FINAL PLEA

FINAL PLEA

Distinguished members of the Jury, distinguished members of the Tribunal:

You have heard the opinions of experts and the testimonies of the victims and written and visual documentation has been presented all of which has corroborated the facts exposed by the prosecution in the Accusation.

As we anticipated in the Accusation, it has been demonstrated that the rich country States, the International Monetary Fund, the World Bank, the large transnational banks, the vast majority of the governments of the countries of the Third Word, and other persons carry out different activities which converge in a common end consisting in the exploitation of the peoples of the Third World, appropriating their riches, their natural resources, and the fruits of their labor.

One of the principal mechanisms which they use to achieve this end is the external debt.

It should be clarified that we speak of the states of the rich countries and in contrast, the governments of the debtor countries. This is because the former have an international responsibility as states for the damages caused to the poor countries, while in the case of the governments of the supposed debtor countries, it is the individuals who have successively formed part of those governments who are responsible politically before their own people and must respond before the courts of justice with regard to their civil and criminal responsibilities.

I. CRIMES IMPUTABLE TO THE ACCUSED

In such activities, the States of the rich countries, public and private financial institutions, certain governments and individuals are involved as authors, coauthors and accomplices to the commission of different crimes and offenses, ranging from fraud and the embezzlement of public property, to the violation of fundamental human rights.

In effect, it has been amply demonstrated that certain debts are the result of fraudulent accounting maneuvers carried out by common accord among individuals and transnational banks so that nonexistent loans appear as such, and that other offenses have been committed such as the embezzlement of the better part of the capitals received as loans, the collection of usurious interest and of interest on interest, etc.

Without prejudice to a later, more complete investigation case by case, there is no doubt that the debt which is claimed has been repaid. Hence, those who purport still to be its creditors are incurring in the crime of swindling by continuing to collect interest and amortizations on a nonexistent debt.

The systematic plundering of the peoples of the Third World, which has been accredited in the course of this public proceeding has, as a consequence the violation of the economic, social and cultural rights of said peoples. Such violations also imply the violation of the human right to dignity inherent to the human person and the right to not suffer inhuman or degrading treatment. All of these rights are consecrated in numerous national legislations and diverse international instruments, such as the Universal Declaration of Human Rights, the International Covenants on Economic, Social, and Cultural Rights and Civil and Political Rights, the Convention against Torture and other Cruel, Inhuman or Degrading Treatment, etc.

The violation of economic, social, and cultural rights can also configure the crime of genocide. In effect, article II, incise c) of the Convention for the Prevention and Punishment of the Crime of Genocide refers to ..."intentional subjection of the group to conditions of existence which bring about its total or partial physical destruction".

The human rights violations brought about by the exploitation of the peoples of the Third World have reached such seriousness and magnitude that the prosecution has no doubt in qualifying them as crimes against humanity.

It has been accredited in this process that some rich countries, large transnational banks and the World Bank, by continuing to finance the former regime in South Africa, contravening the resolutions of the UN General Assembly, have become accomplices to the crime of "apartheid".

The States, international financial institutions and transnational banks that have financed bloody dictatorships have made themselves accomplices of the crimes committed by them.

In sum, the accused have incurred, whether as authors, coauthors, or accomplices, in all or the better part of the following crimes:

fraud, consisting in the simulation of nonexistent debts;
embezzlement of public property, consisting in the diversion to private benefit of loans received by the State and in the use of State funds in order to repay private debts (real or fictitious);
usury;
extortion, consisting in imposing leonine conditions before agreeing to renegotiate debts,
swindling, consisting in continuing to collect on a nonexistent debt;
systematic violation of economic, social, and cultural rights;
violation of the inherent dignity of the human person and inhuman or degrading treatment;
complicity in the crime of "apartheid";
complicity in the massive violation of human rights committed by different dictatorships in different eras;
genocide; and,
crimes against humanity.

