Posts Tagged ‘Truth Commission for El Salvador’

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Enforcement of International Human Rights Norms with U.S. Immigration Laws

April 14, 2013

Three methods of enforcing international human rights norms are found in U.S. laws relating to immigration.[1]

Introduction

First, certain foreign human rights violators can be deported or removed from the U.S. As section 237(a)(4)(D) of the Immigration and Nationality Act (INA) states: “Any alien . . . in and admitted to the [U.S.] . . . shall . . .  be removed if the alien . . . (ii) ordered, incited, assisted, or otherwise participated in genocide, as defined in section 1091(a) of title 18, United States Code . . . ; (iii) outside the [U.S.] . . . committed, ordered, incited, assisted, or otherwise participated in . . . (I)any act of torture, as defined in section 2340 of title 18, United States Code; or (II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).” [2]

Generals Casanova (left) and Garcia (right)

Generals Casanova (left) and Garcia (right)

This provision of U.S. immigration law currently is being used with respect to former Salvadoran military officers Carlos Eugenio Vides Casanova and Jose Guillermo Garcia, who jointly had been held civilly liable for torture in their country by U.S. federal courts under the Alien Tort Statute(ATS)[3] and the Torture Victims Protection Act (TVPA),[4] but who jointly had escaped similar civil liability under the TVPA for the torture and murder of the four American churchwomen in El Salvador.

These two immigration cases were brought by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency (ICE) of the Department of Homeland Security (DHS), whose mission is to “prevent the admission of foreign war crimes suspects, persecutors and human rights abusers into the [U.S.],” to “identify and prosecute individuals who have been involved and/or responsible for the commission of human rights abuses across the globe” and to “remove, whenever possible, those offenders who are located in the [U.S.].”

Second, certain foreign human rights violators who had gained legal entry or presence in the U.S. can be criminally prosecuted for committing fraud in obtaining a U.S. visa or other immigration benefit (18 U.S.C. § 1546(a)) or committing perjury in statements to U.S. immigration officials (18 U.S.C. § 1621(2)).

Innocente Orlando Montano

Innocente Orlando Montano

This set of provisions currently is being used with respect to another former Salvadoran military officer,  Innocente Orlando Montano, who allegedly was involved in various human rights violations in his country, including the November 1989 murder of the six Jesuit priests and their housekeeper and her daughter.[5]

Sergei Magnitsky Grave

Sergei Magnitsky Grave

Third, last year the U.S. adopted the so-called Magnitsky Act which bans the issuance of U.S. visas to Russian individuals involved in certain human rights violations, including the detention, abuse or death of Sergei Magnitsky, a Russian lawyer and auditor who died in a Moscow prison in 2009 after investigating fraud involving Russian tax officials.[6]

Discussion

 Vides Casanova

After an eight-day trial, a U.S. immigration judge on February 22, 2012, issued his 151-page decision on charges by DHS that Casanova, who had been residing in the U.S. since his retirement from the Salvadoran military in 1989, was removable from the U.S. on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador under the previously cited INA provisions. [7]

The immigration judge found that Casanova had ” assisted or otherwise participated in (a) “the extrajudicial killings of the four American churchwomen, five other named individuals, 29 unnamed others plus “countless civilians committed by the Salvadoran Armed Forces and Salvadoran National Guard while under [his] . . . command” and (b) “the torture of [Arce]” and “countless unnamed individuals [who had been] tortured by the Salvadoran [security forces] while under [his] . . .  command.” Therefore, the immigration judge concluded that Casanova was removable from the U.S. under the previously cited statutory provision.

On August 16, 2012, the Immigration Judge denied Casanova’s application for cancellation of the removal order. The Judge held that the INA barred Casanova from seeking cancellation of removal, that under Board of Immigration (BIA) precedent immigration judges could not apply the doctrine of equitable estoppel against the U.S. Government and that the statutory provision authorizing his removal that was added in 2004 was explicitly made retroactive, thus rendering any contrary international law irrelevant.

On September 17, 2012, Vides Casanova appealed the latter decision to the Board of Immigration Appeals, where it is now pending.

Jose Guillermo Garcia

In October 2009, DHS charged that Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable from the U.S. under the previously cited INA provisions on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.[8]

On February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges. Closing briefs are due on June 3 and reply briefs by July 5. Thereafter the judge will issue a “timely written decision.”

The trial record consists of nine volumes of documents and the testimony of former U.S. Ambassador to El Salvador, Robert E. White; Dr. Juan Romagoza Arce (a plaintiff in the successful ATS and TVPA case against Garcia and Casanova); Dr. Terry Karl (expert witness); Garcia; and Ana Carolina Montoya (Garcia’s daughter).

  • Ambassador White testified to his frequent conversations with Garcia from March 1980 to early 1981, when the Ambassador urged Garcia to clean up human rights abuses and hold the perpetrators responsible. Garcia, however, failed and refused to do so even though he had admitted to White that 1% of the military were in the death squads. Garcia had expressed approval of the November 1980 assassination of the leadership of an opposition political party and of the strategy of assassinations as a means of dealing with dissidents.
  • Arce testified to his abduction in December 1980 and his horrendous torture over 22 days at a military barracks and the National Guard headquarters.
  • Dr. Karl, a Stanford University political science professor who has studied El Salvador for many years, testified that during the period Garcia was Minister of Defense (October 1979-April 1983) (1) he was the most powerful person, de facto and de jure, in the country; (2) the Salvadoran military engaged in widespread and systematic attacks on civilians; (3) Garcia was in control of the military; (4) Garcia presided over instituting measures of state terror; (5) Garcia’s actions gave a “green light” for human rights abuses; (6) Garcia promoted and protected known human rights abusers and fostered impunity of his fellow officers; and (7) Garcia repeatedly denied human rights abuses were occurring. She also described the widespread and systematic use of torture by the various units of the Salvadoran security forces.
  • Garcia testified that he did not commit or order any acts of torture or extrajudicial killings. He  admitted that he knew there were widespread human rights abuses in the military while he was Minister of Defense; that “was public knowledge” and “can’t be denied.” He, however, had tried to identify and hold the perpetrators accountable, but the available evidence was insufficient to have successful prosecutions.
  • During questioning by the immigration judge, Garcia repeatedly admitted that he know of torture and other abuses by the military, but that he lacked control. Yes, he said, he did bear responsibility for those abuses, but not culpability.

