Leaning on International Law to Prosecute the Past: The Arancibia Clavel decision of the Argentine Supreme Court

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1 LISL BRUNNER * Leaning on International Law to Prosecute the Past: The Arancibia Clavel decision of the Argentine Supreme Court INTRODUCTION With the Arancibia Clavel decision, 1 the Argentine Supreme Court opened the courthouse doors to prosecutions of crimes from an era that many thought had been tucked away into the past. Holding that crimes against humanity committed by state authorities in 1978 were not subject to statutory periods of limitation, the Court rejected arguments that it was retroactively applying law by citing international custom, jus cogens, and the need to reexamine traditional rules when faced with aberrant crimes of international significance. The ruling has been praised as good policy for Argentina, as one commentator remarked: From a historical and sociological dimension, [the decision] recognizes the evolution of social prosecutions, the triumph of democratic societies over authoritarian regimes and the end of impunity in the * Fellow, Inter-American Commission on Human Rights, J.D. University of Pittsburgh School of Law, The views expressed in this note are solely those of the author. This note is dedicated to my husband and my parents in gratitude for their support. 1 Corte Suprema de Justicia [CSJN], 24/8/2004, Arancibia Clavel, Enrique Lautaro s/ homicidio calificado y asociación ilícita y otros causa no 259, La Ley [L.L] (2004-F-292) (Arg.), available at 243

2 244 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] Argentine Republic. 2 It has been followed by the highprofile convictions of former head of the Buenos Aires police Miguel Etchecolatz, 3 former police officer Julio Simón, 4 and Catholic priest Christian von Wernich, 5 and trials of numerous other former officials continue 6. Nevertheless, as this note will show, the Argentine Supreme Court s credibility in Arancibia Clavel was marred by its reliance on a premise of international law that is ambiguous at best and erroneous at worst. In this way, the case underscores the judiciary s own struggle for legitimacy in a country where the rule of law has only recently taken root and the judiciary has rarely enjoyed respect. As other countries emerging from abusive regimes look to the Argentine example, questions will continue as to whether international law truly dictated the outcome of Arancibia Clavel, and if it did not, whether the decision rests on sound policy. This note explores these issues as well as the impact of the decision on the Argentine legal system. Part I outlines the background to the case. Parts II and III analyze the Supreme Court s opinion and the legal bases for the decision. Part IV examines the role of policy in the 2 Andres Gil Dominguez, El Caso Arancibia Clavel : un fallo Fundamente en Torno a la Aplicabilidad. Revista Juridica Argentina La Ley, Suplemento de Derecho Constitucional, 13-X-04, pp (2004). 3 Mayra Pertossi, Argentine Investigator Gets Life, WASH. POST, Sept. 19, 2006, available at 4 Argentine Jailed Over Dirty War, BBC NEWS, Aug. 5, 2006, available at 5 Dirty War Priest Gets Life Term, BBC News, Oct. 10, 2007, available at 6 Jeannie Shawl, Argentina Court Convicts Former Military Officials of Dirty War Crimes, JURIST, Dec. 19, 2007, available at

3 The Arancibia Clavel Decision of the Argentine Supreme Court 245 decision. Finally, Part V considers the implications of the decision. The note concludes that although the Court elected to ground its ruling on a tenuous principle of international law, the decision represents the correct policy choice for Argentina and affirms the country s adherence to its international obligations. I BACKGROUND The events that culminated in 9,000 to 30,000 disappearances 7 during the last military junta in Argentina began in the early 1970s, when guerrilla movements from the right and left began a struggle for power that involved abductions, attacks on military and police installations, assassinations, and town occupations. 8 The resulting chaos, accentuated by an economic crisis and fading popular support for the government of Isabel Perón, meant there was little resistance to a military coup led by General Jorge Videla in Videla and the military junta immediately began The Process of National Reorganization ( The Process ), absorbing the right-wing paramilitary groups and weeding out opposition by means of abduction, torture, and execution in over 340 clandestine detention centers. 10 The majority of the disappearances took place between 1976 and 1978, during the de facto government of the first military junta. 11 During those years, the eradication of 7 LUIS ALBERTO ROMERO, A HISTORY OF ARGENTINA IN THE TWENTIETH CENTURY 218 (James P. Brennan trans. 2006). While the official report of CONADEP, the state-created agency charged with investigating disappearances, documented 9,000 cases, human rights groups claim the number of disappeared is closer to 30,000. Id. 8 Id. at ; JAIME MALAMUD GOTI, TERROR Y JUSTICIA EN LA ARGENTINA 21 (2000). 9 ROMERO, supra note 7, at Id. at Id. at 218.