II. THE SPECIFIC RESPONSIBILITIES OF THE ACCUSED

The accused, according to the role that each has played and continues to play in this plot against the peoples of the Third World, have incurred specific liabilities.

1. The specific responsibilities of the supposed creditor States or the States where the private creditors (banks, etc.) are headquartered

The right to development and the progressive enjoyment of economic, social, and cultural rights carry with them obligations for the international community and for each member State, with respect to their own peoples and human beings in general. The obligations of States with regard to economic, social, and cultural rights exist not only with respect to their own peoples but rather to human society in general. These are the so-called "solidarity rights", consecrated in the Universal Declaration of Human Rights, the UN Charter, and the International Covenant on Economic, Social, and Cultural rights, when they refer to international cooperation.

There exists, thus, in this category of rights, an active universal obligation of States to guarantee them, and a passive universal obligation to respect them. States can thus incur in violation by omission - by not guaranteeing them- or by commission, by not respecting them as for instance, through regressive social and economic policies with respect to their own peoples or imposing such policies on third states.

In either case, States are legally responsible for such violations when they have been committed by their officials and/or their organs. They are also responsible for the violations committed by individuals under their jurisdiction, when they have not adopted the necessary precautions in order to avoid said violations and protect the victims.

From the State's responsibility is derived the obligation to remedy the damage caused to the victims, to give them assurances that the violation will not be repeated, and, in the case of an international crime (as is, in our judgment, the serious and massive violation of economic, social, and cultural rights), the possibility of being the object of sanctions on the part of the international community until the violations have ceased and reparations made for the damage caused. In general lines, this is the approach of the articles dealing with the responsibility of States, of the draft elaborated by the Commission on International Law and approved in first reading in the year 2000.

These general principles with regard to the responsibility of States are applicable to the states where the creditors of the external debt are headquartered, because such States not only have not adopted precautions in order to avoid the damages and violations caused by individuals (the creditor banks) under their jurisdiction, but also because they collaborate actively with the creditors, either directly as States or indirectly through the International Monetary Fund, exercising strong pressure on debtor countries in order to subject them to their demands.

In this way, the States where the creditors are headquartered have made themselves accomplices of these and of the authorities of the debtor countries for the violation of economic, social, cultural, civil, and political rights. Of course, they are directly responsible for these violations when the State itself is the creditor.

Two examples of the active participation of the authorities of rich country states in the exploitation of the peoples of the Third World and their aim of persevering in such criminal policies have been given recently by two well-known leaders of said states.

One is President Bush, who, on December 21, 2001, when calling on the new Argentine authorities to reinforce the austerity measures recommended by the International Monetary Fund, with the arrogance of those who feel themselves to be omnipotent and his characteristic brutality, stated the following, and I quote textually: "I hope that the new president will adopt the measures necessary to protect the creditors, including the International Monetary Fund as such, which, as I understand, is prepared to loan more money if austerity measures are taken."

He then added: "…the International Monetary Fund posed many hard demands, but with respect to the money, many of them were realistic and very necessary, and that is way the government of Argentina must restructure its fiscal policies and its tax program" (EFE, December 21, 2001).

The other leader of a creditor State is the French Finance Minister Laurent Fabius, who stated, when commenting on the Argentine crisis in a television interview also on December 21 (TV francoalemana Arte, 7:50 pm), that the international community (that is to say the conglomerate of rich countries led by the United States) was disposed to help Argentina through the International Monetary Fund. In other words, for Mr. Fabius, if Argentina wants new loans, it should subject itself to the nefarious and exploitative demands of the financial agent of the big powers.

2. Specific responsibilities of the International Monetary Fund and the World Bank

In July 1944, the Bretton Woods Monetary and Financial Conference agreed to create the International Monetary Fund and the World Bank. Article 1 of the Statutes of the International Monetary Fund enunciates the six objectives of the Fund, among them "...facilitate the balanced growth of international commerce contributing in this way to the promotion and maintenance of high levels of employment and real incomes and the development of productive capacity."

