The incompatibility of amnesty laws with international human rights treaties -- Argentina

In 2001, the Inter-American Court of Human Rights, in the Barrios Altos v. Peru case, for the first time held that amnesty laws were incompatible with a state’s obligation to investigate, prosecute and punish those responsible for serious human rights violations.

Argentina transitioned from a military dictatorship to a democratic form of government on December 10, 1983, when President Alfonsin assumed the presidency. Three days after his inauguration (December 13, 1983), President Alfonsín signed Decree No. 158, mandating the initiation of legal proceedings against the nine military officers of the first three juntas, but not the fourth (ruled by General Reynaldo Bignone).  Leading members of the two major guerrilla groups (ERP and Montoneros) were also ordered indicted and tried, leading to numerous sentences.  President Alfonsin was unable to convince the military to try the leaders of the four military juntas during the period 1976-1983 and as a consequence the case was turned over to civilian courts.  On April 22, 1985, the trial of the nine military leaders of the junta began and on December 9, 1985 Generals Videla and Massera were sentenced to life imprisonment, Viola to 17 years, Lambruschini to 8 years, and Agosti to four and a half years.  The other junta leaders were acquitted. Charges against an additional 600 military officials had been taken to court but these suits were stopped by the adoption of two amnesty laws: the Full Stop Law of 1986, which limited suits to those indicted within 60 days of the law’s enactment, and the Due Obedience Law of 1987, which effectively halted most remaining trials of Dirty War perpetrators.

President Alfonsín resigned in mid-1989 and was succeeded by President Carlos Menem (1989–99), who, in 1989 and 1990, pardoned approximately 1,200 individuals who were serving prison sentences, including General Videla and other top officials, many members of the guerrilla organizations and a former Minister of the Economy.  The Full Stop Law (Punto Final), the Due Obedience Law (Obedencia Debida) ,and the ten pardons issued by President Menem for members of the military and members of the guerrilla organizations became known as the “Impunity Laws.”

In 2005, in the landmark Simon case, the Argentine Supreme Court declared the laws known as the Due Obedience and Final Stop laws unconstitutional, overruling an earlier decision in 1987 (the Camps case) that had held the Due Obedience law constitutional.  As a consequence of this decision there were no further obstacles to reinitiating ordinary criminal judicial proceedings against members of the military who were responsible for violations of human rights during the military dictatorship, other than the fact that they could not be tried for the same crimes as in the original trial of the juntas.

In the Simon case, the Argentine Supreme Court noted that the “progressive evolution of the international law of human rights” and the elevation of human rights to constitutional ranking in Argentina, no longer permitted the State to avoid prosecuting crimes against humanity for reasons of social pacification based on erasing these facts from memory.   Amnesty laws have historically been used for national reconciliation, the Argentine Supreme Court noted, and the Due Obedience and Final Stop laws were similarly intended to relegate to the past the confrontation between civilians and the military, however, insofar as these laws were designed to obliterate from memory serious violations of human rights they contradicted the provisions of the American Convention on Human Rights and the UN International Covenant on Civil and Political Rights, and were consequently determined to be “constitutionally intolerable.”   For the Argentine Supreme Court, the judgments of the Inter-American Court and the directives of the Inter-American Commission “constitute an indispensable guideline for the interpretation of the American Convention in domestic law.” The failure of the Argentine domestic courts to conduct a judicial review of the compatibility of internal laws with provisions of the American Convention, termed by the Inter-American Court “the control of conventionality,” led to the Inter-American Court’s declaration of a violation of Article 2 of the American Convention.  Article 2 requires States to bring their domestic legislation in line with the provisions of the American Convention.  The Argentine Supreme Court noted that the Inter-American Court in the Barrios Altos judgment had declared Peru in violation of Article 2 of the American Convention, for the promulgation as well as the application of the amnesty laws since these laws had stopped the State from investigating and sanctioning violators of international human rights.

The Center for Legal and Social Studies (CELS) in Buenos Aires reports that by September 2013 2,316 members of the military and civilian collaborators had been accused of crimes against humanity (since 2007).  Of that total, 416 persons have been found guilty and 35 have been acquitted of crimes against humanity. A number of cases with large numbers of victims and accused are still being prosecuted and others are pending appeal.