The case of Luis Kyburg – The prosecution of an Argentine military officer in Germany

Argentina – Military dictatorship – Germany

Early November  2023, following extensive investigations, the Berlin Prosecutor General’s Office (GStA) filed a 220-page indictment for 23 counts of murder against former Argentine naval officer Luis Kyburg. There will no longer be a trial, as on 16 November 2023 the GStA confirmed Luis Kyburg's death in October 2023. The German-Argentine was wanted in Argentina, with a warrant of arrest issued against him, for his involvement in crimes against humanity during the military dictatorship (1976 –1983). To avoid prosecution in Argentina, Kyburg fled to Germany in 2013, where as a German citizen, his extradition was prohibited.

Because murder has no statute of limitations, Kyburg, who was allegedly responsible for multiple deaths, could have  still been charged 40 years after the end of the military dictatorship. The Berlin Prosecutor General’s Office has been investigating Kyburg since 2014. With the support of the European Center for Constitutional and Human Rights (ECCHR), Anahí Marocchi, the sister of Omar Marocchi, one of those allegedly killed in Mar del Plata in 1976, filed a criminal complaint against Luis Kyburg with the Berlin Prosecutor General’s Office in 2018. In addition, since 2023 ECCHR supported Fabián and Claudio Hallgarten, the brothers of Fernando Hallgarten, who was also allegedly killed in 1976.

Case

From at least February to November 1976, Luis Kyburg was second commander of a naval unit in Mar del Plata. It has been proven that this unit participated in international crimes after the military coup by Rafael Videla, who later became dictator. On the grounds of the Mar del Plata Naval Base, members of the political opposition were tortured, sexually abused and killed – after they had been kidnapped and brought to the premises. When Kyburg was called to testify in criminal proceedings in Mar del Plata in 2013, he fled to Germany, where he has lived undisturbed for years.

Omar Marocchi and Fernando Hallgarten were held captive in Mar del Plata in 1976, where they were presumably killed. But the crimes against the two men are not  isolated cases. Under Videla’s rule, 30,400 political dissidents were forcibly disappeared.

Context

The investigation and the indictment in Berlin contributes to the memory, truth and justice processes after the Argentine dictatorship. As early as 1985 and especially in the early 2000s, a number of direct perpetrators and high-ranking officials responsible for the crimes during the military dictatorship were brought to trial. Those affected and relatives of the victims could thus receive some measure of justice. This successful reckoning with the past, which was largely due to the commitment of Argentine civil society, also served as a model for Europe: numerous proceedings served to put an end to the impunity of perpetrators who had fled. With Kyburg's death, however, this goal was not achieved, and it is therefore regrettable that justice was not served in Germany.

The “Coalition against impunity,” of which ECCHR is a member, has worked since 1998 to address crimes against humanity committed during the Argentine military dictatorship. In his capacity as a lawyer at the time, Wolfgang Kaleck represented family members and survivors in cases in Germany, which led to an arrest warrant against former Argentine dictator Rafaela Videla. In addition to the crimes of the Argentine military regime, he focused on corporations, such as Mercedes-Benz, that cooperated with the former regime and were involved in crimes against humanity.

In addition, ECCHR has also worked to address crimes during the military dictatorships in Brazil and Chile. In all these cases, there is a direct link to Germany – whether because German companies were involved (VW, Brazil) or because defendants evaded justice by fleeing to Germany (Colonia Dignidad, Chile).

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Definition

Crimes against humanity

Crimes against humanity are grave violations of international law committed as part of a widespread or systematic attack on a civilian population. Crimes against humanity are part of the core crimes against international law and are subject to universal jurisdiction. Crimes against humanity can include acts such as murder, extermination, enslavement and deportation.

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Insight

Argentina

Between 1976 and 1983, the military dictatorship in Argentina kidnapped, tortured and killed thousands of people. In the early 2000s, many direct perpetrators and high-ranking officials were brought before courts. However, many dictatorship crimes remain unresolved today, especially with respect to cases of corporate involvement in crimes of the military dictatorship. ECCHR has since its establishment been supporting cases examining corporate liability and high-ranking military officials in Argentina. 

The proceedings against managers of Mercedes Benz Argentina, sugar company Ledesma and mining company Minera Aguilar SA show that dictatorship crimes always also have an economic dimension. In those cases, company employees supported Argentine security forces in abducting trade unionists and other staff members. These actions likely amounted to aiding and abetting the crimes of the dictatorship in order to further their own business interests.

ECCHR submitted legal briefs in ongoing proceedings against Mercedes Benz, Ledesma and Minera Aguilar arguing that the Argentine government and judiciary are obliged to hold economic actors liable for their role in human rights abuses committed during the military dictatorship.

Alongside these cases, Wolfgang Kaleck, founder and general secretary of ECCHR, has for many years been involved in litigation in the case of German citizen Elisabeth Käsemann. Käsemann, who had been politically active in the opposition to the Argentine military dictatorship, was kidnapped and tortured in 1977. The exact circumstances of her death have never been properly examined. 

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