This paper briefly discusses the latest legal developments in the matter of the brutal terrorist attack against the AMIA Jewish community building in Buenos Aires on Jul. 18, 1994, which killed 85 people and injured hundreds.
A few days ago, on Jan. 27, Argentina and Iran entered into a “Memorandum of Understanding” providing, among others, for the establishment of a commission – so called the “Commission for the Truth” – to investigate that terrorist attack.
This commission is supposed to take a deep review of the records and documents of the criminal investigations on the matter conducted by the Argentine and Iranian judicial authorities, in particular the incriminatory evidence gathered against each of the Iranian suspects. The commission’s mandate, however, will be limited to issue “recommendations on how to proceed with the case within the legal and regulatory frameworks of the parties”. The commission has no authority to prosecute the crime and impose penalties on its instigators and perpetrators, nor is it subject to any time limits for conducting the investigations and issuing recommendations.
And not only that, the commission will unduly interfere with, and cause additional delay to, the Argentine criminal prosecution being conducted by judge Rodolfo Canicoba. According to the memorandum, Argentine judicial authorities shall be compelled to interrogate the Iranian suspects in Tehran instead of Buenos Aires, which is unacceptable at this stage of the proceedings. The suspects were not wanted merely to be questioned in the context of a preliminary investigation, they were wanted to face trial in Argentina. The memorandum says nothing about the role of Argentine prosecutor Alberto Nisman. In any case, Canicoba and Nismam will be prevented from interrogating the suspects until the commission is appointed and all of its members are able to gather in Tehran for that purpose.
More, the memorandum does not provide for any kind of international supervisory authority or observer (whether from the UN or otherwise) to oversee the fairness of the commission’s procedures and its independence.
The commission will probably focus on discrediting and frustrating Nisman’s efforts to bring the Iranian suspects to justice. On Oct. 25, 2006, Nisman delivered an 800-page indictment report incriminating Iranian highest-ranking officials as instigators of the crime and Hezbollah as the perpetrators. On the basis of this indictment, Canicoba issued arrest warrants for the eight Iranian suspects.
Nisman’s evidence appeared so credible that Interpol upheld Argentina’s request and issued “red notices” for six out of the eight Iranian suspects, despite the Iranian National Bureau’s fierce opposition. In issuing red notices, Interpol does not restrict itself to “rubber stamp” requests made by member states, rather it takes a careful review of each of them and their supporting evidence.
Iran did not cooperate with Interpol’s red notices, let alone handed over the suspects to Argentina. In fact, Iran and Argentina have explicitly provided that the memorandum would be referred to Interpol upon signature – even before it is ratified and comes into force – surely with the intention of bringing down the red notices issued and currently in force. Rumors existed that Iran was on the brink of being suspended from Interpol for continuously flaunting and breaking its rules.
As a logical corollary of the memorandum, Argentina would also drop its extradition requests of the Iranian suspects. This concerted Argentine-Iranian effort caught many for surprise, as it came when much of the world was focused on isolating Iran for its nuclear weapons aspirations.
Chances are indeed very high that the commission’s findings will eventually contradict Nisman’s report. Although the commission’s findings are not binding in nature, the memorandum provides that “both parties will take these [commission’s] recommendations into account”. All seems to indicate, unfortunately, that the commission’s primary purpose is not to find the truth about the AMIA attack but rather to cover it up.
In 1999, “Memoria Activa”, a Buenos Aires-based non-profit organization consisting of relatives and friends of the crime’s victims, filed a complaint against Argentina before the Inter American Human Rights Commission (IAHRC), an organ of the Organization of American States (OAS). In 2004, the IAHRC warned Argentina for failing to conduct an efficient and responsive judicial investigation into the crime. Argentina then assumed the commitment “to prosecute the crime efficiently and responsively” from then on. It is to be hoped that Memoria Activa will now reopen the complaint (or file a fresh one) on grounds that the memorandum means a new Argentina’s breach of its obligation to prosecute the suspects of the crime. In fact, if anything, the memorandum is a lethally-flawed instrument aiming at ensuring impunity for its instigators and perpetrators.
It would be worthy to explore other remedies available under Argentine and international law in an attempt to thwart the commission and bring those suspected of the crime to face trial before a real court of law in Argentina or, alternatively, in a third country.
There are relevant developments on this regard. Suspects of crimes involving large-scale international terrorism have been requested for facing trial before ad hoc international criminal tribunals with seat in third countries. For example, the Special Tribunal for Lebanon (STL) which is an ad hoc international criminal tribunal undertaking the prosecution, under Lebanese and international law, of those responsible for the attack resulting in the assassination of Rafic Hariri, former Lebanese PM, and the death of 22 others, on Feb. 14, 2005, in Beirut. The STL was created by UNSC Resolution 1577/2005 and has its seat in the Hague, the Netherlands. The STL is the first international criminal tribunal to deal with terrorism as a distinct crime. Another example would be the delocalized Scottish national court, with seat in the Hague too, whose primary mandate was to hold trial for the Libyan suspects of the bombing of the Pan Am flight 310 in 1998 over Lockerby, Scotland.
The UNSC in countless occasions held that international terrorism poses a threat to world peace and security. The AMIA attack also underscores the urgent need to define, codify and bring the crimes of international terrorism into the jurisdiction of the International Criminal Court (ICC) for their effective prosecution at a global scale.
First published: Feb. 21, 2013
Revisited: Aug. 19, 2015