WorldHistory

           Genocide in Argentina
              Introduction

           Reported by BBC

Friday, 1 September, 2000, 19:35 GMT 20:35 UK
Argentine Man charged with genocide

                                            Ricardo Miguel Cavallo

A Spanish judge has formally charged a former Argentine officer
with genocide, terrorism and torture during Argentina's military rule.

It is clear that [Cavallo] participated in the whole system of
repression, disappearance and elimination of persons as reported
by Judge Baltasar Garzon of Spain.

Ricardo Miguel Cavallo, also known as Miguel Angel Cavallo, was
arrested in Mexico last week on suspicion of falsifying documents
and was later identified by Judge Baltasar Garzon, as wanted for
crimes committed during Argentina's military rule between 1976 and
1983.

The judge has been hearing testimonies from victims of military
repression who say Mr Cavallo was one of their torturers at a
detention centre in Buenos Aires.

He says he is the victim of mistaken identity and that he played no
part in Argentina's "Dirty War", in which over 9,000 Argentinians
and perhaps as many as 30,000 disappeared.

Judge Garzon, who heads an ongoing investigation into crimes
against Spaniards by Argentina's and Chile's military governments,
attempted a similar process against former Chilean military ruler
General Augusto Pinochet.

Charges:

Mr Cavallo is charged in a 196-page document with the torture,
disappearance, and execution of 21 people.

Baltasar Garzon also pursued General Pinochet

He is also linked to 227 disappearances and 110 cases of torture, as
well as the alleged kidnapping of 16 babies born to women held at a
notorious detention centre.

Judge Garzon, quoted by the Efe news agency, wrote: "It is clear
that [Cavallo] participates in the whole system of repression,
disappearance and elimination of persons."

The judge said he did not originally indict Mr Cavallo along with
another 98 Argentine officers because there was confusion over his
real name.

He apparently called himself Miguel Angel Cavallo while working
for the military regime.

Mr Cavallo's detention was carried out on the basis of an
international arrest warrant issued by Judge Garzon's office.

The judge is now expected to issue a request for his extradition
from Mexico to Spain.

27 Aug 00 | Americas
Torture suspect faces extradition
25 Aug 00 | Americas
Mexico boss held on torture charges
15 Apr 00 | Americas
'Disappeared' grave found in Argentina
04 Nov 99 | World
Spanish prosecutors appeal 'dirty war' warrants
19 Aug 98 | Top features
The Living Disappeared
24 Apr 99 | Americas
Army chief probed over babies scandal
03 Nov 99 | Americas
Argentina spurns 'dirty war' warrants
25 Nov 99 | Americas
Argentina identifies 124 'disappeared'
Internet links:

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           Chapter One
   Genocide in Argentina

         By Juan E. Méndez

In the 1970s political violence in Argentina resulted in thousands of
deaths, prolonged arbitrary arrest, unfair trials, pervasive torture,
and cruel, inhuman, and degrading treatment. The most salient
feature of repression by the military dictatorship was the practice of
disappearances: At least 15,000 (and possibly up to 25,000) were
abducted by security forces, their detention unacknowledged. They
were sent to one of 250 secret detention centers, where they were
interrogated under barbaric methods of torture. Ultimately, the vast
majority of the desaparecidos were systematically, but secretly,
murdered. Their bodies were disposed of in clandestine gravesites or
dumped from airplanes into the ocean. More than twenty-five years
later at least 12,000 victims remain unaccounted for, despite efforts
by their relatives and civil society to establish their fate and the
whereabouts of their remains.

The repressive campaign was launched in March 1976, as the
commanders-in-chief of Argentina's three armed forces ousted
President Isabel Peron and proclaimed a de facto regime designed to
eliminate once and for all what they called the Marxist subversive
threat. Serious human rights violations had begun at least eighteen
months earlier, and the military participated in them. Isabel Peron
had been elected vice-president in 1973 and became president after
the death of her husband, General Juan Domingo Peron, on July 1,
1974. Elements of her government organized secret death squads
such as Triple A (Alianza Anticomunista Argentina) and Comando
Libertadores de America. Years later it was established that some
police and military officers were members of these squads, and that
security forces and public institutions covered up their crimes. Their
modus operandi included kidnappings, but within hours the victims'
bodies would be found in visible places, often showing gruesome
forms of mutilation. For this reason the regime of Isabel Peron was
widely seen as increasing the insecurity felt by citizens, while
making little progress in curbing the action of left-wing guerrilla
movements. In that sense the coup d'etat of March 24, 1976, was an
attempt to monopolize and intensify state violence and to expand its
scope, while also hiding and denying it.

Unquestionably, official right-wing violence was a response to
organized armed violence by several leftist revolutionary groups. As
in other Latin American countries, Argentine guerrilla movements
were organized shortly after the death of Ernesto Che Guevara in
Bolivia in 1967. With some minor exceptions they employed urban
guerrilla tactics; whether the violence reached the level of an
internal armed conflict in terms of the laws of war remains an
unanswered question. The largest of these groups was the
Montoneros, formed by leaders emerging from student and working-
class demonstrations in several cities in 1969. The Montoneros
combined armed actions with political organization and mobilization,
and considered themselves part of the Peronist movement. They had
a commanding presence in the movement's large and actively
mobilized student, rank-and-file labor, and grassroots wings. To the
left of the Montoneros were several Marxist and Guevarist armed
organizations, the most prominent of which was the Ejército
Revolucionario del Pueblo (ERP). The Montoneros and ERP
launched bold attacks on military and sometimes civilian targets, and
occasionally engaged in terrorist actions. The aggregate effect of
their actions provoked the police, the military, and right-wing death
squads into a spiral of retaliatory violence.

