Argentinean court follows international jurisdiction on sexual violence

23 March 2011 - The judgment on torture and other crimes in the secret detention centers Club Atlético, Banco and Olimpo, announced on 23 March by the second Buenos Aires Criminal Court (Tribunal Oral Federal N. 2 Buenos Aires), takes into account the perpetration of sexual violence in the centers. Following the report produced by investigating judge Daniel Rafecas, the court classified sexual violence as a form of torture, and directly referenced the amicus curiae presented by ECCHR and Prof. Theo van Boven in October 2010.

This judgment marks Argentina’s recognition that sexual violence was applied systematically as a means of torture in the detention centers Atlético, Banco and Olimpo. This move, in line with international jurisdiction, marks an important step towards ending impunity for those who committed gender-specific violence during the military dictatorship.

Of the sixteen defendants – all of them policemen and associates of the military – twelve were sentenced to life imprisonment and four were given prison sentences of 25 years or longer. They were accused, among other crimes, of torture, manslaughter and deprivation of liberty: all crimes which are classified as crimes against humanity according to international law.

In October 2010 ECCHR, along with Theo van Boven, former UN Special Rapporteur on Torture, had filed two amicus curiae briefs(friends of the Court) before Argentinean courts. The briefs support four different cases in the ongoing trials regarding the military dictatorship. They deal with questions of international law, 'Sexual Violence as Torture' and 'Crimes against Humanity Committed under Military Repression'.

In the first brief, the European experts emphasize that sexual violence committed by state agents such as policemen, military, prison and intelligence staff (especially against women imprisoned in clandestine detention centers) was also a method of torture used in order to destroy the personality and integrity of the victims. Sexual violence was systematically committed as an act of torture in every single center of detention, despite their different characteristics. In the detention center ESMA, for example, army officials used prisoners as sexual slaves. In the detention center Atlético-Banco-Olimpo, rapes and sexual abuses were committed against the helpless inmates, often before their husbands and children.

The second brief demonstrates that the massive violation of human rights committed during and by the military dictatorship in Argentina constitutes a violation of international law. This violation does not only affect the victims directly, but also the international community as a whole. The criminal behaviors deserve a specific legal approach, in such a way that its systematic character may be duly qualified. Thus, those crimes must be legally qualified as crimes against humanity.

Co-author Wolfgang Kaleck is the lawyer in the cases of Argentine-German victims of the dictatorship in Germany. Theo van Boven, Honorary Professor of International Law at Maastricht University and ECCHR Advisory Board member, was UN Special Rapporteur on Torture between 2001 and 2004. He was also the Director of the UN Human Rights Division between 1977 and 1982 during the dictatorship.

The amicus curiae briefs do not merely focus on the outcomes of these specific trials, but also deliver an opinion about the scope of the military's extermination plan and the significance of Argentinean courts to apply, shape and develop international law in their decisions.

Both amicus curiae briefs are available on request  in Spanish and English.

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