Emilio Eduardo Massera

10.11.2010 ( Last modified: 18.10.2016 )
Trial Watch would like to remind its users that any person charged by national or international authorities is presumed innocent until proven guilty.

facts

Emilio Eduardo Massera was born in Parana, Argentina on 19 October 1925. He studied at the Naval Military School from 2 February 1942 till December 1946. He continued his studies at the Interamerican Defence College in Washington where he learned about “anti-subversive war”. Emilio Massera later became commander of the frigate ARA Libertad then commanding officer of the Navy fleet. On 23 August 1974, under Peron’s presidency he was awarded the rank of Admiral and became Commander-in-Chief the Argentine Navy. He held these functions until September 1978.

On 24th March, a military junta headed by Jorge R. Videla seized power in a coup d’état. They led the country until 10 December 1983. The junta was at first composed of Videla, Naval Commander Admiral Emilio E. Massera and Air Force Commander Sergeant General Ramon Agosti. Massera was to remain a member of the junta until 16 September 1978.

During this time, which was later to be known as the “dirty war”, the Argentinean junta endeavoured to finish off the country’s guerrillas and to eradicate what the junta called “subversive thought” as well as “terrorists”, that is to say “anybody who propagates ideas opposed to western, and Christian civilisation”. During the course of the following years, the junta murdered or were responsible for the forced disappearance of between 10 000 to 30 000 people. At the same time, about 500 000 political opponents were forced into exile to escape repression.

Many hundreds of secret detention centres were opened in the country, the most ill renowned being the “Escuela Superior de Mecanica de la Armada”,( ESMA) in Buenos Aires where Massera was the person in charge. Torture was systematically practiced at this location. It was also there that numerous prisoners were assassinated and disappeared. The young women who give birth in these centres had their children taken away from them to be placed in army families with falsified documents.

Finally, in 1983 the military regime, being weakened by its stinging defeat by the British army during the Falklands war, gave way to a democratically elected civilian government with Raul Alfonsin, a radical, as its president.

legal procedure

As soon as he became president, Alfonsin set up a commission, the CONADEP, led by the famous writer Ernesto Sabato with a brief to shed light on the enforced disappearances perpetrated by the military regime during the previous decade. In a report called “Nunca Más”, the commission listed 9000 cases of enforced disappearances, a figure estimated today at more than 15’000.

On 22 April 1985, a historical trial opened in Buenos Aires to judge the main actors of the dictatorship. General Jorge Videla and Admiral Emilio Massera were sentenced to life imprisonment for crimes of assassination, illegal confinement and torture. Other leaders of the junta were sentenced to varying terms of imprisonment. President Carlos Menem granted a pardon to all of them five years later, in 1990, with the result that Emilio Massera was released after only a few years in prison.

In December 1986, faced with discontent on the part of the army following these trials, “the full stop law” was adopted. It gave a deadline of 60 days, to bring an end to complaints against the members of the army and of the police suspected of human rights violations. The following year, new unrest on the part of the armed forces forced President Alfonsin to go even further by promulgating the law called “due obedience” which guaranteed impunity to all of the military personnel with a lower rank than colonel.

In November 1998, Judge Maria Servini de Cubria ordered that Massera, the person in charge of ESMA, be arrested and charged for his responsibility in the kidnapping and suppression of identity of minors, an offence which had been expressly excluded from the amnesty laws and for which he had not been tried in 1985. He was put under house arrest.

The year after, the Buenos Aires’ Federal Court of Appeal rejected Massera’s appeal, which claimed that this crime had been included in the 1985 judgment and was therefore subject to prescription. The court’s decision created a precedent by qualifying this offence as a crime against humanity, and therefore not subject to prescription. Based on a new constitutional amendment introduced in 1994, the House of Appeal recognised the primacy of international law over national law. The Supreme Court confirmed this decision by the Court of Appeal. Further proceedings against Massera for appropriation of property which belonged to disappeared people, were then opened up.

In March 2001, in a further historical decision, Federal Judge Gabriel Cavallo accepted a complaint filed by the lawyers of an Argentinean / Chilean couple against army officers for human rights violations, based on his judgement that the amnesty laws were unconstitutional and invalid. In July 2002, the Federal Court of Appeal confirmed this judgment. The door had once again been prised open to track army officers suspected of human rights violations.

