1.3 OVERVIEW OF CHAPTERS 30 1.4 METHODOLOGY AND THEORETICAL FRAMEWORK 32 CHAPTER TWO: ARGENTINA'S 'DIRTY WAR' 35 2.1 ARGENTINA'S HISTORICAL AND POLITICAL CONTEXT 35 2.1.1 Peronism 38 2.1.2 Isabelita 41 2.1.3 Coup of 1976 41 2.2 THE'DIRTY WAR' : 43 2.2.7 Terminology 43 2.2.2 El Proceso 44 2.2.3 Unprecedented Violence 47 2.2.4 Abduction 49 2.2.5 Disappearance at Secret Detention Centres 51 2.2.6 Torture and Death 56 2.2.7 Children Born in Captivity 63 2.2.8 Economic Crimes 65 2.2.9 Weakness in Judicial System and Civil Society 65 2.3 THEORIES BEHIND THE 'DIRTY WAR' 71 CHAPTER THREE: IMPUNITY AND TRANSITIONAL JUSTICE 77 3.1 ACCOUNTABILITY IN THE WAKE OF GROSS VIOLATIONS OF HUMAN RIGHTS 77 3.1.1 Challenges of a Successor Government 77 3.1.2 The Debate Concerning Accountability and Prosecutions 80 3.2 TRUTH COMMISSIONS SERVING TRANSITIONAL JUSTICE 84 3.2.1 Purpose and Underlying Rationale 85 3.2.2 Truth vs. Justice 87 3.2.3 Strengths and Weaknesses 90 3.2.4 Movement toward an Alternative Form of Accountability 92 3.3 ARGENTINA'S RETURN TO DEMOCRACY 94 iv 3.3.1 The Fall of the Military Junta 94 3.3.2 President Alfonsin and the Making of a Human Rights Policy 97 (a) Legislative Measure Taken to Enhance Human Rights and Prevent Future Violations 98 (b) Prosecuting Past Violations of Human Rights 99 3.3.3 The National Commission on Disappeared People (CONADEP) 104 3.3.4 Prosecution of the Former Junta and the Resulting Amnesties 109 (a) Law 23.049 109 (b) Trials of Junta leaders and the Supreme Council's Contempt 113 (c) Prosecution of Other Military Personnel 115 (i) The Full Stop Law 115 (ii) The Due Obedience Law 117 3.3.5 Alfonsin's Legacy 119 3.4 PRESIDENT MENEM'S PARDONS 121 3.5 IMPUNITY REIGNS IN ARGENTINA 122 CHAPTER FOUR: INTERNATIONAL LAW 124 4.1 INTERNATIONAL LEGAL FRAMEWORK IN SUPPORT OF ACCOUNTABILITY 124 4.1.1 International Criminal Law Treaty Provisions as a Source of a Duty to Investigate, Prosecute, and Provide Redress for Gross Violations of Human Rights 127 (a) Grave Breaches of the Geneva Conventions 129 (b) The Genocide Convention 131 (c) The Torture Convention 133 (d) The Rome Statute of the International Criminal Court 134 4.1.2 International and Regional Human Rights Instruments as a Source of a Duty to Investigate, Prosecute, and Provide Redress for Gross Violations of Human Rights 135 (a) Universal System for the Protection of Human Rights 135 (b) Inter-American System for the Protection of Human Rights 138 4.1.3 Customary International Law as a Source of a Duty to Investigate, Prosecute, and Provide Redress for Gross Violations of Human Rights 143 (a) Crimes Against Humanity 144 (b) Jus Cogens and Obligatio Erga Omnes 145 (c) Practice at the United Nations 146 4.2 AMNESTIES AND INTERNATIONAL LAW 149 4.2.1 Amnesty Legislation and Liberal International Law Theory 149 4.2.2 Amnesties for Gross Violations of Human Rights 152 4.3 ARGENTINA'S "FULL STOP" AND "DUE OBEDIENCE" LAWS AND RESULTING PARDONS 156 CHAPTER FIVE: COMBATING IMPUNITY 164 BIBLIOGRAPHY 168 ACKNOWLEDGEMENTS AND DEDICATION The author would like to express her sincere gratitude to those individuals who have assisted in the creation of this thesis by providing critical analysis and constructive feedback. The author would like to thank Professor Peter Burns, Q.C., who supervised and facilitated this thesis, and Mr. Daniel C. Prefontaine, Q.C., second reader and Senior Advisor at International Centre for Criminal Law Reform and Criminal Justice Policy. The author would also like to thank Dr. Patricia Marchak for her insightful comments on her experiences in Argentina. I would especially like to extend a heartfelt thank-you to my parents, who have always encouraged me to seek higher learning and who have inspired me to want to better myself each and every day. This thesis would not have been possible without their emotional and financial support over the years. I am also eternally grateful to Ryan for his support and patience. You have grounded me during a difficult year, thank-you. L'auteur tient a remercier deux autres personnes en particulier, Professeure Nicole Laviolette de l'Universite d'Ottawa, et M. Timothy Wilson, Professeur et Conseiller Juridique a la Cour Supreme du Canada, sans qui je n'aurais jamais eu une telle passion en droit international, en culture, et en langue. Finally, I would like to dedicate this thesis to my late friend, colleague, roommate, and kindred spirit, Dr. Justin Chi-Ffan Chen, B.Sc, MD, B.Sc. (Med), LL.B. (February 5, 1972 - July 15, 2001) whose insatiable thirst for knowledge and lust for life taught me what it truly means to be a 'perennial evergreen' in the academic world. You have touched my life in inexplicable ways Justin, and are sadly missed each day. And to the desaparecidos of the 'dirty war' and the thousands of families who never learned the fate of their loved ones, I hope this thesis provides readers with some knowledge of the terrible atrocities Argentines suffered under the military dictatorship from 1976-1983. CHAPTER ONE: INTRODUCTION Our recent history has been characterized by frequent and lengthy periods of military intervention in the nation's politics. Apart from the negative effects these interventions have had on our institutions, they have also provoked an exceptionally profound and serious crisis... What both the military and civilians forget here, to the detriment of both the country and the Armed Forces, is that golden rule which applies in all civilized nations whatever their political system or ideology, which is that the Armed Forces • should always be subordinate to the civilian authority established through democratic institutions [emphasis added].
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