Innocente Orlando Montano

In February 2012 the federal court in Massachusetts indicted Montano for perjury and lying to U.S. immigration officials in connection with his applications for Temporary Protected Status (TPS) in the U.S. under the previously cited criminal code provisions.

On September 13th he pleaded guilty to three counts of immigration fraud and three counts of perjury as a result of (a) his stating a false date of entry to the U.S. that qualified for TPS instead of his actual date of entry which did not so qualify and (b) his false statements to immigration officials that he had never served in a military unit, had never received military weapons training and had never been involved in persecution of others.

Since then the parties have been exchanging briefs on the appropriate sentence. The Government is recommending  one of 51 months while Montano argues that is too long.

The Government’s Sentencing Memorandum of January 8, 2013, makes an interesting and, in my opinion, compelling argument for its recommendation. Here are its main points:

  • During the Salvadoran civil war, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.”
  • Before the November 1989 murder of the Jesuit priests, Montano was an active participant in trying to publicly discredit the priests, including his publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA), as one “fully identified with subversive movements.”
  • In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)
  • After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in subsequent charge of  investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”
  • When Montano left El Salvador for the U.S. in 2001, there was “a great likelihood [he] . . . was motivated, at least in part, . . . [by] fear that he was vulnerable to prosecution for his role in the Jesuit murders.”
  • A fear of such vulnerability grew out of the arrest in 1998 of Chilean General Pinochet and of his being stripped of his immunity and ordered in 2001 to stand trial in Chile; the 1999 case against an Argentine military officer; a case against a Honduran general; and the June 2001 conviction of a Guatemalan military officer for the extrajudicial execution of a Roman Catholic bishop.
  • Also supporting such a likely fear was the Salvadoran election of March 2000 which gave the FMLN (the former guerrilla organization) a legislative majority and which immediately thereafter precipitated calls for reopening the Jesuit case from the Rector of UCA and the Archbishop of San Salvador. To the same effect were decisions in 2000 by the country’s courts that its General Amnesty Law could not be applied to human rights violations by public officials while in office and that even though the statute of limitations had run out in the Jesuits case, the writ of amparo could still be used for that crime.

Given the strength of the Government’s justification for the recommended sentence, the lack of any real response from Montano and the skeptical questioning of Montano by the judge, I have little doubt that the judge will find the grounds for removal substantiated by the evidence and order him removed or deported from the U.S.

Magnitsky Act Developments

On April 12, 2013, the Obama Administration issued a list of 18 Russians who were barred from entering the U.S. and whose assets, if any, in the U.S. were frozen, pursuant to this statute. Most were individuals tied to the death of Mr. Magnitsky, but two had been implicated in notorious murders of a Chechen dissident and an American journalist. There were other more highly placed Russian officials on a nonpublic list.

The reaction to the release of this list was mixed. Russian officials, or course, were critical although a Russian legislator said the Obama Administration was taking a “minimalist path” to avoid a deeper crisis before the visit this week to Russia by the Administration’s National Security Advisor, Tom Donilon. Mr. Megnitsky’s U.S. client and major advocate for the Act when it was in Congress, William F. Browder, said, “We’ve just crossed the threshold. This is the end of impunity.” U.S. Senator John McCain, however, said the list was “so damaging” because it was not robust enough and promised new legislation to go after Russian abusers.

The next day (April 13th) Russia retaliated by issuing a list of 18 U.S. citizens who were barred from entering Russia because of their alleged human rights violations. It included two people involved in preparing the so-called “torture memos” –David Addington, Chief of Staff to Vice President Dick Cheney, 2005-2009; and John Yoo, Assistant U.S. Attorney General, 2001-2003–and two who had responsibilities for the operations of the Guantanamo Bay detention facilities– Geoffrey D. Miller, retired U.S.Army Major General, Commandant of Joint Task Force Guantanamo, 2002-2003; and Jeffrey Harbeson, U.S. Navy officer, Commandant of Joint Task Force Guantanamo, 2010-2012. The others on the list were U.S. officials involved in the prosecution and trial of a Russian arms dealer and a Russian pilot allegedly involved in drug trafficking.

Russian officials said the U.S. must realize it cannot conduct its relationship with Russia “in the spirit of mentoring and undisguised diktat.” The statement continued, “Our principled opinion on this unfriendly step is well known: under the pressure of Russophobically inclined U.S. congressmen, a severe blow has been dealt to bilateral relations and mutual confidence. The war of lists is not our choice, but we had no right to leave this open blackmail unanswered.”

Conclusion

These three immigration cases show the interactive nature of the enforcement of international human rights norms. Casanova and Garcia were named as involved in some of the worst human rights abuses in El Salvador by the Truth Commission for El Salvador, and its conclusions were then used by the Inter-American Commission on Human Rights in cases against the State of El Salvador and by U.S. courts in civil lawsuits under the ATS and the TVPA. All of the results of these proceedings were then used in these three U.S. immigration cases.

Another interactive element in these cases is the competent, sustained efforts of the Center for Justice and Accountability in supporting the successful civil lawsuit against Casanova and Garcia under the ATS and TVPA and pressing ICE’s Human Rights Violators and War Crimes Center to bring these immigration cases. The Center is a California-based human rights organization “dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress.” It ”uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law, and advance the rule of law in countries transitioning from periods of abuse.”

The Magnitsky Act, in my opinion, is a different matter. I think it was unnecessary because the previously mentioned INA provisions now being used in the Casanova and Garcia immigration cases could be used to deny U.S. visas to the named Russians. I also think it was and is imprudent because it interferes with U.S. relations with Russia and our national interest in trying to obtain Russian assistance on problems with Syria and North Korea, for example. Professor of Russian Studies at NYU, Stephen Cohen, shares the latter view.

