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CHAPTER IV
SITUATION OF HUMAN RIGHTS IN SEVERAL STATES
1. Within its mandate to promote the observance and protection of human rights, the IACHR has been studying the situation of human rights in the countries of the hemisphere, and to that end has prepared special reports with respect to various member states.
2. These reports have been prepared at the initiative of the Commission; in other cases, reports were prepared as a result of a mandate given to the Commission by the General Assembly of the Organization; finally, in some cases, the Commission prepared reports after visiting a given country, in response to an invitation of the government.
The IACHR has prepared special reports in recent years on the following countries: Argentina, Bolivia, Colombia, Cuba, Chile, El Salvador, Guatemala, Haiti, Nicaragua, Paraguay, Suriname, and Uruguay. The Commission has prepared more than one report on Cuba, Chile, Guatemala, and Nicaragua. With respect to Nicaragua, one report studied the situation of human rights under the government of General Somoza; another was prepared in 1980, the year the Sandinista Revolutionary Government came to power; and for this session of the General Assembly, the Commission has submitted for consideration a special report on the situation of human rights of a sector of the Nicaraguan population of Miskito origin.
3. Periodically, in successive chapters that have been included in the Annual Reports that have been submitted to the General Assembly, the Commission has updated those reports, giving special attention to the adoption by the corresponding government of the recommendations set forth by the Commission in those reports.
4. That procedure will be followed again in this chapter. For that purpose, evolution of observance of human rights in Argentina, Chile, El Salvador, Guatemala, Haiti, Nicaragua, Paraguay and Uruguay will be studied over the period beginning in late September 1983, at which time the Commission approved its last Annual Report. For this reason, the Commission addressed the governments of the above-mentioned countries last June to request information that the governments considered appropriate to assist it in preparing this study. In that note, the Commission specifically requested the texts of legislation enacted and the jurisprudence of the courts over the last twelve months, and in particular, the measures adopted during that period in connection with the recommendations put forward by the IACHR in its earlier reports.
5. The Commission considers that it is unnecessary to include sections in this chapter on developments in the last twelve months in the area of human rights in Bolivia, Colombia and Suriname. With respect to Cuba, in October of 1983 the Commission prepared its Seventh Report on the Situation of Human Rights in that country (OEA/Ser.L/V.II.61, doc.29, rev.1).
6. Nevertheless, with respect to Bolivia, the Commission has observed that despite current social tensions and the various failed attempts to destabilize the constitutional government of President Siles Suazo, in general, that government has maintained a policy respectful of human rights. The Commission cannot fail to note that the democratic stability of Bolivia is a cause of special interest to the Organization of American States; in 1980, through Resolution 484 (X-0/80), the highest body of the Organization, the General Assembly deplored the military coup which in that year interrupted the democratic process which was being carried out in that country; and through Resolution 621 (XII-0/82), adopted by the twelfth regular session of the General Assembly, after recognizing the unique and exemplary way in which the Republic of Bolivia had brought about a peaceful transition from authoritarianism to democracy, declared “its satisfaction at the reestablishment of a democratic system in Bolivia.”
7. The state of law and observance of human rights continue to be in force in Colombia, although limited by the state of siege, which since May 1, 1984 has been imposed throughout the country, following the assassination of the Minister of Justice, Rodrigo Lara Bonilla, apparently carried out by drug traffickers. This report should make special mention, although brief, of the agreements reached in the course of this year by the government with various insurgent organizations such as the Revolutionary Colombian Armed Forces-People’s Army (FARC-EP); with the Workers’ Self-Defense guerrilla group (ADO); and finally on Last August 24, with the so-called M-19 insurrection movement and with the organization known as the People’s Liberation Army (EPL).
In general terms, these agreements call for a ceasefire and include the commitment of the insurgents to cease their armed struggle. As in the case of the 1982 amnesty, the government will adopt the necessary measures to facilitate the reincorporation of the insurgents into civilian life. These groups have also been guaranteed the right to participate in the country’s electoral processes, to form their own political parties and to nominate candidates in future elections.
Although it is still premature to pass judgment on these agreements, the Commission considers that those which have been reached within what has been called the national dialogue, which will be continued in the country in the near future, are a significant step forward which can contribute to eliminating the violence which has affected a considerable part of Colombian society.
8. With respect to Suriname, on August 1, 1984, the Commission received an invitation of the Government of that country to carry out a further in loco observation. The Commission has decided to accept the invitation, has also decided not to include a section on Suriname in this part of the report until after its visit.
