IACHR refers case on Argentina to the Inter-American Court

March 26, 2021

Washington, D.C. - On March 25, 2021, the Inter-American Commission on Human Rights (IACHR) filed the case of the Asociación Civil Memoria Activa (Victims and relatives of the victims of the July 18, 1994 terrorist attack on the headquarters of the Asociación Mutual Israelita Argentina) regarding Argentina, before the Inter-American Court of Human Rights.

The case refers to the international responsibility of the State of Argentina in relation to the terrorist attack perpetrated against the headquarters of the Asociación Mutual Israelita Argentina ("AMIA") on July 18, 1994 in Buenos Aires, which resulted in the death of 85 people and serious injuries to at least 151 others, as well as the situation of impunity in which the facts are found.

In its Report on the Merits, the IACHR noted that in 2005 the Argentine State accepted its responsibility for failing to comply with its duty of prevention and for not having investigated the attack adequately and effectively. The State did not make an explicit acknowledgment regarding the events after 2005. Bearing this in mind, as well as its role as guarantor of inter-American public order and the need to determine the scope of the State's responsibility and the characteristics of the measures of reparation, the Commission in its decision analyzed in a comprehensive manner all the facts and substantive elements at issue in this case.

With respect to the duty of prevention, the Commission considered, based on the elements developed by inter-American jurisprudence to analyze this type of responsibility, that the State was aware of the existence of a situation of risk to sites identified with the Argentine Jewish community, particularly after the bombing of the Israeli Embassy in 1992. Second, said risk was real and immediate, proof of which is that there were security measures in place, and that there were events prior to the attack that called attention to the custody of the AMIA. Third, the Commission established that the State did not adopt reasonable measures to avoid such risk, since it never promoted a general plan to combat terrorism, nor did it take other adequate measures to protect the building.

Although it was not proven that the State's omissions in terms of prevention were deliberate in nature against the Argentine Jewish community, the Commission considered that these omissions demonstrate that the State failed to take reasonable measures to protect a group susceptible to a discriminatory attack. The risk to life, for which the State accepted responsibility, also implied a risk of an act of discrimination that finally materialized. Therefore, the State's omissions in protecting the rights to life and personal integrity also implied a violation of the right to equality and non-discrimination in the absence of prevention of an attack with a discriminatory motive.

In relation to the rights to judicial guarantees and judicial protection, the Commission divided its analysis into three sections: (i) the investigation led by Federal Criminal and Correctional Court No. 9 ("Federal Court No. 9") from 1994 to 2005; (ii) the investigation led by the AMIA Attack Investigation Prosecution Unit (UFI AMIA) from 2005 to the present; and (iii) the judicial proceedings for the cover-up of the attack.

Regarding the process carried out by Federal Court No. 9, based on the available evidence, the Commission concluded that the State bodies in charge of the investigation committed serious irregularities. In this regard, the IACHR noted the deficient preservation of the crime scene and the irrational interruption of certain logical lines of investigation. It also noted the disbursement, by the judicial and intelligence authorities, of a large sum of money from funds reserved by the State Intelligence Secretariat (SIDE) to the then sole defendant in the case in order to incorporate information into the case and thus build an unsubstantiated accusatory hypothesis. The Commission considered that the conduct of the authorities in charge of the investigation -especially in the initial proceedings and those in charge of Federal Court No. 9- instead of seriously promoting the investigation and the punishment of those responsible, incurred in serious flaws, irregularities and deliberate deviation of the investigation for more than eight years. The pursuit of an accusatory hypothesis fabricated by state officials was only possible due to a lack of impartiality on the part of the judge in charge of the investigation and became a factor that prevented the true causes of the attack and all the responsibilities involved from being investigated. The Commission concluded that these conducts and omissions represent acts of deliberate cover-up and constitute the main reason why the attack remains unpunished to date.

In relation to the investigation headed by the UFI AMIA, the Commission noted that the State has adopted some relevant measures to channel the investigation and remedy the multiple affectations occurred before Federal Court No. 9. Since 2015, the UFI AMIA has carried out an evidentiary activity that made it possible to reveal even greater shortcomings that occurred during the collection and identification of essential evidentiary material in the initial proceedings. However, such proceedings were preceded by long periods of delay, without any justification having been offered in this regard. Furthermore, the State did not demonstrate that, in accordance with the principle of due diligence, all the required procedures had been thoroughly investigated and carried out. Among the deficiencies identified were: the absence of proper conservation and adequate management of organic material of utmost relevance for the investigation; the delay in the performance of expert opinions on said material; the omission in the performance of crucial expert opinions to confirm or disprove crucial elements of the accusatory hypothesis sustained by the Public Prosecutor's Office; and the issuance of two indictments based mainly on information provided by alleged sources of human intelligence, which was not incorporated into the judicial process according to the rules of testimonial evidence and whose identity could not be corroborated by the judges, the plaintiffs, the victims or their relatives.

