PART I: Judicial diplomacy
Judicial diplomacy can be seen as collaborative action and communication among national courts, usually the highest judicial bodies, toward regional legal integration. It has manifested in two ways: (1) through dialogue and information exchange among judges, lawyers, and law schools regarding legal issues; and (2) through the collaborative activity of national Supreme Courts.
I would like to present four examples of “judicial diplomacy” in South America.
1). The Permanent Forum of Supreme Courts of Mercosur
The dialogue between the Supreme Courts of MERCOSUR has been taking place for over a decade. Within the last ten years, the Presidents of the Supreme Courts have met on different occasions, with the object of promoting activities to motivate awareness and familiarize member States with the legal systems of their fellow members. In 1996, for example, the Supreme Federal Court of Brazil promoted the Fifth Meeting of Presidents of Supreme Courts of the Southern Cone.
However, the meetings began to take place on certain regularity in 2003, with the First Meeting of Supreme Courts of MERCOSUR Members. The main purpose of these conferences is to create a forum for the discussion of the role of the judiciaries in the integration process, aim at enforcing the MERCOSUR regulations, enlarging judicial cooperation, and promoting the process of harmonization of the legal systems of the members. Soon after, in 2004, they were formally consolidated through the Charter of Brasilia, which established the “Permanent Forum of Supreme Courts of Mercosur Countries for judicial matters relevant to Latin-American integration, with emphasis on Mercosur.”
The Charter creates a permanent forum on the grounds that the national judiciaries are essential for the functional structure of Mercosur, since (a) they are to apply Mercosur rules within their respective domestic jurisdictions; (b) the integration process is a State commitment and as such, al government branches should be involved.
This declaration communicated a clear intent to consistently deepen the Mercosur block through judicial diplomacy, or more specifically, through yearly and ad-hoc preparatory meetings among national Mercosur Member State Supreme Court Presidents.
Some particularly promising initiatives include the organization of legal debates among judges of Mercosur countries, as well as an exchange program for law students, faculty and even judges. These ideas, launched during the 2006 meeting led to the sign of a Protocol of Intentions. The Supreme Court of Member and Associate States further agreed to foster and make available useful information, as well as facilitate relevant personal and institutional contacts in their respective countries.
In addition to these initiatives, the Permanent Forum also reached an important benchmark in November 2006, when judicial diplomacy among Supreme Courts resulted in significant contributions to Mercosur’s dispute settlement system. Indeed, in 2005, in consideration of the Olivos Protocol, the Permanent Forum decided to draft a proposal for a mechanism that would allow Mercosur Supreme Courts to request the “Tribunal Permanente de Revisión” advisor opinions related to the interpretation of MERCOSUR norms. On January 18, 2007 the Common Market Council approved the Rules of Procedure on Requests for Advisory Opinions by the Superior Courts of Justice. The final rules were based heavily on the proposal presented by the Permanent Forum.
Last year, during the Seventh Meeting of the Supreme Courts of MERCOSUR Members, the Justices of those tribunals recommended to continue the ongoing conversation on the creation of a MERCOSUR Supreme Court. In order to do that, they created a working group that would prepare a proposal for the creation of such tribunal based on the following principles: (1) the tribunal will be linked to the national court’s systems in order to preserve the separation of powers; (2) the implementation of the new tribunal will be progressive, including a stage in which it would work as an ad hoc tribunal; (3) the other powers of the MERCOSUR countries will be consulted, as well as the members of the MERCOSUR’s Parliament.
The judiciaries of the members States also decided to start a working group, created in a previous meeting to work towards the enactment of the “Charter of Fundamental Rights of MERCOSUR”. This group will prepare a report on the central issues that were debated during the seventh meeting of the parties and will establish communication channels with the national authorities working on the human rights area.
They also decided to create a working group that would focus on detecting and overcoming obstacles to achieve the approval of a common legal framework for the introduction of a shared system of arrests warrants within the MERCOSUR.
2). Ibero-American Judicial Summit.
The Ibero-American Judicial Summit is, above all, a structure for cooperation, agreement and the exchange of experiences among the highest instances of the judiciaries of Ibero-America.
Its ultimate goal is “the adoption of coordinated projects and actions, based on the conviction that a shared cultural heritage constitutes an exceptionally valuable instrument for strengthening the Judiciary and, by extension, democracy, while maintaining a necessary respect for difference.” The Summit seeks to strength the rule of law by improving the administrations of justice.
The following are some of the most relevant results that have been achieved by the summit:
• The adoption of the Statute of the Ibero-American Judge, which aspires to be the paradigm or reference for identifying the values, principles, institutions, processes and minimum resources needed to guarantee the independence of the judiciary, the judge’s role in the context of a democratic society, and to encourage the efforts made by the region’s judiciaries in this area.
