Theme
On 17 June the Argentine federal judge Claudio Bonadío threw out the request for extradition of the presumed Basque terrorist Jesús María Iriondo presented by the Spanish judge Baltasar Garzón. The aim of this article is to analyse how this will affect bilateral relations between Spain and Argentina, which of late both sides had been attempting to improve.
Summary
The rejection by the Argentine federal courts of the application for extradition of the presumed ETA terrorist Jesús María Iriondo was badly received by both the Spanish government and the Spanish public. The prickliest points are those contained in the judge’s sentence, which gives a distorted picture of the state of human rights in Spain and of the situation in the Basque Country. While the Spanish government has so far refrained from comment, the Argentine government prefers to stay on the sidelines, on the grounds that this is a purely legal affair. The case arises at a time when both governments are trying to improve bilateral relations and when Madrid awaits the arrival of the new Argentine ambassador, Carlos Bettini.
Analysis
Bilateral Relations
Aside from the strictly legal points made by the judge Claudio Bonadío, on which I make no comment other than to say that they contain various dubious arguments relating to the prescription of crimes of terrorism, the sentence is the focus of political and media interest on both sides of the Atlantic. The question is how it will affect Hispano-Argentine bilateral relations. On past experience, the feeling of Spaniards towards terrorism and the anti-terrorist pact signed by the two majority political parties, the PSOE and the PP, suggest that the effect will be harmful, however much both sides try to keep up the pretence of ‘business as usual’.
The sentence was handed down just a few days after the Argentine Foreign Minister, Rafael Bielsa, visited Madrid. After the meeting with his Spanish counterpart, Miguel Ángel Moratinos, the feeling among the Argentine delegation was generally optimistic, particularly after Spain had again defined its relationship with Argentina as ‘strategic’. Relations between Spain and Argentina have usually been excellent and it was no coincidence that the prime target for both the Spanish authorities and Spanish companies in their efforts to channel direct investment towards Latin America should have been Argentina. The situation changed with the economic and political crisis in Argentina that resulted in the departure of President Fernando de la Rúa, which led to not only default on the country’s sovereign debt but to breach of contract with various privatised services, thereby penalising many Spanish companies.
The first visit by President Néstor Kirchner to Spain in mid-July 2003 ended in a hard-faced encounter with Spanish businessmen, who were lambasted for the support they had given to former President Menem. Although feathers were smoothed in a subsequent private visit, relations between Kirchner and Spanish business never really recovered and diplomatic relations still feel the draught from that encounter.
Business-wise, the Hispano-Argentina agenda has been dominated by sovereign debt default, the consequent collapse of the peso, the obligatory conversion of dollar-denominated loans into amounts to be repaid in pesos and the wholesale breach of contract sanctioned by the Emergency Economic Act of early 2002. Argentine demands that Spain plead its cause before the IMF and other international agencies were generally heeded by Spanish governments, with Madrid becoming one of Argentina’s champions in such quarters. The appointment of the former Spanish Minister of the Economy, Rodrigo Rato, to the post of Managing Director of the IMF will doubtless facilitate, though not favour, communication with Argentina. Rato is well versed in the economic situation of Argentina and needs no advice on what goes on there. Yet while in multinational forums Madrid was defending Argentina against the claims of its creditors, it also negotiated strongly on behalf of Spanish investors, many of whom had sought the mediation of the International Centre for the Settlement of Investment Disputes (ICSID). By the end of 2003 such claims numbered 24, while another 30 were at the amicable stage provided for in bilateral investment treaties (see ‘La seguridad jurídica y las inversiones extranjeras en América Latina. El caso argentino’, DT 2-2004). At present the claims before the ICSID are believed to number around 50, despite the fact that Buenos Aires insists they be withdrawn before any serious contract renegotiations take place.
The energy crisis poisoned relations with some of the utilities (gas, oil and electricity), reaching crisis point when President Kirchner bad-mouthed Repsol YPF at a time when certain piquetero groups attacked its head office in the Argentine capital. The activities of such groups which, when not actually attacking company premises, continuously blackmail them in exchange for ‘protection’ (demanding subsidised canteens, free gas cylinders, etc), contribute little to bilateral harmony. Equally unhelpful was the fanfared incorporation of ENARSA or ‘Argentine Energy Company’, much vaunted by the Argentine government but now short of funds.
