Forty years on from Operation Condor

Transcription

1 WORKSHOP Forty years on from Operation Condor Comparative Experiences in the Southern Cone and Brazil Conclusions The so-called Plan or Operation Condor was a secret intelligence network set up by the dictatorships of Argentina, Bolivia, Brazil, Chile, Paraguay and Uruguay in the 1970s in order to illegally detain, torture, and, very often, murder political opponents all across South America, turning the region into a borderless area of terror and impunity. Condor emerged from informal bilateral forms of cooperation among the armed and security forces of Argentina, Paraguay, Chile and Uruguay as early as Condor was later formally created at a meeting of intelligence and security forces organised by the Chilean National Intelligence Directorate (DINA) and held in Santiago, Chile, between November 25 and December 1, Between 1975 and 1981, Plan Condor facilitated the perpetration of disappearances, kidnappings and murder of hundreds of political leaders, activists and refugees. The transnational repressive coordination completely disregarded all principles of international law on refugees and the long custom of protecting exiles in South America. 1 Rationale behind the Workshop The year 2015 marked the fortieth anniversary of the Plan Condor founding meeting. At that juncture, it became important to reflect on the steps taken and progress made in South America to try to shed light on the crimes perpetrated by the repressive coordination of the dictatorships. In addition to that, the next five to ten years will be key in order to move ahead with the criminal investigation of those very crimes. Time is of the essence. 1

2 For all these reasons, in addition to the conference organised on June 23, 2016, to evaluate the status of criminal trials probing Plan Condor crimes in Uruguay, Brazil, and Argentina, a workshop was also held the following day with the participation of academics, lawyers, judges, prosecutors, public policy experts and members of civil society. The key objective was to identify and discuss the obstacles -both legal and factual- which delay or prevent the investigation of transnational crimes and to generate potential strategies and tools together to be implemented on a regional level to overcome them, thus favouring accountability in the near future. The starting point for the workshop debate was the Plan Condor trial in Buenos Aires and similar lawsuits investigating Operation Condor in Chile and Uruguay. The main goal was to discuss the problems and challenges specifically associated with the investigation of Condor crimes. If in the 1970s the countries of this region were able to work together through Plan Condor to coordinate their repressive policies to jointly carry out atrocities, nowadays it is fundamental to develop public policies at a regional level in order to repair and redress those same crimes. The following questions and topics were considered at the workshop: What were the major obstacles that have delayed or obstructed accountability? What are the challenges and difficulties for judicial operators in Chile who have to investigate a crime committed in Argentina? Or vice versa? What tools do judges, lawyers and prosecutors require to conduct effective and efficient investigations into wrongdoings committed outside their own country? 2 Summary of Judicial Proceedings on Plan Condor in Argentina and Uruguay ENTINA In Argentina, there are currently two judicial proceedings investigating the repressive coordination among the South American dictatorships: 1 (a) the lawsuit that is investigating operation Condor since 1999, known as Plan Cóndor, and (b) the one relating to a secret detention centre where Argentine and Uruguayan security forces operated from, known as Automotores Orletti, the name of the detention site. 1 La Judicialización de la Operación Cóndor, Informe de la Procuraduría de Crímenes contra la Humanidad, Buenos Aires, noviembre de 2015, 2

3 The proceedings that have made most progress to date are the ones before Federal Criminal Tribunal 1 in Buenos Aires. The trial encompassed three segments of the Plan Condor lawsuit and one of the Automotores Orletti investigation. Here are some key features of the trial: Total of 174 victims: 65 relate to Automotores Orletti, while 107 are victims of operation Condor and two are victims in both lawsuits. The victims are citizens of the majority of the countries that composed Operation Condor: Argentina, Bolivia, Chile, Paraguay, Peru and Uruguay; Total of 27 defendants: 17 were eventually left by the time the trial ended; five were exonerated due to ill health, while five passed away during the trial, including former dictator, Jorge Rafael Videla. Of the original 27 defendants, 26 were Argentinian and one Uruguayan. Among the 26 Argentinian defendants, 24 belonged to the Army, one to the Navy and one was a civilian intelligence officer, charged in the Automotores Orletti part of the trial. The only foreign defendant is a retired officer of the Uruguayan army, Juan Manuel Cordero, extradited from Brazil in Crimes: illegal detentions and torture as well as the creation of a joint criminal enterprise. In a historic verdict, delivered on May 27, 2016, the Tribunal considered that Plan Condor constituted a joint criminal enterprise and condemned 15 of the 17 defendants in the case, with sentences ranging from 8 to 25 years. For example former Argentine dictator Reynaldo Benito Bignone received 20 years, while Uruguayan Juan Manuel Cordero and former Argentine general Santiago Omar Riveros 25 years. Two defendants, Juan Avelino Rodríguez y Carlos Tragant, were acquitted. A portion of the Condor lawsuit continues to be probed in the pre-trial stage at Federal Criminal Tribunal 7 and Criminal Federal Prosecutor 10. This investigation encompasses approximately 193 defendants for their responsibility in the cases of 382 victims (348 being investigated for the first time and 34 already examined in previous trials). The total number of victims of Operation Condor under judicial investigation in Argentina reaches a total of 457 cases. The cases include victims from Argentina, Bolivia, Chile, Paraguay, Peru and Uruguay, and also citizens from Brazil, Germany and Spain. 2 2 Data taken from the report: La Judicialización de la Operación Cóndor, Informe de la Procuraduría de Crímenes contra la Humanidad, Buenos Aires, noviembre de 2015, Final.pdf 3