The political will to end impunity became stronger with the election of a new president Nestor Kirchner on 25 May 2003. Two months after his accession to power, he quashed a decree, which blocked any possibility of extraditing army officers responsible for the repression during the dictatorship. He also openly supported the invalidation of the amnesty laws.

In July 2003, 45 former army officers, including Massera, were put under an arrest warrant from the Spanish judicial authorities. Spain demanded their extradition to be judged for State terrorism, genocide and torture. At the beginning of December, Germany also ordered an arrest warrant against Videla, Massera and other army officers suspected of being responsible for the death of two German students who were assassinated in secret detention centres during the “dirty war”. France also asked for Massera’s extradition.

In December 2003, Massera suffered a cerebrovascular stroke and fell into coma from which, after a while, he slowly recovered. His lawyers then hasten to declare their client mentally unable to defend himself before a court. Judge Maria Servini de Cubria, in a decision which was confirmed on appeal, rejected this argument. A new medical examination was requested following which Massera was declared unfit to stand trial and all proceedings against him, as well as requests for extradition, were suspended.

In August 2004, Massera was ordered to pay 210’000 pesos in compensation to the survivor of a family most of whose members had disappeared at the ESMA.

On 8 November 2010, Massera died at a naval hospital in Buenos Aires. He was 85.

context

In December 1986, the Argentinean Parliament adopted a law called “final point,” which set a statute of limitation of 60 days for offences against international law committed in Argentina.

In May 1987, Parliament approved a second amnesty law called “due obedience,” which exempted from trial all military subordinates who had obeyed orders. This left only about thirty high-ranked military officers to face prosecution. The only crimes not covered by this law – and for which subordinates could still be tried – was theft, rape and the kidnapping of children. The Supreme Court upheld the constitutionality of this law in June 1987.

By December 1990 the first amnesty decrees were signed.

In all, 1195 members of the military who had participated in the junta received amnesty: 730 because of the “final point” law, 379 with the “due obedience” law, 49 declared by the Supreme Court and 42 by amnesty decrees.

In mid-August 2003, the new Argentinean president, Nestor Kirchner, had the amnesty laws repealed and the absence of statutes of limitation for crimes against humanity recognized.

Prosecutions of those involved in the junta once again became possible in Argentina.

Twenty former military personnel are being held in Argentina for crimes committed within the framework of the “Condor” plan. The total number of soldiers in detention and charged under Argentinean law for human rights violations amounts to 120 – to which should be added two Argentineans held in Spain. Some of these proceedings concern cases where children were forcibly taken away at birth from their mothers who had been imprisoned for political reasons. In the opinion of the judges, the amnesty law never covered this crime. (Source: Le Monde, January 5, 2005).

On 14 June 2005, the Argentinean Supreme Court declared the Amnesty Law unconstitutional, by 7 votes in favour, 1 against and 1 abstention,– “Ley de Punto Final”; Ley 23.492-  and the Due Obedience Law – “Ley de Obediencia debida”; Ley 23.521- sanctioned by President Alfonsin in 1987. The Court maintained that these laws violated article 75, paragraph 22 of the 1994 Argentinean Constitution, which gives constitutional status to the International Covenant on Civil and Political Rights, to the Genocide Convention, to the Torture Convention and to the Inter-American Convention, among others. According to the Court, following diverse decisions by the Inter-American Court and by other international bodies, the State has an obligation to investigate, prosecute and punish those who have committed violations of the right to life, to humane treatment or those who have engaged in disappearances, an obligation which cannot be limited or abolished by the enactment of an Amnesty or Due Obedience Laws as ruled by the Inter-American Court in the case of Barrios Altos v. Peru.

This historical decision allows the domestic or international investigation, prosecution and punishment of members of the military suspected to have taken part in the torture, disappearance and/or killings of more than 30,000 persons in Argentina between 1976 and 1983.

On 20 September 2006, during the course of the trial of Miguel Etchecolatz, the court for the town of La Plata used the term “genocide” for the crimes committed by the military dictatorship (1976-1983). It was the first time these crimes were qualified as genocide by a court, just like human rights organisations had long argued they should be. This legal qualification is now contained in the judgment against former police officer Etchecolatz, who was sentenced to life imprisonment for torture, murder and abduction of opponents of the regime.

The court emphasised that the crimes were committed in the context of a genocide campaign organised by the state. For future procedures against former members of the police force and the military, this view could be of crucial importance.