4 246 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] subversives expanded to include critics of the junta, such as journalists, politicians, judges and lawyers. 12 Such systematic repression was not confined to Argentina; through Operation Condor, the Chilean national intelligence service (DINA) coordinated the efforts of de facto governments in the Southern Cone to hunt down, detain, and often murder political opponents. 13 Democracy was restored with the election of President Raul Alfonsín in 1983, and his administration aimed to reinstate human rights and to break with the past. 14 All nine magistrates of the Supreme Court who served during The Process immediately resigned, 15 and nine of the former junta leaders were prosecuted. Many saw the trials as a return to the rule of law, and Alfonsín ensured that the accused enjoyed all constitutional and procedural rights. 16 The following year, five of the former Process leaders were convicted and sentenced, and the new Supreme Court upheld the ruling. 17 Although some extremists within the military had already begun to threaten and kidnap human rights activists and bomb their offices, greater problems arose when the government expanded the prosecutions to 12 See, e.g., Christoper M. Larkins, Judicial Independence and Democratization: A Theoretical and Conceptual Analysis, 44 AM. J. COMP. L. 605, 622 (1996); see also, COMISIÓN NACIONAL SOBRE LA DESAPARICIÓN DE PERSONAS (CONADEP), NUNCA MAS 392 (1984). Many judges were complicit with the kidnappings and disappearances, and the population began to feel that it was useless to use the judicial amparo to preserve their essential rights.... During the period in which the massive disappearance of persons took place, the judicial route became an almost inoperative resource. Id. 13 NAOMI ROHT-ARRIAZA, THE PINOCHET EFFECT: TRANSNATIONAL JUSTICE IN THE AGE OF HUMAN RIGHTS (2005). 14 ROMERO, supra note 7, at Larkins, supra note 12, at MONA MONCALVILLO ET. AL., JUICIO A LA IMPUNIDAD (1985). 17 MALAMUD GOTI, supra note 8, at 40.

5 The Arancibia Clavel Decision of the Argentine Supreme Court 247 lower-level officers. 18 In response to increasing challenges to the government s authority from the military and waning public support for trials, Alfonsín passed two amnesty laws in 1986 and Even the amnesty laws failed to placate all parts of the military, however, and four failed uprisings occurred between 1987 and This pressure prompted Alfonsín s successor, President Carlos Menem, to pardon those who had been sentenced in The Process and its aftermath undermined faith in the rule of law in Argentina, but the judiciary s perceived lack of impartiality had deeper roots. The Process was the sixth successful military coup in Argentina since 1930, 22 and the Argentine Supreme Court was purged at least five times between 1946 and When President Juan Perón replaced the magistrates he had dismissed in 1946, the new court failed to challenge any of his administration s repressive policies as unconstitutional. 24 During the 1985 prosecutions of Videla and other junta leaders, the recently appointed Supreme Court magistrates lack of experience compromised public faith in the trials, and Jaime Malamud Goti writes that the politicization of both those trials and 18 Id. at Id. at 41; ROMERO, supra note 7, at 263. Punto Final (End Point), law , established a two-month limit for all suits against the military to be filed. Obedencia Debida (Due Obedience) law , absolved all lower-ranking officials who acted pursuant to orders. Id. The Supreme Court recently declared these laws to be unconstitutional. CSJN, 6/14/2005, Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc. causa No , available at 20 MALAMUD GOTI, supra note 8, at Id. at For further details of the success of the Process in Argentina, see generally ROMERO, supra note Larkins, supra note 12, at Jonathan Miller, A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process, 51 AM. J. COMP. L. 839, 870 (2003).