1. In September 1979, the Inter-American Commission on Human Rights carried out an in loco observation in the Republic of Argentina. As a result of this visit, the IACHR prepared its report on the situation of human rights in that country (OEA/Ser.L/V/II.42, doc. 19 of April 11, 1980). In that report, the IACHR reached the conclusion that by commission or omission of the public authorities and their agents, numerous and serious violations of the fundamental human rights recognized in the American Declaration of the Rights and Duties of Man were committed in Argentina during the period of 1975-1979. The Commission set forth a number of recommendations on various human rights, particularly the right to life, to disappeared persons, those detained at the disposition of the National Executive Branch and political rights.
2. After presenting its special report, the Commission studied the evolution of the situation in Argentina in its Annual Reports to the General Assembly in 1981, 1982, and 1983, with special emphasis on the need to clarify the situation of disappeared persons, noting the obligation and responsibility of the Argentine government to report to the family members of the victims. The Commission also referred in those Annual Reports to such subjects as the prevailing state of emergency in Argentina; changes in the situation of persons detained without due process; the right to a fair trial, to due process, and political rights, and the Commission noted with satisfaction in 1983 the evolution of the electoral process within a framework of full guarantees for political parties. In fulfillment of the tasks assigned to the Commission by its Statute and Regulations, the Commission set forth general and specific recommendations aimed at strengthening and promoting the full observance of human rights in that country.
3. Despite the difficulties that arose when the report was presented to the tenth regular session of the General Assembly in 1980, at which time the military Government of Argentina suspended relations with the IACHR, relations were resumed in June 1982, at which time the Government of Argentina, in compliance with its international obligations, replied in a timely way, in general, to the information requests of the Commission, and advised it of measures adopted to normalize the human rights situation.
4. The Commission wishes to point out that in October of 1983, days before the elections, the military government headed by General Reynaldo Bignone lifted the stage of siege that had been in place in the country since 1974, thus reinstating a normal juridical and institutional situation in Argentina and complying with one of the chief recommendations set forth by the Commission since its special report of 1980.
5. On October 30, 1983, the announced general elections were held, which resulted in the election of a President and Vice-President, and the formation of collegiate bodies. Provincial and Municipal officials were also elected. A spectrum of political parties participated in the electoral debate, and they enjoyed the necessary freedom and guarantees for their campaigning activities.
Dr. Raul Alfonsin, candidate of the Union Cívica Radical, won the elections with 52% of the vote, and was inaugurated on December 10, 1983, the first constitutional president after nearly 8 years of military rule.
6. To better inform the General Assembly, the Commission wishes to emphasize some of the chief measures adopted by the new constitutional government, aimed at establishing a democratic system in which human rights are protected and fully observed, and in which those responsible for violations are sanctioned under the full force of the law.
7. First, it should be noted that at the initiative of the Executive, in December of 1983, the National Congress approved Law 23.040, enacted by Executive Decree Nº 295 of December 27 of last year, which repealed Law Nº 22924 of the military government which had been enacted on September 23, 1983, known as the Law of Pacification or Amnesty. The repealed law had extinguished criminal proceedings arising from crimes committed with a terrorist or subversive motive or purpose between May 25 of 1973 and June 17 of 1982, and which covered “all criminal proceedings brought with respect to or for the purposes of actions aimed at preventing, terminating or eliminating the above-mentioned terrorist or subversive activities, whatever their nature or the judicial principal violated.”
The scope of this law included the authors, participants, instigators, accomplices, or accessories after the fact, and covered related common crimes and related military crimes, i.e, rendering it impossible to impose liability and punish those guilty of the abuse of human rights.
The new government’s law repealed the above-mentioned law on the grounds of unconstitutionality, and declared it null and void. It further stated that it had no legal effect for the imposition of criminal, civil, administrative and military liabilities arising from the acts that it covered, and that the principle of the most lenient criminal law was particularly applicable.
8. Through Decree 187 of December 15, 1983, the Government of President Raúl Alfonsín created a national commission in order to clarify the events related to the disappearance of persons in Argentina. Among the specific duties assigned to that Commission are: a) to receive denunciations and evidence and to submit them to the courts if they are related to the alleged commission of crimes; b) to verify the fate or location of disappeared persons, as well as any other circumstance related to their whereabouts; c) to determine the location of children taken from their parents or guardians, and to intervene when appropriate with organizations and courts responsible for the protection of minors; d) to bring to the attention of the courts any attempt at concealment, removal or destruction of evidence related to the facts being investigated; and e) to issue a final report with a detailed explanation of the circumstances under investigation.
