Serie III: Impunity and the Truth



Spanish Criminal Prosecutions Use International Human Rights Law to Battle Impunity in Chile and Argentina

Prof. Richard J. Wilson
International Human Rights Law Clinic
Washington D.C.

On March 28, 1996, Spanish prosecutors, later joined by private citizens, filed criminal charges of genocide and terrorism against former military leaders of Argentina and their collaborators.(1) The action, which began with less than 10 named victims, now includes more than 300 persons of Spanish nationality or their relations lost in the Argentine Dirty War (1976-1983), in which up to 30,000 persons were murdered or disappeared. On July 1, a similar action was undertaken against the Chilean military junta, which held control there between 1973 and 1989, by prosecutors in Valencia, Spain.(2) Magistrates Baltazar Garzón and Manuel García-Castellón, well-known, aggressive and incorruptible judges who are pressing the prosecutions in the Argentine and Chilean cases, respectively, in separate Madrid courtrooms. Judge Garzón became famous in Spain when he directed investigations into allegations of state involvement in death squad activity against Basque separatist group ETA and its supporters in the mid-1980s, which led, according to many, to the fall of the government of former Socialist Prime Minister Felipe Gonzalez.(3)

On July 25, 1996, Judge Castellón accepted Spanish jurisdiction over the Chilean case and began an investigation, while Judge Garzón has done the same, with 14 investigators assigned to the case.(4) Not surprisingly, the Argentine authorities recently rejected formal cooperation in the investigation, noting "serious formal deficiencies" in the transmission of the Spanish judge's request for assistance in his investigations there. The message from Argentine President Carlos Menem's office left little doubt of its ultimate intentions when it stated that the investigation would not be opened "even if the formal errors are corrected."(5)

The prosecutor who formally filed both actions was Miguel Miravet, acting as president of the Progressive Association of Prosecutors of Spain. That action was enough to set the criminal process in motion, but did not constitute an official, public decision to prosecute. The later private criminal action, filed by United Left, the third-largest political party in Spain, is known in Spanish law as the acción popular, or popular action, and may be brought by any Spanish citizen, regardless of injury or other standing, in the public's interest.(6) It permits the party filing to continue to pursue the matter as a private prosecutor, whatever may be the public prosecutor's position. In fact, Spanish Board of Attorneys, which oversees operations of the Attorney General's office, initially opposed the action, but ultimately cleared the way for the popular action by voting to "neither oppose nor support the prosecution."(7) In the Chilean action, a 1958 Spanish-Chilean convention on dual citizenship permits any Chilean, whether resident in Spain or not, to file suit in Spanish court with the same rights as any Spanish citizen.(8)

The private Spanish lawyers have worked closely on the Argentine case with Peace and Justice Service (SERPAJ), the well-known NGO in Argentina headed by Nobel Peace Prize- winner Adolfo Pérez Esquivel. Mr. Pérez Esquivel has testified in the Spanish case to his own story of illegal detention and torture as evidence in the Spanish case. The Spaniards traveled to Argentina to take evidence in the case, and have been told that some of the ranking military veterans of the Dirty War would be willing to testify in Spain if their protection could be guaranteed. Among the most prominent of the now-remorseful soldiers is ex-navy officer Adolfo Scilingo, who publicly confessed his own role in airplane or helicopter flights in which thousands of suspected leftists detained at the Navy School of Mechanics were thrown to their deaths in the Plate River, which flows through Buenos Aires.(9)