• The approval of the Ibero-American Model Code for Judicial Ethics, conceived as a reference guide for professional ethics.
• The establishment of the Ibero-American Commission of Judicial Ethics, which is responsible not only for contributing to strengthen the ethical awareness of Ibero-American judges, but also for advising the various judiciaries, as well as the summit itself, on ethics issues, as well as to enable the dissemination and development of judicial ethics through a variety of activities and publications.
• The establishment and maintenance of the Ibero-American Classroom, a training program for Ibero-American judges that pursues the following goals:
• The supply of experience in judicial training to the Ibero-American legal community.
• The consolidation of a framework for encounters between judges and senior judges of Spain and Ibero-America at a high academic level, as a reference for the various areas related to the exercise of the jurisdictional function.
• The implementation of an Ibero-American judicial community to enable the exchange of experiences, information and research projects.
• The creation of the Ibero-American Judicial Information and Documentation Network (the IberIUS), which was conceived as a mutual-assistance community between the centers of judicial information and documentation of the Ibero-American countries.
• The creation of the Ibero-American Judicial Schools Network (the RIAEJ). The RIAEJ was initially constituted as a link-up community for cooperation, agreement and reciprocal support between the judicial schools and public judicial training centers of Ibero-America to contribute to the exchange of information on judicial training systems, methodologies and programs.
• The implementation of the Ibero-American Virtual Judicial Training Centre. This centre was created by the 6th Ibero-American Summit of Presidents of Supreme Courts and Tribunals of Justice, which took place in the Canary Islands in May 2001. The Ibero-American Virtual Judicial Training Centre was initially designed as an instrument for reinforcing the judiciary, providing the judicial schools with an instrument for giving consistent, effective training to Ibero-American judges through the use of avant-garde technology for distance judicial training. Accordingly, the judicial schools can overcome significant limitations associated with in-class education programs.
• The implementation of an Ibero-American Judicial Assistance Network (in Spanish, the IberRed), which was designed as an instrument to enable international judicial assistance, and as a fundamental step towards the constitution of an Ibero-American Judicial Area, understood as a «specific scenario on which judicial cooperation is the result of reinforced mechanisms, dynamics and instruments for certification and improvement which, without affecting the jurisdiction of the legislative and executive powers of the represented States, enables an appropriate activity that meets the requirements of the process by which it is produced as an essential condition for obtaining effective judicial protection».
• The creation of the Ibero-American Judicial Information System, which aims to provide permanent access for institutions and citizens to mutual knowledge of the structural, organisational, legislative and most essential descriptive aspects of our respective judicial systems; and to confirm and document the progress and successes achieved by our respective systems in the implementation of the projects, declarations, actions and commitments assumed throughout the different editions. The result of this project has been the recent publication of the Ibero-American Judicial Map and the Experiences Board.
• The approval of the e-justice project, which seeks to support the incorporation of new technologies into jurisdictional activities.
• The completion of comparative studies on our fundamental institutions.
• The approval of the «Rules of Brasilia on Access to Justice by Vulnerable Individuals», which contain the bases for reflection and lines of action aimed primarily at the public powers so that they might foster the development of public policies that guarantee the said access; and access to all the servers and operators of the justice system to ensure that they attend vulnerable individuals in a way that is appropriate for their particular circumstances. A monitoring commission has been set up to foster the effectiveness of these rules.
3). The Conference of Supreme Courts of the Americas
The Organization of Supreme Courts of the Americas was founded, by means of its Charter, on October 26, 1995. The fundamental objectives of that body is to accomplished through specific activities, including: serving as a permanent link between the judicial systems of the Americas and promoting international judicial cooperation in the Hemisphere, supporting judicial education programs, sharing information, and promoting regional technical assistance to the administration of justice.
Last year, the Supreme Courts of the Americas met in Buenos Aires to talk about the role of the judiciary and about how the Courts in the Americas work to protect and promote the rule of law. This meeting was a continuation of the one organized by the Supreme Court of the United States in 1995. Its main purpose was to discuss how the judiciaries are working, from an institutional point of view, and what we can do for our countries and four or region as public servants. However, I think the most important part of this meeting was the opportunity we have had to listen to and learn from each other, enlarging our understanding of the different judicial systems of the Americas.
Although in this meeting we do not focus directly on the process of integration, I think we laid the foundations for future meetings where we will work in developing a common structure and organization.
4) Inter-American Court of Human Rights
In 1994 we amended our national constitution to conferred constitutional hierarchy on specific human rights instruments mentioned in Section 75.22. “under the conditions under which they are in force”. This provision has been interpreted to mean not only the method by which the treaties were approved and ratified by the Republic of Argentina (i.e., the requirement that a treaty is not to be ratified with a reservation that is «incompatible with the object and purpose of the treaty»), but also the interpretive reach given to the clauses of the treaty by the international legal system.