6 248 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] the judiciary as a whole followed. 25 In the 1990 s, President Menem created a new appellate court and more judgeships, appointing his business associates and political allies to the new positions. 26 Menem also packed the Supreme Court, causing it to [fall] into such disrepute that during the 1990s it lacked the minimal credibility necessary to constructively engage in judicial review. 27 In November 1991, a survey revealed that 70% of the Argentine people expressed little or no confidence in the judiciary; by March 1997, that number had reached 92%. 28 Despite the amnesty laws and presidential pardons, human rights groups in Argentina have been pushing for ways to bring those who committed atrocities during The Process to justice. In 1997, one group found a loophole in the amnesty laws that allowed Videla and others to be charged for kidnapping babies born in captivity. 29 Respect for human rights was also a major aspect of the 1994 constitutional reform. Delegates voted overwhelmingly to give constitutional hierarchy to twenty human rights treaties because [i]nternational human rights law and supervision offered legitimacy that Argentine constitutionalism lacked on its own. 30 Finally, the movement to reexamine the amnesty laws and pardons gained new momentum when Spanish Judge Baltazar Garzón invoked universal jurisdiction laws to charge 25 MALAMUD GOTI, supra note 8, at , ROHT-ARRIAZA, supra note 13, at Id. 28 Miller cites a survey indicating that in November 1991, 70% of the Argentine people expressed little or no confidence in the judiciary; by March 1997, 92% expressed these sentiments. Jonathan M. Miller, Evaluating the Argentine Supreme Court Under Presidents Alfonsín and Menem ( ), 7 SW. J.L. & TRADE AM. 369, (2000). 29 MALAMUD GOTI, supra note 8, at 45; see also Cam. Fed. Ap. C.C., 9/9/1999, Videla, J.R. s/ prisión preventive, Causa , Reg. 736 J.7 S.9, available at 30 Miller, supra note 24, at 863.

7 The Arancibia Clavel Decision of the Argentine Supreme Court 249 Augusto Pinochet and former leaders of The Process with crimes against humanity. 31 After years of challenges to the amnesty laws percolating through the lower Argentine courts, the Supreme Court finally declared them unconstitutional in December Yet, its holding in the Arancibia Clavel case in 2004 had done much to pave the way. II THE ARANCIBIA CLAVEL OPINION Enrique Arancibia Clavel ( Arancibia ) was haled into Argentine courts by his own Chilean government for acts he committed from 1974 to 1978 while he was a member of the Chilean national intelligence agency (known as DINA). 33 As part of Operation Condor, he was accused of persecuting Pinochet s political opponents in Argentina through kidnapping, torture, disappearance of persons, and murder. 34 The court of first instance convicted Arancibia of aggravated conspiracy and participation in two murders, overcoming the statutory limitations defense by characterizing conspiracy as a continuing offense (delito permanente) that encompassed the murders. 35 He was sentenced to life in prison, only to have his conviction overturned on appeal when the court rejected the continuing offense argument and found that the action had expired. 36 Although the Chilean government also argued 31 See ROHT-ARRIAZA, supra note Simón, supra note Arancibia Clavel, supra note Id Id Id. 1, 5. The appeals court concluded that upon Arancibia s arrest in 1978, commission of the conspiracy ceased. The Criminal Code provides that a criminal action expires after the period of the maximum prison term has run from the date of commission. CÓDIGO PENAL [CÓD. PEN.] art. 62(2) (Arg.). There was disagreement among

8 250 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] that, as a conspiracy to commit crimes against humanity, Arancibia s offense was not subject to statutory limitations, the Cámara de Casación (intermediate appellate court of Argentina) immediately rejected this premise, concluding that the offenses did not clearly fit the definition of crimes against humanity. 37 When the case reached the Supreme Court, the majority cited the Convention on the Non- Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (Statutory Limitations Convention), which Argentina had signed in 1995 and ratified in 2003, as a major basis for its ruling. 38 The Court s resurrection of the issue sua sponte (it had not been preserved on appeal) was determined to be consistent with the Court s power to address matters of substantial public importance. 39 The Supreme Court reinstated Arancibia s conviction, holding that, as crimes against humanity, Arancibia s acts were not susceptible to statutory limitations either at the time of their commission or at present. 40 The majority the courts as to which version of Article 210 of the Criminal Code (addressing conspiracy) applied, due to its reform on several occasions. The punishments of the different versions range from three to twenty years in prison, and Article 62 sets twenty years as the longest limitations period, meaning that regardless of which law was applied, the cause against Arancibia would have expired by 1998 according to the Criminal Code. Arancibia Clavel, La Ley [L.L.] 2004/09/09, Arancibia Clavel, supra note 1, Convention on the Non-Applicability of Statutory Limitations on War Crimes Against Humanity, G.A. Res. 2391, (XXIII), U.N. Doc. A/7218 (Nov. 26, 1968) [hereinafter Statutory Limitations Convention]; Arancibia Clavel, supra note 1, Arancibia Clavel, supra note 1, Id. 33. The majority cited the Rome Statute of the International Criminal Court, entered into force July 1, 2002, U.N. Doc. No. A/CONF.183/9, 99 I.L.M. 999 [hereinafter Rome Statute], the American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the Ninth International Conference of American