4 GUAY In Uruguay, according to information provided by the Observatorio Luz Ibarburu (OLI) database, 13 criminal proceedings (see Table 1 for details) have investigated different crimes committed by the repressive coordination among the Latin American dictatorships. Out of the 13 cases, four have concluded with some verdicts already upheld by the Supreme Court of Justice (SCJ), while only one case is currently at the trial stage. The vast majority, seven cases, remain in pre-trial stage and one has been shelved due to the death of the only defendant in the case. According to a report recently compiled by UNESCO, there were approximately 377 victims of Operation Condor between 1974 and 1981; 177 of them were Uruguayan citizens, constituting 47% of the total. This means that Uruguayans constitute almost half of the total number of Operation Condor victims. In spite of that, there has been a low level of prosecution of those crimes in Uruguay. The 13 criminal proceedings only encompass 111 victims, i.e. 63% of the total. In addition, even considering the cases of victims who are currently being probed by the judiciary, the vast majority of the proceedings is still in the pre-trial phase. The four trials that have concluded covered only 70 victims, 39.5% of the total estimated Uruguayan Condor victims. Condor related criminal proceedings have, nonetheless, played a key role in the struggle for justice in Uruguay. It is interesting to note that the first criminal complaint for crimes of the dictatorship that was filed in the country at the time of the transition to democracy on February 22, 1984 still under the dictatorial rule related to the kidnapping in 1978 in Porto Alegre (Brazil) of two activists of the Party for the Victory of the People (PVP), Universindo Rodríguez and Lilian Celiberti, together with Lilian s two children. Another emblematic lawsuit filed that same year, on April 12, 1984, requested that the judiciary investigate the crimes committed in the former clandestine centre known as Automotores Orletti. After the Uruguayan Parliament sanctioned the Expiry Law, in December 1986, criminal trials were suspended for nearly 20 years; these resumed only in the 2000s, owing to persistent efforts by victims, family members, human rights activists and a few sponsoring attorneys. 3 The investigation of Condor crimes allowed for some openings and advances vis-à-vis the situation of absolute impunity that had existed up till then. The first government of the Broad Front, with President Tabaré Vázquez ( ), decided not to annul the Expiry Law, but began applying it literally, excluding from its scope, for example, crimes committed by the high command, by civilians, offences such as the illegal appropriation of minors, and crimes committed abroad. In light of this new 3 Burt, Jo-Marie, Gabriela Fried Amilivia, and Francesca Lessa Civil Society and the Resurgent Struggle against Impunity in Uruguay ( ). International Journal of Transitional Justice 7 (2): ; Francesca Lessa Memory and Transitional Justice in Argentina and Uruguay: Against Impunity. New York: Palgrave Macmillan 4