Yes, it is true that some of these means of enforcement are weaker than criminal conviction and imprisonment of the violators. Some only involve recommendations to the state (here, El Salvador) by such organizations as the Inter-American Commission on Human Rights. In this post we are concerned, in part, with orders by a country (here, the U.S.) for a violator to leave the country. But such “weakness” is a necessary consequence of a world essentially structured on the basis of an individual state’s sovereignty. Over time these various mechanisms hopefully will be improved and strengthened.

[1]  Asylum, of course, is another part of immigration law that enforces human rights as covered in other posts. Additional ways of enforcement are discussed in another post.

[2] This provision about removal of foreign human rights violators was added by section 5501 of the Intelligence Reform and Terrorism Prevention Act of 2004, 118 Stat. 3638, 3740 (2004). The same language bars such a person from obtaining a visa for legal entry into the U.S. (Id. § 212(a)(3)(E)(ii), (III).)

[3]  The ATS (28 U.S.C.§1350) provides that U.S.”district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].” Many prior posts have discussed this statute and cases thereunder.

[4]   The TVPA (28 U.S.C.§1350 note) provides, “An individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture [or extrajudicial killing] shall, in a civil action, be liable for damages . . . .” Many prior posts have discussed this statute and cases thereunder.

[5] A Spanish court under the principle of universal jurisdiction has charged Montano and other Salvadoran military officers with complicity in the murders of the Jesuit priests and their housekeeper and daughter. The Spanish government has asked the U.S. to extradite Montano and another former officer now living in the U.S. to Spain to stand trial on such charges, but the U.S. apparently has not yet acted upon the request. A similar request to El Salvador for extradition of other former officers has been rejected. A summary of these and other developments in the Jesuits case is available on this blog.

[6] The complete title of the statute is the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012. Sections 404 (a) and 405(a) of the Act make ineligible for U.S. visas individuals identified on a subsequent U.S. presidential list of those “responsible for the detention, abuse, or death of . . . Magnitsky, participated in efforts to conceal the legal liability for the detention, abuse, or death of . . .  Magnitsky, financially benefitted from the detention, abuse, or death of . . .  Magnitsky, or was involved in the criminal conspiracy uncovered by  . . . Magnitsky.” That presidential  list is also to include a list of individuals “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking–(A) to expose illegal activity carried out by officials of the Government of the Russian Federation; or(B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia.”

[7]  A previous post discussed this February 2012 decision. The complete (but redacted) text of the February and August 2012 decisions was only made publicly available in April 2013. A summary of this immigration case is available on the web.

[8] A summary of this immigration case is available on the web.  Previously (January 2009), Garcia had been indicted for visa fraud and making false statements to U.S. immigration officials, but in September 2009 the indictment was dismissed when a government witness recanted her testimony.

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The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent Salvadoran General Amnesty Law and Dismissal of Criminal Case

December 13, 2012

 

El Mozote

El Mozote

On December 11, 1981, the Salvadoran military (Atlacatl Battalion) detained and systematically executed virtually all of the men, women and children in the small village of El Mozote in the northern part of El Salvador. The men first were tortured and then executed. Then the women were killed. Finally the children were killed. Over 200 of the victims subsequently were identified plus many others who were not so identified. This happened as part of the military’s “Operacion Rescate” that sought to eliminate the guerrilla presence in the area and that also committed massacres in other villages at the same time.[1]

In late January 1982 information about the massacres started to become publicly available, and protests began. The Salvadoran government, however, “categorically denied” that a massacre had taken place and did not immediately initiate any judicial investigations of the events.

Over eight years later (1990) criminal proceedings were commenced in El Salvador, and in November1992 court-ordered exhumations started.

These horrible crimes have reverberated ever since then.

The Truth Commission for El Salvador in March 1993 delivered its report on the El Mozote Massacre, which will be described below along with the immediate Salvadoran adoption of the General Amnesty Law and its being the basis for dismissal of the country’s criminal case about the Massacre.

Additional posts will discuss the following subsequent developments regarding the Massacre:

  • In March 2006 the Inter-American Commission on Human Rights (IACHR) made a preliminary decision in a case about the massacre, and four years later (November 2010), it made its decision on the merits.
  • On January 16, 2012, the President of El Salvador, Mauricio Funes, made an important public statement about his Administration’s decisions regarding redresses for the Massacre.
  • On October 25, 2012, the Inter-American Court of Human Rights, which had accepted the IACHR’s appeal from its own decision in order to enforce its recommendations, rendered its judgment in the El Mozote case and released that judgment to the public on December 10, 2012 (International Human Rights Day).

Truth Commission for El Salvador

The Truth Commission for El Salvador[2] in its April 2003 report found “full proof” that Atlacatl Battalion  soldiers “deliberately and systematically killed . . . more than 200 men, women and children, constituting the entire civilian population” of the village of El Mozote. There was “sufficient evidence” that these troops committed other massacres at the same time in nearby other villages. Names of the officers in charge were given. The Commission’s findings on what happened at El Mozote were aided by its retention of an international forensic team that conducted exhumations at the village and by its interviewing eyewitnesses. These efforts constituted a major advance in establishing the truth of the most egregious crimes.

In addition, the Truth Commission found that the Armed Forces High Command had “repeatedly denied” that a massacre had occurred and that Minister of Defense General Jose Guillermo Garcia (“full evidence) and Chief of the Armed Forces Joint Staff General Rafael Florez Lima (“sufficient evidence”)  had initiated no investigation of the matter. Finally, the Commission found that the President of the Supreme Court “had interfered unduly and prejudicially, for biased political reasons, in the ongoing judicial proceedings on the case.”

El Salvador’s Adoption of the General Amnesty Law

Only five days after the delivery of the Truth Commission Report, El Salvador’s National Assembly adopted the General Amnesty Law for the Consolidation of the Peace (Decree 486).[3] It granted in Article 1:

  • “a full, absolute and unconditional amnesty to all those who participated in any                 way in   the commission, prior to January 1, 1992 [the end of the civil war], of political crimes or common crimes linked to political crimes or common crimes in which the number of persons involved is no less than twenty. “

This law’s Article 6 stipulated that the amnesty shall apply “to the persons referred to in article 6 of the National Reconciliation Law . . . of January 23, 1992 [i.e., to those who would be named or implicated in the anticipated Truth Commission Report].” In addition, Article 2 of the Law broadened the definition of “political crime” to include “crimes against the public peace,” “crimes against the activities of the courts,” and crimes “committed on the occasion of or as a consequence of the armed conflict, without regard to political condition, militancy, affiliation or ideology.” Article 4 stated that all pending cases should be dismissed and all individuals being held should be released while anyone charged in the future could obtain dismissal of the charges. In addition, Article 4 provided that the amnesty extinguished all civil liability.