9 The Arancibia Clavel Decision of the Argentine Supreme Court 251 opinion, written by renowned jurist and magistrate Eugenio Zaffaroni and by Elena Highton de Nolasco, cited three main reasons for its conclusion. First, allowing statutory periods of limitation to bar prosecution of crimes such as Arancibia s was held to conflict with the policy behind such limitations. The idea that the passage of time both changes the criminal and removes the offensive nature of the act, rendering it a mere historical event, was found not to apply to crimes against humanity, which continue to offend both society and the international community long after their commission. 41 The state s use of its apparatus of authority and legitimacy to destroy the rule of law and commit such atrocities also rendered the crimes far more offensive in the Court s view. 42 For these reasons, public policy was held to mandate that statutory limitations not apply to crimes against humanity. 43 The second basis for the majority opinion was the Statutory Limitations Convention and its representation of customary international law. According to the Court, the Convention affirms a principle of customary international law that has existed since the 1960 s, and Argentina had contributed to its formation as a member of the international community. 44 The fact that Argentina did not ratify the Convention until 2003 was found to be immaterial, as international custom at the time of States (1948), the Statutory Limitations Convention, supra note 38, and decisions of the Inter-American Court of Human Rights in support of its characterization of Arancibia s acts as crimes against humanity. Id Id Id Id. 44 Id [T]he mode of express acceptance through conventional adhesion or ratification is not the exclusive way of determining the existence of jus cogens. In the majority of cases, it is determined by the tacit acceptance of a certain practice. (quoting Priebke concurrence). Id. 30.

10 252 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] Arancibia s acts dictated that statutory limitations would not apply to crimes against humanity. 45 Thus, there was found to be no retroactive application of the law: In summary, crimes against humanity have never been subject to statutory limitations, neither in international law nor in Argentine law. 46 Thirdly, the court relied on decisions of the Inter- American Court of Human Rights establishing that all member states owe a duty to the international community to ensure that heinous crimes are investigated, prosecuted and punished. 47 A state that avoids this responsibility through legal or other obstacles was held to violate its international obligations and could be held accountable by its neighbors. 48 For these three reasons, the Court concluded that Argentina owed a duty to its citizens and to the international community to remove obstacles to the punishment of crimes against humanity. The dissenting opinions criticized the majority for sacrificing constitutional guarantees such as nullum crimen sine lege ( no crime without law ) in favor of vague international principles that the Constitution establishes as 45 Arancibia Clavel, supra note 1, Id. 33 (Boggiano, J., concurring). 47 Id In the Barrios Altos case, the Inter-American Court observed that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations Chumbipuma Aguirre et al. v. Peru, 2001 Inter-Am. Ct. H.R. (ser. C) No. 75 at 41 (March 14, 2001.) In Velásquez Rodriguez, OAS/ser.L./V./III.19 doc 3 (1988) the Court held that a state can be held responsible before the international community for its failure to investigate, prosecute and punish human rights violations. Case of Velazquez Rodriguez v. Honduras, 1988 Inter-Am Ct. H.R. (ser. C) No. 4 (July 28, 1988). 48 Arancibia Clavel, supra note 1,