On assuming control of the government, the military junta closed
down Argentina's Congress, replaced members of its Supreme Court
and most other judges, and intervened in all local and provincial
(state) governments. Many prominent politicians and labor leaders
were incarcerated for long prison terms without trial. In fact, the
military utilized emergency powers to arrest nearly ten thousand
persons and hold them indefinitely in administrative detention,
pursuant to the state of siege provisions of Argentina's Constitution.
The government refused to comply with the few judicial orders
issued by its own judicial appointees, seeking to release some
detainees because of the authorities' failure to establish a clear
rationale for their continued detention. Many state of siege
detainees spent between four and six years in prison. Others were
subjected to military trials without a semblance of due process. A
larger number were tried in the federal courts under
counterinsurgency legislation of a draconian nature and with
evidence largely obtained through torture.

The most terrifying and pervasive practice of the military
dictatorship, however, was that of forced disappearances described
above. Investigations and prosecutions completed after the return of
democracy established without a doubt that disappearances were
conducted pursuant to official (albeit secret) policy, and
implemented and executed under careful supervision along the chain
of command. The National Commission on the Disappearance of
Persons, one of the earliest truth commissions of recent vintage and
set in motion by president Raúl Alfonsín as soon as the country
reestablished democracy in 1983, determined this critical fact
without dispute. It was further proven through rigorous court
procedures in 1985, when the heads of the three military juntas that
governed between 1976 and 1982 were prosecuted for planning,
executing, and supervising the reign of terror. General Jorge Videla
and Admiral Emilio Massera were sentenced to life in prison for
their respective roles as commanders of Argentina's army and navy.

                         ARGENTINA 'S MUSEUM

On March 24, 2004, exactly 28 years after the coup that launched
the "dirty war," president Néstor Kirchner announced that the
Escuela de Mecánica de la Armada (ESMA) naval base would be
turned into a "Museum of Memory" to honor the thousands who
disappeared after their capture by security forces between 1976 and
1983. The ESMA was only one of 340 camps used for these
purposes. It was not the only camp in Buenos Aires, but the most
notorious because it held an estimated 5,000 desaparecidos, of which
perhaps 100 survived.

By Videla's own admission the targets were not only the armed
guerrillas: They included also their lawyers, priests and professors
who allegedly spread anti-Western and anti-Christian ideas, labor
leaders, neighborhood organizers, human rights activists, and in
general anyone who—as defined by the military—lent aid and
comfort to the so-called subversive movement. Military leaders
variously claimed that their war against subversion was a "dirty
war." The deliberate, widespread, and systematic nature of the
practice of disappearances, and the protection of its perpetrators
from any investigation, qualifies the phenomenon, as implemented in
Argentina, as a crime against humanity. To the extent that the
targets were singled out because of ideology or political affiliation
and did not belong to a racial or religious minority, the practice does
not rise to the level of genocide as defined in international law.
Nevertheless, many in Argentina, and significantly the courts of
Spain exercising universal jurisdiction, consider it genocide insofar
as it targets a distinct national group defined by its ideology and
slated for extinction, in whole or in part, through mass murder.

Argentina's program to attain truth and justice about the crimes of
the past was cut short when factions of the military staged four
uprisings against the democratic regime. The laws of Punto Final
(Full Stop) and Obediencia Debida (Due Obedience), enacted in
1986 and 1987 under the pressure of that military unrest, terminated
the prosecution of an estimated four hundred identified
perpetrators. Their legal effect was a blanket amnesty. Videla,
Massera, and the other defendants in the only two cases to result in
convictions were pardoned by Carlos Menem, who succeeded
Alfonsín in 1989. In spite of these setbacks, Argentine
nongovernmental organizations continued to press for
accountability. They succeeded first in persuading federal courts to
conduct truth trials designed to establish the fate and whereabouts
of the disappeared for the purpose of relaying that information to
their families and to society. Later, several courts found that the
Full Stop and Due Obedience laws were unconstitutional for being
incompatible with Argentina's international obligations under human
rights treaties. In August 2003, at the initiative of president Néstor
Kirchner, the Argentine Congress declared these laws null and void,
and the prosecution of some cases has began again. In the matter of
the abduction and illegal adoption of children of the disappeared, or
of those born during the captivity of their mother, criminal
prosecutions have been brought against Videla, Massera, and
dozens of other defendants, because those crimes were specifically
exempted from the pseudo-amnesty laws. Kirchner has lifted
restrictions on processing extradition requests from Spain and other
countries. He also expressed support for Mexico's decision to
extradite an Argentine dirty warrior to Spain to stand trial there. In
2003 it seemed inevitable that Argentina would either prosecute the
perpetrators of all dirty war crimes or extradite them to Spain or
other countries exercising universal jurisdiction.

                               BIBLIOGRAPHY

Americas Watch (1991). Truth and Partial Justice in Argentina—An
Update. New York: Human Rights Watch.

Centro de Estudios Legales y Sociales (CELS) (Argentina) (2000).
Derechos Humanos en Argentina: Informe Anual 2000, Eudeba.
Buenos Aires: University of Buenos Aires Press.

Fertlowitz, Marguerite (1998). A Lexicon of Terror: Argentina and
the Legacies of Torture. New York: Oxford University Press.

