Symposium: The Simón case—a decisive chapter in the Argentine struggle for a new beginning

Gisela Ferrari

Catholic University of Argentina

The last military dictatorship (1976-1983) constituted a dark phase in the history of Argentina, leaving deep wounds in the social fabric of a country with an unstable relationship with democratic rule. The decision of the Supreme Court of Argentina in Simón (2005) revolutionized the constitutional landscape to put an end to the legal uncertainty concerning the prosecution of the serious human rights violations committed during that period, clearing the path for the (re)opening of criminal proceedings against their authors after years of inaction. In an anticipated but disputable decision, the Court struck down two amnesty laws, adopted in 1986 and 1987 in order to shield the authors of the heinous crimes committed during the de facto government. The Court found that national legal provisions regarding amnesty, statutory limitations and the principle of legality could not be applied to serious human rights violations or crimes against humanity. In so doing, however, the Court set aside deeply-rooted legal principles and disregarded the Argentine constitutional order. Because the judgment reaches an admirable outcome by employing highly problematic doctrinal foundations, it has been deemed both as praiseworthy and unfortunate.

After a long period of democratic instability during the 20th century due to several coups d’état, the last military dictatorship left a mark in the Argentine society due to massive human rights violations. In this period, a military government ruled the country and committed countless crimes under the pretext of fighting the communist guerrilla. After the return to democracy in 1983, several measures were taken to prosecute and try the former military leaders. However, the pressure exercised by the military led to the adoption of the Full-Stop Law and the Due Obedience Law. The intricacies of these statutes are complex, but in practice they were, even if not formally acknowledged, amnesty laws. The Supreme Court confirmed the validity of the Due Obedience Law in the Camps case (1987). Thus, for almost two decades, those two laws impeded judicial proceedings for most crimes committed under the de facto government or led to their extinction.

Over the course of those years, however, some important changes took place. There was a wave of requests for the extradition of Argentine and Chilean nationals charged with international crimes committed during the dictatorships in order to prosecute them in foreign courts. The Rome Statute for the International Criminal Court was adopted. The Inter-American Court of Human Rights (IACHR) underscored the importance of the State duty to investigate and try the authors of crimes against humanity, and declared that self-amnesty laws breached the American Convention on Human Rights (ACHR). At the national level, the military lost resources and power to influence politics, at the same time that human rights organizations became more prominent. A constitutional reform took place in 1994, where several amendments were inspired by the experience with authoritarian government during the 20th century.

Those developments brought about a change of heart within the three branches of government with regard to the amnesty laws. A sense that the impunity they had generated could no longer be tolerated started to arise. The judiciary took the initiative in 2001, when a federal court declared the invalidity of the statutes. The executive followed suit when President Kirchner took office in 2003. In the same year, the legislature granted constitutional standing to the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (CNASL) and declared the amnesty laws null and void with retroactive effect.

Due to the annulment of the laws, several major cases against former military leaders were reopened, but there was uncertainty about their confirmation at the highest judicial level. The doubt was soon driven away by the Supreme Court, which issued two landmark decisions in 2004 and 2005. In Arancibia Clavel, the Court declared that crimes against humanity were not covered by statutes of limitations of any kind, because international customary law and conventional obligations had displaced the applicable domestic rules. In Simón, the Court expanded upon those principles and declared the amnesty laws void, thus overruling the precedent set by Camps.

Simón is not an easy case to review. The judgment extends over 350 pages in length and is composed of eight different opinions, seven concurrent and one dissenting, in which the judges set out their own reasoning and conclusions—and their arguments, despite being similar, present variations.

The case concerned the kidnapping of a couple and their infant daughter, the torture and forced disappearance of the parents and the abduction of the child by Mr. Simón and other members of security forces reporting to the military. The child was handed over to a military officer, who registered the baby as his own, a frequent practice during the dictatorship. A court convicted the accused of kidnapping a minor, a crime which was excluded from the scope of the amnesty laws. Conversely, the prosecution of the accused for the illegal detention, torture and forced disappearance of the parents was prevented by the Due Obedience Law, so the court declared the amnesty laws void to allow the investigation and trial of those crimes. This decision was confirmed by the Supreme Court.

A central point in the reasoning of the Supreme Court—and the main cause for the discontent that the decision triggered among constitutional lawyers—was the precedence of international law in the Argentine legal order. Mr. Simón, whose crimes were covered by the amnesty laws, had a right under Article 18 of the Constitution not to be tried for the relevant crimes in virtue of an ex post facto rule. At the same time, the CNASL imposed the duty to prosecute crimes against humanity without limitation. Thus, the case involved a conflict between a constitutional right and a state obligation under a treaty that had constitutional standing.

