Communication No. 345/1988

Decides, pursuant to rule 88, naragraph 2, of ite rules of procedure, to deal jointly with these communications;

Further decides that this decision shall be communicated tc the State party and the author's of the communicatic.s.

The author's of the communications are Argentine citizens residing in Argentina, writing on behalf of their deceased and/or disappeared relatives, Argentine citizens formerly resident in the Province of Cordoba who died or disappeared in 1976, before the entry into force of the Covenant on Civil and Political Rights and the Optional Protocol for Argentina on 8 November 1986. ad The text of an individual opinion submitted by Mr. Bertil Wennergren pursuant to rule 92, paragraph 3, of the Committee's rules of procedure is appended.

The author's clain that the enactment of Law No. 23,521 of 8 June 1987 (known ee the Rue Obedience Law (Ley div Obediencia Debida)) and its application to the legal proceedings in the cases of their relatives constitute violations by Argentina of articles 2, 3, 4, (), 9, 14 and 24 of the International Covenant on Civil and Political Rights. Thay are cepresented by counsel.

It ig claimed that. law No. 23,521 is incompatible with Argentina's obligations under the Covenant. The law presumes, without admitting proof to the contrary, that those persons who held lower military ranke at the time the crimes were committed were acting under superior orders) the law therefore exempts them from punishment. This immunity also covers senior military officers who did not act as commander-in-“hief, chief-of-sone or chief-of-security police or penitentiary forces, provided that they did nct themselves take decisions or that they did not participate in the elaboration of criminal orders.

With regard to the application of the Covenant to the facts of the cases, the author's acknowledge that their relatives were either xilled or disappeared in 1976, unde, the prior Argentine Government, before the entry iato force of the Covenant. and of the Optional Protocol for Argentina. They challenge, however, the compatibility of the Due Obedience Law with article 2 of the Covenant, which provides, inter alia. that States parties should adopt the necessary legislative measures to give effect to the rights recognised in the Covenant. They claim that by adopting legislation which effectively guarantees the impunity of military officials responsible for disappearences, torture and murder, the Argentine Government has violated its obligatioas under the Covenant. 4:4 As to the requirement of exhaustion of domestic remedies, the author's point out that, with respect to the disappearance or death of the alleged victims, the matter was brought before the competent Argentine courts. However, by virtue of law No. 23,521, the pending criminal cases were shelved in June 1987 and May 1988, end the accuseé were accordingly set free. The author's conclude that domestic renodies have been exhausted. 2. It is stated that the same matter has not been and is not. being examined «nder another procedure of international investigation or settlement. a/

Specifically, the author's request the Committee to find that Argentina violated its obligations uniter the Covenant, and to urge the Government of Arg ntina to abrogate law No. 23,521 so as to allow the criminal prosecution and punishiieat of the persons responsible for the disappearance and/or death of their relatives.

By decisions of 4 April 1989, the Working Group of che Human Rights Committee, without transmitting the comnunications to the State party, requested the author's, under rule 91 of the rules of procedure: (a) to clarify whether and, if so, to what extent the claims contained in their communication go beyond their desire to see those held to be responsible for the disappearance or death of their relatives criminally prosecuted; (b) to specify, bearing in mind that the Covenant and the Optional Protocol entered into force for Argentina on 8 November 1986, which violations they claim took place after that dats; and (c) to indicate whether they have instituted legal proceedings befora the competent courts with a view to obtaining compensation and, if so, with what result. ~192-

In their reply to the Working Group's questions, the author's state that besides punishing the guilty, the Government of Argentina should raopen the inquiry into the disappearance of one of the alleged victims, although following the inveatigations of the Comisién Nacional sobre Desaparicién de Personas (CONADEP) (National Commission on the Disappearance of Persons), it wag presumed, in view of the lapse of time since the disappearances, that the persons in question were dead. The author's strens, moreover, that laws of impunity should be repudiated, lest they be understood as encouraging the commission of similar crimes. In thie connection they invoke the principles of the Nuremberg Trials, in particular the rejection of the defence of superior orders.

Aa to which violations of the Covenant are said to have taken place after its entry into force for Argentina on 8 November 1986, the author's claim that the enactment of the Due Obedience Law in June 1987 constitutes a violation of the State party's obligation .o ensure the thorough investigation of crimes and the punishment of the guilty.