Indeed, the American Convention on Human Rights created the Inter-American Court of Human Rights, and raised the question of what deference, if any, should the Argentine Courts give to its precedents.
When Argentina approved the American Convention on Human Rights (Pact of San Jose, Costa Rica) in 1984, it recognized «the competence of the Inter-American Commission on Human Rights and on the jurisdiction of the Inter-American Court of Human Rights
In “Giroldi, Horacio David”, decided on April 7th, 1995, the Court unanimously held that the Constitution includes not only the treaties on human rights, but also the case-law of international tribunals, since the interpretations of those tribunals indicate the conditions under which the international instruments are “in force.” The Court pointed out that «the cited jurisprudence should serve as a guide for the interpretation of the convention in the manner in which the Argentine State recognizes the competence of the Inter-American court in all cases relative to its interpretation and application of the American Convention.» In Lavado, Diego j., decided on September 6th, 2006, the Supreme Court, in a unanimous decision, ordered the National State and the Province of Mendoza to submit a report on the concrete measures adopted in the case to give due fulfillment to the provisional measures issued by the Inter-American Court of Human Rights. The decision of that international tribunal prompted the Supreme Court to adopt the necessary measures to guarantee the effect of the National Constitution and the international treaties.
PART II. Constitutional pluralism in the case of “crimes against humanity”
1). Constitucional pluralism
Professor Poiares Maduro defines “constitutional pluralism”, by stating that it usually identified the phenomenon of a plurality of constitutional sources that creates a context of potential conflicts between different constitutional orders to be solved in a non-hierarchical manner. We can distinguish an internal pluralism, which derives, mainly, from the acceptance of the supremacy of the regional rules over the national ones; and an external pluralism which derives from the increased communication and inter-dependence of international legal orders creating different relationships, like legal integration , interpretative competition and legal externalities .
2). The cases
I woud like to present a case of “constitutional pluralism” that arose in the trial of a “crime against humanity”, which will illustrate the relationship between the Inter-American Court of Human Rights and the Argentinean Supreme Court.
As you know, between 1976 and 1983, we experienced a harsh dictatorship, where severe violations of human rights were committed. I would like to talk, briefly, about the events concerning the bringing to justice of those responsible, as well as about some legal issues presented by the amnesty measures of the democratic governments that followed the military rule.
The first case I would like to talk about is “Arancibia Clavel, Enrique Lautaro” Decided on August 24th, 2004. The Facts of the case: Arancibia Clavel was accused of being involved in the car-bombing which killed the Chilean General Carlos Prats and his wife, in Buenos Aires in 1974. An Argentine federal tribunal sentenced him to life imprisonment for his participation in a criminal association. The National Court of Criminal Cassation partially reversed the lower court ruling and declared that the conviction for criminal association was barred by statutory limitations. The Supreme Court reversed the judgment and held that the conduct of Mr. Arancibia Clavel had to be considered as a crime against humanity and as such, it was not time-barred. According to the Court, these constitute crimes against humanity since the group of which Arancibia Clavel formed part had as its purpose the persecution of Pinochet’s political opponents by means of homicides, forced disappearances and torture with the acquiescence of government officials. To support that assertion, the judges cited the Rome Statute of the International Criminal Court, the Convention on the Prevention and Punishment of the Crime of Genocide, the Inter-American Convention on the Forced Disappearance of Persons, and some decisions of the Inter-American Court of Human Rights. In addition, the Court stated that the crimes against humanity were against the law of nations as stipulated in article 118 of the National Constitution. Having established that these are crimes against humanity, the majority went on to say that the applicable law governing the statute of limitations is the 1968 United Nation’s Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which had acquired constitutional hierarchy by law No. 25.778. The Supreme Court noted that the notion that crimes against humanity were not subject to statutory limitations was part of customary international law even before the adoption of the 1968 Convention. Therefore the Court concluded that holding Arrancibia Clavel criminally liable for such crimes would not result in a retroactive application of the law and thus the prohibition on irretroactivity of the law would not be breached. The Argentinean State had also contributed to the formation of the customary international rule of non-applicability of the statutory limitations to the crimes against humanity in the 1960s and a previous case of the Supreme Court (Priebke, Fallos: 318:2148) had recognized that the statute of limitations was not applicable to the right to bring a criminal action in the case of other international crimes: those of genocide and war crimes. Given all the aforementioned considerations, the majority stated that the crimes of which Mr. Arancibia Clavel had been convicted were not time-barred and the right to bring the criminal action was not terminated even if the time stipulated in article 62, section 2 of the Criminal Code had elapsed.