Dismissal of El Salvador’s El Mozote Criminal Case

As noted above, a Salvadoran criminal case about the massacre was commenced in 1990, and in late 1992 court-ordered exhumations started. However, the court suspended the exhumations in February 1993 and declined to hire international forensic specialists to assist in this effort, at the urging of the President of the country’s Supreme Court.

 In September 1994 the court dismissed the criminal case on the basis of the General Amnesty Law, and there were no appeals of that dismissal. (In 2000 Oficina de Tutela Legal obtained a court order for resumption of the exhumations as it was not covered by that Law.) [4]

Thus, no one was ever convicted for this crime in El Salvador.

[1]  This post supersedes a prior post about the El Mozote Massacre. This preliminary factual statement is based upon the Truth Commission report and Mark Danner’s The Massacre at el Mozote. There also is a detailed account of the Massacre in the November 3, 2010, decision of the IACHR (¶¶ 55-75) that will be discussed in a subsequent post.

[2] The mandate and procedures of the Truth Commission were discussed in a prior post.

[3] A prior post reviewed the circumstances surrounding the adoption of the General Amnesty Law and the Salvadoran courts’ rejection of challenges to the constitutionality of the Law. Another post reviewed U.S. courts’ refusal to use the Law to dismiss civil cases against Salvadorans while another post talked about a 2011 Salvadoran controversy regarding its Supreme Court that may have been related, in part, to another possible challenge to the validity of the Law.

[4]  IACHR, Admissibility of  El Mozote Massacre, Rep. No. 24/06, ¶¶ 17, 19  (Case No. 10.720 Mar. 2, 2006).

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The 1981 El Mozote Massacre in El Salvador

March 11, 2012

   On December 10 and 11, 1981, the Salvadoran military (Atlacatl Battalion) detained and systematically executed virtually all of the men, women and children in the small northern village of El Mozote. The men first were tortured and then executed. Then the women were killed. Finally the children were killed. Over 200 of the victims subsequently were identified plus many others who were not so identified. This happened as part of the military’s “Operacion Rescate” that sought to eliminate the guerrilla presence in the area and that also committed massacres in other villages at the same time.[1]

In late January 1982 information about the massacres started to become publicly available, and protests began. The Salvadoran government, however, “categorically denied” that a massacre had taken place and did not conduct any judicial investigations of the events.

Over eight years later (1990) criminal proceedings were commenced in El Salvador, and in November 1992 court-ordered exhumations started. By September 1993, however, there were no identifications of the alleged perpetrators of the massacre, and the trial court, therefore, dismissed the case. Thereafter there was no appeal of that dismissal. Thus, no one was ever convicted for this crime.

These horrible crimes have reverberated ever since then. The Truth Commission for El Salvador in 1993 delivered its report on the massacre. In 2006 the Inter-American Commission on Human rights (IACHR) made a preliminary decision in a case about the massacre, and in 2011 it referred the case to the Inter-American Court of Human Rights (the Court). And this year, 2012, the Salvador President made an important statement about the crime.

Truth Commission

The Truth Commission for El Salvador in its April 2003 report found “full proof” that Atlacatl Battalion  soldiers “deliberately and systematically killed . . . more than 200 men, women and children, constituting the entire civilian population” of the village. There was “sufficient evidence” that these troops committed other massacres at the same time in nearby other villages. Names of the officers in charge were given. The Commission’s findings on what happened at El Mozote were aided by its retention of an international forensic team that conducted exhumations at the village and by its interviewing eyewitnesses. These efforts constituted a major advance in establishing the truth of the most egregious crimes.

In addition, the Truth Commission found that the Armed Forces High Command “repeatedly denied” that a massacre had occurred and that Minister of Defense General Jose Guillermo Garcia (“full evidence) and Chief of the Armed Forces Joint Staff General Rafael Florez Lima (“sufficient evidence”)  had initiated no investigation of the matter. Finally, the Commission found that the President of the Supreme Court “had interfered unduly and prejudicially, for biased political reasons, in the ongoing judicial proceedings on the case.”

Inter-American Commission on Human Rights

In October 1990 the Oficina de Tutela Legal of the San Salvador Archbishop’s Office filed a petition with the IACHR alleging various human rights violations by the State of El Salvador in connection with the massacres in El Mozote and five other nearby villages.[2]

The government did not seriously challenge the allegations as to what happened in the villages. Instead, it asserted that (a) the case was not admissible to the IACHR because the petitioners had not exhausted their remedies in the country; (b) there was a criminal investigation precipitated by a complaint that was not made until 1990; (c ) the investigation proceeded properly despite great external difficulties caused by the war; (d) the case properly was dismissed in accordance with the General Amnesty Law; and (e) and the petitioners had failed to appeal that dismissal.

In March 2006 (16 years after the filing of the petition), the IACHR issued a report determining that the petition was admissible, i.e., eligible for further proceedings. The parties (petitioners and the government) were proper parties under the American Convention on Human Rights. The petition alleged violations of the Convention occurring within the territory of a party to the Convention after it had become such a party. Most importantly for admissibility, the exception to the requirement for exhaustion of domestic remedies was satisfied: the systematic violations of human rights in the country made it impossible to file a complaint prior to 1990, appeals of dismissals based on the General Amnesty Law were not necessary, and the state had the responsibility to initiate criminal proceedings based on the Supreme Court’s recognition or creation in 2000 of possible exceptions to that Law and had not exercised that option. In reaching these conclusions, the IACHR relied, in part, on the Truth Commission Report.

Apparently sometime before March 2011, the IACHR issued its decision on the merits apparently concluding that El Salvador had violated various provisions of the American Convention on Human rights, but this decision is not available on its website.

