1.Commissioner Oscar Luján Fappiano, an Argentine national, did not participate in the consideration and vote on this report, pursuant to Article 19(2)(a) of the Commission's Regulations.
2.Most of the attackers were members of the "All for the Fatherland Movement", (Movimiento Todos por la Patria), or MTP. The MTP is a political movement that has operated legally in Argentina since May 1986. In fact, it participated in the elections for national and provincial authorities. Its activities were not outlawed either before or after January 1989.
3.Article 21 of the Constitution provides:
Every Argentine citizen is obliged to take up arms in defense of the country and of this Constitution, in conformity with the laws in effect for this purpose issued by the Congress and the degrees of the National Executive.
4.Velásquez Rodríguez case, Judgment of July 28, 1988, paragraph 60.
5.Idem, paragraph 66.
6.Idem, paragraph 67.
7.This specific question will be examined in the chapter of this report concerning admissibility.
8.Article 18 of the Argentine Constitution provides:
...no inhabitant of the nation may be punished without prior trial based on a law that precedes the event of the trial, nor judged by special commissions, or removed from the judges designated by the law prior to the act involved in the case.
9. Case 11.673 of Santiago Marzioni against Argentina, approved on March 15, 1996, in session 1321 of the Commission, published in the Annual Report of the IACHR 1996.
10.Resolution No. 15/89, Case 10.208 (Dominican Republic), April 14, 1989. IACHR Annual Report 1988-1989, p. 100 par. 5.
11.The European Convention on Human Rights, by Frede Castberg. A.W. Sijthoff-Leiden - Oceana Publications Inc. Dobbs Ferry, N.Y. 1974. pp.63-64.
12.ICRC, Draft Additions Protocols to the Geneva Conventions - Commentary, Geneva, Oct. 1973 (CDDH/3).
13.Id. At p. 133. The ICRC also notes that such situations need not entail the suspension of constitutional guarantees.
14.See ICRC, PROTECTION AND ASSISTANCE ACTIVITIES IN SITUATIONS NOT COVERED BY INTERNATIONAL HUMANITARIAN LAW, 262 INTERNATIONAL REVIEW OF THE RED CROSS 9 at p.13 (1985).
The ICRC suggests that internal disturbances and tensions may include any, or all, of the following characteristics:
1. mass arrests;
2. a large number of persons detained for security reasons;
3. administrative detention, especially for long periods;
4. probable ill-treatment, torture or material or psychological conditions of detention likely to be seriously prejudicial to the physical, mental or moral integrity of detainees;
5. maintaining detainees incommunicado for long periods;
6. repressive measures taken against family members of persons having a close relationship with those deprived of their liberty mentioned above;
7. the suspension of fundamental judicial guarantees, either by the proclamation of a state of emergency or by a de facto situation;
8. large-scale measures restricting personal freedom such as relegation, exile, assigned residence, displacements;
9. allegations of forced disappearances;
10. increase in the number of acts of violence (such as sequestration and hostage-taking) which endanger defenseless persons or spread terror among the civilian population. Id. at p.13
15.Common Article 3 states:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth, or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the international Committee for the Red Cross, may offer its services to the Parties to the conflict. The parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the proceeding provisions shall not affect the legal status of the Parties to the conflict.
16.A Commission of Experts convened by the International Committee of the Red Cross made the following pertinent observation: "The existence of an armed conflict is undeniable, in the sense of Article 3, of hostile action against a lawful government assumes a collective character and a minimum of organization." See, ICRC, Reaffirmation and Development of the Laws and Customs Applicable in Armed Conflict: Report Submitted to the XXIst Conference of the Red Cross, Istanbul at p.99 (1969).
17.Such large scale internal hostilities are governed by Protocol II whose material field of application applies to serious case of rebellion essentially comparable to a state of belligerency under customary international law. Protocol II develops, supplements and applies simultaneously with the provisions of common Article 3. See Protocol Additional to the Geneva Conventions of 1949 Relating to the Protection of Victims of Non-International Armed Conflicts opened for signature Dec.12, 1977, U.N. Doc. A/32/144, Annex I, II, (1977).
18.ICRC, COMMENTARY ON THE GENEVA CONVENTION RELATIVE TO THE AMELIORATION OF THE CONDITION OF THE WOUNDED AND SICK IN ARMED FORCES IN THE FIELD, at p.50 (J. Pictet ed. 1952).
19.Indeed, the provisions of Common Article 3 are essentially pure human rights law. Thus, as a practical matter, application of Common Article 3 by a State Party to the American Convention involved in internal hostilities imposes no additional burdens on, or disadvantages its armed forces vis-á-vis dissident groups. This is because Article 3 basically requires the state to do, in large measure, what it is already legally obliged to do under the American Convention.
