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July 1998 |
Will There Be Justice for the Germans Disappeared in Argentina?
The Argentine Savagery
Betina Ehrenhaus is German and lives in Buenos Aires. In the 1940s, her grandfather, the Regisseur of the Dresden Opera, emigrated to flee the war. He was seeking a country in peace, and he chose Argentina. He never imagined that history would repeat itself there.
In 1979 Betina was only 21 years old. One Sunday she and Pablo, her boyfriend, were on the way to her parent's home when they were stopped by three cars. Half a dozen heavily armed individuals came out from them, and proceeded to beat them, blindfold them and finally throw them to the floor of one of the cars. They were taken to the Naval Mechanics School (ESMA), a secret detention center. There, Betina was hooded, interrogated and tortured with an electric "picana" (a kind of cattle-prod), which they applied to her breasts, belly, legs and mouth until she passed out. They asked her to "sing" (i.e. to confess and give information); she had no idea what they were talking about. Two days later they put her back in a car and soon after set her free, threatening to kill her if she told what she had seen and heard. Her last memory of Pablo are his screams when he was being tortured. She never saw him again.
Marcelo Weisz, his wife Susana González and their three-month-old baby were kidnaped on a public street in Buenos Aires on February 16th, 1978. The baby was later returned to Susana's mother by the kidnappers, who informed her of the "detention" of the couple. Numerous witnesses saw Marcelo and Susana in the clandestine detention centers "El Banco" and "El Olimpico", situated in the city of Buenos Aires and run by the First Army Corps, commanded by Carlos Guillermo Suárez Mason. For one year after his disappearance Marcelo was able to "visit" his family accompanied by his torturers. According to his mother: "... his repressors, people such as the famous "Turco Julián", "Colores" del Cerro and a person called "The Uncle," would bring him to my home... they would arrive there, eat, drink and remain for a while, generally on Saturdays and for about two hours; Marcelo would tell me he was all right and that he was doing "office work" together with others..." The visits stopped in 1979, and nothing else was known about Marcelo or his wife until 1995 when his mother saw on a TV program the former Federal Police Officer Hector Julio Simón, whom she recognized as "Turco Julián", one of the men who accompanied her son to her home for that one year. Accused of human rights violations by dozens of survivors, but free thanks to the laws of due obedience and "punto final", "Turco Julián" justified what was done by the military dictatorship in front of the cameras, acknowledged that "the general order was to kill everyone" and mentioned the Weisz couple as two of the "disappeared" who were later murdered.
The Road to Impunity
Before leaving power, the Military Junta in Argentina issued documents assuming total responsibility for the planning, supervision and execution of the "war against subversion", as they called the "Dirty War." The Junta acknowledged its use of "non-conventional methods" in the fight, and declared that the "actions" of the members of the Armed Forces in the operations related to the "war" constituted "acts of service." They also stated that there were no "disappeared alive" but had all been "killed in confrontations." In addition, the Junta issued the so called "self-amnesty law" (1) wherein it declared as extinguished all criminal actions for crimes committed by the security forces in the fight against subversion between May 1973 and June 1982.
Democracy returned to Argentina in 1983, and with it the clamor for justice. The new Congress declared the "self-amnesty law" unconstitutional, null and without juridical effect (2), thus leaving the way open for the prosecution of those responsible for so many atrocities. Hundreds of criminal actions against repressors from all ranks were started and President Raúl Alfonsín ordered the trial of the members of the first three military juntas. The search for justice, however, met its end some time later when the Punto Final (3) and "Due Obedience"(4) laws were passed, eliminating almost all possibilities of prosecuting the crimes committed during the dictatorship. Finally, through a series of presidential pardons issued by President Menem, the few members of the military that were still in prison, were freed.
With no hope of obtaining justice in the national courts, the families of the victims had no other alternative than to resort to foreign courts. In 1983, the families of a hundred Italians disappeared during the last dictatorship in Argentina presented a denunciation before the office of the prosecutor of Rome. In October 1989, Captain Alfredo Astiz was sentenced by the Appellate Court of Paris to life in prison for the deaths of two French nuns. In mid-1996. Court No.5 of the Spanish National Audience started an investigation of the crimes of terrorism and genocide against Spaniards during the last dictatorship in Argentina.
But they were not the only foreigners "disappeared" in Argentina. At least seventy Germans or people of German descent lost their lives during the military dictatorship. In 1983, a group of family members presented a joint habeas corpus for the disappearance of 48 Germans and people of German descent. They had no answer. The German embassy in Buenos Aires did not do much for its citizens either. Idalina de Tatter, whose husband was disappeared in 1976, came to Germany to present a denunciation against the Minister of Foreign Affairs and other members of his ministry for denial of help. The case was closed.
