Ricardo Miguel Cavallo

In December 1986 the Argentinean Parliament adopted a law called “final point” which set a statute of limitation of 60 days for offences against international law committed in Argentina.

In May 1987, Parliament approved a second amnesty law called “due obedience” which exempted from trial all military subordinates who had obeyed orders. This left only about thirty high-ranked military officers to face prosecution. The only crimes not covered by this law and for which subordinates could still be tried was theft, rape and the kidnapping of children. The Supreme Court upheld the constitutionality of this law in June 1987.

By December 1990 the first amnesty decrees were signed.

In all 1,195 members of the military who had participated in the junta received amnesty: 730 thanks to the “final point” law, 379 with the “due obedience” law, 49 declared by the Supreme Court and 42 by amnesty decrees.

In mid-August 2003 the new Argentinean president, Nestor Kirchner, had the amnesty laws repealed and the absence of statutes of limitation for crimes against humanity recognized.

Prosecutions of those involved in the junta once again became possible in Argentina. 

Twenty former military personnel are being held in Argentina for crimes committed within the framework of the “Condor” plan. The total number of soldiers in detention and charged under Argentinean law for human rights violations, amounts to 120, to which should be added two Argentineans held in Spain. Some of these proceedings concern cases where children were forcibly taken away at birth from their mothers who had been imprisoned for political reasons. In the opinion of the judges, this crime was never covered by the amnesty law. (source:Le Monde, January 5, 2005).

On 14 June 2005, the Argentinean Supreme Court declared unconstitutional, by 7 votes in favour, 1 against and 1 abstention, the Amnesty Law – “Ley de Punto Final”; Ley 23.492-  and the Due Obedience Law – “Ley de Obediencia debida”; Ley 23.521- sanctioned by President Alfonsin in 1987. The Court maintained that these  laws violated article 75, paragraph 22 of the 1994 Argentinean Constitution, which gives constitutional status to the International Covenant on Civil and Political Rights, to the Genocide Convention, to the Torture Convention and to the Inter-American Convention, among others. According to the Court, following diverse decisions by the Inter-American Court and by other international bodies, the State has an obligation to investigate, prosecute and punish those who have committed violations of the right to life, to humane treatment or who have engaged in disappearances, obligation which cannot be limited or abolished by the enactment of an Amnesty or Due Obedience Laws as ruled by the Inter-American Court in the case of Barrios Altos v. Peru. 

This historical decision allows the domestic or international investigation, prosecution and punishment of members of the military suspected to have taken part in the torture, disappearance and/or killings of more than 30,000 persons in Argentina between 1976 and 1983.

On September 20, 2006, in the course of the trial of Miguel Etchecolatz, the court for the town of La Plata used the term "genocide" for the crimes committed by the military dictatorship (1976-1983). It was the first time these crimes were qualified as genocide by a court, just like human rights organisations had long argued they should be. This legal  qualification is now contained in the judgment against former police officer Etchecolatz, who was sentenced to life imprisonment for torture, murder and abduction of opponents of the regime.

The court emphasized that the crimes were committed in the context of a genocide campaign organised by the state. For future procedures against former members of the police force and the military, this view could be of crucial importance.