5 application of the law, judicial investigations begun to make some progress in the country. Indeed, the first sentence of military and police linked to the dictatorial regime handed down in March 2009 was linked to criminal acts committed within the framework of Condor. Judge Luis Charles condemned six former military officials and two ex-police officers for 28 homicides, perpetrated against militants of the PVP kidnapped in Buenos Aires in That same year, in October 2009, another trial linked to Condor offences led to the conviction of former military dictator Gregorio Alvarez, together with another defendant, for 37 killings between 1977 and 1978 of Uruguayan militants in exile in Argentina. Finally, in a lawsuit subsequently archived due to the death of the only accused, the categorization of enforced disappearance - not murder as used in the previous two cases - was accepted in 2010 for the first time; this characterization was later ratified on appeal too in Table 1 Condor related Criminal Proceedings in Uruguay Case file name Date filed # victims # defendants Crime(s) and date(s) Status Condor countries 1 Anatole and Victoria Julién Enforced disappearance, appropriation of minors Antonio Viana Torture Edison Inzaurralde and Nelson Santana 28/05/ Enforced disappearance, kidnapping 1977 Shelved CHI (pre) PAR 4 Fusilados de Soca Murder, appropriation of minors, identity theft 1974 (pre) 5 GAU Murder, enforced disappearance, refoulment 1977 y 1978 Verdict (2009) 2 sentenced 6 Hector Giordano Enforced disappearance Maria Claudia Gelman 19/06/ Appropriation of minors, enforced disappearance 1976 Trial 5

6 8 Montoneros 30/04/ Appropriation of minors, torture, kidnapping, enforced disappearance, kidnapping, joint criminal enterprise, appropriation of minors Orletti ( primer vuelo ) 10 Orletti (Soba and others) 11 Universindo Rodríguez and Lilián Celiberti 12 Washington Barrios Verde = sentencia Amarillo = sumario 12/04/ Torture, murder, kidnapping, enforced disappearance Enforced disappearance, kidnapping /02/ Torture, kidnapping /09/ Kidnapping Zelmar Michelini Murder 20/05/1976 Naranja = presumario Violeta = archivada Verdict (2009) 8 sentenced Joined to Orletti (Soba and others) Verdict (2011) 1 sentenced BRA 3 Workshop Discussion After a brief introduction by Dr Francesca Lessa, we split into two groups with 20 participants in each. The discussion was led by project consultant Lorena Balardini (University of Buenos Aires) and Dr Lessa, and Maria Florencia Gonzalez (Ministry of Justice, Chile) and Raul Olivera (OLI). In each group, the discussion was framed around three key themes: 1. Juridical Construction of Operation Condor Transnational Crimes; 2. Necessary Resources to Investigate Operation Condor Transnational Crimes; 3. Access to Evidence and Communication among Judges, Prosecutors, Lawyers and Civil Society. 6

7 1 Juridical Construction of Operation Condor Transnational Crimes Regarding this first issue, the following themes were tackled: the existence of criminal and procedural codes intended for the prosecution of isolated and sporadic criminal acts, not systematic crimes; and the relationship of domestic law with international treaties. In particular, these problems were considered in detail: Procedural law not intended for this type of trial and the role of victims In Uruguay and Chile, the criminal codes used to investigate human rights violations (whether committed within Condor or not) are the same ones that are employed to probe common crimes, not systematic offences. Therefore, the criminal codes and legal categories available to judicial operators are insufficient and inadequate to carry out comprehensive investigations of crimes of such a complex nature. In addition, the fact of having to indict for common crimes often results in rather lenient sanctions at the sentencing stage, which do not match the gravity of the crimes committed. It was also stressed that, in Uruguay as well as in Chile, the task of gathering and presenting proof and evidence during trials always fell upon the victims, placing a huge burden on them, whereas the State has never assumed its responsibility in that respect. The victims have to provide testimony many times, which results in their revictimization and also causes problems of resources and time. Victims play a central role in feeding evidence to criminal proceedings but, then, they cannot play an active part during the trial phase itself in Uruguay, where the figure of private prosecutor does not exist, as it does in Argentina. Thus, there is an ongoing effort to push through a legislative bill that would permit victim participation in court proceedings. In addition to the invisibility of victims in the criminal process itself, the issue of gender and gender specific violence remains invisible when looking at the crimes brought. For example, in a case investigating the sexual violence suffered and denounced by 28 women in Montevideo, the judge only requested the indictment for the crime of deprivation of liberty, failing to include torture or rape. The Prosecutor has appealed the indictment, considering that the accused also has to be prosecuted for torture. 4 International and national law: the characterization of the crimes and prescription In Uruguay, the crimes of enforced disappearance and torture exist within national legislation since Some prosecutors and judges have argued that these legal categories could be used to investigate the crimes of the dictatorship and of Condor. Moreover, article 72 of the Constitution of Uruguay allows for international treaties to be applied as if they were part of national law. Therefore, the legal basis to apply international law in Uruguay is not the main problem, but rather, the bigger obstacle seems to be the interpretation adopted by several judicial officials when 4 Fiscal apeló procesamiento de ex militar Lucero por privación de libertad, Busqueda, 24 de mayo de 2016, 7