In 1947, the Fund and the Bank formally became specialized institutions of the United Nations system, and as such, they have the duty, according to the Charter of the United Nations (arts. 55, 56, 57, 58, 63 and 64), to promote the realization of economic, social, and cultural rights and the right to development and to respect human rights as persons subject to international law.

The International Monetary Fund and the World Bank are international juridical persons and they have their own patrimony. In consequence, they are legally responsible for the violations of economic, social, and cultural rights which they commit, whether by omission or through their action, and they have the obligation to remedy the damage caused, to cease the violations and to not commit them again. As legal persons, they can incur criminal liabilities, as can the individuals who make up their decision-making organs.

The criminal liability of the officers named by states in both institutions, does not exempt those states (in particular the states which according to the Statute hold the power of decision by virtue of their weighted vote), from their legal responsibility as states, in the terms expressed earlier.

During debate in the August 2001 session of the UN Human Rights Sub-Commission, the representative of the International Monetary Fund calmly affirmed that said institution has no mandate to take into account human rights in its decisions and that it is not obligated by the different declarations and conventions relative to human rights. This affirmation provoked vivid replies from several members of the Sub-commission, one of whom affirmed, in an opinion with which this prosecution concurs, that "it is inadmissible that the International Monetary Fund does not subject itself to international law."

Inside the International Monetary Fund, decision-making power pertains to a handful of rich countries that hold a majority of the votes, according to the system of weighted voting (so many dollars, so many votes). Furthermore, one country on its own, the United States, can block certain important decisions (for example the reestablishment of an international system of fixed exchange rates) because it holds a percentage of votes (18%) greater that the minimum needed to block such a decision, which is 15%. The vast majority of the countries and peoples of the world have only slightly more than 25 percent of the votes in the Administrative Council of the International Monetary Fund.

In this way it is a small group of economically powerful countries, working through the International Monetary Fund, who impose on the rest of the international community orientations with regard to political economy. The same thing occurs with respect, in particular, to the external debt and policies of adjustment, such that the "recommendations" and "directives" of the International Monetary Fund are imposed by extortion on those countries which want to renegotiate their debt or obtain credits from the international financial system.

The International Monetary Fund and the World Bank are, in practice, mere instruments and mandatories of the major powers and big capital. Thus the International Monetary Fund and the World Bank and their respective authorities are liable on their own right, and also as mandatories of the big powers and big capital, in regard to the crimes committed in the management of the external debt of Third World countries.

3. Specific liabilities of the transnational banks and the individuals who participate in the criminal operations related to the external debt

Article 29, inc. 1 of the Universal Declaration of Human Rights states: "Every person has duties with respect to the community", and in art. 30 it adds: "nothing in the present Declaration can be interpreted in the sense of conferring any right to the State, a group, or a person, to undertake and develop activities or carry out actions which tend to the suppression of any of the rights and liberties proclaimed in this Declaration".

The duties imposed by economic, social, and cultural rights and the right to development cover entities such as transnational enterprises, producer associations, unions, etc., as inferred from the Declaration of Philadelphia of 1944, incorporated into the Constitution of the International Labor Organization as well as the ILO's Tripartite Declaration of Principles on multinational enterprises and social policy.

Existing international law considers illicit and it incriminates in diverse treaties and agreements, activities carried out by private entities or persons ( for example drug trafficking) and there is no reason to exclude such incrimination when referring to the serious and massive violation of human rights committed, through their policies and activities, by transnational banks and private individuals.

It is obvious that they must be held liable for common law crimes, such as the embezzlement of public property, fraud, usury, etc. Furthermore, the Statute of the International Criminal Court, approved in Rome, in 1998, even though it totally ignores the violation of economic, social, and cultural rights and does not contemplate the criminal responsibility of legal persons, does imply a recognition of the international responsibility of private persons for the grave violation of human rights.

4. Specific liabilities of the governments of debtor countries

The initiative to demand the cancellation or annulment of the debt corresponds to the debtor countries and it cannot be supposed that in so doing, they will count on the support or understanding of those who pretend to be their creditors.