Inter-American Commission on Human Rights (1980). Report on the
Situation of Human Rights in Argentina. Washington, D.C.: Inter-
American Commission on Human Rights.

Marchak, M. Patricia, and William Marchak (1999). God's
Assassins: State Terrorism in Argentina in the 1970s. Montreal:
McGill-Queen's University.

Nunca Más: Report of the Argentine National Commission on
Disappearance of Persons (1985). New York: Farrar Strauss Giroux.

Mignone, Emilio F. (1988). Witness to the Truth. Maryknoll, N.Y.:
Orbis Books.

Osiel, Mark (2001). Mass Atrocity, Ordinary Evil, and Hannah
Arendt: Criminal Consciousness in Argentina's Dirty War. New
Haven, Conn.: Yale University Press.

Juan E. Méndez

            Genocide in Argentina

         Argentina's Dirty Warriors

                  Chapter Two

                       By James Brennan

The so-called guerra sucia (dirty war), which took place in
Argentina under the various military governments that ruled from
1976 through 1983, resulted in the disappearance of between 9,000
and 30,000 people, and many more victims of torture and prolonged
imprisonment. It was one of the worst examples of state terrorism in
twentieth-century Latin America. The demand for justice figured
prominently in the electoral campaign of the winning candidate, Raúl
Alfonsín, during the 1983 presidential elections that restored civilian
rule. During Alfonsín's presidency (1983–1989) the human rights
issue continued to occupy a prominent place in public discourse. The
struggle to bring to justice the perpetrators of the crimes also
generated controversy and sowed unrest within the ranks of the
military. On assuming office, Alfonsín formed a truth commission,
the National Commission on the Disappeared (Comision Nacional
sobre la Desparicion de Personas, CONADEP), to investigate
alleged human rights abuses by the military. The commission's final
report was a damning indictment of the military's crimes and set the
stage, as well as providing the body of evidence, for the trials of
members of the military juntas that had ruled the country between
1976 and 1983.

Alfsonsín's government always remained wary of provoking unrest
in the military through its human rights policies. This explains the
first halting steps taken by the administration on the promise of
punishment for those guilty of crimes. Alfonsín initially attempted to
reform the Code of Military Justice and establish military
jurisdiction over the accused and sentencing by military courts,
thereby keeping the trials within clearly prescribed institutional
boundaries and placating the armed forces. Once it became clear
that the military would assume no responsibility in recognizing the
guilt of its former leaders and sanctioning punishment or even
acknowledging that such commanders had committed crimes,
Alfonsín transferred the cases to the civil courts. In April 1985 the
public trials of the three military juntas that had ruled the country
between 1976 and 1983 began. The trials were to last until the end
of the year, and the lead prosecutor, Julio César Strasser, produced
dramatic testimony that led to the conviction of former president
General Jorge Videla, Admiral Emilio Massera, and other military
commanders. The court rejected the defense's claims of immunity
from persecution because of an alleged "state of war" existing in
the country, and the sentences handed down varied in severity
according to the court's interpretation of the degree of involvement
each commander had in the crimes.

The convictions, which elicited broad although not unanimous public
support, unleashed great unrest within the ranks of the armed
forces. Two abortive military uprisings threatened the country's
fragile democracy, and Alfonsín faced the dilemma of fulfilling his
campaign promise to deliver justice for human rights abuses while
safeguarding democracy and civilian rule. He chose the safest path,
restricting the scope of the trials through two highly controversial
amnesty laws: the Ley de Obediencia Debida (Due Obedience Law)
and Ley de Punto Final (Full Stop Law). The Due Obedience Law
exempted lower-ranking officers and enlisted men from prosecution
on the grounds that they were simply carrying out orders, whereas
the Full Stop Law established a statute of limitations on further
prosecutions for anyone accused of human rights crimes. The Full
Stop Law did little to mollify the military because it triggered a
wave of lawsuits to beat the deadline for filing stipulated by the law,
although the cumulative effect of both laws was indeed to impose
limits on criminal proceedings. The government of Carlos Menem
(1989–1999) appeared to definitively seal the process when it issued
a pardon in 1989 and released from prison the following year the
incarcerated former junta commanders sentenced in 1985.

Though domestic politics had resulted in compromises and even a
certain betrayal of human rights issue within Argentina, foreign
governments and courts were not so constrained. There were
periodic attempts to extradite accused perpetrators of human rights
crimes against foreign nationals. Such demands intensified in 2002
and 2003. In January 2002 Sweden asked Argentina to extradite
naval officer Alfredo Astiz. Astiz, who had worked as an undercover
agent in the most notorious of the detention and torture centers, the
Navy Mechanics School, and was sought for his involvement in the
disappearance of Argentine-Swedish national Dagmar Hagelin. The
French and German governments made similar extradition requests.
Most dramatically, in August 2003, Spanish human rights judge
Baltasar Garzón issued warrants for the extradition of forty-five
former military officers accused of the torture and murder of
Spanish nationals during the dictatorship of Argentina. The activities
of foreign governments and judges helped to revitalize the human
rights issue within Argentina and restored it to a central position in
public debate.

