The Long Arm of Human Rights

Ivan Briscoe

Even in safe and serene Denmark, Luiz Urquiza could not shake off the trauma inflicted by his ex-colleagues. His new line of work, taxi driving, caused the daily aggravation of his most painful wound, sustained when his tormentors fired several bullets into his left leg. Danish doctors and psychologists did what they could, but recovery was never more than partial. For two years in the 1970s, Urquiza had been jailed, mocked, beaten, suffocated and, on one occasion, taken before a fake firing squad—all because he dared study at a university before entering the Argentine police force, and was, therefore, considered “subversive.”

Urquiza’s experience in Córdoba, Argentina’s second-largest city, is far from exceptional, one example of the barbarity that many Latin American countries witnessed in the 1970s. One feature of his ordeal, however, is unique. Since he was arrested and tortured by his fellow police officers, he recognized each and every one of them: “I knew exactly who was torturing me. Sometimes I had a bandage around my eyes, but still I recognized their voices. And when they hurt me, they’d ask if I knew who they were.”

He did what he could with his list of names. He went to Amnesty International in 1980, but to no avail: Argentina’s military dictatorship was still in power. In the mid-1980s—democracy had returned in 1983—it briefly seemed his torturers might be prosecuted; but two laws granting all officers immunity from prosecution put an end to that. Finally, in 1997, Urquiza gave his first ever testimony on what he had suffered in a court of law. He did so in Spain’s High Court, nestled in an opulent Madrid neighborhood with tree-lined avenues, and the judge listening to him was Baltasar Garzón.

Over the last ten years, the campaign by Garzón and other Spanish judges to seek prosecution for those involved in atrocities in Chile, Argentina, or wherever else the culprits of such deeds have escaped unpunished, has flickered in and out of Spanish public attention. The judicial feats—such as the arrest of Chile’s Augusto Pinochet in London in 1998 on Garzón’s warrant, or the trial and guilty verdict against Argentine naval captain Adolfo Scilingo in 2005—have come amid long periods of inaction, legal wrangling and diplomatic haggling. On occasion, it has even appeared that Spain’s highest courts would once and for all prohibit the experiment in universal jurisdiction.


Argentine junta leader Jorge Rafaél Videla meeting his Chilean counterpart, Augusto Pinochet, in Mendoza, Argentina, 1978. (Courtesy: Archivo Clarín)

Yet a simple, stark contrast demonstrates what has been achieved. When Garzón and fellow judge Manuel García Castellón began their investigations in 1996, Pinochet was still the commander-in-chief of the Chilean army, while none of the estimated 3,500 Argentine perpetrators of the “Dirty War” were in jail for their crimes. Pinochet recently died under house arrest. And in Argentina, over 200 former security operatives await trial from prison or within the confines of their homes, while landmark court hearings last year sentenced two of them to long prison terms. The flow of suspects has even switched direction: arrested on January 12, Argentina’s inept pre-dictatorship president, Isabel Perón, now awaits extradition from Spain to Buenos Aires, along with four other top-ranking suspects.

Far from over, Spain’s experiment with universal jurisdiction now stands on firmer footing than ever. On the basis of a Constitutional Court ruling from October 2005, Spanish courts could become arbiters of all unpunished genocides and gross human rights violations anywhere in the world—whether Spaniards were involved or not. Last July, after seven years in Madrid’s legal pipeline, Judge Santiago Pedraz issued international arrest warrants against seven former political and military leaders of Guatemala, including the infamous former dictator Efraín Ríos Montt, and ordered their bank accounts frozen. None of those accused of genocide, torture or involvement in Guatemala’s 626 recorded massacres from 1978 to 1983 can now leave their homeland without fear of arrest, and two have recently been detained by Guatemalan courts.

“At present there are 15 to 16 people being investigated in the Guatemalan case, but as the investigation proceeds this could rise to 400, 500, maybe even 1,000,” argues Manuel Ollé, a Spaniard, and one of the most prominent lawyers representing victims in the Guatemalan, Argentine and Chilean cases. As he explains, crimes against humanity that have gone unpunished in their home countries fall under the remit of the International Criminal Court in The Hague, but the new world tribunal can only try atrocities committed after July 1, 2002.

“The High Court in Spain should be proud that it could become one of the world’s most important courts in defense of human rights. And though it may sound utopian, we could hope that in the future the International Criminal Court in The Hague could turn to national courts whenever it needs to,” Ollé says.