20.The four 1949 Geneva Conventions contain provisions applicable in peacetime for States Parties, such as the obligation for dissemination of the convention contained in Article 144 of the Convention Relative to the Protection of Civilian Persons in Time of War, and the authorization in Article 14 of that convention for States Parties to establish, in peacetime, hospital and safety zones.
21.M. Bothe, K.Partsch & W. Solf, NEW RULES FOR VICTIMS OF ARMED CONFLICTS: COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949, 619 (1982) [hereinafter "NEW RULES"].
22.Under Article 27 of the American Convention, persons are protected at all times, including emergency situations. Article 27(1) provides:
In time of war, public danger, or other emergency that threatens the independence of security of a State Party, the state may take measures derogating from its obligations under the Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.
23.New Rules, supra note 22, at 636. See also ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF JUNE 8, 1977 TO THE GENEVA CONVENTIONS OF 1949, pars. 4429 & 4430, at 1340 (Y.Sandoz et.al.eds. 1986). Articles 4 and 15 of the Covenant and European Convention on Humanitarian Rights, respectively, are substantially similar to and serve the same purpose as Article 29(b) of the American Convention.
24.T.Buergenthal, To Respect and to Ensure: State Obligations and Permissible Derogation IN THE INTERNATIONAL BILL OF RIGHTS 73, at 82 (L.Henkin ed. 1981).
25."Other Treaties" Subject to the Advisory Jurisdiction of the Court (Art. 64 of the American Convention on Human Rights), Advisory Opinion OC-1/82 of September 24, 1982, Inter-Am.Ct.H.R. (Ser. A) No. 1 at para. 43 (1982).
26.Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), entered into force 7 December 1978.
27.A breach of Article 3 by one party, such as an illegal method of combat, could not be invoked by the other party as a ground for its non-compliance with the Article’s obligatory provisions. See generally, Vienna Convention on The Law of Treaties, Art. 60.
28.See, e.g. the Commission’s decisions in Case 11.673 (Argentina) (Oct.15, 1996); Report No. 74/90 (Argentina), IACHR Annual Report 1990-1991, p. 75; and Case 9260 (Jamaica), IACHR Annual Report 1987-1988, p.161.
29.These principles are set forth in U.N. General Assembly Resolution 2444, "Respect For Human Rights in Armed Conflicts", 23 U.N. GAOR Supp. (No. 18) at 164, which states in pertinent part:
[T]he following principles for observance by all governmental and other authorities for action in armed conflicts:
(a) That the right of the parties to a conflict to adopt means of injuring the enemy in not unlimited;
(b) That it is prohibited to launch attacks against the civilian population as such;
(c) That distinction must be made at all time between persons taking part in the hostilities and members of the civilian population to the effect that the latter be spared as much as possible...
See also U.N. General Assembly Resolution 2675, U.N. GAOR Supp. No. 28 U.N. Doc. A/8028 (1970) which elaborates on and strengthens the principles in Resolution 2444.
30.As defined in the U.N. Weapons Convention, an "incendiary weapon" means any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons through the action of flame, heat, or a combination thereof, produced by a chemical reaction of a substance delivered on the target. See footnote No 32.
31.United Nations Conference on Prohibitions or Restriction of Use of Certain Conventional Weapons : Final Act, opened for signature Apr. 10, 1981, U.N. Doc. A/CONF. 95/15 (1980). The Convention is an "umbrella" treaty to which are attached three optional protocol agreements, each containing specific limitations on the use of particular conventional weapons. In addition to the Incendiary Weapons Protocol (Protocol III), the Convention incorporates the Protocol on Non-detectable Fragments (Protocol I) and the Protocol on Land Mines (Protocol II). Id. Under this structure, the provisions of the Convention apply to all three protocols. At the time a State ratifies or accepts the Convention, it must indicate its consent to become bound by at least two of these Protocols. Id. art. 4(3). Thereafter, the State can become a party to the other Protocol, if it so consents. Id. art. 4(4). On ratifying the Convention on September 15, 1995, Argentina declared its consent to be bound by all three protocols thereto. See NL Nr. 24536, published in the Boletín Oficial of 15 October 1995.
32.The Commission notes parenthetically in this regard that the War Crimes Tribunal for the former Yugoslavia has found such violations of common Article 3 to entail the individual criminal responsibility of the perpetrator(s). See Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991, originally published as Annex to the Report of the Secretary General Prusuant to Paragraph 2 of Security Council Resolution 808 S/25704 (1993) reprinted at 32 I.L.M. 1159. See also Prosecutor v. Dusko Tadic a/d/a "Dule," No. IT-94-1-AR712, slip op. Sec. 86-95 (Int’l Trip. for the Prosecution of Persons Responsible for Serious Violations of Int’l Humanitarian Law Committed in the Territory of Former Yugoslavia Since 1991, 1995).