The second important case is “Simón, Julio Héctor”, decided on June 14th, 2005. Julio Héctor Simón, a former officer of the Federal Police, was indicted for the crimes against humanity of illegal arrest, torture and forced disappearance of José Poblete Roa and his wife, and for the appropriation of their daughter Claudia. The couple had been detained in November 1978 and held at the “Olympus”, a secret detention center run by the federal police during the Argentinean military dictatorship. The defense of Julio Simón argued that they benefited from the immunity from prosecution established in the so-called “due obedience law” (Law No. 23.521) and “full-stop law” (Law No. 23.492).
The Supreme Court, by a majority of 7-1, confirmed the lower-court decisions and held that the amnesty laws were null and void and unconstitutional.The majority went on to say that even if article 75, section 20 of the Constitution maintained the authority of the Legislative Power to grant general amnesties, that right was subject to important limitations in its scope. In light of the fact that the full stop and due obedience laws were passed to “forget” past human rights abuses, they are in stark contradiction with the provisions of the American Convention on Human Rights and the International Covenant on Civil and Political Rights (article 75, section 22 of the Constitution). The majority also based its decision on the rulings of the Inter-American Court of Human Rights, in particular, the Barrios Altos v. Perú case, in which the Court held that “all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law” (Inter-American Court on Human Rights, Barrios Altos v. Perú, March 14th, 2001, Series C N°75, para. 41). The majority expressed that this interpretation by the Inter-American Court was fully applicable to the circumstances of the Argentinean amnesty laws. Thus, the majority reiterated that the Argentinean State could invoke neither the prohibition of irretroactivity of criminal law nor the res judicata to escape its duty to prosecute grave violations of human rights.
The third important case is “Mazzeo, Julio” , decided on July 2007.
Santiago Omar Riveros, a high-ranking commander during the 1976 Argentinean military dictatorship, known for his harsh direction of one of the Army’s clandestine detention centers “Campo de Mayo”, was accused by a federal judge of San Martín (Province of Buenos Aires) in connection with 14 killings and 20 cases of torture at army institutes under his command. He was later acquitted and the acquittal was confirmed by the Court of Appeals of San Martín on the grounds that he had been pardoned by Presidential decree No. 1002 of 1989. Seventeen years later, a group of people under the representation of the Argentine League for Human Rights, filed a petition to the federal judge of San Martín asking him to declare the Presidential pardon unconstitutional and thus to cancel the acquittal of Riveros. The federal judge accepted the petition and held decree 1002/1989 to be unconstitutional.
The Supreme Court, in a four to two decision (with one abstention) held that Riveros could be tried for illegal abductions, torture and killings of dissidents during the military dictatorship as the presidential pardon (decree 1002/89) that had acquitted him was unconstitutional. The majority highlighted that both international human rights law and international humanitarian law prescribe the obligation of all the international community to “prosecute”, “investigate” and “adequately punish those responsible” of committing crimes against humanity. The majority went on to say that in the case under analysis it is necessary to declare the unconstitutionality of the presidential pardon to authors and participants in crimes against humanity since that government act inevitably carries with it the renunciation to knowing the truth, to the investigation of the facts, to the identification of their authors and to the availability of effective remedies to combat impunity.
The Presidential prerogative to pardon is established in article 99, section 5 of the National Constitution, but it is designed to remedy judicial errors and to mitigate the punishments. However, in the case of crimes against humanity, it is not possible to consider any discretionary decision of any of the Powers of the State in light of the international obligations of investigation. These types of conclusions were also arrived at by the Inter-American Court in Barrios Altos and ratified in Almonacid. In the latter decision, the Inter-American Court held that a judgment rendered in the foregoing circumstances produces an “apparent” or “fraudulent” res judicata case.
In light of the aforementioned considerations, the Court declared the unconstitutionality of Presidential Decree No. 1002/89 that pardoned the appellant, as going against articles 18, 31, 75, section 22, 99, section 5, 118 of the National Constitution; 1, 8.4 and 25 of the American Convention on Human Rights; and 14.7 of the International Covenant and Civil and Political Rights.
3). Plurality of legal sources
Taken into account these cases, we can identify a plurality of sources:
• the Rome Statute of the International Criminal Court,
• the Convention on the Prevention and Punishment of the Crime of Genocide,
• the United Nation’s Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity,
• the International Covenant on Civil and Political Rights
• the law of the nations
• the Inter-American Convention on the Forced Disappearance of Persons,
• the decitions of the Inter-American Court of Human Rights.
• the National Constitution
• some previous cases of the Supreme Court
• the American Convention on Human Rights
This is a nice picture of what “constitutional pluralism” really means: the Court need to decide the case with a different sources of law, coming from different levels: national and international, and, in many situations, the are in a non hierarchical order.
In other times, the rationality of the legal system was “a priori”, and was made bye the Congress. I our times, the rationality is “a posteriori”, made by the judge, and case by case.
So it is very important the dialogue between sources of law in front of a the case and it is the real challenge of the judicial decision.