Inter-American Court of Human Rights

 On March 11, 2011, the Commission referred this case to the Court. The Commission’s press release about this referral stated:

  • “Due to the application of the General Amnesty Law for Consolidation of the Peace, as well as repeated omissions on the part of the Salvadoran State, these grave acts [at El Mozote and other surrounding villages] remain in impunity. To this day, the massacres have not been clarified judicially, nor have appropriate sanctions been imposed, despite the fact that a significant number of the persons responsible have been identified through various sources. Some exhumations were performed in subsequent years, but these did not lead to a reopening of the investigations, despite repeated requests made to the relevant authorities. The case was sent to the Inter-American Court . . .  because the Commission deemed that the State had not complied with the recommendations contained in the report on the merits.”

Presumably the Court will be holding a hearing in this case and thereafter rendering a decision on the merits.

Salvadoran President Mauricio Funes’ Statement About El Mozote

El Mozote Memorial

President Funes @ El Mozote

January 16, 2012, was the 20th anniversary of the signing of the Salvadoran Peace Accords. On that date President Funes went to El Mozote where he made an important speech about the massacre, He publicly acknowledged that Atlactal Battalion soldiers committed the massacre and apologized on behalf of the State for this atrocity. He asked for forgiveness for what he called “the biggest massacre of civilians in the contemporary history of Latin America.” (A video of the speech in the original Spanish is on the web.)

Funes said there could be no true peace until there is justice to provide compensation to victims and penalties for perpetrators. He also announced the following in response to the massacre:

  • He asked the Attorney General to review existing legislation and propose amendments or new laws to allow criminal sanctions to be imposed on those who participated in the worst human rights violations. Funes also noted that the Salvadoran Supreme Court already had decided that the General Amnesty Law did not protect those guilty of war crimes and could not be used to self-amnesty those who were in charge of the military during the period 1989-1994 (government officials from the Arena political party).
  • Funes instructed the Armed Forces to stop honoring former officers who were linked to this massacre, including Domingo Monterrosa Barrios, who was the commander of the Brigade involved.
  • Funes also requested political parties and others to stop honoring people who could be linked to such violations, which was interpreted as a message to the ARENA political party to stop honoring its founder, Roberto D’Aubuisson, and to the FMLN party to do likewise with Shafik Handal.
  • The government will conduct an investigation to identify all victims of the massacre.
  • The government will create a National Reparations Program for Victims of massacres and other human rights violations.
  • The government will declare El Mozote a cultural center.
  • The government will establish a community health clinic for El Mozote.
  • The government will assist agricultural production in the area, construct paved roads and improve potable water service, build a lodging house for elderly people without families and provide computers to the local school.

This presidential statement at El Mozote went far beyond the previous apology Funes had made for the assassination of Archbishop Romero and the one for the murders of the Jesuit priests and their housekeeper and her daughter.

[1]  This preliminary factual statement is based upon the Truth Commission Report  and Mark Danner’s  The Massacre at el Mozote . The mandate and procedures of the Truth Commission were discussed in a prior Post.

[2]  Background about the IACHR is set forth in a prior Post.

 

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Former Salvadoran Military Officer Is Determined to Have Assisted in Torture and Murder

February 24, 2012

Vides Casanova

This week a U.S. immigration judge in Orlando, Florida after trial found that former Salvadoran General and Minister of Defense Carlos Eugenio Vides Casanova had assisted in acts of torture and murder committed by soldiers under his command. Now he is subject to further proceedings potentially leading to his deportation from the U.S. where he has lived for many years as a legal resident.

One of the cases which Vides Casanova was determined to have assisted was the December 1980 rape, torture and murder of four American churchwomen by five Salvadoran National Guardsmen. At the time Vides Casanova was the Commander of the Guard. (We already have examined the mission work of the churchwomen, the early investigations of this horrendous crime, the Salvadoran criminal prosecution of the Guardsmen and the Salvadoran Truth Commission’s investigation of the crime.)

The immigration judge also concluded that Vides Casanova had assisted in the torture of two Salvadorans, Juan Romagoza and Daniel Alvarado, who testified against him in hearings last spring in the immigration court in Orlando.

In 2005 Vides Casanova and his fellow former Salvadoran General and Minister of Defense Jose Guillermo Garcia were held liable in U.S. federal court for $54.6 million under the U.S. Alien Tort Statute (ATS) and Torture Victims Protection Act (TVPA). This civil case was brought by Romagoza and Alvarado and another Salvadoran refugee for their torture by Salvadoran military personnel during the period 1979 to 1983.

Earlier Vides Casanova and Garcia had defeated similar civil claims in U.S. federal court over the torture, rapes and murders of the four American churchwomen.

Earlier posts have reviewed the enactment of the TVPA and the history of the Alien Tort Statute for the periods 1789-1979, 1980, 1980-2004, the U.S. Supreme Court decision in 2004 and 2004-present.

The current deportation case was brought by the Human Rights Violators & War Crimes Center, which is a unit of the U.S. Immigration and Customs Enforcement created in 2003 to focus on preventing rights violators from entering this country and deporting those already here.

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The Salvadoran Truth Commission’s Investigation of the Murders of the Four American Churchwomen

December 19, 2011

We already have discussed the mission work in El Salvador of the four American churchwomen, their December 1980 brutal murders, the subsequent non-judicial and judicial investigations and successful Salvadoran criminal prosecutions for these crimes.[1]

The Truth Commission for El Salvador also investigated these crimes and its March 1993 report found:

  • the December 2, 1980, arrests and murders of the churchwomen had been planned prior to the arrival of two of them that evening from Nicaragua;
  •  the National Guard deputy sergeant in charge that night of the killing was carrying out the orders of a superior officer;
  • the Director-General of the National Guard at the time, Carlos Eugenio Vides Casanova, and other high security forces officers knew that members of the National Guard had committed the murders pursuant to orders of a superior officer and were in charge of covering up those facts;
  • Vides Casanova and another officer impeded the gathering of evidence and thereby adversely affected the judicial investigation of the crimes;
  • the two Salvadoran military investigations of this crime (Monterrosa and Zepeda) were not serious and instead sought to conceal the involvement of higher officials;
  • the Minister of Defense at the time, General Jose Guillermo Garcia, made no serious effort to conduct a thorough investigation of responsibility for the murders; and
  • the State of El Salvador failed in its responsibility to conduct a thorough and fair investigation of the crime and to find and punish the culprits.[2]

[1] See Post: The Four American Churchwomen of El Salvador (Dec. 12, 20111); Post: The December 1980 Murders of the Four Churchwomen in El Salvador (Dec. 14, 2011); Post: Non-Judicial Investigations of the 1980 Murders of the Four Churchwomen (Dec. 16, 2011); Post: Judicial Investigations and Criminal Prosecutions of the 1980 Murders of the Four Churchwomen in El Salvador (Dec. 18, 2011).