The government of Peronist Néstor Kirchner, elected president in
May 2003, has been as vigorous in pursuing accountability for the
human rights abuses as Menem's Peronist government was
indifferent. Kirchner persuaded a congress with Peronist majorities
to repeal the two controversial amnesty laws from the Alfonsín
years and received delegations from the Mothers of the Plaza de
Mayo and other human rights organizations that demanded full
accountability for the military's crimes. As of mid-2004, the pending
decision of Argentina's Supreme Court on the legality of repealing
the amnesty laws means the human rights situation in Argentina was
rejuvinated, but remains a controversial and polarizing issue.
Human rights organizations have reclaimed the initiative and are
pressuring Kirchner to live up to his promises of justice and
accountability for the crimes committed. It remains to be seen to
what degree domestic political considerations will, as they did under
Alfonsín, exercise pressures against a thorough investigation and
exemplary justice. For example, although Kirchner annulled a
decree preventing the extradition of Argentines to stand trial
abroad for human rights crimes—an annulment that led the Spanish
government to drop its extradition request—political considerations
continued to complicate judicial proceedings. Indeed, Kirchner's
decision to press forward with the repeal of the amnesty laws and
proceed with trials within Argentina was partly intended to deflect
criticisms of his annulment of the decree banning extraditions.
Justice for human rights crimes of the last military government
therefore continues to be complicated by Argentina's volatile
domestic political situation.

SEE ALSO Amnesty; Argentina

                        BIBLIOGRAPHY

Brysk, Alison (1994). The Politics of Human Rights in Argentina:
Protest, Change, and Democratization. Stanford, Calif.: Stanford
University Press.

Feitlowitz, Marguerite (1998). A Lexicon of Terror: Argentina and
the Legacies of Torture. Oxford, U.K.: Oxford University Press.

Human Rights Watch. "Yearly Reports, Argentina." Available from
http://www.hrw.org.

Romero, Luis Alberto (2002). A History of Argentina in the
Twentieth Century. State College: Penn State University Press.

James Brennan

       Genocide in Argentina

                Conclusion

          Amnesty Argentina

                       By Michael P. Scharf

In order to end an international or internal conflict, negotiations
often must be held with the very leaders who are responsible for
war crimes and crimes against humanity. When this is the case, some
argue that insisting on criminal prosecutions can prolong the conflict,
resulting in more deaths, destruction, and human suffering.
Reflecting this view, peace arrangements reached over the past two
decades in Argentina, Cambodia, Chile, El Salvador, Guatemala,
Haiti, Sierra Leone, South Africa, and Uruguay have granted
amnesty to members of former regimes who allegedly had
committed international crimes. With respect to Cambodia, El
Salvador, Haiti, and South Africa, the United Nations pushed for,
helped negotiate, and/or endorsed the granting of amnesty as a
means of restoring peace and democratic government.

The term amnesty is derived from the Greek word amnestia,
meaning forgetfulness or oblivion. Legally, amnesty is an act of
sovereign power immunizing persons from criminal prosecution for
past offenses. The practical equivalent of amnesty occurs when
asylum is granted to a former leader by a neighboring state, as in
the case of former Ugandan ruler Idi Amin in Saudi Arabia, former
Haitian leader Jean Claude "Baby Doc" Duvalier in France, former
Ethiopian leader Megistu Haile Mariam in Zimbabwe, former
Haitian leader General Raoul Cedras in Panama, and former
Liberian leader Charles Taylor in Nigeria.

        Interests Favoring Amnesty

The leaders of all parties to a conflict must agree to cooperate in
order to end the fighting and halt violations of international
humanitarian law. However, they have no incentive to agree to a
peace settlement if, following the agreement, they could find
themselves or their close associates facing potential life
imprisonment. Three case studies—Haiti, South Africa, and
Liberia—show that the offer of amnesty or asylum may induce
human rights violators to agree to peace and to relinquish power.

                         Haiti

From 1990 to 1994 Haiti was ruled by a military regime, headed by
General Raoul Cedras and Brigadier General Philippe Biamby that
executed over three thousand civilian political opponents and
tortured hundreds of others. The United Nations mediated
negotiations at Governors Island in New York Harbor, during which
Haiti's military leaders agreed to relinquish power and permit the
return of democratically elected President Jean-Bertrand Aristide
in exchange for a full amnesty for the members of the military
regime and a lifting of the economic sanctions imposed by the UN
Security Council. Under pressure from the UN mediators, Aristide
agreed to the amnesty clause of the Governors Island Agreement.
The UN Security Council approved the agreement, which it later
said, "constitutes the only valid framework for resolving the crisis in
Haiti." When the military leaders initially failed to comply with the
Governors Island Agreement, on July 31, 1994, the Security Council
took the extreme step of authorizing an invasion of Haiti by a
multinational force. On the eve of the invasion, September 18, 1994,
General Cedras agreed to retire his command "when a general
amnesty will be voted into law by the Haitian parliament." The
amnesty permitted Aristide to return to Haiti and reinstate a civilian
government, the military leaders left the country, much of the
military surrendered their arms, and most of the human rights
abuses promptly, if temporarily, ended.

                   South Africa

Until 1994 black South Africans were routinely abused under the
then-operative, segregationist system known as apartheid. Facing
the prospect of civil war, the outgoing administration, then headed
by F. W. de Klerk, made some form of amnesty a condition for the
peaceful transition of power. The leaders of the majority black
population decided that the commitment to afford amnesty was a
fair price to pay for a relatively peaceful transition to full
democracy. In accordance with the negotiated settlement between
the major parties, on July 19, 1995, the South African Parliament
created a Truth and Reconciliation Commission, consisting of a
Committee on Human Rights Violations, a Committee on Amnesty,
and a Committee on Reparation and Rehabilitation. Under this
process, amnesty would be available only to individuals who
personally applied for it and who fully disclosed the facts of their
apartheid crimes. After conducting 140 public hearings and
considering 20,000 written and oral submissions, the South African
Truth Commission published a 2,739-page report of its findings on
October 29, 1998. Most observers believe the amnesty in South
Africa helped to defuse tensions and avoid a civil war. Others
believe it was a means for both sides to cover up crimes they had
committed.

