Will
There Be Justice for the Germans Disappeared in Argentina?
Katya
Salazar, May 1998
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?
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 the
Website of the Coalition
(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.
