阿根廷人权事务秘书胡安•马丁•弗雷斯内达（Juan Martin Fresneda）在介绍报告时表示阿根廷前总统内斯托尔•基什内尔（Nestor Kirchner）与现任总统克里斯蒂娜•费尔南德斯•基什内尔（Cristina Fernandez de Kirchner）均对阿根廷的法律框架进行了大力改革，以消除任意拘留和强迫失踪的现象。这些是始于1983年的一项进程的后续工作，如今成绩斐然，阿根廷法律与国际人权和国际刑法实现了融合，确定强迫失踪的行为——无论是在前独裁政权期间国家庇护下还是更近期的的强迫失踪——都是人权罪行，须受到全面的合理制裁。
Presentation of the Report
JUAN MARTIN FRESNEDA, Human Rights Secretary of Argentina, said Argentina had led the fight for the rights of the relatives of the disappeared and had raised awareness of this scourge which had taken place during the dictatorship in the country years ago. Democratic governments of Argentina since that time were clear that enforced disappearance was a “genocidal” practice.
The Government of former President Nestor Kirchner had removed the last remaining legal barriers to justice for the relatives of the disappeared. Historical cases of enforced disappearance were being tackled. However the hangover of a culture of institutional violence and impunity remained to be eliminated with the tragic case of the enforced disappearance of Jorge Julio Lopez being registered as recently as 2006. The Governments of former President Kirchner and the current President, Cristina Fernandez de Kirchner, had progressively reformed the legal framework in Argentina to stamp out the problem of the culture of enforced disappearance.
The harmonization of the Argentine criminal code with international human rights and criminal laws had taken place so that the act of enforced disappearance was now a criminal offence under this framework, with a full range of appropriate sanctions. Jurisprudence clearly established that participation either by commission or omission in historical cases of State-sponsored enforced disappearances was fully provided for in the criminal justice system, including guarantees of the right to fair trial and protection of the accused under the law. With regard to extradition, Argentina was gradually reforming its relationship with external jurisdictions to ensure that no crime against humanity went unpunished. The protection of witnesses and human rights defenders was a priority which Argentina had addressed with a number of institutional and procedural measures. Human rights were guaranteed under the constitution. A law against torture, drafted as a result of Argentina’s participation in the Universal Periodic Review, was now statute and would be implemented shortly.
Turning to monitoring in places of detention, since the creation of the Ministry of Security in 2010, various monitoring regimes had been put in place. The genetic databank that had been set up was now protected under human rights and privacy laws. A system of reparations to those who had suffered from State-sponsored violence was being prepared. Assistance to thousands of citizens affected had been provided. The search for evidence and the ongoing identification of remains of the disappeared went on unabated under various programmes. A project to identify children who were misplaced during the years of dictatorship, who would now be young adults, was also underway.
Finally, the delegation underlined that the aim of the historic dictatorship to cover up its crimes must not be allowed to stand or happen again anywhere else in the region or the world.
Questions from Committee Experts
RAINER HUHLE, Committee Expert and Rapporteur for the report of Argentina, said that no other nation had done more than Argentina to spearhead the International Convention for the Protection of All Persons from Enforced Disappearance when it began to acknowledge and tackle the problem of State-sponsored disappearances in the country almost 30 years ago, and it was to the delegation’s credit that it was here today to report its findings. However, the drafting process of the delegation’s report was a little mysterious, particularly with regard to the participation of non-governmental organizations and other civil society actors. How was the report drafted? What was the constitutional status of the group that had drawn up the report?
The delegation was asked to give an overview of the status of current cases of enforced disappearance: what statistics could it offer on the topic of fresh cases, and what was its analysis of this ongoing problem? Was there a consistent cross-cutting policy to deal with both historical and more recent cases of this crime? Who were the victims of newer cases? Could the delegation please give details on how the authorities had dealt with these cases and any trials that may be pending?