The actions are name military leaders of Argentina and Chile and others for their involvement in the kidnaping, torture, murder or disappearance of Spanish nationals and their families. The Argentine complaint names, among others, Generals Jorge Rafael Videla, Reynaldo Bignone and Leopoldo Galtieri, as well as the current governor of Argentina's Túcuman province, retired General Antonio Bussi.(10) The Chilean complaint names army chief General Augusto Pinochet, as well as retired Admiral Toribio Merino and Generals Gustavo Leigh and Cesar Mendoza, all part of the ruling junta in that era.(11) The defendants include not only military leaders of both countries but also intelligence chiefs, commanders of clandestine jails, and doctors who attended and monitored victims during torture sessions. The Chilean actions further accuse Chilean security police, principally the DINA (National Directorate of Intelligence), of involvement in the killings or attempted assassinations of such notables as Chilean General Carlos Pratts in Buenos Aires in 1974, former Vice-President Bernardo Leighton in Rome in 1975, former senator Carlos Altamirano in Madrid in 1976, former foreign minister Orlando Letelier and his aide, Ronni Moffitt, in Washington, D.C. in 1976, as well as Spanish diplomat Carmelo Soria, killed in Santiago in 1976.

While the military in both countries has generally enjoyed domestic protection from prosecution due to broad grants of amnesty and weak judicial systems,(12) Spanish law recognizes the concept of universal jurisdiction for criminal offenses(13) and codifies international crimes in its domestic statutes. Spanish law includes the offences of genocide(14) and terrorism.(15) Although Spain does not explicitly recognize the crime of disappearance, the complaints charge the underlying offenses of illegal detention, kidnaping and murder with regard to those factual situations. Both complaints include allegations of "child snatching" regarding efforts to discover the whereabouts of some 40 infants who were sold or given away after being born to disappeared pregnant women who were killed in custody. Another innovative charge is air piracy with regard to the Argentine military's practice of pitching political opponents from airplanes over open water.(16)

Because of long US involvement in the Letelier investigation and prosecutions, the Spanish prosecutors have asked the US, through letters rogatory (17) to the Attorney General and the Justice Department, to turn over any information which they might have about crimes against humanity in Chile and the region. News accounts indicate that testimony in the cases will include that of former FBI agent Carter Cornick, who was involved in the Letelier investigations.(18) After some initial indications of US knowledge in the matter, the investigations have been expanded to include FBI files on Operation Condor, a military intelligence network covering the Southern Cone countries and centered in Santiago, Chile, one of the explicit goals of which was the elimination of political adversaries in other countries.(19)

The Spanish authorities have requested extradition, but the authorities in both Chile and Argentina thus far have refused to cooperate. Spain cannot force the generals to appear, and they cannot be tried in absentia in Spain, as has been the case in some of the other prosecutions which preceded this one in Europe. The Spanish government has wholly supported the actions of the judges, and if evidence is sufficient, arrest warrants could issue for the accused through INTERPOL, thus effectively confining them to their home countries.

Despite the fact that it has gone largely unnoticed in the US, the Spanish prosecutions are the continuation of a series of criminal actions in Europe and elsewhere over many years:

* In Italy, prosecutions have been pursued since the mid-seventies, all for involvement of the Argentines in the killing of Italian nationals. It is estimated that more than 600 persons of Italian descent were disappeared during the dirty war.(20) The litigation is coordinated by the League for Rights and the Liberation of Peoples, which has been influential in advancing the prosecution of Erik Priebke, the accused Nazi SS officer, for his involvement in the Ardeantine Caves massacre in Italy.(21) The Preibke action has revived interest in the Argentine litigation there, on which hearings were scheduled for January 14, 1997;

* In France, Argentine Captain Alfredo Astiz, the so-called "Blond Angel," was convicted and sentenced in absentia to life imprisonment in 1990 for his role in the torture and disappearance of two French nuns whose bodies have never been found. He is unable to leave Argentina now without running the risk of arrest by INTERPOL agents.(22) New calls for his extradition followed assertions by Capt. Scilingo that he knew of the nuns' disappearance and Astiz's public denials of any role in the killings;(23)

* Sweden filed legal actions in Argentina and requested the extradition of Astiz for his role in the murder of Dagmar Hagelin, a 17-year old Swedish student who disappeared in 1977, but the legal action remains unresolved;(24)