Aside from Guatemala, new cases are also gestating over Rwanda and Western Sahara. Legal inquiries into Chinese repression in Tibet even identified seven former Communist leaders as suspects, among them ex-President Jiang Zemin. Gravely displeased by the effrontery, Beijing let it be known last year that Spain’s “absolute slander, absolute lies” would not go unanswered. Frantic diplomacy by Madrid soon reasserted the “strategic relationship” between the two nations, and little progress appears to have been made in the case.

Indeed, since Spain’s legal investigations began, the politics and logistics of the cases have proved daunting: officials at the pinnacles of Latin American power have spurned the inquiries, judges in those countries have been cowed and the culprits have thumbed their noses. Carlos Menem, the all-powerful Argentine president of the 1990s, once berated Garzón as a “soap star.”

When Urquiza went back to his hometown in 1994, he met with a typical post-dictatorship reality: the police tormentors were senior commanding officers, and the exile’s return was greeted with a volley of death-threats. The resumption of trials against security operatives in Argentina has since proved the tenacity of this clandestine repression, most notably in the disappearance last September of Jorge Julio López, a key witness in the trial against former senior police officer Miguel Etchecolatz.

CRACKING THE SHIELD OF IMPUNITY

Breaking the shield of impunity in Guatemala will probably be even more difficult. “Seven years have gone by since the UN report on human rights violations in that country was published,” explains Prudencio García, an expert on that country’s atrocities and a Spanish military officer. Until the end of last year, he explains, “there was absolute impunity for all the crimes committed from 1978 to 1983, the country’s ‘five black years.’”

Although 200,000 people were killed over the course of Guatemala’s 36-year civil war, which ended in 1996, the only people now in jail are two of the military officers targeted by Judge Pedraz. “There was one trial where the court managed to sentence to 30 years in jail a colonel and a captain, for killing Archbishop Juan José Gerardi,” explains García. “But that crime dates from 1998. And there was another 30-year-sentence for the colonel who ordered the killing of U.S. anthropologist Myrna Mack in 1990. But he was allowed to run away.”

On a troubled and seemingly fruitless five-day visit to the country weeks before issuing his arrest warrants, Judge Pedraz and his prosecutor witnessed firsthand what they later described as “constant and persistent obstruction.” Their plans to interrogate former President Efraín Ríos Montt and other suspects were thwarted at every turn, with the now-typical refrain about foreigners’ meddling in Guatemala’s internal affairs.

But led by a host of determined victims, a handful of hyperactive lawyers and one media-savvy judge, advocates of international justice continue to press forward in trying to exercise the clause in Spain’s 1985 legal code (Article 23.4) that allows its courts the right to prosecute certain heinous crimes committed abroad. Although foreign governments have often been uncooperative, Spain’s domestic legal establishment has also been a source of frustration. A Spanish Supreme Court ruling in 2003 froze the Guatemalan case, for instance, while High Court prosecutors initially fought Garzón’s Latin American investigations.


Judge Garzón on a 2005 visit to Argentina. In the backdrop: human rights activist and the Museum of Memory, housed in the former ESMA Dirty War torture center. (Courtesy: http://www.presidencia.gov.ar/)

Judge Garzón, who recently returned from a sabbatical in the United States, is the name most immediately bracketed with these international judicial battles. In fact, after Pinochet’s initial arrest, he gained such notoriety that a 1998 opinion poll found him to be Spaniards’ most popular figure. Yet the self-portrait offered in his recent autobiography Un mundo sin miedo (A World Without Fear), is of a missionary-like devotion to victims of injustice. This stems, he explains, from his experiences as a student in Seville under the regime of a geriatric Franco. Since then, and well into Spain’s democratic era, for Garzón, the problem has been hollow rhetoric: “The biggest problem in the international legal system is its lack of credibility and respectability. Good intentions are overflowing, yet there are few concrete actions.”

Garzón writes that one of his most disappointing days as a judge occurred on August 29, 2003. In Argentina, a new government, under left-leaning President Néstor Kirchner, had just repealed two decrees blocking cooperation with the Spanish judiciary over the fate of “Dirty War” criminals. In haste, Garzón re-issued arrest warrants for 40 of the military junta’s most notorious leaders and operatives, prompting a judge in Buenos Aires, Rodolfo Canicoba Corral, to detain all the wanted men for extradition. Once again, the attempt to initiate a huge trial in Spain foundered after intensive talks between the two governments. The Spanish government suspended the extradition request on that day in August, to Garzón’s huge distress. In a face-saving response, Argentina’s Congress repealed two laws dating from 1986 and 1987, “Due Obedience” and “Full Stop,” which had shielded the dictatorship’s henchmen from prosecution (a decision later approved by the country’s Supreme Court in June 2005). For the first time in nearly two decades, that country was set to deliver justice for the estimated 30,000 who were killed or disappeared.