Although the wording of the Convention had been adopted into the criminal code, and this was to be welcomed, how did the code handle the concept of intent? Does the relevant article cover all participants in the crime of enforced disappearance, who could be many and dispersed? Clarification on this matter would be welcome, particularly in the sense of passive conduct which was a serious element in the crime of enforced disappearance.
How advanced was the reform of the entire criminal code and how did the crime of enforced disappearance and related crimes fit in? How did military law relate to the federal criminal system? How had the government learned from the case of Jorge Julio Lopez? The programmes mentioned by the delegation were costly: how would they be funded? What measures were in place to ensure the protection of witnesses and complainants? What measures were in place to protect witnesses who were especially vulnerable due to being in places of detention?
JUAN JOSE LOPEZ ORTEGA, Committee Expert and Co-Rapporteur for the report of Argentina, asked for more clarification from the delegation about due diligence in the handling of evidence during investigations into enforced disappearances. What was the State’s evaluation of the effectiveness of such investigations? Police reform seemed to be an important element of preventing or tackling new cases of enforced disappearance which appeared to be targeted at the young and the poor. The requirement of the Convention that law enforcement officials must not influence the investigation and prosecution of enforced-disappearance cases meant that police reform was urgent.
An Expert asked for clarification from the delegation on Point 21 of the report with regard to the Rome Statute. Tandem definitions of the crime of enforced disappearance in which it was on the one hand seen as a “normal crime” and on the other a crime under the special terms of the Convention seemed at odds. Could the delegation shed any light on this?
Another Expert echoed this point by saying that there was some uncertainty of the definition of the crime of enforced disappearance in the report since there was one definition provided by the Rome Statute which defined the crime as one which had to have happened “over a long period”: this definition did not appear in the version of the crime as defined in the criminal code. Could this be explained? Additionally, could the legal status of accomplices and conspirators to the crime be more clearly elucidated by the delegation?
A third Expert praised the pioneering efforts of Argentina to formulate and establish the terms of the crime of enforced disappearance for itself but also in Uruguay and other South American countries. The Expert posed a question about Article 12 of the Convention, the “duty to investigate”, and ongoing unsolved cases.
Another Expert asked for clarification of Point 27 of the report that touched upon certain exemptions from punishment: how were these exemptions reflected in the criminal code of Argentina?
Responses from the Delegation
In response to these questions and comments and others, the delegation said the question of the drafting of the report under discussion could be answered by stating that it was at the request of the Government and its various ministries and secretariats. It had to be said clearly that information was also solicited from non-governmental organizations working in this field. On the status of the Convention in Argentina, the Convention would be given constitutional rank in time.
With regard to the concept of criminal intent as regard the relevant article of the criminal code, the problem had always been the presentation of evidence to prove intent, and this was difficult. But the other side to this in the Argentine criminal code was that there was no distinction made between ranks in public officialdom with respect to the commission of acts of State-sponsored crimes. Turning to the issue of due obedience in the commission of acts, there was no question that this implied any form of impunity but there was a case to be made that sanctions would be limited. There was no deficit in Argentina in this respect: there was a sufficient range of tools to prevent impunity on grounds of due obedience defences.
With respect to the tandem definitions of the crime mentioned by a Committee Expert, it seemed that the version enshrined in the Argentine law was even more efficient at preventing avoidance of prosecution than the wording in the Rome Statute. However, essentially the laws were the same although the wording in the Argentine criminal code was “lighter” and by implication easier to apply efficiently.
Many in the delegation had been direct victims of the enforced disappearance, with close relatives who had been lost. This was not therefore a remote question for the members of the delegation or indeed many, many people in Argentina. While the disappeared had been presumed to be lost forever, only the hard work of lawyers such as those on the delegation and others led to bodies pulled from lakes.