[2] Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 62-66 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html. See Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011) (summary of the Commission’s mandate and procedures).

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Former Salvadoran Vice-Minister of Defense Held Liable by U.S. Courts for $6 Million for Torture and Extrajudicial Killing

November 13, 2011

On November 27, 1980, Manuel Franco and five other leaders of the Frente Democratico Revolucionario (FDR), a group opposed to the Salvadoran government, were abducted in San Salvador and then tortured and executed.  The Truth Commission for El Salvador found that these crimes had been committed by one or more of the country’s public security forces and that the Salvadoran Treasury Police aided and abetted the violations.[1]

Nicolas Carranza

In 2003, the San Francisco-based Center for Justice and Accountability filed a case on behalf of relatives of these six deceased political leaders in a federal court in the State of Tennessee under the U.S. Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The defendant was former Colonel Nicolas Carranza, a naturalized U.S. citizen living in Tennessee, who was Vice-Minister of Defense of El Salvador from late 1979 to early 1981. In that position, he had exercised command and control over the three units of the Security Forces — the National Guard, National Police and Treasury Police.[2]

In late 2005, a civil jury after a three-week trial found Mr. Carranza liable to four of the five Salvadoran plaintiffs for $6 million in compensatory and punitive damages for crimes against humanity, extrajudicial killing and torture. A federal appeals court in early 2009 upheld that verdict.[3] Three aspects of this case are especially noteworthy.

First, the trial court determined that the U.S. 10-year statute of limitation was equitably tolled so that the case was not barred even though it was bought at least 20 years after the events in question.[4] The appellate court affirmed this holding.[5]

Second, the trial court determined that the Truth Commission Report was admissible into evidence under the public records exception to the hearsay rule that generally excludes out-of-court statements offered to prove the truth of the matter asserted in the statement. This was the conclusion after determining that the Commission was a “public office or agency,” that the Report set forth “factual findings” as a result of an “investigation made pursuant to authority granted by law,” that it met the standards of “trustworthiness” and that there was no evidence of bias in the Commission’s methodology or conclusions. The court then concluded that the Report’s discussion of the abduction, torture and execution of Franco and the other five FDR leaders was not contradicted by any other evidence and, therefore, granted partial summary judgment to Franco’s widow on the her claim for extrajudicial killing.[6] The appellate court affirmed this ruling.[7]

Third, the trial court twice rejected the defendant’s argument that the Salvadoran General Amnesty Law barred the U.S. lawsuit after the court concluded that said law did not purport to bar claims outside El Salvador.[8] Again the appellate court affirmed this ruling.[9]

On October 5, 2009, the U.S. Supreme Court declined to review the case.[10] The unsuccessful arguments that were advanced for such review, however, are interesting.

Mr. Carranza told the Supreme Court that the lower court’s refusal to bar the suit constituted “an unwarranted intrusion into the sovereign affairs” of El Salvador and undermined “the very vehicle of [its] transformation from a war torn charnel house to a robust democracy.” Moreover, after pointing out that the Truth Commission Report also provided findings on crimes perpetrated by the FMLN, including the assassination of four unarmed U.S. Marines, Carranza argued that the Supreme Court should consider “the implications of adjudicating monetary claims on behalf of members of groups committed to killing American soldiers.”[11]

Carranza’s petition to the U.S. Supreme Court was supported by the Government of El Salvador (then under the control of the ARENA political party). It argued that the ruling of the lower courts “impugns El Salvador’s sovereignty, contradicts international authority, and undermines El Salvador’s democracy.” Ignoring  its own January 1992  Law of National Reconciliation that had banned amnesty for those found responsible by the Truth Commission until at least six months after its Report was released, the Government falsely asserted that the amnesty law “was a principal, if not the pivotal, requirement of the [Peace Accords].”[12]

In addition, the Government of El Salvador told the U.S. Supreme Court that the plaintiffs had failed to exhaust their remedies in the Salvadoran courts as its Supreme Court had held in 2000 that the country’s courts had discretion to waive the immunity of the amnesty law in particular cases involving “fundamental human rights.”[13] This was a new argument, however, that should not be permitted in the appellate process. In the Sixth Circuit Court of Appeals, the Government of El Salvador, again as amicus curiae, did not mention the possible discretionary waiver of the amnesty law by Salvadoran courts and instead asserted that the amnesty law “specifically precludes the [plaintiffs'] claims . . . by granting absolute civil and criminal immunity to . . . Carranza.”[14]

In opposition to the request for Supreme Court review, the plaintiffs said that Carranza now was arguing inconsistently for his immunity in the U.S. case and for his non-immunity in the hypothetical Salvadoran case if the Salvadoran courts were to exercise their discretion to waive the immunity law. Moreover, according to the plaintiffs, Carranza in the trial court had conceded that plaintiffs had exhausted their Salvadoran remedies because the amnesty law would bar such a lawsuit in that country, and then Carranza failed to prove that he was entitled to immunity in the U.S. case.[15]

[1]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador at 58-6266 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html.

[2]  CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[3]  Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009), pet. for cert. filed, 77 U.S.L.W. 3670 (U.S. Sup. Ct. May 28, 2009) (No. 08-1467); CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[4]  Chavez v. Carranza, 407 F. Supp. 2d 925, 927-30 (W.D. Tenn. 2004); Chavez v. Carranza, 2005 WL 2659186,  at 2-3 (W.D. Tenn. 2005).

[5]  Chavez v. Carranza, 559 F.3d at 491-94.