11 The Arancibia Clavel Decision of the Argentine Supreme Court 253 inferior to it. 49 According to the Argentine Constitution, treaties given constitutional hierarchy do not affect any provision of the first part of the Constitution; 50 Article 18 of the first part establishes the legality principle: No inhabitant of the nation can be punished without a previous trial founded upon a law enacted prior to commission of the act prosecuted. 51 In a prior decision, the Supreme Court had extended this principle to encompass statutory limitations. 52 For this reason, the dissent claimed that legislators debating whether to grant constitutional hierarchy to the Statutory Limitations Convention 49 Id. 15 (Belluscio, J., dissenting); id (Fayt, J., dissenting); id (Vazquez, J., dissenting). 50 CONST. ARG. art , available at Constitutions/Argentina/argen94_e.html. This article empowers the Congress [t]o approve or reject treaties concluded with other nations and international organizations, and concordats with the Holy See. Treaties and concordats have a higher hierarchy than laws. A list of human rights conventions, such as the Universal Declaration of Human Rights, the Genocide Convention and the American Convention on Human Rights follows. [I]n the full force of their provisions,... [these conventions] have constitutional hierarchy, do no [sic] repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein... [i]n order to attain constitutional hierarchy, the other treaties and conventions on human rights shall require the vote of two-thirds of all the members of each House, after their approval by Congress. Id. 51 CONST. ARG. art. 18; Arancibia Clavel, supra note 1, 15 (Belluscio, J., dissenting). As Article 18 was not changed during the 1994 constitutional reform, it was identical in the 1853 Constitution. 52 Arancibia Clavel, supra note 1, 21 (Vazquez, J., dissenting). The rejection of retroactivity of criminal provisions subsequent to the act, or laws known as ex post facto, which signify a worsening of conditions of the accused has constituted an invariable doctrine in the traditional jurisprudence of the Court. In the Mirás case (citations omitted), it was expressly pointed out that this principle also reaches the prescription of the criminal action. Id. See also id (Belluscio, J., dissenting); id (Fayt, J., dissenting). The majority opinion also repeats this phrase verbatim. Id. 19; see also id. 20 (Petracchi, J., concurring).

12 254 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] specifically refused to allow the Convention to conflict with the legality principle or to apply to past crimes. 53 Summarizing his objections to the holding, Magistrate Belluscio contended, [i]n no way can one justify the correction of an aberration of action [such as those alleged] through an aberration of law [in this case, the retroactive application of criminal law or the reinstatement of a cause of action that has expired]. 54 The dissenting magistrates also questioned whether customary international law had truly established that crimes against humanity do not expire when Arancibia committed the crimes in question, pointing out that even if such a custom existed, Argentina was not a party to it. 55 Magistrate Carlos Fayt described Argentina s history of vocal opposition to international legal measures that suggest retroactive application of the law. 56 Instead, he contended that the norms of jus cogens regarding nullum crimen sine lege and the prohibition on ex post facto laws have far deeper roots in international law as well as greater 53 Arancibia Clavel, supra note 1, 15 (Belluscio, J., dissenting). 54 Id. 55 Id. 16, 20 (Fayt, J., dissenting). 56 Id. 20 (noting that when Argentina ratified the International Covenant on Civil & Political Rights, it qualified its acceptance of Article 15, paragraph 2, requiring that it be subject to the legality principle enshrined in Article 18 of the Argentine Constitution). See also International Covenant on Civil & Political Rights, Mar. 23, 1976, 999 U.N.T.S. 172 [hereinafter ICCPR]. This article reads: Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations. Argentina also objected to the insertion of a similar article in the American Convention on Human Rights of Finally, he notes that Argentina abstained from G.A. Res. 3074, GAOR, 28 th Sess., Supp. No. 30A, U.N. Doc. A/9030/Add. 1 (1973), laying out principles of cooperation in capturing international criminals, for the same reason. Id.