With regard to legal proceedinge aimed at. obtaining compensation, the author's indicate that they preferred to demand an investigation of the events, in particular of the whereabouts of disappeared persons, and the identification of the guilty parties. Although it appears that nonu of the author's ever initiated legal proceedings for compensation, they refe« to other persons who have unsuccessfully sought compensation in civil proceedings.

Before considering any claims convained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant. §. With regard to the application ratione temporia of the International Covenant on Civil and Political Rights and of the Optional Protocol for Argentina, the Committee recalls that both instruments entered into force on 8 November 1986. It observes that the Covenant cannot be applied retroactively and that the Committee is precluded satione temporig from examining alleged violations that occurred prior to the entry into force of the Covenant for the State party. §. It remains for the Committee to determine whether violations of the Covenant have occurred subsequent to its entry into force. The author's have invoked article 2 of the Covenant and clri~ a violation of their right to a remedy. In this context the Committee recal. its prior jurisprudence that article 2 of the Covenant constitutes a general undertaking by States and cannot be invoked, in {solation, by individuals under the Optional Protocol (M,. G. B. and §. P. y. Trinidad and Tobaga, communication No. 2686/1967, para. 6.2, declared inadmissible on 3 November 1989). To the extent that the authore invoke article 2 in conjunction with other articles of the Covenant, the Committee observes that article 2, paragraph 3 (a), of the Covenant stipulates that each State party undertekes to ensure that any person whose rights or freedons are violated shall have an effective remedy ... (emphasis added). Thus, under article 2, the right to a remedy arises only after a violation of a Covenant right has been established. However, the events of disappearance and death, which could have constituted violations of several articles of the Covenant, and in respect of which remedies could have been invoked, occurred prior to the entry into force of the Covenant and of the Optional Protocol for Argentina. Therefore, the matter cannot be considered by the Committee, as this aspect of the communication is inadmisesibla ratione temporia.

The Committee finds it necessary to remind the State party that it ie under an obligation, in respent of violations occurring or continuing after the entry into force of the Covenant, thorovghly to investigate alleged violations and to provide remedies where applicable, for victimes or their dependants.

To the extent that thc author's claim that the enactment of law No. 23,521 frustrate¢e their right to see certain government officials prosecuted, the Committee refers to ite prior jurisprudence that the Covenant does not provide a right for an individual to require that the State criminally prosecute another person (H.C, M, Ar wv. The Netherlands, conmunication No. 213/1986, para. 11.6, declared inadmissible on 30 March 1989). Accordingly, this part of the communication is inadmissible ratione mateariae aa incompatible with the provisions of the Covenant. §. Ae to the question of compensation, the Committee notes that the author's, in reply to the Working Group's questions, explained that. this war not the remedy that they sought.

