Enrique Arancibia Clavel was a member of Chile’s intel- ligence service .. See “ Constitucionalistas apoyan el fallo de la Cámara”,. December 22, (Publication Date: ) Cuarta compilación de fallos y resoluciones de la Justicia Hernán I. Schapirocomenta el fallo “Arancibia Clavel”, en el que la Corte. Argentina’ por la Corte Interamericana de Derechos Humanos,” Fallos .. [ National Supreme Court of Justice], 24/8/, “Arancibia Clavel, Enrique Lautaro s/.
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From Affirmative Avoidance to Soaring Alignment: This new approach was soon ratified by a constitutional reform, explicitly receptive of international law.
And third, article 67, inc. First, i international treaties incorporated into the Argentinean legal system were not considered to be automatically operative. The Court understood, for example, that the rights established in ILO Conventions only entailed a commitment to modify the domestic legislation, which would eventually be the one granting afancibia rights to the workers6.
Second, ii for the Court, the Constitution remained in all cases hierarchically superior to international treaties7.
And third, iii international treaties were considered to have the same hierarchy as domestic laws9, their relationships being governed by principles such as lex specialis and lex posterioris The potential responsibility of the State for the violation of international law coavel not an institutional concern of the Court, which understood itself only bound by domestic rules Despite this posture of avoidance with respect to international treaties, the Court adopted during this period —somewhat paradoxically— a more receptive approach regarding international custom.
However, in none of these cases did the Court provide a clear constitutional foundation for its reference to customary international law. In that case, the tribunal strongly stated that it was bound to accept —in very general terms— the primacy of international treaties over fallo rules.
The Court provided two reasons for this revision of its position. As ofthen, all international treaties which have been ratified by Cclavel and are currently in force are hierarchically superior to domestic laws. In the years after the reform, a the Court held, with only minor exceptions, that international treaties override domestic law. The Court b also confirmed its traditional position regarding customary international law, now providing it with constitutional foundations.
And finally, c it expanded its deference to international law by —not without some xrancibia giving unprecedented consideration to the decisions of international courts and tribunals, and even to those of other international organs. International treaties overriding domestic law After the reform, the Court moved on to an interpretation according to which the Constitution fully incorporated international law to domestic arancibiq For this purpose, it used two different strategies. As a result of this procedure, the following treaties are now part of this regime: The Court first expressed this reasoning with respect to those human rights instruments that were expressly granted constitutional hierarchy, but it later extended this same rationale to other treaties, which according to the Constitution had qrancibia higher hierarchy than national laws.
For example, inthe Court considered that a provision of the law regulating falll contracts was unconstitutional, dallo it was contrary to a provision of an ILO Convention that the State had ratified The second strategy adopted by the Court was one of harmonization of international and domestic rules.
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Harmonization was, for the Court, a constitutional mandate. In other words, the Court applied an international human rights treaty against its own spirit, using it to restrict the enjoyment tallo a right recognized in Argentinean domestic law, something explicitly prohibited by article 29 of the ACHR. The harmonization strategy, in this case, was used to avoid compliance with obligations the state had assumed both domestically and internationally.
The first step in this direction was taken in the Priebke case. On 24 MarchErich Priebke, a German SS fallo, had supervised the killing of civilians in what became known as the Massacre of the Ardeatine.
After the end of the war, he had fled to Argentina on a Vatican passport, and he had lived in the Patagonian city of Bariloche for over fifty years.
Inhowever, after a journalist found him and exposed him, the Italian authorities requested his extradition to be judged in Rome. The process eventually arrived at the Supreme Court, which had to decide on the appropriateness of the extradition, considering that the crime of murder is subject to a statute of limitations of ten years under Argentine law.
To decide the case, the Court referred —among other arguments— to article of the Constitution, which regulates the location of criminal trials. In this case, the Court found not only that the crimes committed were against the law of peoples, but that they also constituted genocide Thus, the Court ruled in favor of Italy, allowing the extradition of Priebke, who was later tried in Rome and finally convicted.
Inthe Priebke precedent was relevant to a case of a different clsvel. Between andthe Chilean intelligence officer Enrique Arancibia Clavel supervised a task force that carried out illegal operations in Buenos Aires, including the murder of General Carlos Prats, the former Head of the Chilean Army under President Salvador Allende.
When he was finally prosecuted, Arancibia Clavel invoked the statute of limitations and claimed that the case had clavwl be closed. When the case reached the Court, the tribunal was faced with a dilemma: Arancibia Clavel from the retroactive application of said Convention, which was ratified by Argentina intwenty years after he committed his crimes.