Elsewhere, differences include the roughly 80,000 (some put the figure at twice this) illegal Argentine immigrants currently in Spain or the non-attendance of President Kirchner at the recent wedding of crown prince Felipe. In the former case the Argentine authorities claim special concessions for their nationals on the basis of the welcome afforded to hundreds of thousands of Spanish emigrants who arrived on the shores of Argentina in successive waves in the 19th and 20th centuries. The Bielsa-Moratinos meeting agreed to set up a working group to study this. It also agreed that Spanish premier Rodríguez Zapatero should visit Buenos Aires in the second half of September. In certain quarters in Argentina, concern was expressed several months ago at the attempts by the former Spanish Prime Minister, José María Aznar, to move closer to Brazil. There was talk of a ‘strategic alliance’ and of facilitating Spanish investment in Brazil. Particularly worrying for Argentina was Spain’s open support for Brazil’s longstanding claim to a permanent seat on the UN Security Council.
Finally, it remains to be seen how the new Argentine ambassador to Spain, Carlos Bettini, will fare. His was a political appointment by Kirchner, to replace the Duhalde supporter Abel Parentini Posse who, according to various sources, had lost the confidence of the incoming Argentine president. Bettini’s name set opposition nerves jangling in Argentina and the President’s choice was challenged on various grounds, ranging from the fact that he had dual Argentine-Spanish citizenship (which Bettini renounced on the eve of his vetting by the Senate) to his past as a senior executive of Aerolíneas Argentinas, when Argentina’s flagship airline was run by Iberia. He was also accused of encouraging graft on behalf of Spanish companies and of being an associate of Felipe González. In fact, it is precisely the close friendship which Bettini maintains with the former Spanish premier and his equally good relations with Spanish socialists in general which recommend him to Kirchner, in the hope that he is the man to open the right doors.
The Lariz Iriondo Case
Terrorism and the danger of ETA activists being given refuge in Argentina is another issue on the bilateral agenda. The recent sentence pronounced by Judge Bonadío has raised concern in various intelligence services, particularly regional ones, lest Argentina become a haven for ETA terrorists. This is why it is important to look closely at how the Argentine government responds to the present situation.
As far as the extradition hearing is concerned, even before it started, circles close to ETA terrorism in Buenos Aires went on the war path. Criticism of both Garzón and Bonadío had reached the level of outright rejection. Dislike of Garzón came as no surprise as he had long been the bête noire of the Basque nationalist left. Bonadío is a slightly different case. He is a federal judge appointed in the days of Carlos Menem and a protégé of Carlos Corach, whom he had served as number two in the legal department of the Presidency. Corach went on to be Minister of the Interior and one of the key figures in the Menem outfit. These connections are considered key by those who link Bonadío to the corruption rife in the Argentine legal system in the days of Menem. It was most in evidence in the Supreme Court and among federal judges. Bonadío’s name comes up frequently in many of the most infamous cases of corruption, though he is even better known for having simultaneously ordered the arrest of armed services personnel suspected of being torturers under the military dictatorship and a number of former montonero leaders, which earned him the hatred of certain sectors of the Argentine left.
It is interesting that the same Spanish magistrate Baltasar Garzón, who became a hero for human rights groups for his efforts to try Pinochet and Argentine torturers, should now be the object of left-wing hatred for his determination to combat, by legal means, ETA terrorism and its fellow travellers, including Batasuna. Bonadío, meanwhile, from being decried as the corrupt persecutor of montoneros, is suddenly the personification of justice for having freed Lariz Iriondo and proclaiming that Basque ‘freedom fighters’ are persecuted and suffer torture in Spain. Where exactly justice stands in all this is a moot point: justice is done when we are pleased with the result, but judges have sold out to those in power when we are not.