                         Liberia

Beginning in 1980 Liberia experienced a series of bloody coups.
Factional fighting repeatedly flared up during the 1990s. Conflict
under the presidency of Charles Taylor left more than 100,000
Liberians dead between 1997 and 2002. In August of 2003, Taylor
was indicted by the Special Court for Sierra Leone on the charge of
"bearing the greatest responsibility" for war crimes and crimes
against humanity in Sierra Leone, which shares a border with
Liberia. With rebel troops on the verge of taking over the populous
Liberian capitol of Monrovia, Taylor was induced to relinquish
power and leave Liberia in return for a guarantee of asylum in
Nigeria. This action immediately brought the fighting in Liberia to a
halt, and thereby may have saved the lives of hundreds of thousands
of civilians in Monrovia who otherwise would have been caught in
the crossfire had Taylor and his supporters been forced to make a
last stand against the rebels.

             Amnesty with Accountability?

As in both Haiti and South Africa, the offering of amnesty may be
tied to accountability mechanisms. Sometimes the concerned
governments have made monetary reparations to the victims and
their families, established truth commissions to document the abuses
(and sometimes identify perpetrators by name), or instituted
employment bans and purges (referred to as "lustration") that keep
such perpetrators from positions of public trust. While not the same
as criminal prosecution, these mechanisms may encompass much of
what justice is intended to accomplish: prevention, deterrence,
punishment, and rehabilitation. Indeed, some experts believe that
these mechanisms do not merely constitute "a second best
approach" when prosecution is impracticable, but that in many
situations they may be better suited to achieving the aims of justice.

                 The Benefits of Prosecution

Although providing amnesty or asylum to perpetrators may
sometimes be seen as necessary to achieve peace, there are several
important countervailing considerations favoring prosecution. In
particular, prosecuting persons responsible for violations of
international humanitarian law can serve to discourage future
human rights abuses, deter vigilante justice, and reinforce respect
for law and the new democratic government. Although such
prosecutions might initially provoke resistance, many analysts
believe that national reconciliation cannot take place as long as
justice is foreclosed. Professor Cherif Bassiouni, chairman of the
UN investigative Commission for Yugoslavia and author of
Searching for Peace and Achieving Justice: The Need for
Accountability, has said that "if peace is not intended to be a brief
interlude between conflicts," then it must be accompanied by justice.

Failure to prosecute leaders responsible for human rights abuses
may breed contempt for the law and encourage future violations.
The UN Commission on Human Rights and its Sub-Commission
issued a Report on the Consequences of Impunity, in which it
concluded that impunity is one of the main reasons for the
continuation of grave violations of human rights throughout the
world. Fact-finding reports on Chile and El Salvador indicate that
the granting of amnesty or impunity in those countries had led to an
increase in abuses.

A new or reinstated democracy needs legitimacy, which in turn
requires a fair, credible, and transparent accounting of what crimes
may have taken place and who was responsible during the pre-
democratic regime. Criminal trials, especially in cases involving
widespread and systematic abuses, can generate just such a
comprehensive record of the nature and extent of violations, how
they were planned and executed, the fate of individual victims, who
gave the orders, and who carried them out. While there are various
means to develop the historic record of such abuses, the most
authoritative rendering of the truth occurs through the crucible of a
trial that accords full due process. United States Supreme Court
Justice Robert Jackson, who served as Chief Prosecutor at the
Nuremberg Trials, underscored the logic of this proposition in his
Report to the President, in which he stated that the most important
legacy of the Nuremberg trial was the documentation of Nazi
atrocities "with such authenticity and in such detail that there can
be no responsible denial of these crimes in the future." According to
Jackson, the establishment of an authoritative record of abuses that
would endure the test of time and withstand the challenge of
revisionism required proof "of incredible events by credible
evidence."

There is also a responsibility to provide justice to the victims and
their families. Serious crimes against persons, including rape and
murder, require holding the violators accountable for their acts.
Prosecuting and punishing the violators gives significance to the
victims' suffering and serve as partial remedy for their injuries.
Moreover, prosecutions help restore the victims' dignity and
prevent private acts of revenge by those who, in the absence of
justice, might take it into their own hands.

Failure to punish former leaders who were responsible for
widespread human rights abuses encourages cynicism about the rule
of law and distrust toward the political system. To the victims of
human rights crimes, amnesty represents the ultimate in hypocrisy.
When those with power are seen to be above the law, the ordinary
citizen will never come to believe in the principle of the rule of law
as a fundamental necessity in a democratic country.

Finally, amnesty risks encouraging rogue regimes in other parts of
the world to engage in gross abuses. Richard Goldstone, the former
prosecutor of the International Criminal Tribunal for the Former
Yugoslavia has concluded that the failure of the international
community to prosecute Pol Pot, Idi Amin, Saddam Hussein, and
Mohammed Aidid, among others, encouraged the Serbs to launch
their policy of ethnic cleansing in the former Yugoslavia with the
expectation that they would not be held accountable for their
international crimes. When the international community encourages
or endorses an amnesty for human rights abuses, it sends a signal to
other regimes that they have nothing to lose by instituting
repressive measures—if things start going badly, they can always
bargain away their crimes by agreeing to peace.