The National Commission on the Disappearance of Persons was comprised of several noted Argentine figures, and presided over by author Ernesto Sábato. On January 28, 1984, the Executive Secretary of the IACHR received an invitation from that Commission to visit Argentina “to have an opportunity to obtain directly information, assistance and experience with the very serious problems of disappeared persons in the Republic of Argentina.” The Executive Secretary of the Commission traveled to Buenos Aires, from March 26-31, 1983, and held interviews and working meetings with the Argentine Commission, and provided it with all the documents in its hands that it considered pertinent and necessary to carry out the important mission in which the new authorities are involved in investigating this serious problem.
On September 20, 1984, the National Commission on the Disappearance of Persons submitted its final report to President Raúl Alfonsín. This important document contains a 50,000-page appendix containing all the testimony and complaints received by the Commission. A list was provided of 8,961 disappeared persons, 340 detention centers that were used to interrogate and torture victims, and the report also contained statements of persons who were kidnapped and subsequently released which were very useful in determining responsibility for these abuses. The report also contains the testimony of a number of participants in the repression who, for various reasons, contacted the Commission. In addition, the Argentine President was given a 300-page book which summarizes the chief aspects of the Commission’s work and emphasizes the most outstanding cases. This book contains a prologue which could be described as a moral indictment of the military juntas that governed the country during that period. All of the collected material is in the hands of the Argentine judicial system, which will be entrusted, in accordance with the law, with carrying forward appropriate criminal proceedings on the very serious accusations made in this report.
The IACHR wishes to emphasize and acknowledge the efforts made by the Government of President Alfonsín and the Commission headed by intellectual Ernesto Sábato to investigate the fate of disappeared persons.
9. By Decree 158 issued in December 1983, considering that the Military Junta which took power in May of 1976, conceived and carried out a plan against terrorist activities that was based on manifestly illegal methods and procedures, as a result of which between 1976 and 1979, thousands of persons were deprived of their freedom, tortured and killed, the Executive decided to submit the members of the Military Juntas that had governed the country to the Supreme Council of the Armed Forces for hearings. In accordance with the decree, the trial would include the crimes of homicide, illegal deprivation of freedom, and torture of detainees, without prejudice to other crimes for which they were directly or indirectly responsible, or instigated, or to which they were accomplices. According to current Criminal Military legislation, the rulings of the Military Tribunal may be appealed to competent civil courts.
On January 22, 1984, the Supreme Council of the Armed Forces published a communiqué which stated that “Any inhabitant of the Nation may denounce violations of human rights committed by the Security Forces.”
The trials have moved forward very slowly. The Supreme Council of the Armed Forces was unable to meet the six month legal deadline set forth in the Military Code for issuing a judgment, which forced the Tribunal to request extensions. If it could not meet this deadline in keeping with criminal legislation, the Federal Chamber of Appeals could assume jurisdiction over the criminal proceedings. The government of President Raúl Alfonsín, concerned at this delay, has adopted measures to expedite the process, such as the appointment of more military judges to work with the Supreme Council of the Armed Forces, and he authorized military personnel to provide testimony not only before the competent judges but also before the National Commission on the Disappearance of Persons.
10. In this connection, it is also necessary to mention that in the course of this year a number of Argentine officers in different branches of service have been involved in criminal proceedings under both civilian and military jurisdiction charged with violations of human rights. The IACHR wishes to cite the cases of:
Former President Reynaldo Bignone, detained under charges of having responsibility for the disappearance of two conscripts during the period that he headed the Military School.
General Ramón Camps, former Chief of Police of the Province of Buenos Aires, who in statements to the press allegedly admitted his participation in the disappearance of thousands of persons. The President of the Republic himself ordered that he be detained and tried.
General Carlos Suarez Mason, Former Chief of the First Army Corps during the repression, for his alleged responsibility for the disappearance of persons which took place in the jurisdiction under his command, and for other human rights violations. General Suarez Mason was declared in contempt by the Supreme Council of the Armed Forces for refusing to appear to answer questions in either the civil or military courts.
General Luciano Benjamin Menéndez, Commander of the Third Army Corps in Cordoba, detained under strict preventive custody, tried for his participation in the Cordoba repression, one of the zones most seriously affected by the abuses committed during the anti-subversion campaign.
11. During the period covered by this report, judicial authorities carried out important investigations aimed at identifying the numerous bodies buried as NN (unidentified) in recent years, which were discovered throughout various parts of the country. Competent organizations are trying to determine the culpability of the security forces in these occurrences, which were pointed out previously by the IACHR in its special report on Argentina. According to information received by the Commission, this task has been rendered difficult, due chiefly to the time that has elapsed, and as a consequence, to the advanced stage of decomposition of the bodies.