* In Honduras, human rights ombudsman Leo Valladares has accused Argentine military officials and the CIA of involvement in the training of Honduran military officials in methods which violate international humanitarian and human rights law. Although promised information by Argentine President Menem on the full extent of his country's military involvement in such activities, the government has refused to reveal it to date. The U.S. President, Bill Clinton, has been more forthcoming, stating that the Department of Defense is "in the final stages" of its review of documents to be declassified for Dr. Valladares ;(25)

* In the United States, although no criminal prosecutions have been pursued, private attorneys have made effective use of the Alien Tort Claims Act(26) to prove civil liability and to win large awards for damages against Argentine military figures involved in violations of international human rights.(27)

The Chilean case took on greater urgency when, in August of last year, the Chilean courts applied the 1978 national amnesty law to close their investigations into the death of the Spanish diplomat Carmelo Soria, killed there in 1976, despite strong evidence of DINA involvement in his death and the assertion, by family members, that murder of a diplomat was not covered by the amnesty.(28) In December, the Spanish cases were given moral support by a strongly worded resolution of the European Parliament in support of human rights enforcement.(29) The Spanish lawyers are actively talking with lawyers from other European countries, particularly Germany, about what further legal actions can be taken.

1. Richard S. Serrill, "Dirty War" Crimes: A Resolute Spanish Judge Seeks Justice for the Victims of a Shameful Episode in Argentina's Past", TIME, Oct. 21, 1996; Marlise Simons, Unforgiving Spain Pursues Argentine Killers, N.Y. TIMES, Oct. 24, 1996, at A3.

2. Tito Drago, Chile: Pinochet Accused of Genocide Before a Spanish Court, Inter-Press Service, July 4, 1996.

3. Giles Tremlett, Spanish Party Urges Argentine Prosecution, BC Cycle, May 7, 1996.

4. Entrevista con el abogado español, representante de la acusación popular en el jucio contra Pinochet [Interview with the Spanish lawyer, representative in the popular accusation in trial against Pinochet], 5 Sept. 1996. Extremely useful information and background on the materials in this article can be found (mostly in Spanish) in a web site created by a Spanish and US group of human rights activists known as Equipo Nizkor. The site is <>. Within the site are country materials from Argentina and Chile, from which many references are made here, and for which more specific hard-copy references are unavailable. Unless otherwise indicated, all cites to the Spanish-language materials in these footnotes are to the Equipo Nizkor site, and all Spanish translations are my own.

5. Gobierno rechaza petición española para abrir investigación [Government rejects Spanish request to open investigation], Jan. 16, 1997.

6. The popular action is embodied in several provisions of Spanish law. The Constitution, in its article 125, says, "Citizens may exercise popular action and participate in the Administration of Justice. . .". Constitution of Spain [in English] (as amended, 27 Aug. 1992). In the Law of Criminal Procedure, Article 101 provides that "[t]he criminal action is public. All Spanish citizens may exercise it in accordance with the Law." Ley de Enjuiciamiento Criminal (14 de septiembre de 1882). Article 270 states that "[a]ll Spanish citizens, whether or not they are victims of the crime, may file an action [querellarse], by exercising the popular action established in article 101 of this Law." Article 270 extends the right to access to the criminal process even to foreigners, if certain minimum prerequisites are met. Article 20.3 of the Organic Law of the Judicial Branch guarantees that the popular action can be exercised without cost. Ley Orgánica del Poder Judicial, Ley orgánica 6/1985, de 1 de julio.

7. Tremlett, supra, n. 3; see also, Ejerce la Acción Popular la Coalición Izquierda Unida en España [United Left Coalition Files Popular Action in Spain], May 6, 1996.

8. Tito Drago, Human Rights: Spanish Judges Press Latin American Dictators, Inter Press Service, Sept. 15, 1996.

9. Argentine Dirty War Vets May Give Evidence, Reuters North American Wire, Sept. 24, 1996.

10. Serrill, supra, n.1.

11. Drago, supra, n.2.

12. See, Jaime Malamud-Goti, Punishing Human Rights Abuses in Fledgling Democracies: The Case of Argentina, and Jorge Mera, Chile: Truth and Justice under the Democratic Government, in IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND PRACTICE 160, 171 (Naomi Roht-Arriaza ed. 1995).