33.The Argentine State deposited the instrument of ratification of the Inter-American Convention on Forced Disappearance of Persons on February 28, 1996.
34.Judgment of January 19, 1995, Neira Alegría Case, Inter-American Court of Human Rights, par. 65.
35.The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75). Advisory Opinion OC-2/82 of September 24, 1982, Inter-American Court of Human Rights (Series A) No. 2 (1982), pars. 29 and 33, respectively.
36.Judgment of January 20, 1989, Godínez Cruz Case, Inter-American Court of Human Rights, par. 140.
37.The Article 50 report on this case read "on January 24, 1989". See paragraph 335 infra.
38.The relevant Amnesty International documents are:
a) Argentina - Criminal Investigation into the Attack on the Third Infantry Regiment of La Tablada (AMR 13/02/89), June 1989.
b) Argentina - The Attack on the Third Infantry Regiment of La Tablada: Investigations into Allegations of Torture, "Disappearances" and Extrajudicial Executions (AMR 13/01/90), March 1990.
39.Amnesty International, AMR 13/01/90, March 24 1990, par. v p. 15.
40.It is worth noting that Article 42 of the Regulations of the Commission provides that the facts reported in the petition transmitted to the State shall be presumed to be true if that State "...has not provided the pertinent information, as long as other evidence does not lead to a different conclusion."
41.The Inter-American Court has established that:
The practice of international and domestic courts shows that direct evidence, whether testimonial or documentary, is not the only type of evidence that may be legitimately considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts.
Judgment of January 20, 1989, Godínez Cruz Case, Inter-American Court of Human Rights, par. 136.
42.Amnesty International, AMR 13/01/90, March 24, 1990, p. 12.
43.The Inter-American Convention to Prevent and Punish Torture has been in effect in Argentina since April 30, 1989, after the facts analyzed here. However, according to Article 22 thereof, it already entered into force on February 22, 1987, thirty days after the second instrument of ratification was deposited.
44.Judgment of July 29, 1988, Velásquez Rodríguez Case, Inter-American Court of Human Rights, par. 177.
45.Amnesty International, AMR 13/01/90, March 1990, p. 4-6.
46.Judgment of 29 July, 1988, Velásquez Rodríguez Case, Inter-American Court of Human Rights, pars. 165 and 166.
47.Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87 of October 6, 1987. Series A: Judgments and Opinions No. 9 (1987), Inter-American Court of Human Rights, par. 27.
48.Idem, par. 28.
49.Jacques Velu, Rusen Ergec, "La Convention Européene des Droits de L'Homme", Bruxelles, Bruylant, 1990, p. 335.
50.The Commission has issued a report with respect to various cases against Costa Rica regarding the right protected by Article 8(2)(h), which was limited in that country by certain provisions of the Code of Penal Procedure. That Code precluded the possibility of review by a higher court in cases involving lesser periods of imprisonment, fines, etc.
Report No. 24/92, OAS/Ser.l/V/II.82, Doc. 20, October 2, 1992, par. 30.
51. See Bidart Campos, Germán J., Tratado Elemental de Derecho Constitucional Argentino, Tomo II, EDIAR Sociedad Anónima Editora Comercial, Industrial y Financiera, Buenos Aires, 1992, p. 324. The Commission notes Professor Bidart Campos' opinion that Article 8 of the American Convention requires the right of review in the criminal procedure, not only before federal courts, but also in the provincial jurisdiction.
52.The Constitution of Argentina, which entered into force on August 23, 1994, gave constitutional status to the American Convention on Human Rights (Article 75 par. 22)
53.The International Covenant of Civil and Political Rights also provides ample protection for this right, under Article 14.5:
Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.
The reservation formulated by some European countries to this provision was later reproduced on Optional Protocol 7 to the European Convention on Human Rights. It is worth noting that Argentina has not formulated any reservations in this respect, and has therefore accepted the entry into force of the right to review in its most ample sense, as it is enshrined in both the Covenant and the American Convention.
54.Supreme Court of Argentina, Sentence of March 17, 1992, writ filed in Abella, Juan Carlos y otros s/rebelión - case No. 238/89.
55.Supreme Court of Argentina, Sentence of March 17, 1992, writ filed in Maqueda, Guillermo s/asociacion ilícita calificada, etc. - case no. 240, p. 2.
56.Bidart Campos, op, cit., p. 323.
57.San Martín Federal Court of Appeals, Sentence of October 25, 1990, p. 1.
58.Report No. 12/96, Argentina, Case 11245, approved on March 1, 1996. Annual Report of the IACHR, paragraph 70, pp. 44-45.
59.The military uprising carried out by junior officers was the first confrontation between factious of the army in three decades, that resulted in loss of life (including a colonel who committed suicide).