12. An important national debate was launched in Argentina, particularly among various groups that work in the protection of human rights, when the bill containing reforms to the Military Code of Criminal Justice was submitted to the National Congress by the Executive. In particular, they criticized language in the bill which assigns investigation and trial for crimes committed by personnel of the armed forces and the security, police and prison forces in the anti-subversive struggle to the Military Criminal courts. Human rights organizations believe that the new Military Criminal Code grants impunity to government agents who acted with excess during the repression and to those who acted under the obligation of obedience, i.e., in acts defined as in the fulfillment of duty, because the new law establishes that it may be presumed, it there is no evidence to the contrary, that these forces acted in error on the legitimacy of given orders, except in cases where atrocities or aberrant acts have been committed.
The government considers that in accordance with the Argentine legal tradition and legislation in force, the crimes committed by the military by reason of or in connection with their service duties should be judged by the Military Tribunals. Bearing in mind that the above cannot be retroactively abolished, as it has been for the future, without violating the Constitution, a guarantee has been provided that the rulings of the Military Tribunals may be reviewed by the civil courts.
This legal dispute has been submitted to the Supreme Court of Justice, which must decide on the constitutionality of these and other contested legal provisions. In this regard, it should be noted that in statements on cases under its jurisdiction, the judiciary has declared the disappearance of persons to be a “permanent or continuing crime,” thus maintaining their competence to take cognizance of and rule on judicial cases on this aberrant practice, which has been declared by the General Assembly of the OAS to be a crime against humanity.
The IACHR considers this debate to be legitimate, appropriate and above all an expression of democracy. It will therefore be the responsibility of the constitutional institutions of Argentina to resolve the disputes that it engenders and to seek the best formulas for strengthening a state of law in which human rights are respected.
13. With regard to the right to personal freedom, on October 26, 1983, the Commission received a note from the Government of Argentina which included a list of 242 persons whose arrest at the disposition of the Executive had been nullified by Decree 2714 of October 18 of the same year. Likewise, the above-mentioned note stated that only 50 of the persons on the list had been detained as a result of final sentencing by the courts. At that time, there were no detainees at the disposition of the National Executive in the country.
According to the information received by the IACHR, in April 1984 there were approximately 117 so-called political prisoners, of which 29 had been sentenced by the Military Courts and 88 tried and or sentenced by the Federal Courts prior to the inauguration of the Constitutional Government in December of 1983. It is necessary to clarify that these figures frequently changed as a result of court decisions or decisions of the Executive.
The Government of President Raúl Alfonsín, aware of this problem, and recognizing that it was a situation that must be clarified and resolved within an appropriate legal and constitutional framework, after studying several proposals, submitted a bill to the National Congress which established a formula of two days for each day served in prison in cases of persons detained for security reasons. After passage by the National Congress and enactment into law, this formula, according to information received by the Commission, has resulted in the release of all persons in such circumstances whose cases have been submitted to the IACHR.
14. Finally, the Government of Argentina headed by President Raúl Alfonsín submitted the following international pacts for consideration by the Congress:
American Convention on Human Rights; International Convention on Economic, Social and Cultural Rights; International Convention on Political Rights and authorizing Protocol of the International Convention on Civil and Political Rights adopted by Resolution 2200 (XXI) of the General Assembly of the United Nations.
The Commission wishes to emphasize that the National Congress approved the American Convention on Human Rights in February of 1984. In March of the same year, the OAS Representative of Argentina signed the Convention, and on September 5, 1984, in a ceremony held at the headquarters of the General Secretariat of the OAS, Ambassador Elsa Kelly, Secretary of State for Foreign Relations and Worship of Argentina, deposited on behalf of her government the Instrument of Ratification of the American Convention or Pact of San Jose, Costa Rica. Together with this ratification, Argentina at the same time recognized the competence of the Inter-American Commission on Human Rights, in accordance with Article 45 of the Convention, to receive communications in which a state alleges that another state party has committed violations of the human rights upheld by the Convention; and likewise, in accordance with Article 62, it recognize the competence of the Inter-American Court of Human Rights in cases related to interpretation or application of the Convention.
15. It is the view of the Commission that in the course of this year the Government of President Raúl Alfonsín has demonstrated a firm commitment to guarantee and strengthen the rule of law to consolidate a democratic system that promotes full observance of human rights.
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