Despite frustration and the years that went by, the families continued meeting periodically; finally a few months ago, in the context of the criminal procedures started in Spain and Italy, the possibility of starting a criminal procedure in Germany was set forth. To this end, Adolfo Perez Esquivel, a Nobel Peace Laureate and a victim of the repression in Argentina, contacted the Human Rights Center in Nuremberg and asked through them for the support for the German organizations.
The Coalition Against Impunity: truth and justice for the German disappeared during the military dictatorship in Argentina 1976-83
In March 1998, after several months of consultations and preparatory work, the "Coalition Against Impunity" (5) was created as an alliance of Human Rights NGOs and the Evangelical and Catholic Churches united with the common purpose of pursuing a trial in the German courts for the disappearance of German citizens and people of German descent during the military dictatorship in Argentina. On May 7, the charges were officially filed with the German Ministry of Justice. These include the cases of Betina and Federico Tatter, the husband of Idalina, and of Marcelo Weisz and Alfredo Coltzau. The accused are 41 retired and active members of the Argentine armed and security forces, including the members of the military juntas that ruled Argentina between 1976 and 1983. As there are no clear jurisdictional rules in this type of cases, the Ministry of Justice must derive the charges to the Federal Supreme Court (Bundesgerichthof) which will determine in the next few weeks which prosecution office has jurisdiction.
That same day, the Coalition carried out a "public hearing against impunity" in one of the rooms of the German Parliament. Betina Ehrenhaus and Idalina Tatter gave their testimonies and expressed their trust in German justice. Representatives of the Max Planck Institute and of the German Justice Ministry talked about the legal aspects of the charges, and their possibilities in Germany while Tino Thun, a German lawyer, talked about human rights and German foreign policy concerning Argentina between 1976 and 1983.
The criminal charges were filed under Article 7, section 1 of the German Penal Code which incorporates the principle of passive personality and allows for the application of German criminal law against foreigners for acts committed abroad against German citizens, when these acts are also criminal in the place where they were committed. The alleged crimes are murder, unlawful imprisonment and injuries, which are penalized by both the German and the Argentine penal codes.
According to a study carried out by the Max Planck Institute (6) the abovementioned Argentine impunity laws are irrelevant to prosecutions under Article 7, section 1 of the German penal code. German jurisprudence has previously established that foreign norms of penal prosecutions do not hindrance penal prosecutions in Germany (7). Furthermore German doctrine agrees with the jurisprudence, and considers procedural obstacles to prosecution, such as amnesties, as irrelevant to prosecutions under art. 7, section 1 (8). The studies has also found that the impunity laws are illegal under international law, as international law establishes the obligation to prosecute and punish grave human rights violations such as forced disappearances, extra-judicial executions and torture and sets limits to amnesties and pardons.
Most of the facts that will be at issued in these German prosecutions have already been established by other courts. For example, the court that judged the Military Junta in Argentina found that there had been a power structure bent on fighting subversion by "...capturing those who could be suspected of having links to subversion ... interrogating them under torture... subjecting them to inhumane living conditions... carrying out everything previously described in the most absolute clandestineness... with broad liberty for the lower cadres to determine the fate of those apprehended who could be later freed, put in the hands of the National Executive power, subjected to a military or civilian trial, or physically annihilated..."(9)
The cards are on the table. We are now waiting the determination of what prosecuting office will have jurisdiction. We will then start working towards the next stage, where we will surely find many obstacles that we hope to overcome. We trust that Germany, the site of the Nazi savagery of the Holocaust, will rise to the height of its European neighbors and that this time will seek justice for its citizens as it did not do 20 years ago. Or will it be true, as an officer of the German embassy in Buenos Aires told Betina Ehrenhaus 19 years ago, that to sell a Mercedes Benz is more important than searching for a "disappeared" person?
Katya Salazar is a lawyer working with the Coalition Against Impunity. She is the representative in Germany of Derechos Human Rights.
Notes
(1) Law 22.924 of 22.9.83
(2) Law 23.040 of 22.12.89
(3) Law 23.492 of l 23.12.86
(4) Law 23.521 of 5.6.87
(5) For more information see
(6) Max-Planck Institute for Foreign and International Criminal Law, Freiburg, 1998. Pronouncement on the following juridical problem: Is there a possibility in the Federal Republic of Germany for a penal prosecution of members of Argentine state organizations for the crimes of "disappearance" committed in that country during the period of the military dictatorship (1976-1983) despite national dispositions of exclusion of punishment (impunity laws)?
(7) Idem.
(8) Idem.
(9) La Sentencia, Tomo II. Imprenta de la Nacion, Buenos Aires.