The solution found by the Court was to hold that the Convention codified customary international rules, and that these customary rules were already in place in the s. Now, for this solution to be acceptable, the Court had to justify the direct applicability of customary international law to domestic criminal affairs. For this purpose, the majority vote held that the non-applicability of statutory limitations was not only an international custom in the s, but also one of a jus cogens nature.
Thus, the Argentinean state was already bound to accept it, even without its express consent Further, two judges also opined that custom was directly binding in the Argentinean legal system, as a result of article of the Constitution Three dissenting judges challenged these two assertions During the military dictatorship that ruled the country between andMr.
After the dictatorship ended, two laws limited the scope of the prosecution of the crimes committed by military officials48, and Mr. As in Arancibia Clavel as well, the Court faced the problem of the retroactive application of the Convention on the Non-Applicability of Statutory Limitations. Not surprisingly, the Court resorted to similar arguments to solve the case. However, this time, four judges49 —out of the eight that voted— considered that customary international law had been fully incorporated to the Argentinean legal system via article of the Constitution This time, however, they constituted the majority out of the six judges that voted in the case.
In that occasion, the Court did not specify the specific authority it derived from these precedents, nor did it ground its reference on any particular constitutional provision. However, after the constitutional reform, the Court considered that it had the resources to provide legal grounding for the ckavel of referring to international organs.
In the Giroldi case, the tribunal recalled that the new article 75, inc. The following year, the Supreme Court expanded its interpretation of the wording of article 75, inc. In other words, the Court used the reference to the Inter-American system to justify a restricted arancibiz of the right, and not otherwise. Inthe Court had to decide for the first time on a situation involving a report by a treaty organ referring to Argentina The attack was brutally repressed: Their appeals were in turn successively dismissed, and they decided to take the case to the Inter-American system.
In that Acosta decision, the tribunal adopted the first of a series of rulings in which it adopted a strategy of affirmative avoidance, finding different arguments to circumvent the rulings of international organs with respect to the Argentinean state. The tribunal then conclusively held that: Despite this decision, the claimants decided to once again question the outcome of the proceedings, this time not through an habeas corpus writ, but once again appealing the original decision that had convicted them.
The tribunal denied this request but this time it was the Executive Branch who decided to appeal the denial, claiming that it pretended to avoid the international responsibility arancobia the state. When araancibia case once again reached the Supreme Court, the tribunal dismissed it, holding arancibiia the Executive had no standing to bring the case.
Thus, according to the Supreme Court, by not granting this right in this case, the Argentinean state would not be committing an internationally falo act Despite these harsh statements, this doctrine did not last very long. In both occasions, one of the most prominent arguments of the Judges —besides that of customary international law— was the fact that the case-law of the IACtHR considered that amnesties granted for crimes against humanity were invalid under the ACHR In that occasion, the Supreme Court had to deal with the implementation of the decision made by the IACtHR in the Bulacio case75, in which the Court had found that Argentina had breached the rights to life, humane treatment and personal liberty of a young man killed by the police, and that it had also breached the rights to a fair trial and to judicial protection of its family.
Thus, the Court decided in favor of Mr. During his detention, Bueno Alves was subject to torture, in order to induce him to declare against himself and his lawyer. The claimants appealed this decision, and reached the Supreme Court.
The Court considered that the infliction of torture did not constitute a crime against humanity, and thus, that the statute of limitations was indeed applicable to Mr. The final step in this growing deference with respect to international organs came in the Carranza Latrubesse case Gustavo Carranza Latrubesse was a first instance judge from the province of Chubut who had been removed from his position by the military government in Carranza Latrubesse then presented a declarative action which once again reached the Supreme Court, after years of litigation.
Once again, the Court faced a situation in which it was asked to reverse its own decision, but this time not on the basis of a decision of the IACtHR, but on the basis of a recommendation of the IACHR. To answer this question, the Court presented an extended and detailed explanation of the functioning of the Inter-American System of Human Rights, and a general understanding of the obligations established by the ACHR in accordance with the rules for treaty interpretation of the VCLT.
A Full Stop to Amnesty in Argentina: Journal of International Criminal Justice, 3, — Estudios Constitucionales, 8 2— Corte Suprema, dictadura militar y un fallo para pensar. El prestigio de los derechos humanos. Respuesta a Daniel Pastor.
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De la injusticia penal a la justicia social. Siglo del Hombre Editores. Pensar En Derecho, 5, 17— Revista Latinoamericana de Derecho Internacional, 2. The possibility of criminal justice.
Voices from Latin America and Spain pp. Sur – International Journal on Human Rights, 8 15— The Constitutionalization of Human Rights in Argentina: Columbia Journal of Transnational Law, 37, — Radical evil on trial.
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May a state invoke its internal law to repudiate consent to international commercial arbitration?: Reflections on the Benteler v. Arbitration International, 2 290— National and International Courts – Disdain or Deference?