The 1994 amendment introduced Section 22 of Article 75, which explicitly recognizes the precedence of international treaty law over ordinary legislation and grants constitutional standing to a number of human rights treaties. The ACHR, the International Covenant on Civil and Political Rights (ICCPR), the UN Convention against Torture (UNCAT), and the CNASL were all granted such standing. There is a twist, however. The law calling for the Convention expressly forbade introducing any reforms to the First Part of the Constitution. Therefore, Section 22 contains a limitation: the treaties with constitutional standing “do not repeal any article in the First Part of this Constitution, and must be understood as complementary of the rights and guarantees recognized therein”. That limitation includes Article 18, as well as Articles 27 and 31, which declare the supremacy of the Constitution over all other normative sources of law, including treaties. In order to strike down the amnesty laws, the judges resorted primarily to international rules, to the detriment of the supremacy of the Constitution.

The majority tried different lines of argument to justify their preferred outcome, one in which international law trumped constitutional rights. Some judges attempted to prove that, at the time the laws were enacted, Congress was forbidden to pass statutes granting amnesties for crimes against humanity. But they had a hard time trying to justify this argument.

No treaty establishing a prohibition against amnesty for crimes against humanity was binding on Argentina at the time of the enactment of the laws. Article 15.2 of the ICCPR could have been of assistance, but Argentina made a reservation to this provision in order to limit its application to instances where it did not conflict with Article 18. The ACHR was also in force when the amnesty laws were adopted, but it had no provision forbidding amnesties. On the contrary, Article 9 forbids the application of ex post facto criminal laws. However, in a case that involved self-amnesty laws in Peru, known as Barrios Altos, the IACHR construed several articles of the Convention as meaning that the treaty prevents the application of amnesty laws to crimes against humanity. Some judges used this judgment to ground their assertion that Congress could not have validly enacted the laws. Other judges held that the laws violated the UNCAT, ratified in 1986, a few months before the adoption of the first amnesty law. This Convention imposes the obligation to prosecute authors of these crimes and prohibits the defense of obedience to superior orders—but the facts occurred before its adoption, which meant that it could not, by itself, be invoked as a legal basis to struck down the laws.

According to some judges, when the amnesty laws were passed, there was a customary or ius cogens rule in force that banned amnesties for crimes against humanity. The judges assumed that the obligation existed, instead of thoroughly proving their proposition. But custom and ius cogens cannot be presumed, and the peremptory nature of the obligation to prosecute all crimes against humanity has not been generally accepted in the legal literature, largely because of insufficient State practice to support such a norm.

A few members of the Court held that because of their nature, crimes against humanity had never been subject to statutes of limitation, both under customary international law and international conventions, including the CNASL and the Inter-American Convention on the Forced Disappearance of Persons. These two Conventions were ratified after the adoption of the amnesty laws, but according to the Court that did not lead to their retroactive application, because the Conventions codified pre-existing customary law.

Finally, some judges suggested that the proposed outcome did not involve a violation of the principle of legality or the retroactive application of criminal law because the acts constituted crimes against humanity when they were committed. In their view, the prohibition of crimes against humanity was sufficiently established in international human rights law at the time at which the facts occurred. The judges based this conclusion primarily on UN resolutions and general human rights conventions, which they considered a sufficient legal basis for the existence of a crime against humanity, overlooking that State practice recognizing such acts as crimes against humanity was scarce at the time.

Simón has an indisputable revolutionary character. For Elias, the Court ‘created doctrine that amounts to a true constitutional revolution’. In his view, the argumentative paths took by the Justices ‘altered the Constitution’ and ‘sowed the seeds of doctrines that will permit the modification of the Constitution in unforeseeable ways’, thus laying the foundation for a true constitutional revolution. Simón also set a milestone in the history of the Supreme Court because of its remarkable consequences in domestic judicial practice: according to the last report of the specialized Prosecutor’s Office, 968 people were convicted for crimes against humanity committed between 1976 and 1983.

After years of struggle to attain justice for the victims of State terrorism, the Court reached a morally legitimate outcome, but did so by sacrificing fundamental legal principles and failing to respect the Constitution. The judges were in a quandary before a case that had strong historical, ideological and symbolic implications—and the result was a groundbreaking decision, a true constitutional revolution.

Gisela Ferrari is a PhD Candidate at the Catholic University of Argentina, School of Law.

Suggested citation: Gisela Ferrari, ‘The Simón case—a decisive chapter in the Argentine struggle for a new beginning’ IACL-IADC Blog (14 July 2020) https://blog-iacl-aidc.org/constitutional-landmark-judgments-in-central-and-south-america/2020/7/14/the-simn-casea-decisive-chapter-in-the-argentine-struggle-for-a-new-beginning