[6]  Chavez v. Carranza, 413 F. Supp. 2d 891, 903-04 (W.D. Tenn. 2005); Fed. R. Evid. 801 (c), 803 (8).

[7]  Chavez v. Carranza, 559 F.3d at 496.

[8]  Chavez v. Carranza, 2005 WL 2659186, at 3-5 (W.D. Tenn. 2005); Chavez v. Carranza, 2006 WL 2434934, at 5 (W.D. Tenn. 2006). See also Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011); Post: El Salvador’s General Amnesty Law in U.S. Federal Courts (June 14, 2011); Post: The Current Controversy Over El Salvador’s General Amnesty Law and Supreme Court (June 16, 2011).

[9]  559 F.3d at 494-96. The plaintiffs’ argument against the amnesty law was supported in the Sixth Circuit by a group of law professors. (Law Professors Amici Brief.)

[10] Carranza v. Chavez, 2009 WL 1513107 (U.S. Sup. Ct. Oct. 5, 2009).

[11]  Petition for Writ of Certiorari, Carranza v. Chavez, 2009 WL 1511732 (U.S. Sup. Ct. No. 08-1467 May 28, 2009).

[12]  Brief of Amicus Curiae Republic of El Salvador in Support of Petitioner [Carranza], Carranza v. Chavez, 2009 WL 1511733, at 2 (U.S. Sup. Ct. No. 08-1467 May 28, 2009).

[13]  Id.

[14]  Brief of Amicus Curiae The Republic of El Salvador in Support of Appellant [Carranza] at 1, 3, Chavez v. Carranza (6h Cir. Apr. 22, 2008) (emphasis added).

[15]  Brief for Respondents Chavez, et al., at 1-2, 5, 7, 9-10, Carranza V. Chavez  (U.S. Sup. Ct. No. 08-1467 June 29, 2009). In reply, Carranza essentially repeated his previous arguments. Reply Brief of Petitioner, Carranza v. Chavez, (U.S. Sup. Ct. No. 08-1467 July 15, 2009).

 

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Litigation Against Conspirators in the Assassination of Oscar Romero

October 11, 2011

 

Alvaro Saravia

As previously mentioned, the Truth Commission for El Salvador named Alvaro Saravia, an aide to Roberto d’Aubuisson, as one of the participants in the plot to assassinate Archbishop Oscar Romero.[1]

When the Truth Commission report was released in March 1993, criminal charges against Saravia were being considered by the Salvadoran courts. Soon thereafter, however, those criminal charges were dismissed pursuant to the country’s hastily enacted General Amnesty Law.[2]

In September 2003, a U.S. human rights organization, the Center for Justice and Accountability, filed a civil lawsuit by a relative of Oscar Romero alleging that Saravia, then a California resident, as an aide to Roberto d’Aubuisson played a key role in organizing this assassination. The case sought money damages under two U.S. statutes, the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).[3]

A year later, the court held that it had personal jurisdiction over Saravia as he was a resident of the California district and legally had been served with process to commence the case. The court also held that the case (initiated 13 years after the murder) was not barred by the U.S. 10-year statute of limitations under the U.S. equitable tolling doctrine because the plaintiff could not have obtained justice in Salvadoran or U.S. courts due to his legitimate fear of being killing for making such a claim and the Salvadoran government’s erection of roadblocks to Salvadoran judicial remedies. Similarly the lack of any effective Salvadoran judicial remedy meant that the plaintiff did not have to satisfy the TVPA requirement to have exhausted remedies in the foreign country.[4]

In this context, the U.S. court discussed the March 1993 El Salvador amnesty law and the invocation of that law to end the Salvadoran criminal case against Saravia. These actions were seen by the U.S. court as evidence of the plaintiff’s inability to obtain any judicial relief in that country, thereby eliminating any requirement for the plaintiff to have exhausted his Salvadoran remedies. The U.S. court apparently assumed that the Salvadoran amnesty law had no application to the U.S. case as that issue was not discussed.[5] However, the court did receive testimony that the Law was “directed to what the Salvadoran courts should do. It tells the Salvadoran courts how to deal with these cases” and that courts in other countries need not, and should not, take that Law into account.[6]

Saravia never responded to the civil complaint and did not participate in any way in this lawsuit. Even though this default constituted, by operation of law, an admission of all the well-pleaded allegations of the complaint and a conclusive establishment of his liability, the court conducted a five-day default hearing, and the plaintiff provided independent evidence in support of the claims, including the live testimony of the driver of the assassin’s car.[7]

The court then entered extensive findings of fact and conclusions of law holding Saravia liable and ordering him to pay $10 million of compensatory and punitive damages to the plaintiff. The court determined that the murder constituted a crime against humanity, because it was part of a widespread and systematic attack intended to terrorize a civilian population. As the court stated, “Here the evidence shows that there was a consistent and unabating regime that was in control of El Salvador, and that this regime essentially functioned as a militarily-controlled government.” The government perpetrated “systematic violations of human rights for the purpose of perpetuating the oligarchy and the military government.” The court also concluded that what happened in El Salvador was the “antithesis of due process” and that there could not be a better example of extrajudicial killing than the killing of Archbishop Romero.[8]

The court received into evidence the Truth Commission Report and relied extensively on it in reaching its findings.[9]

Because Saravia had not participated in this case in any way, there was no appeal, and the district court’s decision became the final judgment. Now Saravia is one of the “most wanted fugitives” for “human rights violations” by the U.S. Immigration and Customs Enforcement agency.[10]

In 2006 and again in 2010, Saravia was reported to be in an unidentified Latin American country for his personal security when he was interviewed by Salvadoran journalists and admitted to his involvement in the assassination plot. He appeared to be a tormented person barely getting by.[11] He has not paid any part of the $10 million judgment and undoubtedly never will.

Roberto d’Aubuisson, who was named as the “intellectual author” of the assassination by the Truth Commission, died of cancer in February 1992, just after the signing of the Peace Accords that created the Truth Commission.[12]  He never was subjected to any criminal or civil charges for this horrific crime. Nor was anyone else other than Saravia.

[1] See Post: Oscar Romero’s Assassination (Oct. 8, 2011). Information about the Truth Commission’s creation and operations has been provided. (See Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011).)

