Bordaberry Arocena

Legal Relevance

Keywords: Crimes Against Humanity | Jus Cogens | Systemic Practice

Themes: Characteristics of the Crime | Persons and Groups Affected | Related Crimes

The Court held that the accused, as the President of the Republic, could not have been unaware of the systematic practice of violations of human rights during the time of his presidency. This was due not only to the fact that international organisations repeatedly reported the abuses committed by the military in the country, but also to his specific position as member of the National Security Council, which would have allowed him to request information on the situation of the detainees and, where appropriate, take measures to stop the violations. The Court considered it likely that the accused was aware of each aspect of the repressive action, because of the high number of detainees and the fact that the actions deployed by the military required a specific budget which he never limited. It added that, even if the accused was not aware of the details of the violations, this did not exempt him from his responsibility as long as the repressive aim of those actions was clear.

The Court concluded that the accused was in agreement with the operations deployed by the state forces, that he assured impunity for them, and that he provided them with the means to conduct their actions. In particular, the Court stated that the broad repressive powers conferred to the military led to abuses of power, torture, arbitrary imprisonment, killings and disappearances, in such a way that the State, instead of protecting the rights of its citizens, was the one spreading terror by tolerating and ignoring such abuses. It also confirmed that part of the repressive actions were committed abroad, with the help of security agencies of neighbouring countries.

The Court recalled how internationally recognised rules on the protection of human rights must be applied even in the absence of domestic legislation. It further highlighted that fundamental human rights are recognised by the Constitution as pre-existing norms of jus cogens, containing non-derogable principles relevant for the entire international community. The Court also stated that the definition of crimes against humanity included any actions characterised by the severe violation of human rights. In this respect, it added that it was not relevant whether or not domestic legislation allowed such actions to be carried out, since international norms of jus cogens limited the sovereignty of the State on the matter.

The Court found that the events amounted to crimes against humanity as they were perpetrated against certain people based on their membership or participation in political groups or unions. It found the accused responsible for crimes of enforced disappearance and crimes of political killing (applied to cases where the victim’s remains were found). The Court found the military personnel involved in the arrest and transfer responsible for those killings, inferring their responsibility from the concealment of the deaths. The Court found the public character of the perpetrator and the lack of truthfulness to be aggravating circumstances and that the conditions the victims were confined in and their physical conditions as a result of torture were used to inflict greater harm.

The accused was found responsible for those crimes as co-author because as a public official, he could have put an end or challenged the wrongs, but instead covered their perpetration. Finally, the Court held that the seriousness of the crimes, the number of victims, degree of injury and his position as President justified the application of the highest penalty available.