Before the current framework had been built, lawyers were reduced to attempting to bring perpetrators to count under ordinary notions of homicide or dereliction of military duty. This was said in order to underline the amount of hard work that had gone on in Argentina to “build memory” and tackle the crimes of the past. The work was not done and limits needed to be put in place to prevent such crimes in the future: among the tasks was the democratisation of public institutions, security forces and justice officials – this responsibility remained weighty under Argentina’s federal structure. The cases of enforced disappearance which needed attention met resistance from local judiciaries, where reluctance to apply international norms was high. Small, conservative communities often did not want to involve the police and there were cases of prosecutorial mismanagement. It was difficult to change this in Argentina. The lack of training of the police forces, the ongoing problems of vulnerable communities, all such problems contributed to what could in a way be termed a “war” against enforced disappearance.
Following the high profile controversy of the Jorge Julio Lopez case, Argentina had pressed ahead with making all changes necessary to tackle the phenomenon of enforced disappearance in a way which befitted a modern country. This model may be applied to other countries in South America.
With respect to the question of accomplices, this status was defined in the criminal code in a body of rules in the normal way. The question of the mild punishments meted out to those who abducted children during the years of dictatorship was of grave concern to the Government today, and tribunals had been charged to make progress on this – with unfortunate institutional reluctance which the Government was working hard to overcome. Four hundred children abducted during the dictatorship were still being sought to this day and ways to impose greater punishments for the crime of abduction were being analysed.
In conclusion, the delegation reminded the Committee that there was no statute of limitations on the crime of enforced disappearance: sometimes it was difficult to understand this complex situation in Argentina, but it should be remembered that it had possibly been the only country in the world to reopen crimes from 40 years past without any international or ad-hoc concentration of legal effort. Argentina wished to turn the page on this chapter in its history. The delegation believed that the best way to resolve the issue of the past was to move forward with justice for the victims taking centre stage weeks after President Nestor Kirchner took office, and this spoke to the problem of extradition of those suspects who may have fled before this time. However, Argentina was moving forward on this question of extradition and hoped to make further progress with its international partners.
The question of funding the activities that needed to be undertaken to tackle the issue of enforced disappearance was an important one, and the institutional context in Argentina could learn a lot from the methods of the Universal Periodic Review so that it had a “national Universal Periodic Review” as it were, with troikas, early warning systems, recommendations and the like applied to regions of Argentina.
Questions from Committee Experts
JUAN JOSE LOPEZ ORTEGA, Committee Expert and Co-Rapporteur for the report of Argentina, wanted to nail down the exact constitutional status of the Convention, as well as gain further clarification of the following questions: if enforced disappearance was to be carried out in time of war, would it fall under military jurisdiction? Could the delegation give further information about the Government’s measures to democratise institutions so as to ensure that enforced disappearance was being tackled now?
RAINER HUHLE, Committee Expert and Rapporteur for the report of Argentina, said that he was not sure that the draft criminal code had enough unity with respect to the various aspects of the crime of enforced disappearance to absolutely ensure that it was watertight. Also, the problems of federalism with respect to the application of the law were well known but what could the delegation say to the Committee about this?
An Expert asked in follow-up if the “light” definition of the crime of enforced disappearance as a crime was strong enough to ensure it was being treated as a crime against humanity.
Responses from Delegation
The delegation said Argentina was experiencing a period of transition and the structure of its justice system was being reformed. There had to be a constant drive toward the rule of law and the idea of further democratisation of these institutions. Institutional violence was enshrined under the dictatorship and the terms of the former police state. As they say “you can change the water but the river is the same”, and there was the need for a paradigm shift.
Argentina had a new set of rules but there was always the chance of resistance to apply them in the old ranks of the judiciary. They went through the rituals and called into question the prestige of the legal profession. There was currently a mixed process as Argentina moved from a prosecutorial to an adversarial model, and this was an ongoing process.
The delegation reminded the Committee that in the normal course of events accused people in the military were tried in the criminal justice system. With respect to the exact date of the implementation of the law under question, the delegate promised to get back to the Committee with this information. With regard to police training, the Government was committed to reforming the monitoring and compliance system to improve standards in the law enforcement bodies so as to avoid arbitrary detentions and so on. The central Government had the responsibility to monitor the monitors, while federal authorities needed to step up their work. The reform agenda of Argentina remained a human rights-based agenda.