In the run-up to the hearing passions had been made to run conveniently high and it is likely that Judge Bonadío was influenced by the results. There were the appropriate press articles, especially those written by Osvaldo Bayer in the Buenos Aires daily Página 12, together with demonstrations in the Plaza del Congreso opposite the Parliament organised by the Coordinator for the Freedom of Political Prisoners and the Group of Friends and Family of Lariz Iriondo, ably assisted by some piquetero groups (such as the Movimiento Barrios de Pie, the Teresa Rodríguez Movement and the Aníbal Verón Organising Committee of Unemployed Workers) and the Communist Party, United Left, the Free Organisation of the People, the Free Fatherland Current, the Mothers of the Plaza de Mayo, the Association of Detainees/Disappeared Persons, HIJOS and the Argentine League for the Rights of Man. Over and over again we heard the same slogans against Spanish colonialism, persecutor of the Basque people, in an attempt to demonstrate the appalling state of Spain’s prisons, the existence of torture chambers and the violation of the most elementary human and political rights of Basque ‘freedom fighters’. It was another evident attempt to distort reality, clearly reflected in Lariz Iriondo’s reply to a question from a journalist of La Nación on his opinion of ETA methods. After a moment’s hesitation, Laríz replied: ‘What do you mean by ETA’s methods? ETA is a political organisation of 50 years’ standing. It is an armed organisation which is fighting for a political solution, hence the truce’.
If the sentence of Judge Bonadío had limited itself to arguing that the crimes for which extradition was sought (attempted murder, havoc and membership of a terrorist organisation) had prescribed, or even to the alleged ‘inconsistencies’ in Garzón’s extradition request, the matter would have remained within the theoretical confines of legal technicalities and the independence of the judiciary. The problem arose when the judge, in his sentence, strode directly into the political arena, thus further jeopardising bilateral relations.
Reading the sentence is an irritating succession of unpleasant surprises. Bonadío says that Jesús María Lariz Iriondo is ‘called Josu in the Basque tongue’ and that he is ‘of Spanish nationality by legal imposition’. The bias of the sentence is clear in the section dealing with Lariz’s statement to the court. The judge says ‘he defines himself as a Basque political prisoner’ and that he began his statement with ‘a historical description of how the Spanish State had prevented the Basque people from exercising their right to self-determination, with special reference to the use of the language and the activities of the GAL… He said that Basque citizens have their rights infringed in criminal proceedings in which they are discriminated against in comparison with other Spanish citizens on account of their origin … He [Lariz] spoke at length of the persecution he himself had suffered at the hands of the Spanish government, considering that it was due exclusively to his being a Basque, denying that he had been a member of ETA … At all times he insisted that the conflict between the Spanish government and the Basque people was a political conflict, recalling at the end of his statement the case of the closure of the only newspaper in the Basque language as further proof of the persecution to which Basques are subjected.’ After fleeing Spain, Lariz went to live in ‘the French basque country’ (sic), not France.
The same distortion can be seen elsewhere in the sentence, especially in the verdict, when instead of referring to the ‘Kingdom of Spain’, as previously, the judge repeatedly mentions the ‘Spanish State’, the preferred expression of ETA and its accomplices. Finally, according to Bonadío, Lariz, ‘expressly asked me to exercise impartiality in resolving the case’, although from the wording of the sentence there can be little doubt of the bias adopted by the judge on the ‘Basque conflict’. While making great play of the ‘inconsistencies contained in the extradition request’ of Garzón, at no time does Bonadío question the premises of Lariz and his defence counsel.
The stance adopted by the public prosecutor was crucial to the final resolution. He first opted for pointing out that the crimes of attempted murder and membership of a terrorist organisation had prescribed under Argentine law and that the only valid charge was that of havoc, included in the extradition request put to Uruguay in 1992, although for Bonadío that request was undocumented beyond the references made to it by the prosecutor and the defence. The prosecutor also observed that to successfully press the charge of havoc, Spain should have applied the former Criminal Code, which is more ‘benign’ than the current one.
The prosecutor then went on to exceed his remit with a series of assumptions bearing no similarity with actual conditions in Spain and based on the belief that torture is practised there. According to the prosecution, ‘Spain should provide adequate guarantees for the physical, mental and social welfare of the prisoner, in order to prevent Argentina from committing an illegal act… Put another way, to avoid the danger of torture and thus the international liability that our country would incur with respect to… Article 3 of Act 23,338, approving the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (as contained in the National Constitution in subsection 22 of Article 75, where it says that: “(1) No State can expel, return or extradite a person to another State where there are sound reasons for believing that he is in danger of being subjected to torture; (2) for the purpose of determining if such reasons exist, the competent authorities will take into account all relevant considerations including, where necessary, the existence in the State concerned of repeated reports of manifest, obvious or large-scale violations of human rights” ’. According to the prosecutor, ‘Extradition is not applicable where there are sound reasons for assuming that the prisoner might be subjected to torture or other cruel, inhuman or degrading treatment or penalties (subsection e of Article 8 of Act 24,767)’.