With respect to the judicial proceedings for the cover-up of the bombing, the Commission noted that more than twenty years after the initiation of the judicial proceedings for the irregularities committed during the investigation conducted by Federal Court No. 9, a final judgment has still not been handed down.

The Commission concluded that there is an unreasonable delay in the investigation of the AMIA bombing and the cover-up proceedings, which has affected the right to the truth about what happened and has had a special impact on the victims and their families.

On the other hand, in relation to the classified information held by the SIDE, its successor agencies and the UFI-AMIA, the Commission concluded that, from July 18, 1994 and until March 2015, the Argentine State violated the petitioner's right to access information related to the attack, since it kept out of its reach the documentation classified as secret by the intelligence agencies that participated in the investigations based on the regulations in force.

Regarding the conditions of preservation of the documentary collections and the accessibility of the declassified information, the Commission observed that the deficient or non-existent preservation of said collections for long periods of time seriously compromises the international responsibility of the State, since it constitutes a de facto impediment for the efficient access of the victims and their relatives to the information related to the attack that is in the possession of the State. Consequently, the Commission concluded that the Argentine State has not complied to date with its obligation to guarantee the petitioners access to the State archives where such information is stored.

Finally, the Commission concluded that the State violated the right to psychological and moral integrity to the detriment of the victims' next of kin. The IACHR emphasized that the circumstance of being a family member of a victim of a terrorist act of the magnitude of the AMIA bombing generates in itself severe suffering and anguish. Likewise, such suffering was increased by the situation of impunity, which is directly attributable to the State for the actions of its agents, who even, in some periods, deliberately diverted the investigation, favoring the concealment of the truth and the possibility of identifying and punishing those responsible.

In view of the foregoing, the Commission concluded that the Argentine State is responsible for the violation of the rights to life, personal integrity, access to information, judicial guarantees, equality and judicial protection. All of the above, in accordance with the provisions of Articles 4(1), 5(1), 8(1), 13, 24 and 25(1) of the American Convention in relation to Article 1(1) of the American Convention.

In its Merits Report, the Commission recommended that the State:

1.       Conduct and complete, in an effective manner and within a reasonable time, the investigation of the facts of the case, in order to try and punish all those materially and intellectually responsible for the serious human rights violations declared in the Merits Report. In particular, the State must continue the judicial investigations to clarify the attack on the AMIA headquarters and punish all the perpetrators and masterminds, as well as those who have obstructed or covered up the investigations. In order to verify progress, the State should resume the practice of periodically publishing the management reports of the UFI-AMIA. Likewise, it should hold periodic meetings with the relatives in order to provide them with information on the progress of the investigations.

2.       Make adequate reparations for all human rights violations identified to the detriment of the victims in the report, both material and non-material. This reparation should include pecuniary compensation and satisfaction measures to repair both material and moral damages. Among the measures of satisfaction to be carried out with the participation of the petitioners, the victims and their next of kin, are: i) an act of public apology to all the victims of the bombing; ii) the carrying out of commemorative acts that contribute to preserving the truth and memory in relation to the AMIA bombing as a fundamental step towards the dignification of the mortal victims and their next of kin; iii) the making of an audiovisual documentary on the facts of this case, its victims and their next of kin's search for justice.

3.       Adopt and implement the necessary policies and measures to establish a mechanism for the management and accountability of the secret budget items allocated to the intelligence agencies of the Argentine State. Such actions shall pursue the objective of guaranteeing the adequate registration of such funds, the legality of their exercise and their external and timely control.

4.       Design and implement education and training programs addressed to all members of the federal security and intelligence bodies, as well as to the members of the Judiciary Branch of the Nation, aimed at strengthening their capacities to prevent and investigate complex crimes related to the fight against terrorism. Likewise, to disseminate the basic principles and rules for the protection of human rights, with special emphasis on the protection of fundamental freedoms and due process guarantees in the context of the fight against terrorism.

5.       Adopt measures so that the judges and prosecutors in charge of the investigations related to the AMIA bombing can have all relevant information to know the truth and judge and punish those responsible, even if the information is subject to any type of reserve or state secret. Similarly, ensure that the petitioners and the victims of the attack can access the information related to the case. In both cases, measures should be implemented to ensure that all information in the possession of the State regarding the attack on AMIA is duly safeguarded and preserved.

6.       Adopt and implement measures to strengthen the State's capacity to prevent terrorist attacks that constitute discriminatory acts. Ensure that public apologies and training programs for State authorities, referred to in previous recommendations, include the component regarding violations of the right to equality and non-discrimination in accordance with applicable Inter-American standards.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 075/21