60.Advisory Opinion OC-4/84 of January 19, 1984, pars. 56 and 57, respectively.
61.The Inter-American Court of Human Rights has established that:
The procedures of Articles 48 to 50 have a broader objective as regards the international protection of human rights: compliance by the States with their obligations and, more specifically, with their legal obligation to cooperate in the investigation....
Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987, para. 59. In that regard, the Commission has held that
...the Convention, therefore, obliges States to furnish information requested by the Commission in the course of developing an individual case.
Report No. 28/96, Case 11.297 (Guatemala), October 16, 1996, IACHR Annual Report 1996, p.407, par. 40.
62.Velásquez Rodríguez as quoted in footnote 61, par.69
63.Report No. 29/96, Case 11.303 (Guatemala), October 16, 1996. Annual Report of the IACHR, para. 110, p. 443.
64.See fn. 34 supra.
65.See paragraph 202 supra.
66.The main analysis on the duty to investigate, which was not complied with in this case, is in Chapter IV.B.iv supra, although considerations in that regard are also developed in the analysis of each of the allegations of violations of Articles 4 and 5 of the American Convention.
67.Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of June 26, 1987, Preliminary Objections, para. 88; see also Inter-American Court of Human Rights, Neira Alegría Case, Judgment of December 11, 1991, Preliminary Objections, para. 30.
68.See paragraph 204 supra.
69.This is the name mentioned in the State's communication. It probably refers to Jorge Baños, one of the attackers who died in La Tablada.
70.Communication from petitioners received September 14, 1992, and transmitted to the State on October 18, 1993, pp. 5 and 6, respectively.
71.Communication from the petitioners received May 13, 1994, and forwarded to the State on May 13, 1994, p. 12.
72.Communication from the State received on January 9, 1995, pp. 2 and 7, respectively.
73.Fernandez' account describes the moment of surrender on January 24, 1989. See paragraph 207 supra.
74.See paragraph 211 supra.
75.Complaint of the petitioners, forwarded to the State on October 18, 1993, item 10, page 10.
76.Communication from the petitioners received May 13, 1994, forwarded to the State on June 13, 1994.
77.Communication from the State received on January 9, 1995, transmitted to the petitioners on January 18, 1995.
78.Paragraph 211 supra.
79.Amnesty International, AMR 13/01/90, March 24, 1990, para. 5, p. 4.
80.Id., p. 5.
81.See paragraph 334 supra.
82.See paragraphs 213 to 218 supra.
83.Complaint from the petitioners forwarded to the State October 18, 1993, p. 9.
84.Communication from petitioners of May 13, 1994, forwarded to the State June 13, 1994, No. 3, p. 12.
85.Communication from the State of January 9, 1995, p. 2.
86.Paragraphs 202, 204 and 218 supra.
87.Neira Alegría Case, quoted in paragraph 196 supra.
88.Paragraph 246 supra.
89.Inter-American Court of Human Rights, Velásquez Rodríguez Case, Sentence of July 29, 1988, Ser. no. 4, pars. 127-18; Godínez Cruz Case, Sentence of January 20, 1989, Series C No. 5, par. 133-134; Fairén Garbi and Solís Corrales Case, Sentence of March 15, 1989, Series C No. 6, pars. 130-131.
90.See in general, Inter-American Court, Velásquez Rodríguez Case, idem supra, pars. 130 and 146.
91.Idem supra, par. 65.
92.Report No. 10/95, Case 10.580, Ecuador, IACHR Annual Report, 1995, OAS/Ser.L/V/II.91 Doc. 7, rev.3, April 3 1996, pars. 32-34.
93.United Nations document ST/CSDHA/12.
94.A copy of that case was not sent by the State with its observations, nos does it appear in the list of the so-called "parallel proceedings". However, Case No. 9969 included in that list is labeled "investigation of the events reported by René Miguel Rojas and others in Case No. 1722/3". according to the State's communication of January 9, 1995, Case 9969 "...was closed by a decision of total and provisional discontinuance ("sobreseimiento total y provisional"). There was no complaint (querella).
95.See AMR 13/01/90, p. 4.
96.See Report No. 10/95, Case 10,580, Ecuador, idem fn. 90 supra, par. 45; report No. 28/96, Case 11.297, Guatemala, IACHR Annual Report, 1996, OAS/Ser.L/V/II.95, Doc. 7 rev., March 14, 1997, par. 72.
97.The Inter-American Court has established that
Article 25 is closely related to the general obligation under Article 1(1) of the American Convention, when it assigns functions of protection to the internal legislation of the States parties. (unofficial translation)
Inter-American Court of Human Rights, Castillo Páez Case, Judgment of November 3, 1997, par. 83.
98.Paragraphs 250 to 273 supra.