             Overriding the Grant of Amnesty

In a few narrowly defined situations there is an international legal
obligation to prosecute and failure to prosecute can itself amount to
an international wrong. An amnesty given to the members of a
former regime could be invalidated in a proceeding before the
state's domestic courts or an international forum. Moreover, it
would be inappropriate for an international criminal court to defer
to a national amnesty if the amnesty violates obligations contained
in the very treaty that makes up the subject matter of the court's
jurisdiction.

The prerogative of a state to issue an amnesty for an offense can be
circumscribed by treaties to which the state is a party. Several
international conventions clearly include a duty to prosecute the
humanitarian or human rights crimes defined therein, including the
grave-breaches provisions of the 1949 Geneva Conventions, the
Genocide Convention, and the Torture Convention. When these
Conventions are applicable, the granting of amnesty or asylum to
persons responsible for committing the crimes defined therein would
constitute a breach of a treaty obligation for which there can be no
excuse or exception.

              The 1949 Geneva Conventions

Each of the four Geneva Conventions negotiated in 1949 contains a
specific enumeration of "grave breaches," which are war crimes for
which there is individual criminal liability and for which states have a
corresponding duty to prosecute or extradite. Grave breaches
include willful killing, torture, or inhuman treatment, willfully
causing great suffering or serious injury to body or health, extensive
destruction of property not justified by military necessity, willfully
depriving a civilian of the rights of fair and regular trial, and
unlawful confinement of a civilian.

Parties to the Geneva Conventions have an obligation to search for,
prosecute, and punish perpetrators of grave breaches of the Geneva
Conventions, unless they choose to hand over such persons for trial
by another state party. The Commentary to the Geneva
Conventions, which is the official history of the negotiations leading
to the adoption of these treaties, confirms that the obligation to
prosecute grave breaches is "absolute," meaning that signatories to
the conventions can under no circumstances grant perpetrators
immunity or amnesty from prosecution for grave breaches of the
conventions.

States or international tribunals may prosecute persons who commit
war crimes in internal armed conflicts, whereas the duty to
prosecute grave breaches under the Geneva Conventions is limited
to the context of international armed conflict. There is a high
threshold of violence necessary to constitute a genuine armed
conflict, as distinct from lower level disturbances such as riots or
isolated and sporadic acts of fighting. Moreover, to be an
international armed conflict, the situation must constitute an armed
conflict involving two or more nations, or a partial or total
occupation of the territory of one nation by another.

                  The Genocide Convention

Most of the countries of the world are party to the Genocide
Convention, which entered into force on January 12, 1952, and the
International Court of Justice has determined that the substantive
provisions of the Convention constitute customary international law
that is binding on all states. Like the Geneva Conventions, the
Genocide Convention imposes an obligation to prosecute persons
responsible for genocide as defined in the Convention. It says that
all persons who commit genocide shall be punished, irrespective of
their official position. Furthermore, states are required to enact
legislation and to provide effective penalties for criminal
prosecutions of genocide.

                    The Torture Convention

Although the Torture Convention entered into force in 1987, it has
not been widely ratified and currently has less than ninety state
parties. The Torture Convention requires each state party to ensure
that all acts of torture are offenses under its internal law, establish
its jurisdiction over such offenses in cases where the alleged
offender is present in a state's territory, and if such a state does not
extradite the alleged offender, the convention requires it to submit
the case to its competent authorities for the purpose of prosecution.
Although there is no comparable treaty requiring states to prosecute
crimes against humanity generally, where there are specific
allegations that the crime against humanity included systematic acts
of torture, and where the relevant states are parties to the Torture
Convention, the granting of amnesty or asylum would violate the
treaty's clear duty to prosecute or extradite.

          General Human Rights Conventions

General human rights conventions include the International
Covenant on Civil and Political Rights, the European Convention for
the Protection of Human Rights and Fundamental Freedoms, and the
American Convention on Human Rights. Although these treaties do
not expressly require states to prosecute violators, they do obligate
states to ensure the rights enumerated within the conventions.
There is growing recognition in the jurisprudence of the treaty
bodies responsible for monitoring enforcement of these conventions
and the writings of respected commentators that the duty to ensure
rights implies a duty to hold specific violators accountable for at
least certain kinds of violations.

Yet, a careful examination of the jurisprudence of these bodies
suggests that methods of obtaining specific accountability other than
criminal prosecutions would meet the requirement of ensuring the
rights enumerated in the various conventions. This jurisprudence
indicates that a state must fulfill five obligations in confronting gross
violations of human rights committed by a previous regime:

investigate the identity, fate and whereabouts of victims;
investigate the identity of major perpetrators;
provide reparation or compensation to victims;
take affirmative steps to ensure that human rights abuse does not
recur; andpunish those guilty of human rights abuse.
Punishment can take many noncriminal forms, including imposition
of fines, removal from office, reduction of rank, and forfeiture of
government or military pensions and/or other assets.

                              Universal Jurisdiction

In the absence of a treaty containing the duty to extradite or
prosecute, so-called universal jurisdiction is generally thought to be
permissive, not mandatory. Yet, several commentators and human
rights groups have recently taken the position that customary
international law not only establishes permissive jurisdiction over
perpetrators of crimes against humanity, but also requires their
prosecution and conversely prohibits the granting of amnesty to such
persons.