Questions from Committee Experts
JUAN JOSE LOPEZ ORTEGA, Committee Expert and Co-Rapporteur for the report of Argentina, with regard to non-refoulement provisions covered in the Convention, said that there was no specific mention of this in the Argentine domestic law. However, it was to be imagined that these provisions were covered in such domestic laws, or could be incorporated therewith without problem. Nevertheless Mr. Ortega asked the delegation to clarify judicial provisions in Argentine law with regard to non-refoulement. Did the matter fall under the remit of the Foreign Ministry?
Having listened to civil society, the Co-Rapporteur wanted to know about the problem of administrative detention and what reforms were planned in this area. Turning to the matters of registries, particularly in detention centres, the Rapporteur wanted to know if there was a uniform system for this that complied with the Convention. Was this system computerised? Was there a provision in the Argentine law to hold those who did not keep these registries properly or falsely responsible, as required by the Convention? Were those held in detention guaranteed the right to a lawyer and what was consular representation for those foreigners held? Were visiting rights guaranteed? These matters were covered by the Convention and the Rapporteur wanted to know how they were being complied with. What were the concrete steps taken with regard to legal aid and documentation? How were the preventative provisions given in the Convention being implemented, notwithstanding the institutional reluctance mentioned by the delegation before? There were serious gaps to be plugged in the scenario as thus far presented by the delegation. How were these gaps to be plugged?
What was the system in place to prevent arbitrary transfers? The training of police forces needed to be prioritised. A few cases that had been documented in Argentina could, in the opinion of Mr. Lopez Ortega, be used as textbook cases to train those law enforcement agencies that needed it.
RAINER HUHLE, Committee Expert and Rapporteur for the report of Argentina, asked how the Argentine State was going about making reparations, including financial reparations, to victims of enforced disappearance, and asked the delegation to provide more detail than they had in its presentation on this matter. Additionally, with regard to the right to truth, it seemed the delegation limited their presentation of this topic to judicial exposure of truth; how was Argentina dealing with widening the search for truth, and using ways other than legal ways to expose the truth of enforced disappearance?
With respect to the abduction and enforced disappearance of children, the Rapporteur asked the delegation to provide more detail on what role the children – now young adults – played in dealing with the issue of their past abduction under the new legal framework. How did this subject link up with human trafficking in general?
A Committee Expert asked a further question about the transfer of persons deprived of liberty: in what time frame were families and lawyers notified of such transfers? Another Expert praised the legal definition of enforced disappearance pioneered by Argentina but asked about the rights of those who had disappeared since 1983 after the end of dictatorship. An Expert asked if there was a specific provision in the Argentine legislation about the abduction of children.
An Expert asked about whether secret detention was allowed in Argentina and if so under what modalities? Further clarification was sought by another Expert on the matter of the “fictitious” release of detainees, often a precondition to their disappearance. What did the delegation have to say about that?
Responses from the Delegation
Responding to these questions and comments and others, the delegation said that since its return to democracy, Argentina had in no uncertain terms subscribed fully to the principle of non-refoulement. A 1997 extradition law would be reformed to align it with the terms of the Convention. Argentina based its judgement on the risk of torture or human rights abuses against those it extradited on treaty body information and international instruments. These cases were handled by the judiciary and could go all the way up to the Supreme Court. There was no possibility of extradition being decided by the executive administration without the involvement of a judge.
With respect to expulsion procedures, there had been a sweeping change in Argentina in the last 10 years which meant that the executive branch could no longer expel foreigners without the intervention of a judge. There was an unprecedented movement in Argentina these days to end impunity and this had meant that some persons accused of human rights crimes had fled the country. Turning to consular assistance for detained foreigners, Argentina adhered to all international norms such as the Vienna Convention; however, from a practical point of view, on going training was being provided to make sure that all officials understood their obligations. Argentina’s consuls abroad were also responsible for processing the claims of foreign victims of crimes against humanity committed in Argentina.