8 confronted with these types of crimes and investigations. Some of them have fought throughout the years to support the claim that the human rights law should be applied in the country to probe the crimes. In spite of that, the Supreme Court of Justice (SCJ) has rejected in all instances the use of the category of forced disappearance, sentencing instead for deprivation of freedom or murder. It is a juridical battle that endures. In addition to the definition of the offense, another issue linked to international law is the qualification of an act as a crime against humanity. Statutes of limitations, as tools to extinguish criminal actions, are a subject of debate in Uruguay today: whether such statutes for common crimes should be applied in these cases, or if the imprescriptibly of these crimes under international law should prevail. Within Uruguay s Public Prosecutor Office, two possible solutions are adopted; they are non-complementary but are both raised at the same time as back-ups: one is the suspension of the limitations period; the other is the non-applicability of statutory limitations. The first position is limited and fails to adequately address the phenomenon of crimes against humanity, for failing to consider them as imprescriptible. It maintains that, due to the existence of the Expiry Law between 1986 and 2011, the limitations period only has to be counted from 2011, because only after that date criminal prosecutions could take place. The Expiry Law was derogated in October The second accepts the qualification of these crimes as crimes against humanity and therefore never subject to prescription. The judicial system has reacted differently to these arguments. On the one hand, lower courts have adopted more favourable stances towards arguments applying international law and the nonapplicability of statutory limitations; on the other, the SCJ and the appeal courts are less permeable to those arguments. In particular, the SCJ maintains an outdated and conservative position on the topic. 2 Necessary Resources to Investigate Operation Condor Transnational Crimes As regards this second them, the key topics considered related to the importance of creating multidisciplinary teams for the successful investigation of the crimes and of improving the formal networks that allow the information exchange as a state policy. In particular, the following matters were addressed in detail: Unwillingness to investigate and state policies In Uruguay, a solid and sustained strategy to conduct national investigations of crimes, in which the State must actively participate, needs to be urgently created. Many of the participants emphasised the absence of a state policy in the country in this respect. Political will to carry out the investigations is essential. First, the information collected is not fully exploited or used correctly. Second, with changes of Government, there is also a change in public policies, without there being a vision about the subject that persists beyond the political party that is in government at any given time. A former prosecutor outlined how, when she was investigating Condor crimes against Uruguayan citizens in 8

9 Argentina, cooperation with her Argentine colleagues was fundamental to obtaining data, information, dossiers, and in filing rogatory letters. But all of this was achieved largely through informal networks, and thanks to her own personal efforts, not because the State provided any resources or support in that respect. Another lawyer recounted how, when they filed a case relating to Argentine victims of Condor in Uruguay, they received very little cooperation from the Uruguayan authorities, something that also negatively impacted on their relation with the Argentine Embassy, which was willing to help but finally was unable to do so. The participants agreed that it was necessary to develop formal networks and that civil servants should provide information for direct incorporation into criminal proceedings. Participants also argued that it was no longer possible to work just with the goodwill of counterparts within each state and through informal networks. Rather, it is extremely necessary to generate formal mechanisms to exchange information, to present data requests, and monitor response times to such requests. There are several memorandums of understanding on the exchange of information, such as the Memorandum of Understanding between the Republic Argentina and the Oriental Republic of Uruguay to Exchange Documentation to Clarify Serious Human Rights Violations of December of Such conventions and cooperation networks should be strengthened further. Multidisciplinary Teams The main recommendation was to set up multidisciplinary teams to support investigations, encompassing forensic doctors, anthropologists, lawyers, historians, psychologists, etc. Current teams do not meet the needs, in particular the team in the Ministry of the Interior in Uruguay. In Argentina, for example, it was necessary to establish interdisciplinary teams that were allowed to read and understand all the files that composed the investigations. While the testimony was the core of the evidence and for the accusation, finding new documentary evidence forced actors to overcome new challenges, which finally ended with the creation of interdisciplinary teams. Another issue that also emerged in relation to Uruguay was that there is no policy to accompany to victims when they have to give testimony before the courts. This can result in many opportunities for their revictimization. A policy of victim support should be institutionalised and this could also be partly achieved, by incorporating psychologists and social workers into the proposed multidisciplinary teams. 5 5 Similar interdisciplinary teams have existed in the past such as, for example, with the Colloquium for Actors involved in Reparations, organised by the University of the Republic, which brought together human rights organizations, State institutions, academics and professionals (such as the history research group, the forensic anthropology group, the Institute of Health Psychology, and the Mental Health and Human Rights Cooperative). These could serve as a model for future initiatives, using existing professionals but not just in an ad hoc and temporary fashion as has been the case in the past, but rather by institutionalising them as permanent teams such as in Argentina when Ulloa Institute, which provides victim support, was established. In Uruguay, this could be set up with members of the Human Rights and Psychology Programme at the Institute of Health Psychology. 9

