The strategy of denial of Navy Captain Scilingo fails.

The session of Friday 21st January 2005 in the hearing of the Scilingo trial did not last long. Almost as soon as it started, the president of the tribunal announced a recess at the request of Adolfo Scilingo's defence lawyer, in order that the lawyer could prepare for the examination of the defendant which he was to carry out on 24th January pursuant to procedural law.

The examination of the defence took place on 24th January. This was dedicated in part to reinforcing the strategy of denial. The questions attempted to demonstrate that former Navy Captain Scilingo had not studied and had never even heard of the Geneva Conventions nor of international humanitarian law. It is a less than compelling argument given that the Republic of Argentina ratified the Geneva Conventions on 18th September 1956.

The problem does not stem from the fact that there was a war in Argentina, but from the fact that every operational army (which the Argentinian army undoubtedly was) is obliged to comply with the Geneva Conventions. Common Article 3 provides a minimum requirement for the treatment afforded both to prisoners of war and the civilian population. Similarly, it is evident that, although there was not a war in the sense that there were belligerent forces, the Argentinian armed forces took the position that they were at war. As one of the commanders-in-chief admitted during his trial, they did not consider it necessary to comply with the Conventions because they believed they were dealing with criminals not belligerents.

Following the examination of the accused, the trial reached the point where the long list of witnesses were scheduled to give their testimony. First to be heard will be the witnesses physically present in Madrid and thereafter from about 7th February the witnesses located in Buenos Aires will give their testimony. For this last group, the Spanish Audiencia Nacional will use video-conferencing, a method which is allowed pursuant to the agreements concerning legal co-operation between Spain and the Republic of Argentina.

Until now the proceedings have followed a course where the accused has taken an active part in his own defence. On various occasions, he has put some of the prosecuting lawyers in an awkward situation where it has been clear that they have not properly prepared their examination or have failed to use the appropriate strategy in confronting ex-Captain Scilingo.

The principal error has been the failure to consider the psychology of the accused and his training as a Naval officer. In addition there is no thorough knowledge of the facts underlying the indictment. In addition to these problems there are increasingly evident differences of interpretation between the various prosecutors. These differences arise from consideration of the facts either in the light only of internal law or in the light of both internal and international law.

Until the lawyer representing the Attorney-General's office began her examination, it appeared that the Naval officer was scoring many of the points. But the production and playing of approximately 11 hours of his statements originally made to the investigating judge, recorded on several audio-cassettes, put the matter back into perspective.

The voice of the Naval officer as he recounted the facts, circumstances and details to the investigating judge, was more than many of the family members present at the trial could bear and they were forced to leave the courtroom.

It is clear that the level of detail in the statement of the ex-Captain is consistent with the statements of witnesses in other cases as well as with the general understanding of the conduct of the War Navy and the evidence that was admitted in the Argentinian Supreme Court in the trials of the commanding officers in the case known as "Causa 13".

His 'denial', therefore is logically inconsistent, and conflicts with the testimonies and the the conduct of the Escuela Superior de Mecanica de la Armada (ESMA)

Similarly, if one thing has become clear in these first sessions, it is that no influence was exercised over ex-Captain Scilingo when he made his statements to the investigating judge, and that these statements were made to the judge with all necessary procedural guarantees. Furthermore, his visit to Madrid was entirely voluntary and was not made as a result of any agreement or deal.

In his explanations with respect to what he actually knew, he resorted to the same technique used by Eichmann in his trial held in Jerusalem. His line of defence was based on the argument that he was merely a specialist. At that time, Eichmann explained to the judges in detail how he had made the calculations of the number of persons who could be transported in the various types of freight wagon of the German railway company, but he stressed that he was simply a technician and that he did not know either the identity of the persons who would be transported or the destination where they would be taken.

The Task Force of the War Navy used stolen cars and the sadly infamous "Ford Falcon" without identification. They even set up a modern maintenance plant on site at ESMA.

This served as a substitute for the railway cars used in Eichmann's final solution, but like him, Adolfo Scilingo did not know what the cars were being used for, nor did he even find it curious that he had hundreds of stolen cars to maintain at ESMA.

But the Captain knew or should have known what was going on there; that is what is known in law as the doctrine of command responsibility. That responsibility arose from his position and his role as a staff officer at ESMA.

It also arises from his voluntary membership of the Extermination Group of the Argentinan War Navy, particularly given that the crimes against humanity committed by this group is now matter of record in Causa 13 at which trial the commanding officers involved were convicted.

Madrid, 26Jan05
Equipo Nizkor - Nizkor's Team

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