There were no secret detentions in Argentina, or any provision for them. All persons accused of crimes against humanity were given access to high-quality defence lawyers. Their detention was arranged in accordance with international standards or if it was not, Argentina was working toward this. With regard to registers, there was no uniform system thanks to the federated nature of Argentine regional administration. However there was a national register that was publically accessible by a website. Meanwhile, visiting rights by relatives of the detained were upheld, and relatives were informed of the location of places of detention. In the event of complaints, there was a free hotline as well as access to the ombudsman responsible for the rights of the detained in Argentina. These matters of concern to this Committee mostly came under the terms of the Convention against Torture. However, it was worth saying that there was no problem with access to places of detention by inspectors. With respect to foreign prisoners, it should be highlighted that most of these resided within the federal system. The Centre for Social Reintegration, working with the Ministry of Justice, worked with families to ensure that they were able to visit all detainees.
The delegation did not say at any time that there was a problem with the application of the principle of habeus corpus. It worked well in Argentina and had done for many years. It was a key protection against arbitrary detention and worked in that way.
In Argentina, when the police or law enforcement officials worked outside the terms of the rule of law, they understood that what they were doing had, since 1983, to be conducted clandestinely. The tension between the rule of law and the police state remained under the surface in Argentina. During the dictatorship, transfers of detainees took place secretly in order to facilitate their murder, or “disappearance”. Today a transfer required a judge’s intervention as prevention against using detainee transfer as a cover for extrajudicial punishment.
With respect to universal jurisdiction, it was clearly understandable that crimes committed in the Franco regime in Spain and involving suspects hitherto located in Argentina would attract the attention of Baltasar Garzon and others. However, Argentina’s application of universal jurisdiction applied to its own historical circumstances.
In Argentine history, truth came before justice. This was important because civilised societies were based on a memory built between the past and the present. The past continued to threaten the rule of law and democracy. This needed to be understood because while those currently detained may be vulnerable under the terms of the Convention, the problems experienced in Argentina were institutional, even cultural, and often not even limited to Argentina. In discussing the right to truth, it could be said that truth arrived before there was even a possibility of justice, even before 1988 at the time of the anti-impunity laws and the establishment of a body to collect evidence. The right to truth in Argentina was never at stake and it had overcome the situation in which some wished to turn away from the truth.
The National Memory Archive in Argentina gathered much evidence which fed into matters of reparation, and it was worth adding that reparation – financial, moral and ethical – had been paid out, and in great sums. A victim of an enforced disappearance was, from a restricted point of view, the person that had been detained. But in Argentina, the definition of “victim” was broader and included relatives and others searching for the disappeared. The experts had asked why the whole slate of civil laws dealing with reparations for historical crimes did not apply to new cases. The answer was that in Argentina today there was a new legal framework to deal with cases that included the concept of moral damages. It was of course true that cases of enforced disappearances happening now and those that had happened as a result of State policy were different things.
Turning to the problem of abducted children, there were indeed special mechanisms set up to deal with this specific problem. Meanwhile, with regard to memorial laws, former places of detention dating to the years of dictatorship had been made into memorial centres that were now used as places of learning, something former President Nestor Kirchner called a dream come true.
As many as 400 people, many of them children at the time of their disappearance, remained missing in Argentina. There were mothers and grandmothers dying without knowing what had happened to their children and grandchildren. Registers of missing children and the recording of information about these broken families, including the gathering of DNA for identification, had been set up by the State with the participation of the Grandmothers of Plaza de Mayo. It was important that these bodies gathered as much information as possible to help restore identities to the abducted or disappeared. Adoptions carried out under the terms of State terror in the past could be made void at this time.
