An Agreement That Never Should Have Happened Is Declared Unconstitutional

This past week, an Argentinian Federal Court declared null the Memorandum of Understanding (MoU) that Argentina and Iran had signed in January 2013 to jointly seek the truth regarding the 1994 bombing that killed 85 and injured more than 300 in Buenos Aires. The terrorist attack against the Argentinian Israelite Mutual Association (AMIA) Jewish Center was the worst terrorist attack ever in Argentina, which has Latin America's largest Jewish population. To date, no one has been convicted of the massacre.

The governments had agreed to sign this MoU claiming that it would allow experts to analyze evidence from the bombing and enable Argentinian authorities to travel to Tehran and interview the six Iranians suspected of participating in the attack. However, most Argentinians and international experts viewed the controversial agreement as inappropriate and not really conducive to delivering justice for victims. For instance, the commission's recommendations, such as those related to the identification of perpetrators and subsequent questioning, would not be binding. In addition, the Iranian government has consistently and repeatedly refused to cooperate with investigators and has failed to enforce international arrest warrants for senior Iranian officials. Furthermore, the MoU would give Iran the opportunity to review an investigation carried out entirely by Argentina with no clear benefit to Argentina. Israel also voiced its concern over the agreement through its deputy foreign minister, Danny Ayalon, who was quoted by the media as saying that holding a joint investigation with Iran was "like inviting the murderer to participate in the murder investigation." Lastly, the majority of Argentinians and international observers believe that President Cristina Fernández de Kirchner had overstepped into areas reserved for the judiciary.

The main argument of the Federal Court in striking down the MoU was that the agreement, signed by the Executive, is unconstitutional and an abuse of power, given that an investigation by Federal Prosecutor Alfredo Nisman had already received the approval of both the Executive and the Legislative powers. The finding of the decade-long investigation, which concluded in 2007, was that Iran had direct responsibility for the bombing, including by financing the attack and providing support to Hezbollah in its implementation. Since the investigation ended, INTERPOL has had on its "most wanted" list top Iranian officials, among them the current Defense Minister, Gen. Ahmad Vahidi. The Iranian government always denied any type of involvement.

But perhaps most compellingly, critics have maintained that the Argentinian president undermined legitimate and already fruitful justice efforts in her own country by signing an agreement that is far from optimal in terms of accountability for a terrorist attack. And, in the process, she has not only denied the demands of victims for justice (already serious enough of a problem), but has also compromised the reputation of the country in its "dealing with the past" approach. The signing of the agreement blatantly goes against Argentina's human rights record of holding perpetrators of serious international crimes responsible for their acts, as was the case in recent decades in relation to the country's history in the 1970s.

The Ministry of Foreign Affairs, headed by Hector Timerman, announced that it will be appealing the decision in the Supreme Court, as it considers the decision to be "invading an area of clear Executive power." The president has defended the agreement as a historic opportunity to clarify who was responsible for the attack.

In the interim, the Federal Court ordered the government to stop implementing the agreement until its constitutionality has been settled. This should not pose any problems considering the lack of progress to date due to Iran's reluctance to move forward with any probe into the attack despite the government change.