The governments - and the peoples - of the debtor countries have irrefutable arguments on the basis of which to declare, indeed unilaterally, the nonexistence or nullity of the debt. These arguments are, fundamentally:

The practically invariable historical precedents of non-payment of external debt. The major powers in particular have almost never paid their debts.
The illegitimacy and the illegality of the debt, in particular if it has been largely contracted and embezzled by a dictatorship (doctrine of odious debt);
The fact that the debt has been repaid through the usurious interest payments and amortizations already made;
Secondarily, force majeure (act of God) and a state of necessity can be invoked, based on the argument that what is essential for a people and for domestic investment, is not available to be transferred to the exterior, as established in article 1, paragraph 2 of both International Human Rights Covenants, which state: "In no case can a people be deprived of the means of its own subsistence."
From a juridical perspective, the principle of rebus sic stantibus can also be applied. This refers to the right to not fulfill an obligation when the conditions of the same have changed in such a way as to make compliance extremely onerous.

Governments of supposed debtor countries which do not negotiate forcefully with their supposed creditors on the basis of the preceding arguments, and which give preference to the spurious interests of the latter over the legitimate interests of their own peoples, incur in an extremely serious political liability and in a no less serious juridical liability.

The members of a government which acts in this manner can be charged with high treason, as can the parliamentarians who approve or consent such conduct. Naturally, they can also be charged with the systematic and generalized violation of the fundamental human rights of their own peoples.

This without prejudice of other crimes in which they have incurred, such as the embezzlement of public properties, fraud and swindling.

Furthermore, it should not be forgotten, as was mentioned in the Accusation, that in the majority of cases the debt was contracted in flagrant violation of constitutional norms requiring explicit Parliamentary approval of any state indebtedness.

A tragically symbolic manifestation of this criminal responsibility of the governments of the supposed debtor states, is what occurred in Argentina a few weeks ago: while the police savagely repressed people in the streets, the government which two days later resigned made two payments to the creditors: one of US$57 million on December 17 and the other of US$84 million on December 19. The rulers chose to give bullets to the people who were demanding their basic rights and dollars to the international finance capital which collects usurious interest on a nonexistent debt.

III. REQUEST FOR A GUILTY VERDICT AND CONDEMNATORY SENTENCE THAT DECLARES THE EXTERNAL DEBT ILLEGAL, ILLEGITIMATE AND EXTINGUISHED

Distinguished members of the Jury and Tribunal:

The facts, which have been widely expounded upon and proven in the course of these proceedings, lead to the irrefutable conclusion, as we affirmed in the Accusation,

that we are faced with an international plot which has as its end, the plunder and exploitation of the peoples of the Third World,
that involved in said plot are the rich states with their economic, political and military power, the International Monetary Fund and World Bank, the transnational banks, the majority of the governments of the purported debtor countries, authorities and officials of the states, governments, entities, institutions and private individuals cited herein,
that in order to fulfill the objectives of said plot, the participants in same have committed and continue to commit a series of crimes and offenses which have been enumerated in the preceding allegation.

By virtue of the expressed and the law invoked in this Allegation, the prosecution requests that the Jury find guilty and that the Tribunal condemn the States which purport to be creditors and/or actively support the claims of other purported creditors, the International Monetary Fund and the World Bank, the transnational banks, the governments of the supposed debtor countries and those individuals involved, for the commission of all or some of the offenses enumerated in this allegation, according to the participation which each of the accused has had in each one of them.

The prosecution also requests that, in view of the evidence accumulated in this proceeding, the Jury and the Tribunal declare the debt to be extinguished, for being illegitimate and illegal and because it has been amply repaid through the usurious interest and amortizations already paid and by virtue of the historic, social, and ecological debt that the rich countries have with the peoples of the Third World.

Alejandro Teitlebaum
AMERICAN ASSOCIATION OF JURISTS