In the current situation, the involvement of minors was an aggravating factor. If child trafficking had been committed it may indeed come under laws dealing with enforced disappearance, but the legal means to tackle these crimes existed one way or the other.
Human rights violations of today must be stamped out, and the Committee could rest assured that there was no going back to the years of State-sponsored terror in Argentina.
Questions from Rapporteurs
RAINER HUHLE, Committee Expert and Rapporteur for the report of Argentina, said that some of the answers that the delegation had given simply led to more questions. Firstly, with regard to registries of missing people, further clarification was needed on how the lists of the missing made a distinction between those who had gone missing in an enforced manner and those who had gone missing for other reasons. Secondly, more clarification on forms of individual and collective reparations would be welcome.
JUAN JOSE LOPEZ ORTEGA, Committee Expert and Co-Rapporteur for the report of Argentina, said that the issue of missing children was important because it led to the question of applying retroactive justice and whether this was possible under the new legal framework. Jurists had to be straightforward in their thinking and from that standpoint know that the details of the procedures involved were important to understand their use as safeguards. Protocols established by the authorities had to be understood in great detail, and while the questions put to the delegate might seem excessively detailed, the devil was in the detail. For example, was it possible to visit detained minors? With regard to habeus corpus, how did Argentina organise itself? Could the delegation elaborate on this matter in writing for the Committee?
Responses by the Delegation
Responding to these questions and comments and others, the Argentinian delegation said that with respect to habeus corpus, it was applied every day, around the clock. Turning to registries of missing people, the distinctions between categories of missing people were made in the gathering of information about each case. The registry of missing minors was well-known and accessible, and had relevance to anti-trafficking laws.
With regard to retroactivity in the legal framework, the continuous nature of the crime (deprivation of liberty) meant that charges could be brought any time. The rule of law and republican system limited the punitive leeway in the sense that the Argentine criminal system skewed to the rule of law but the criminal doctrine had been inherited from the police State.
In the spirit of constructive dialogue, the delegation would like a clarification from the Rapporteurs regarding the identity of a person they said had gone missing, in closed session for privacy purposes.
As for sums paid in reparations, there was a schedule for this which was agreed to by the relevant ministries. The Ministry of Justice made the final ruling while the Ministry of the Economy usually made payments in the form of bonds. A civil and corporate lawyer was appointed to monitor the payment and settle questions of heirs. Peso reparations were also made in other cases, depending on certain factors under the law.
RAINER HUHLE, Committee Expert and Rapporteur for the report of Argentine, said the dialogue seen in this session had been special in the sense that the modern phenomenon of enforced disappearance originated in Argentina, but then so had the drive to formalise and recognise the crime. But what was the aim of the Convention? It surely had a preventative meaning, and therefore, in this Committee, current instances of enforced disappearance were bound to take centre stage. While it was important to look at the historical phenomenon, this only made sense in the light of learning how to prevent enforced disappearance in the future.
JUAN JOSE LOPEZ ORTEGA, Committee Expert and Co-Rapporteur for the report of Argentina, added that he concurred with all Mr. Rainer’s points and merely wished the delegation farewell and thanked them for their work.
JUAN MARTIN FRESNEDA, Human Rights Secretary of Argentina, said Argentina had over the course of this session presented a picture of a historical State of terror, enforced disappearance before and since 1983, and its obligations that arose as a result of the entry into force of the International Convention on the Protection of All Persons from Enforced Disappearance. Even in the past few days developments with regard to the phenomenon of enforced disappearance had taken place in Brazil and Paraguay, and there had been the discovery of a large amount of original documents connected to the military dictatorship in Argentina only yesterday. Therefore the Committee’s review was as timely and relevant as ever and the delegation hoped that its work contributed to progress in this matter.
The Grandmothers of the Plaza de Mayo and other grandmothers, including relatives of the present delegation, worked hard to make the promise held in the Convention a reality for future generations. In the spirit of memory, truth and justice, the delegation thanked the Committee for its work.
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