13. Ley Orgánica del Poder Judicial, Ley orgánica 6/1985, de 1 de julio, Art. 23.4 (a) and (b). That statute permits the exercise of Spanish criminal jurisdiction, "although the offense may have been committed outside of national territory, if committed by a national or foreigner" and if specifically codified in Spanish law. Genocide and terrorism are listed specifically in the statute.

14. Código Penal, Ley Orgánica 10/1995, 23 de noviembre, Art. 607. Genocide can be charged when anyone, "with the objective of total or partial destruction of a national, ethnic, racial or religious group," commits the following acts: "killing of some of its members; sexual assault on some of its members; submission of the group or any of its individual members to living conditions which put their lives in danger or seriously endanger their health; carrying out forced relocation of the group or its members, or adoption of any measure which tends to impede its regeneration or reproduction; or any forced movement of individuals of one group from another." The complaint takes great pains to develop the statutory antecedents to the current offense of genocide in effect during the relevant time periods involved. At this time, the author does not have access to the text of those historical provisions.

15. Article 571 punishes as terrorists "those who, acting in the service of or collaborating with armed bands, are members of organizations or groups whose objective is subversion of constitutional order or grave alteration of public peace, and who commit the offenses of havoc (estragos) or arson." The penalty is raised if the offense causes injury or death occurs to persons. Article 572.

16. Serrill, supra, n. 1.

17. 28 U.S.C. §1782. The U.S. also has a Mutual Legal Assistance Treaty (MLAT) with Spain, which permits broader investigative requests. See, Jordan J. Paust et al., INTERNATIONAL CRIMINAL LAW: CASES AND MATERIALS 558 (1996).

18. Giles Tremlett, Spanish Courts Give Hope to Latin America, U.P.I., Dec. 11, 1996.

19. Ampliación de la Denuncia por otros asesinatos cometidos durante la Operación Condor, [Expansion of criminal complaint for other assassinations committed during Operation Condor], 20 de septiembre de 1996.

20. Argentine Junta Accused of Role in Italian's Deaths, Agence France Presse, May 7, 1996.

21. Italian Supreme Court to Rule Feb 10 on Court to Try Priebke, Agence France Presse, Jan. 14, 1997.

22. Serrill, supra, n. 1

23. Argentine Captain Sentenced in Absentia for Torturing Nuns, Reuters, March 16, 1990.

24. Argentina to Question Dirty War Man on Swedish Girl, Reuters North American Wire, July 10, 1996.

25. Juan D.W., Honduras: la CIA y los Militares Argentinos Responsables de la Represión, [Honduras: the CIA and the Argentine Military Responsible for Repression], Nov. 1, 1996; Letter from Pres. Bill Clinton to Congresswoman Elizabeth Furse, Jan. 7, 1997.

26. 28 U.S.C. § 1350 (1988).

27. See, e.g., Quiros de Rapaport, et al., v. Suarez-Mason; Forti v. Suarez-Mason; Martinez-Baca v. Suarez- Mason; Seiderman v. Argentina, cited in Beth Stephens and Michael Ratner, INTERNATIONAL HUMAN RIGHTS LITIGATION IN U.S. COURTS, Appendix K, at 343-345 (1996). -

28. Chile Closes the Book on Spanish Diplomat's Murder, Reuters North American Wire, Aug. 23, 1996.

29. European Parliament, Resolution on Human Rights Throughout the World in 1995-1996 and the Union's Human Rights Policy, A4-0400/96, Dec. 12, 1996.

Article originally published in ACLU Int'l Civil Liberties Report, Jan. 1997.

Cite as: Wilson, Richard Spanish Criminal Prosecutions Use International Human Rights Law to Battle Impunity in Chile and Argentina KO'AGA ROÑE'ETA se.iii (1996) -

Impunity and Truth
Ko'aga Roñe'eta, Series III


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