13 The Arancibia Clavel Decision of the Argentine Supreme Court 255 acceptance in Argentina. 57 He also suggested that the very nature of criminal law and the principles that govern it, (e.g. the specificity requirement in defining what is criminal), render international custom a wholly inappropriate source of law in criminal cases. 58 Finally, various commentators join the dissenters in arguing that the Court s sua sponte resurrection of the issue that crimes against humanity were not subject to statutory limitations deprived Arancibia of his right to frame an adequate defense. 59 Commentary in response to Arancibia Clavel has been both glowing and harsh. The Court has been praised for its skillful application of international norms to domestic law. 60 Victor Abramovich commends the majority for reaching an adequate balance between the duty to punish aberrant crimes and the legality principle, which is tempered but not displaced. 61 Another commentator goes further, stating that rigid reliance on codes and statutory limitations is typical of dictatorial regimes. 62 In contrast, much of the negative analysis criticizes the retroactive application of the Statutory Limitations Convention as a violation of constitutional principles. Gregorio Badén 57 Arancibia Clavel, supra note 1, 20 (Fayt, J., dissenting). 58 Id. 42 (Fayt, J., dissenting). 59 Id. 10 (Belluscio, J. dissenting); 9 (Fayt, J., dissenting); Ricardo Gil Lavedra, Un caso de aplicación directa del derecho internacional, ABOGADOS, Aug.-Sept. 2004, at 16, 18, available at 60 See, e.g., Lavedra, supra note 59, at 16-18; Julieta Luisa Bandirali, El Derecho Internacional y la Práctica Jurídica: Interview with Leandro Despouy, ABOGADOS, Sept.-Oct. 2005, at 16, Victor Abramovich, Los Crimenes que el Tiempo No Exonera, ABOGADOS, Aug.-Sept. 2004, at 14, 15. See also, Domínguez, supra note 2, at Miguel A. Ciuro Caldani, Pronunciamientos Judiciales en un Tiempo de Hondo Cambio Histórico, JURISPRUDENCIA ARGENTINA [J.A.] Vol IV, Supp. Jan. 12, 2004 at 487.

14 256 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] states, [i]n our constitutional regime, neither the emergency nor the magnitude of the acts allows us to depart from the faithful execution of constitutional principles, even if the results are not to our liking. 63 Some write that in subordinating the Constitution, the magistrates erroneously placed more faith in international principles that are ambiguous, utopian, and often dictated by powerful nations for political reasons. 64 Some criticize the court for violating the separation of powers and taking on a legislative role. 65 Finally, there are those who contend that the ruling facilitates a witch hunt 66 and that it undermines the rule of law that Argentina has worked so hard to create María Milagros Moricone & Alfredo Carella, El Dilema Jurídico: Interview with Gregorio Badén, ABOGADOS, Aug.-Sept. 2004, at 12, 13. See also Horacio A. García Belsunce, Reflexiones Jurídicas en Torno a la Doctrina de la Corte Suprema en el Caso Arancibia Clavel, ANALES DE LA ACADEMIA NACIONAL DE CIENCIAS MORALES Y POLÍTICAS, vol. 31 at 327, (2005). 64 Juan Félix Marteau, El Derecho Nacional en la Encrucijada del Nuevo Orden (Jurídico) Mundial, ABOGADOS, Sept.-Oct. 2005, at 8, 9; see also Ofelia Jany, Interview with Eugenio Bulygin: Los Nuevos Fundamentos del Derecho Internacional, ABOGADOS, Sept.-Oct. 2005, at 10, 10; Carlos A. Floria, Memoria, Justicia y Reconciliación: Breves Reflexiones a Propósito del Fallo CSJN in re Arancibia Clavel, ANALES DE LA ACADEMIA NACIONAL DE CIENCIAS MORALES Y POLÍTICAS, vol. 31 at 351, (2005). 65 García Belsunce, supra note 63, at 330; Roberto Punte, La Solución está en el legislador, El Dial 04/10/04 (eldial.com DC4B3). 66 Miguel M. Padilla, El Fallo de la Corte Suprema de Justicia en el Caso Arancibia Clavel, ANALES DE LA ACADEMIA NACIONAL DE CIENCIAS MORALES Y POLÍTICAS, vol. 31 at 357, 367 (2005). 67 Augusto Morello, Crisis del proceso penal liberal, L.L ,

15 The Arancibia Clavel Decision of the Argentine Supreme Court 257 III LEGAL BASES FOR THE ARANCIBIA CLAVEL DECISION A. Domestic Bases Argentine law in the 1970s contained no references to crimes against humanity or to the notion that serious crimes do not expire. Instead, the Argentine Criminal Code has typically tied the statutory period of limitation for each offense to its term of punishment. 68 Twenty-five years has generally constituted the longest term of punishment, 69 and twenty years has been the maximum limitation period for all criminal actions. 70 It is noteworthy that in 1978, as well as today, conspiracy to commit disappearances, torture and murder carries one of the harshest punishments to be found in the Criminal Code. Aggravated conspiracy, which included the use of military-grade weapons and organization as a paramilitary unit, proscribed a sentence of between five and fifteen years, and its leaders could face up to twenty-five years in prison. 71 With the statutory limitation corresponding to these terms of punishment, an action for aggravated conspiracy would have expired between five and twenty years after the date of its commission. Thus, while the specific offense of crimes against humanity had yet to be codified into Argentine Law, there was arguably a notion that violent criminal acts by paramilitary groups offended society on a different level than did ordinary criminal acts. While the Argentine Constitution contains no express provision on the non-expiration of serious crimes, the 68 CÓD. PEN. art. 62 (Arg.). 69 CÓD. PEN. (Arg.). The code offers life imprisonment as a punishment for aggravated murder and a few other serious offenses. See, e.g., Id. at arts. 80, 142 bis, Id. art Arancibia Clavel, supra note 1, 4.