“The Argentine Congress received the message and acted, with the aim of stopping a convoy of airplanes packed full of criminals heading off to Spain, France, Italy or wherever,” declares Prudencio García, the Spanish human rights expert. “They acted in the only way possible to stop such a shameful occurrence, and this was the result of Spanish pressure.”

VICTIMS AND LAWYERS

Without the aid of a dedicated chorus, the celebrity judge would have met with little success. Throughout 1997 and 1998, victims of the Argentine and Chilean dictatorships, novelists, politicians—and, for the first time, the widow of Argentine political strongman Juan Domingo Perón, Isabelita—traipsed through the judge’s offices to give names, dates and lists of horrors. Groups made up family members of victims—grandmothers, mothers and children—have long-pressed their cases.

“I don’t know who my father’s killer is,” explains 34-year-old Alexis Banyls, one of around 20 Hijos (children) activists living in Madrid. For the seven years of the dictatorship, he and his mother evaded capture across the length and breadth of Argentina after a death squad murdered his father, a union leader. “When I was younger, I thought about revenge, about killing the man who killed my father. But that is not what we want: we don’t want revenge, we want justice.”

Meanwhile, a team of lawyers channeled vital information and names to Garzón. It was such a tip-off, in this case, from lawyer Carlos Slepoy, that led to the arrest in Mexico six years ago of Ricardo Miguel Cavallo, charged with the disappearance of over 400 people in Argentina and who until December was set for trial in Spain (it now appears he will be extradited to Argentina). Some lawyers involved in the cases, such as Ollé, knew very little of Latin America, but have been profoundly moved by the victims’ plight. Others harbored a visceral desire to see justice done. “For me, this is a personal affair,” explains Slepoy.

Back in 1976, Slepoy was a student in Buenos Aires, with not uncommon left-wing tendencies. Ten days before the coup of March 24, he was arrested, and herded with a fellow female student into the Navy Mechanics’ School, or ESMA—a synonym in Argentina for the regime’s most barbaric acts—where some 5,000 people are believed to have passed before being executed or thrown into the sea from helicopters.

Slepoy, however, made it out. A year later, he left for the nominally safe haven of Spain. Conceivably, he might have then decided to bury the past and begin a new life, smooth out his accent, forget he was ever Argentine. But in the early 1980s, as he recalls, he was walking through a square in central Madrid, where he witnessed a drunken policeman senselessly beating a teenager.

“I tried to intervene and told him to let the child go. So he asked me if I was Spanish, realizing of course that I wasn’t. Then he suggested we go off to the police station together, but just as we were doing so, he shot me,” remembers Slepoy.

Like Urquiza in Denmark, it has taken Slepoy a long time to recover from his wounds, which have forced him to walk with the aid of a cane. The pain is evidently intense, even if some relief was afforded by the guilty police officer’s 17-year jail sentence. But between his extraordinarily fortunate reprieve in Argentina and his apparently random suffering in Spain, the need to bring about some form of legal redress has become a compulsion. “The trial of Adolfo Scilingo became a huge act of reparation. A lot of my friends disappeared, I’m part of a country in which terrible things happened, and for which we are still paying.”

THE ODD CASE OF SCILINGO

In a small, pristine apartment in Soto del Real, on the outskirts of Madrid, Marcela Scilingo has laid out two books on the coffee table. One, entitled La otra parte de la verdad (The Other Side of the Truth), recently published, contests the victims’ accounts of military rule in Argentina. The other, a dog-eared tome evidently produced as propaganda during the 1978 soccer World Cup, seeks to document the fight against left-wing “terrorists”—“this,” she says, pointing proudly to the latter book, “I saved from the garbage bin.”