10 3 Access to Evidence and Communication among Judges, Prosecutors, Lawyers and Civil Society With regard to the third and final topic, the following two issues were debated in detail: Access to Information and Archives Many of participants particularly emphasised the difficulty of accessing information and files. There are no real mechanisms that guarantee access to information. In Uruguay, the State has done very little in this area and what has been achieved so far is mainly owing to the efforts of civil society. The Secretary of Human Rights for the Recent Past (SDHPR, Spanish abbreviation), for example, responded to several rogatory letters and participated in six international cases, providing documentation. The documentation and reports presented by the SDHPR constituted a systematised set of documents that set out the State s repressive logic beyond individual cases of crimes. The documentation supported and sustained the often lonely voices of survivors. It is highly likely that the logic of the judges focuses more on testimonies rather than historical explanations. But the records still provided key elements to shape the opinion of the judges. With regard to this documentation function, an expert highlighted the following problems and practical difficulties: (a) the international rogatory letters come from different channels and that generates a difficulty in properly answering them; (b) the authentication of the documents for the General Clerkship of the Nation; this process has to be carried out for each document and is very time consuming; (c) the difficulty of gaining access to the information on the judgments in other countries. In Uruguay there are directories on 19 archives and three laws governing the questions of archives. What is missing is a protocol to ensure access to archives; until now researchers and lawyers have hardly been able to consult and use this documentation. In Brazil, the Bar Association has 500,000 documents digitized on various topics of interest and the Amnesty Commission and the Commission of Dead and Missing also made electronic copies of the information collected; perhaps this could serve as a basis to generate cooperation in the field of documentation and digitization. Lack of Specialization and Training Under this heading, two issues were highlighted in particular. On the one hand, an official of the Ministry of Foreign Affairs (MRREE), stressed the need to train public officials who have to work on this issue, to sensitise them to this complex subjet. In the case of the MRREE, the transnationalisation of justice requires that diplomats rise to the challenge of the task. For example, the MRREE played a role in the Condor trial in Italy. But the official who deals with a witness has to be sensitive and knowledgeable, not out of his/her own goodwill, but by having been trained specifically in human rights. On the other hand, several participants highlighted how, within the Uruguayan judiciary, there are no researchers, or special prosecutors, but rather the same officials who deal with common crimes are the ones who have to investigate allegations of crimes against 10

11 humanity. In general, there is therefore a lack of expertise on these issues and there are no equivalent institutions, for example, to the Office of the Attorney for Crimes against Humanity in the Public Prosecutor Office of Argentina. In October 2015, in Uruguay, a Special Human Rights Unitwas set up to train public prosecutors on the historical and political context of the dictatorship. 6 Although this is an important step, it does not seem to be sufficient if it is not accompanied by the development of institutional strategies to investigate and provide further training on these crimes. 4 Next Steps After the group discussion, there was a concluding plenary session. The following two proposals were agreed, with the objective being to push ahead with the investigation and eventual prosecution of Condor cases: 1. The creation of teams exclusively dedicated to investigating human rights lawsuits: these could be established within tribunals, the public prosecutor s office or other offices within the judiciary. In light of the complexities surrounding these cases, in addition to personnel from the office in which they are to be established, they will also be of a multidisciplinary nature, with the participation, in particular, of historians and document analysts to support the analysis of archival evidence and documents, anthropologists, forensic doctors, and psychologists to accompany and provide support to victims and witnesses; 2. Setting up a regional database containing information on the trial proceedings and archival documents, that would allow judges, lawyers, civil society activists, and prosecutors to access all these records. In order to do this, it will be necessary to gather, compile and digitalize (where not already done so) all the documents and records, as well as develop and coordinate ways of accessing the information so that it can be incorporated in the legal proceedings. 6 La suma de los factores, La Diaria, 30 de octubre de 2015, 11