16 258 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] Supreme Court elevated statutory limitations to a constitutional right in In that year, Mirás held that one cannot be tried for an offense if the statutory limitation that existed when the offense was committed has subsequently run. 73 For this reason, when Arancibia committed aggravated conspiracy in , the notion that his crime could not expire was not a mere legal ambiguity, but rather a direct contradiction of the Supreme Court s interpretation of the Constitution. The concept of crimes against humanity gradually entered the Argentine legal vocabulary through the country s adherence to international instruments, although such instruments were not incorporated into domestic law until the constitutional reform of While the Statutory Limitations Convention was the first major multilateral convention to include the term crimes against humanity, the seeds for recognition of crimes against humanity were arguably planted earlier in Argentina. When the U.N. General Assembly passed a 1946 resolution affirming the principles of the Nuremberg Charter, Argentina joined the Assembly in adopting it unanimously. 74 Furthermore, the definition of crimes against humanity is considered to overlap with those of genocide and torture to a degree, 75 and Argentina ratified the Genocide Convention in However, the Argentine Criminal Code did not internalize 72 Id. 19 (citing CSJN, 1973, S.A. Guillermo Mir C.I.F. c. Administración Nacional de Aduanas, Fallos 287:76). 73 Id. 74 Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal, G.A. Res. 95, at 188, U.N. GAOR, 1st Sess., U.N. Doc. A/64/Add. 1 (1946) [hereinafter Nürnberg Affirmation]. 75 M. Cherif Bassiouni, Searching for Peace and Achieving Justice: The Need for Accountability, 59 LAW & CONTEMP. PROB. 9, 15 (1996). 76 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 11, 1946, 102 Stat. 3045, 78 U.N.T.S. 277 [hereinafter Genocide Convention].

17 The Arancibia Clavel Decision of the Argentine Supreme Court 259 the prohibition on genocide or recognize the broader notion of crimes against humanity, and the Torture Convention was not ratified until When Argentina signed the Statutory Limitations Convention in 1995 and passed a law giving it domestic effect, 78 the notion that crimes against humanity did not expire entered the Argentine legal framework. Still, Argentina did not become a full party to the Convention until 2003, when Congress finally ratified the Convention and gave it constitutional hierarchy. 79 While Argentina s ratification clearly established that crimes against humanity committed from 2003 onward would not be subject to statutory limitations, the Convention s application to crimes of the 1970 s was ambiguous. The Convention declares that limitations will not apply to crimes against humanity irrespective of the date of their commission. 80 Moreover, it also requires parties to translate conventional provisions into domestic law. 81 Yet, apart from the decrees that affirmed Argentina s acceptance of the Convention, the Argentine Congress never altered domestic statutory limitations. 77 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Feb. 4, 1985, G.A. Res. 39/46, at 197, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (Dec. 10, 1984) [hereinafter Torture Convention]. 78 Law No , Nov. 29, 1995 (stating The Senate and Chamber of Legislators of the Nation of Argentina joined in Congress, etc., sanction with force of law... followed by the text of the Statutory Limitations Convention). 79 CENTRO DE ESTUDIOS LEGALES Y SOCIALES [CELS], DERECHOS HUMANOS EN LA ARGENTINA: INFORME (2003); Law No , Sept. 3, 2003 (using the same language as Law No , supra note 78, to give the Statutory Limitations Convention constitutional hierarchy). 80 Statutory Limitations Convention, supra note 38, art See id. art. 4.