A decade into the Argentine investigations, her husband, Adolfo Scilingo, remains the sole prosecuted, tried and sentenced culprit in Spain. In April 2005, after a four-month trial, the 60-year-old naval captain and mechanic was sentenced to 30 life-sentences, each one of them corresponding to a drugged and naked body that he pulled from the fuselage of a military aircraft and threw into the South Atlantic. Although he denied total knowledge of this to the court, and collapsed on the first day of trial following a hunger strike, there seems to be little doubt as to his guilt: Scilingo was the first veteran of ESMA to reveal everything he knew about the clandestine detention center.


One of Argentina’s leading journalists, Horacio Verbitsky, wrote a book on the basis of the captain’s first confessions. Scilingo’s recollections have been transmitted by radio, television and in print. And most pertinently, he voluntarily flew to Spain in 1997 to testify before Judge Garzón.

Scilingo’s wife, however, has no doubt which side she is on. “Before the dictatorship took power, there was a death every five hours, a bomb every three hours,” she says. “The dictatorship was necessary. If there’s a bomb in every supermarket and cinema, what alternative is there? The military, nothing else.”

A large, wooden model galleon, perfect for a miniature naval battle on the open seas, sits on the dining table—the handiwork of Scilingo’s prison days. Alone in Spain, with her four children still living in Argentina, Marcela Scilingo now does the odd jobs typical of Latin American immigrants: knitting, looking after children, cleaning houses.

She claims not to know why her husband came to Spain; her husband, she says, is a mystery to her and her family. “I thought all the past was finished, left behind. I told my husband: the lefties no longer exist.... And he thinks the same way I do.” But she has little explanation as to why her husband began cooperating with the investigations. “At one moment, he seemed to lose his grip on reality, on objectivity. The subversives were his enemy, but perhaps he was a bit more sensitive than the others.”

Understanding Adolfo Scilingo’s motives is certainly far from simple. In both the trial, and in his interviews with the journalist Verbitsky, recounted in the book El Vuelo (The Flight), Scilingo was unwilling to condemn the dictatorship’s brutal acts. And yet, his repeated confessions have proved critical to public knowledge of the worst crimes of the time: the tortures in ESMA, the asados (literally, “barbecues” of burning bodies), the bi-weekly mass dropping of bodies into the sea, the total involvement in this process of naval officers.

Scilingo, however, was not one of the masterminds or principal perpetrators. In fact, he worked in the ESMA’s garages, where he repaired the dictatorship’s favored vehicles used for abductions: the Ford Falcon. The earliest signs that he would turn against the institution came in the mid-1980s. In a letter to his navy superiors, he insisted he should be promoted, seeking to excuse his state of “psychiatric tension” by recalling how he had almost fallen while pushing a naked body from a plane in 1977—a memory that “was repeated in my sleep, in which I fell from a plane in flight, making it difficult for me to get any decent rest.”

Gradually eased out of military duty—no one was supposed to speak of these deeds—he publicly turned against the military hierarchy and the Argentine establishment. A trumped-up fraud charge saw him jailed for two years. Just weeks before he left for Spain, he was assaulted in the street, and the initials of three journalists who had interviewed him were carved on his face; when he arrived in Spain, he was promptly jailed.

The particularities of Scilingo’s case, above all his willingness to confess while not repenting, are not repeated elsewhere. Cavallo, his Argentine jail-mate, has fought Spain’s right to try him at every opportunity. And the backlash against Spanish judicial “meddling” has not abated. Now that the High Court has secured its first arrests in the Guatemala case, conservative Spanish judges and outraged Latin American nationalists will likely join together to intervene and denounce the investigations. “There are definitely judges who believe that Spain should never become Latin America’s on-call courthouse,” says one source close to the cases.

Anticipating an overburdened judiciary, which is also preparing a huge trial of 29 suspects in the Madrid 11 train bombings, judges decided in November 2005 that cases involving foreign atrocities would be limited to cases not “totally alien” to Spain. In other words, although links to Spanish interests have been formally dismissed as necessary criteria to launch new investigations, the ruling vaguely requires some Spanish connection for actually bringing the case to trial.

The debate over the country’s right to try whomever, from wherever, so long as their crimes have gone unpunished, will certainly not die in the near future. According to Spanish lawyer Manuel Ollé, “The baby of universal justice in Spain has been born.”


Ivan Briscoe is a senior researcher in peace and security at the Madrid-based Fundación para las Relaciones Internacionales y el Diálogo Exterior (FRIDE, Foundation for International Relations and Foreign Dialogue). He has previously worked as a journalist and analyst in Argentina, Venezuela, France and Spain.

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