Commentators often cite the UN Declaration on Territorial Asylum
(UN General Assembly Resolution 2312) as the earliest
international recognition of a legal obligation to prosecute
perpetrators of crimes against humanity. The declaration provides
that "states shall not grant asylum to any person with respect to
whom there are serious reasons for considering that he has
committed a . . . crime against humanity." Yet, according to the
negotiating record of this resolution, as discussed in the United
Nations Year Book of 1967:

[t]he majority of members stressed that the draft declaration under
consideration was not intended to propound legal norms or to change
existing rules of international law, but to lay down broad
humanitarian and moral principles upon which States might rely in
seeking to unify their practices relating to asylum (p. 759).

This evidences that, from the onset, the General Assembly
resolutions concerning crimes against humanity were intended to be
aspirational, not binding. To the extent any state practice in this
area is widespread, it is the practice of granting amnesties or de
facto impunity to those who commit crimes against humanity. That
the United Nations itself has felt free of legal constraints in
endorsing recent amnesty for peace deals in situations involving
crimes against humanity confirms that customary international law
has not yet crystallized in this area.

Amnesty and the International Criminal Court (ICC)

At the preparatory conference for the establishment of the
permanent international criminal court in August 1997, the U.S.
Delegation circulated an informal proposal (or "nonpaper")
suggesting that the proposed permanent court should take into
account amnesties in the interest of international peace and national
reconciliation when deciding whether to exercise jurisdiction over a
situation or to prosecute a particular offender. According to the U.S.
text, the policies favoring prosecution of international offenders
must be balanced against the need to close "a door on the conflict of
a past era" and "to encourage the surrender or rein-corporation of
armed dissident groups," thereby facilitating the transition to
democracy. While the U.S. proposal met with criticism from many
quarters, the final text of the Rome Statute contains several
ambiguously drafted provisions which, for better or worse, could
potentially be interpreted as codifying the U.S. proposal.

The preamble of the Rome Statute suggests that deferring a
prosecution because of the existence of a national amnesty would be
incompatible with the purpose of the ICC, namely to ensure criminal
prosecution of persons who commit serious international crimes.
Yet, notwithstanding this preambular language, there are several
articles of the Rome Statute that might be read as permitting the
court under certain circumstances to recognize an amnesty
exception to its jurisdiction. The apparent conflict between these
articles and the preamble reflect the schizophrenic nature of the
negotiations at Rome: The preambular language and the procedural
provisions were negotiated by entirely different drafting groups, and
in the rush of the closing days of the Rome Conference, the drafting
committee never fully integrated and reconciled the separate
portions of the Statute.

With respect to a potential amnesty exception, the most important
provision of the Rome Statute is Article 16. Under that article, the
international criminal court would be required to defer to a national
amnesty if the Security Council adopts a resolution under Chapter
VII of the United Nations Charter requesting the court not to
commence an investigation or prosecution, or to defer any
proceedings already in progress.

The Security Council has the legal authority to require the court to
respect an amnesty if two requirements are met. First, the Security
Council must have determined the existence of a threat to the
peace, a breach of the peace, or an act of aggression under Article
39 of the UN Charter. Second, the resolution requesting the court's
deferral must be consistent with the purposes and principles of the
United Nations with respect to maintaining international peace and
security, resolving threatening situations in conformity with
principles of justice and international law, and promoting respect for
human rights and fundamental freedoms under Article 24 of the UN
Charter.

The decision of the Appeals Chamber of the Yugoslavia Tribunal in
the case of Dusko Tadic suggests that the ICC could assert its
authority to independently assess whether these two requirements
were met as part of its incidental power to determine the propriety
of its own jurisdiction. Jose Alvarez, a commentator writing of the
Tadic appeal decision, has said that this decision "strongly support
[s] those who see the UN Charter not as unblinkered license for
police action but as an emerging constitution of enumerated, limited
powers subject to the rule of law" (1969, p. 249). It is possible, then,
that the international criminal court would not necessarily be
compelled by the existence of a Security Council Resolution to
terminate an investigation or prosecution, were it to find that an
amnesty contravenes international law.

While an amnesty accompanied by the establishment of a truth
commission, victim compensation, and lustration might be in the
interests of justice in the broad sense, it would nonetheless be in
contravention of international law where the grave breaches
provisions of the 1949 Geneva Conventions or the Genocide
Convention are applicable. It is especially noteworthy that the
Geneva Conventions require parties "to provide effective penal
sanctions for persons committing, or ordering to be committed, any
of the grave breaches of the Convention," the Genocide Convention
requires parties "to provide effective penalties for persons guilty of
genocide," and the Torture Convention requires parties "to make
these offenses punishable by appropriate penalties which take into
account their grave nature."

This would suggest that the International Criminal Court might not
defer to the UN Security Council under Article 16 of the Rome
Statute where the accused is charged with grave breaches of the
1949 Geneva Conventions, the crime of genocide, or torture. Yet, a
counter argument can be made that the Rome Statute codifies only
the substantive provisions of the 1949 Geneva Conventions and the
Genocide Convention, and does not incorporate those procedural
aspects of the Conventions that require prosecution. Accordingly,
the nature of the charges might constitute a factor to be considered,
but would not necessarily be a bar to recognizing an amnesty.