18 260 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] As the dissent notes, members of the Argentine Senate explicitly refused to allow the Convention to apply retroactively during debates. 82 Unlike Peru and Mexico, however, Argentina never stated this intent in a reservation, declaration or understanding to the Convention. 83 Thus, two conclusions regarding the scope of the Convention seem plausible: either Argentine lawmakers thought their intent to apply its provisions to crimes committed after 2003 was patent, or there was simply no consensus on the Convention s scope. B. International Bases As the majority in Arancibia Clavel argued, the Convention might plausibly be applied to past crimes if it represented customary international law at the time when Arancibia s crimes were committed. While Arancibia s conspiracy to commit kidnapping, torture and murder would likely have fit the international definition of crimes against humanity in 1978, it is not clear that an international consensus supported the idea that such crimes did not expire. First, it should be noted that the majority in Arancibia Clavel uses the terms jus cogens and international custom interchangeably to describe both crimes against humanity and their non-expiration. 84 These terms describe 82 See CONST. ARG., supra note United Nations Human Rights, Office of the High Commissioner for Human Rights, Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity, (last visited Apr. 6, 2008) [hereinafter Statutory Limitations Convention Signing Parties]. 84 See, e.g., Arancibia Clavel, supra note 1, 28 ( [T]his convention only affirms the non-expiration [of crimes against humanity] [imprescriptibilidad], which signifies the recognition of a norm already in force (jus cogens) where public international law of customary origin

19 The Arancibia Clavel Decision of the Argentine Supreme Court 261 two different levels of legal obligations: where jus cogens is a norm from which no derogation is permitted, 85 international custom is a general practice accepted as law. 86 States may contract out of customary international legal norms. In contrast, jus cogens represents a narrow set of principles which bind all parties and which no treaty can alter. Examples of jus cogens include prohibitions on genocide, slave trade, piracy and racial discrimination. 87 A general practice becomes international custom when there is substantial uniformity of the practice among states that is coupled with opinio juris. 88 While a state may contract out of a custom while it is in the process of formation, evidence of objection must be clear and there is probably a presumption of acceptance to be rebutted. 89 is concerned. In this way, retroactivity in criminal law is not enforced, rather a principle already instilled through international custom is reaffirmed, as it was already binding at the time when the crimes were committed. ); Id. 29 (there is no retroactive application of the Statutory Limitations Convention as long as its character as a customary norm of international law before the ratification of the Convention of 1968 was jus cogens ); Id. ( international custom already considered the non-expiration of crimes against humanity prior to the Convention ). 85 Vienna Convention on the Law of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 331, 8 I.L.M. 679 [not recorded with the State Department]. 86 Statute of the International Court of Justice art. 38, 15 U.N.I.C.I.O Stat (1945). 87 IAN BROWNLIE, PRINICIPLES OF PUBLIC INTERNATIONAL LAW (6th ed. 2003). 88 Id. at Id. at 11. Brownlie notes that the ICJ has not made explicit what is required to contract out of a custom, but the persistent objector standard may prevail. [S]ilence may denote either tacit agreement or simply a lack of interest in the issue. Id. at 8.

20 262 OREGON REVIEW OF INT L LAW [Vol. 10, 2008] International conventions can constitute evidence of such binding custom, even for non-signatories. 90 The prohibition of crimes against humanity and conspiracy to commit such crimes seems to be a firmly established norm of customary international law; sources differ as to whether it constitutes jus cogens. The custom originated during the Nuremberg Trials, in which three offenses were prosecuted: crimes against peace, war crimes and crimes against humanity, whether or not in violation of the domestic law of the country where perpetuated. 91 The Charter explicitly provided that conspiracy to commit all of these offenses is a punishable offense in itself. 92 A year after the first judgment at Nuremberg, the U.N. General Assembly unanimously passed a resolution affirming both the Charter and the judgment of the tribunal. 93 Specific reference to crimes against humanity did not appear in another international instrument until the Statutory Limitations Convention in M. Cherif Bassiouni contends that the overlap between crimes against 90 Id. at 13 ( By their conduct non-parties may accept the provisions of a multilateral convention as representing general international law. ). 91 Charter of the International Military Tribunal in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis art. 6, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279 [hereinafter Nuremberg Charter]. 92 Id. ( Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. ). 93 Nürnberg Affirmation, supra note 74; see also Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, 5 U.N. GAOR Supp. (No. 12), U.N. Doc. A/1316 (July 29, 1950), 44 AM. J. INT L L. 126 (1950). The latter passed the General Assembly 94-0 with 29 abstentions, and Argentina was among those who abstained. Id.

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