A similar line of argument was adopted by Lariz’s defence lawyer, Eduardo Soares, who referred to ‘the nature of the Basque/Spanish conflict, which gives rise to political persecution’. He cited the Hispano-Argentine extradition treaty, which rules out application in cases of political crimes, persecution on grounds of race, religion, nationality or political opinion, or the risk of torture. Soares also cited statements of international organisations such as the European Committee for the Prevention of Torture and Inhuman or Degrading Punishments, and the recommendations of the Special Rapporteur of the United Nations on the issue of torture, Theo van Boven, and of Amnesty International, concluding that, ‘it is impossible for Spain to guarantee respect for the physical integrity of Lariz Iriondo’. Arguments such as these coming from a defence lawyer will surprise no one. What does come as a shock is to see an Argentine federal judge, who may be assumed to be reasonably well informed, echoing such opinions, although he did stop short of treating terrorist crimes as political ones.
In his verdict, the judge requested the Argentine government, by means of the Ministry of Foreign Affairs, to require as a ‘precondition for handing over the prisoner to the custody of the Spanish State (sic)’ a series of ‘unequivocal guarantees for Jesús María Lariz Iriondo’, contained in the International Pact on Civil and Political Rights cited in the Convention Against Torture and in the Bilateral Extradition Treaty. In this way, said the judge, ‘the Spanish State will thus respect the procedural guarantees recognised by the International Pact on Civil and Political Rights’. Similarly, the ‘Spanish State’, following the recommendations in the 60th period of sessions of the Human Rights Committee of the UN made by the Special Rapporteur on the Issue of Torture, Theo van Boven’ (report on the visit to Spain in October 2003), ‘must guarantee that Lariz Iriondo will not be held incommunicado’; will have access at all times ‘to a lawyer of his own choosing, including the right to consult with him or her in total privacy’; may be examined at any time ‘by a doctor of his choice, on the understanding that such an examination may be undertaken in the presence of a forensic doctor appointed by the Spanish State;’ may ‘inform his family of the crime of which he is accused and the place of his arrest’; providing ‘total and proper consideration to preserving the social relations between Jesús María Lariz Iriondo and his family and other ties of friendship or of a social or cultural nature’; and that ‘all interrogations begin with the identification of those present and be recorded on video, including the identification of all those present, with the express prohibition of being blindfold or wearing hoods’.
Conclusions
According to the Argentine daily La Nación: ‘Aside from rejecting the extradition request, Bonadío’s sentence lent credence to the accusations of ill treatment of Basque separatist leaders in Spain’. Such outrageous nonsense demands a response by the Argentine government: not to call into question a court sentence, but to attest to its confidence in Spanish justice. However, recent bilateral relations are punctuated either with pregnant Argentine silences, such as that produced by the unjustifiable absence of President Kirchner on the occasion of the wedding of crown prince Felipe, or with loud recriminations, such as those voiced by Kirchner himself on his first visit to Spain in July of 2003. It is about time that the Argentine government realised that a relation, particularly a relation between two countries, is built on gestures from both sides.
The Argentine Foreign Minister, Rafael Bielsa, passed through Madrid a short time ago and had a talk with his Spanish counterpart, Miguel Ángel Moratinos. Again the meeting served as a platform for Argentine demands: special treatment for Argentine immigrants, including illegal immigrants (in just reciprocity for the treatment afforded to Spaniards arriving in the Río de la Plata in times gone by), support for Argentine arguments at the IMF and pressure on Spanish companies to reduce their claims against the Argentine government for breach of contract. Over and above the merit of such demands, Argentine leaders should take cognisance that what is done, or not done, in the field of international relations, is never ultimately free of charge.
What was interesting in that trip was the reply Bielsa gave to a question from a journalist of the Spanish newspaper El País on the evident rapprochement between President Kirchner and the duo made up of Venezuela’s President Chávez and the Cuban leader Fidel Castro. Rather than meet the question head on, Bielsa said: ‘Argentina now understands that it has much to do with what is near to it: the region’; ending with: ‘The strategic option is regional integration’. While the Argentine government makes substantial demands on Spain, it does not appear to know how much it is willing to do to ensure that bilateral relations are satisfactory for both countries.
Carlos Malamud
Senior Analyst, Latin America, Elcano Royal Institute