Where the UN Security Council has not requested the international
criminal court to respect an amnesty and thereby to terminate a
prosecution, the court's prosecutor may choose to do so under
Article 53 of the Rome Statute. That article permits the prosecutor
to decline to initiate an investigation (even when a state has filed a
complaint) if the prosecutor has concluded that there are
"substantial reasons to believe that an investigation would not serve
the interests of justice." However, the decision of the prosecutor
under Article 53 is subject to review by the pre-trial chamber of the
court. In reviewing whether respecting an amnesty and not
prosecuting would better serve the interests of justice, the pre-trial
chamber would have to evaluate the benefits of a particular amnesty
and consider whether there is an international legal obligation to
prosecute the offense.

When neither the UN Security Council nor the prosecutor have
requested the International Criminal Court to defer to a national
amnesty, the concerned state can attempt to raise the issue under
Article 17(1)(a) of the Rome Statute. That article requires the court
to dismiss a case where "the case is being investigated or
prosecuted by a State which has jurisdiction over it, unless the State
is unwilling or unable genuinely to carry out the investigation or
prosecution." It is significant that the article requires an
investigation, but does not specify that it be a criminal investigation.
The concerned state could argue that a truth commission (especially
one modeled on that of South Africa) constitutes a genuine
investigation. On the other hand, subsection (2) of the article
suggests that the standard for determining that an investigation is
not genuine is whether the proceedings are "inconsistent with an
intent to bring the person concerned to justice"—a phrase which,
read together with the Preamble to the Treaty, might be interpreted
as requiring criminal proceedings.

                             Conclusion

Nearly a decade ago, David J. Scheffer, then U.S. Ambassador-at-
Large for War Crimes Issues publicly remarked: "[o]ne must
understand that amnesty [and asylum] are always on the table in
[peace] negotiations." In his view, there are frequently no legal
constraints to the negotiation of an amnesty for peace deal. This is
because the international procedural law imposing a duty to
prosecute is far more limited than the substantive law establishing
international offenses. But there are situations, such as the cases of
Slobodan Milosevic of Serbia and Saddam Hussein of Iraq—each
accused of grave breaches of the Geneva Conventions and
genocide—where the international procedural law would rule out
amnesty or asylum as a legitimate option for the peacemakers.
Moreover, even in situations where amnesties do not contravene an
applicable international obligation to prosecute, peacemakers must
recognize that amnesties vary greatly. Some, as in South Africa,
which are closely linked to mechanisms for providing accountability
and redress, may be a legitimate diplomatic tool; others, as with the
grant of asylum in 2003 for Charles Taylor in Nigeria, may be widely
viewed as just another case of former leader "getting away with
murder."

SEE ALSO Impunity; National Laws; Prosecution; Sierra Leone
Special Court; Truth Commissions; Universal Jurisdiction

BIBLIOGRAPHY
Akhavan, Payam (1996). "The Yugoslavia Tribunal at a Crossroads:
The Dayton Peace Agreement and Beyond." Human Rights
Quarterly 19:259–282.

Alverez, Jose (1996). "Nuremberg Revisited: The Tadic Case."
European Journal of International Law 7:245–255.

Bassiouni, M. Cherif (1996). "Searching for Peace and Achieving
Justice: The Need for Accountability." Law and Contemporary
Problems 59:9–22.

Minow, Martha (1998). Between Vengeance and Forgiveness.
Boston: Beacon Press.

Morris, Virginia, and Michael P. Scharf (1995). An Insider's Guide
to the International Criminal Tribunal for the Former Yugoslavia.
Irving-on-Hudson, N.Y.: Transnational Publishers.

Orentlicher, Dianne (1991). "Settling Accounts: The Duty to
Prosecute Human Rights Violations of a Prior Regime." Yale Law
Journal 100:2537–2577.

Roht-Arriaza, Naomi (1990). "State Responsibility to Investigate
and Prosecute Grave Human Rights Violations in International
Law." California Law Review 78:451–481.

Roht-Arriaza, Naomi (1995). Impunity and Human Rights in
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Scharf, Michael P. (1996). "The Letter of the Law: The Scope of
the International Legal Obligation to Prosecute Human Rights
Crimes." Law and Contemporary Problems 59:41–61.

Scharf, Michael P. (1997). "The Case for a Permanent International
Truth Commission." Duke Journal of Comparative and International
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Scharf, Michael P. (1999). "The Amnesty Exception to the
Jurisdiction of the International Criminal Court." Cornell
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Simma, Bruno (1995). International Human Rights and General
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Weisman, Norman (1972). "A History and Discussion of Amnesty."
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Michael P. Scharf

                     Epilogue

            The Benes Decrees

     By Johannes Rammund De Balliel-Lawrora

In seems incredible that the torture, Abuses, rapes, and murders of
innocent non-combatant old persons, women of any age, and children
were committed against millions of them in the Sudetenland,
Prussia, Danzig, Poland, Yugoslavia, Romania and Hungary, which
was completely ignored by the Rome Conference. Of course Mr.
(Benes?) had lovingly decreed that the perpetrators of these tragic
war after-maths be absolved from any punishments whatsoever.
Even though the people that were raped, tortured, crucified, and
murdered were innocent of any crimes, except that they were of
German heritage. These "Teufelonian Barbaric Butchers" were all
given a blanket amnesty of ever being tried for their crimes against
humanity. These criminals were absolved from ever being
prosecuted and the decrees were all supported by the former allied
nations including Communistic Union of Soviet Socialist Republics,
whose military along with the partisans were also an active party
too! Genocide of a whole people, nation, or race, thereof, cannot be
condoned, and the parties involved should be prosecuted by an
international tribunal, even if they are charged and convicted in
absentia...

World

History