The "Allard K. Lowenstein International Human Rights Clinic" of the University of Yale Law Faculty submits an amicus curiae supporting the determination of crimes against humanity in the Scilingo Case.

On 14th December 2006, the Allard K. Lowenstein International Human Rights Clinic of the University of Yale Law Faculty submitted an amicus curiae before the Supreme Court, supporting the judgment handed down on 19th April 2005 in the case of the Navy Officer Adolfo Scilingo.

This work was done at the request of Equipo Nizkor and was submitted as an Annex to the documents filed on the same day in defence of the judgement by the Argentinian Association for Human Rights (Asociación Argentina Pro Derechos Humanos - 'AAPDH') of Madrid, to the Second Criminal Chamber of the Supreme Court. It is this Court which will consider the appeals for annulment filed by the defence team of the convicted Adolfo Scilingo and by various of the public and private prosecutions who have appealed against the judgement which found the accused guilty of commission of crimes against humanity. The Supreme Court must still decide on the admissibility of said appeals.

Similarly, the Professor of Law of the Allard K. Lowenstein International Human Rights Clinic of Yale University's Law Faculty and Executive Director of the Schell Center for International Human Rights of the said Faculty, Professor James Silk, sent a letter to the judge rapporteur responsible for this case in the Supreme Court, Sr. D. Enrique Bacigalupo Zapater, submitting the amicus curiae and explaining the interest of the Clinic in making the submission.

We should recall that between 26 April and 12 May 2005 various public and private prosecutions announced that they would appeal to the Supreme Court for the annulment of the judgement dated 19th April 2005 which found the commission of crimes against humanity in the case of Adolfo Scilingo Manzorro. These parties filed a formal joint appeal with the Supreme Court on 12th January 2006.

Coincidentally, the Navy Officer Adolfo Scilingo is the only Argentinian military officer who is serving a judicial sentence for serious crimes against human rights anywhere in the world.

In the joint appeal, the appellants claim that "In the context of the proven facts of the judgement we are appealing, we shall analyse the erroneous characterisation in law which, in our opinion, the trial court has applied to the same", arguing that the proven facts establish the crimes of genocide and terrorism and not crimes against humanity.

The appellants do not offer any kind of evidence which would permit an analysis of the "mens rea" or the specific intent required in genocide that leads to the characterisation of the facts in the particular case of Adolfo Scilingo as constituting genocide; but neither did they do so during the relevant procedural stage, that is to say during the trial itself.

The documents submitted on 10 November 2006 by the AAPDH in defence of the judgement against Adolfo Scilingo state: "Ultimately, the lack of evidence of the crime of genocide happens to coincide with the interests of the defence team of Officer Adolfo Scilingo, given that if the charge were to be so characterised the accused would have to be released for lack of evidence. The intention behind seeking to modify the legal definitions in analysing a series of contextual facts which have the clear characteristics of crimes against humanity cannot be for any other reason than to defend the interests of the accused and the officers who organized, directed and planned the extermination group of the Argentinian Navy which operated in the ESMA, throughout Argentina and even in foreign countries".

The amicus curiae submitted by the Human Rights Clinic states the following in its conclusions:

    "Spain has an obligation under international law to bring to justice the perpetrators of crimes against humanity, genocide, and war crimes. Scilingo was responsible for crimes that are accurately and appropriately categorized as crimes against humanity. These crimes cannot be characterized to fit the definition of genocide. Responsibility for the acts at issue has been established by the judgment of the Audiencia Nacional. Thus, the relevant question on appeal is whether those acts are proscribed by law and, if so, what crimes they constitute. Under international law, appellant Scilingo's conduct clearly constitutes crimes against humanity. The crimes of the military regime's campaign do not satisfy the elements of the crime of genocide, and Scilingo's conduct (actus reus) and his intent (mens rea) do not fulfill the requirements of genocide.

    If justice is to be served, Adolfo Scilingo must be held criminally responsible for the atrocities that he committed as part of the military dictatorship that ruled Argentina from 1976 to 1983. This Court must not allow those acts, as found by the Audiencia Nacional, to be mischaracterized as genocide. This mischaracterization would prevent the Court from fulfilling its duty to bring appellant Scilingo to justice for his responsibility for the criminal acts that the Audiencia Nacional found he has committed.

    For the foregoing reasons, the Allard K. Lowenstein International Human Rights Clinic at Yale Law School as amicus curiae respectfully submits that the prosecution and conviction of appellant Scilingo for crimes against humanity are consistent with and justified under international law and that the acts he committed are not consistent with a finding of genocide as defined in international law."

Equipo Nizkor will be putting a copy of the original text of the amicus curiae on its documentary website together with a Spanish language version.

The collaboration between Equipo Nizkor and the Law Faculty of Yale University began some years ago and has become firmly established with the joint project between Radio Nizkor and the Schell Center for International Human Rights known as the International Human Rights Law Internet Radio.

[Source: Radio Nizkor, 27 December 06]

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