The Human Rights Committee therefore decides: (a) The communications are inadmissible) (b) This decision shall be communicated to the author's through their counsel, and, for information, to the State party. Notes B/ The Secratariat has ascertained that one case was submitted to the Inter-American Commigssion on Human Rights, which registered it under No. 10288. However, it is not currently being examined by the Commission. | ~194- APPENDIX I concur in the views expressed in the Committee's decision. However, in my opinion, the arguments in paragraph 5.4 of the decision need to be clarified and expanded. in thie paragraph, the Committee reminds the State party that it is under an obligation, in respect of violations occurring or continuing after the entry into force of the Covenant. thoroughly to investigate alleged violations and to provide remedies, where applicable, for victims or their dependants. According to article 28 of the 1969 Vienna Convention on the Law of Treaties (cited under paragraph 4.2 in the Committee's decision) a treaty's provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of entry into force of the treaty in respect of that party) the Permanent Court of International Justice (PCIJ Series A/B, No. 74 (1938), p. 10-48 ~ Phosphates in Morocco case) has held in this context that. both the terms concernirg the limitation ratione temporia and the underlying Jutention ace clear: This clause was inserted in order to deprive the acceptance cf the compulsory jurisdiction of any retroactive effects. In this case the Court had to decide whether or not issues arose from factors subsequent to the acceptance of ite jurisdiction (which the Court refers to as the “crucial date"), first because certain acts, which, if considered separately, were in themselves unlawful international acts, were actually accomplished after the “crucial date"; secondly, because these acts, if taken in conjunction with earlier acts to which they were Closely linked, constituted as a whole a single, continuing and progressive illegal act which wis not fully accomplished until after the crucial date; and lastly, because certain acts which were carried out prior to the crucial date nevertheless gave rise to a permanent aituation which was inconsistent with international law and which existed after the said date. The question of whether a given situation or fact occurs prior to or subsequent to a particular date is, the Court explains, one to be decided in reitpect of each specific case, just as the queation of the situations or facts with regard to which the issues arose must be decided in regard of each specific case. I note that the crucial date in this case is 8 November 1986. The Committee has repeatedly indicated in prior decisions that it can consider only an alleged violation of human rights occurring on or after (the date of entry into force of the Covenant and the Protocol for the State party) unless it ie an alleged violation which, although occurring before that date, continues or has effects which themselves constitute a violation after that date. Disappearance cases that cannot be attributed to natural causes (accidents, voluntary escapes, suicides, etc.) but that give rise to reasonable assumptions and suspicions of illegal acts, such as killing, deprivation of liberty and inhuman treatment, may lead to claims not only under the respective material articles in the Covenant (articles 6, 7, 9 and 10) but in connection therewith also under article 2 of the Covenant, concerning a State party's obligation to adopt such measures as may be necessary to give effect to the rights recognised in the Covenant and to ensure that any person whose rights or freedoms are violated shall have an effective remedy. In an early decision involving a disappearance (30/1978 Bleier v. Uruguay) the Committee, after noting that according to unrefuted allegations Eduardo Bieier's name was on a list of prisoners read out once a week at an army unit in Montevideo where hie family delivored clothing for him and received hia dirty ciothing until the summer of 1976 (i.e. after the “orucial date"), urged the Uruguayan Government to take effective steps ... to ercablish what. has happened to Eduardo Bleiez aiase Oct “ber 19755 1 1 1 6 11 2123 508 156 52 20.675011 (1.6. before the crucial date but with continuation after that date), to bring to justice aay person found to be responsible for his death, disappearance or ill-treutment, and to pay compensation to him or his family for any injury which he has suffered. In another case (107/1981 Quinteros v. Uruguay) che Committee was of the view that tne information before it revealed breaches of articles 7, 9 and 10, paragraph 1, of the Covenant and concluded that the roaponsibility for the disappearance of Elena Quinteroe fell on the authorities of Uruguay and that the State party should take immediate end effective steps (1) to eatablish what has happened to Blena Quinteros aince 28 June 1976, and secure her release, (i.) to bring to justice any persons found to be responsible for her disappearance and ill-treatment, (iii) to pay compensation for the wrongs suffered, and (iv) to ensure that similar violations do not occur in the future. In the latter case, the author of the communication was the mother of the disappeared victim who had alleged that she, too, was a victim of a violation of article 7, (psychological torture because she did not Fnow about the whereabouts of her daughter) and who had given ample description of her sufferings. The Committes expressed its understanding with the anguish and stress caused to the mother both by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. She had the right to know what had happened to her daughter. The Committee therefore found that in these respects she was also a victim of a violation of the Covenant. I draw the following conclusions. A disappearance per ne does not raise any iesue under the Covenant. For it to do so, a link to some of the material articles of the Covenant is required. And it is solely with such a link that article 2 of the Covenant may become applicable and an issue may arise under that article too. Should it become clear that the cause of the disappearance is attributable to a killing for which the State party must be held responsible, but that the killing took place before the crucial date, then this killing cannot be deemed to constitute a violation of article 6 of the Covenant, notwithstanding that it was a crime against the right to life under domestic penal law. Couxsequently, a claim regarding the non-fulfilment of a State party's obligations under article 2 of the Covenant also cannot arise. But, on the other hand, if a killing before the crucial date is merely one hypothesis among several others, the case law of the Committee clearly indicates that under article 2 of the Covenant the State party is under a duty to carry out a meaningful investigation. Only when it is unimaginable that any act, fact or situation which would constitute a violation of the Covenant may have continued to exist or have occurred subsequent to the crucial date, such an obligation does not arise. It should be added that a declaration under domestic civil law in respect of a disappeared person's death does not set aside a State party's obligation under the Covenant. Domestic civil law provisions cannot be given precedence over international legal obligations. Whatever the length and thoroughness be deemed necessary for an investigation to satisfy the requirements under the Covenant is to be considered case by case, but an investigation must under all circumstances be conducted fairly, objectively and impartially. Any negligence, suppression of evidence or other irregularity jeopardizing the outcome must be regarded as a violation of the obligations under article 2 of the Covenant, in conjunction with a relevant material article. And once an investigation has been closed due to lack of adequate reaults, it must be reopened if new and pertinent information comes to light. Bertil WENNERGREN