[2]  See Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011).

[3] CJA, Key Conspirator in Assassination of Salvadoran Archbishop Romero Faces Lawsuit in U.S. Court, Sept. 16, 2003, http://www.cja.org/cases/romero.shtmo; Chang, Modesto man accused in ’80 slaying of bishop, San. Fran. Chronicle, Sept. 17, 2003; Branigan, Suit Filed in ’80 Death of Salvadoran Bishop, Washington Post, Sept. 17, 2003.

[4]  Doe v. Saravia, 348 F. Supp.2d 1112, 1118-19, 1142-43, 1147-48 (E.D. Cal. 2004). The roadblocks included the Salvadoran government’s thwarting Saravia’s extradition from the U.S. to El Salvador and the adoption and application of the amnesty law to the Salvadoran criminal case against Saravia. (Id. at 1148.)

[5]  Id. at 1133-34, 1151-53.

[6]  Trial Transcript at 772-73, Doe v. Saravia (E.D. Cal. Sept. 3, 2004), http://www.cja.org/cases/RomeroTranscripts/9-3-04%20Trial%20Transcript.txt. See also Post: El Salvador’s General Amnesty Law in U.S. Federal Court Cases (June 14, 2011).

[7]  348 F. Supp.2d at 1143-44.

[8]  Doe v. Saravia, supra; CJA, El Salvador: Alvaro Rafael Savaria, http://www.cja.org/cases/romero.shtml; Rigoberta Menchu Tum, Justice Comes to the Archbishop, http://www.nytimes.com/2004/08/31/opinion/31menchu.html.

[9]  Doe v. Saravia, 348 F. Supp. 2d at 1131-32.

[10] U.S. I.C.E., News: ICE Most Wanted Fugitive, http://www.icc.gov/pi/investigations/wanted/Rafael_saravia.htm.

[11] Reyesei, Conspirator in Romero assassination speaks out, Nuevo Herald  (Mar. 24, 2006); Tim’s El Salvador Blog, Conspirator in Romero assassination speaks out (Mar. 24, 2006),http://luterano.blogspot.com; Dada, How we killed Archbishop Romero, (Mar. 25, 2010), http://www.elfaro.net.

[12] Severo, Roberto d’Aubuisson, 48, Far-Rightist in Salvador, N.Y. Times (Feb. 21, 1992).

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Oscar Romero’s Assassination

October 8, 2011

Capilla de Hospital de la Divina Providencia

Capilla de Hospital de la Divina Providencia

On March 24, 1980, Monsignor Oscar Romero was delivering what turned out to be his last homily in the beautiful, intimate, modern chapel at a cancer hospital in San Salvador that was across the street from Romero’s small apartment.[1]

A red four-door Volkswagen drove up in front of the chapel. A man in the back seat of the car raised his rifle and fired a single shot through the open front door of the chapel. Romero fell and died behind the altar just after he had said, “May this body immolated and this blood sacrificed for humans nourish us also, so that we may give our body and our blood to suffering and to pain–like Christ, not for self, but to bring about justice and peace for our people.”

The Truth Commission for El Salvador, the U.S. District Court for the Eastern District of California and the Inter-American Commission on Human Rights have made the following findings regarding the assassination of Romero:[2]

  • On March 24, 1980, Roberto D’Aubuisson had a meeting with three members of his security team: Alvaro Saravia, Eduardo Avila and Fernando Sagrera. Avila said that later that day Romero would be celebrating mass at the Capilla and that this would be a good opportunity to kill him. D’Aubuisson ordered that this be done and put Saravia in charge of the operation. When someone said a sniper would be needed, Avila said he would contact one through Mario Molina, who was another member of D’Aubuisson’s security team. Yet another member of the team, Amado Antonio Garay, was assigned to be the driver for the assassin.
  • Later that same day in the parking lot of the Camino Real Hotel in San Salvador, according to the Truth Commission, the assassin (a bearded man) with a rifle got into a red, four-door Volkswagen that was driven by Garay. A different account of this meeting was provided by Garay himself in testimony in the U.S. federal court case. Upon instructions from Saravia, Garay testified that he drove the car to a house in San Salvador, where Saravia entered and brought out a tall bearded man carrying a long rifle with a telescopic lens. Before the car left, Saravia told the bearded man, “It is better to shoot in the head because maybe he [might] have a bulletproof vest. You have to be sure he got killed.” Saravia told Garay that he would be provided protection by men in another car.
  • The bearded man told Garay where to go, and on the way, the bearded one said, “I can’t believe it, I’m going to shoot a priest.”
  • Garay drove to the Capilla, and the bearded man told him to stop at its main entrance. Garay saw people sitting in the pews of the chapel and a priest speaking at the altar.
  • The assassin then fired a single high-velocity .22 caliber bullet from the rear seat of the Volkswagen through the open entrance door of the Capilla. The bullet hit and killed Romero.
  • Afterwards, upon D’Aubuisson’s order, another member of his security team, Walter Antonio “Musa” Alvarez, received 1,000 colones, and he and Saravia paid the assassin.
  • In the proceedings before these three institutions, the assassin himself was not identified.[3]

[1] See Post: Archbishop Oscar Romero’s Last Homily (Oct. 6, 2011).

[2]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 127-31(March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html%5B"Truth Commission Report"];Doe v. Saravia, 348 F. Supp.2d 1112, 1121-23(E.D. Cal. 2004)(Sararvia held liable to relative of Romero for $10 million of compensatory and punitive damages for crimes against humanity and extrajudicial killing for Saravia’s role in the assassination of Romero); Monsignor Romero v. El Salvador, Rep. No. 37/00 ¶¶ 53-54 (Inter-American Comm’n Human Rights, Case No. 11.481, April 13, 2000).

[3]  Truth Commission Report at 130. A Salvadoran newspaper recently reported that the Romero assassin was at the time a deputy sergeant of the Salvadoran National Guard and a member of the security team for former Salvadoran President Arturo Molina. (Valencia, Gabriela & David, The sniper who killed Romero was a former National Guard, Diario Co Latino (Sept. 9, 2011).

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International Criminal Justice: The Spanish Court’s Criminal Case Regarding the Salvadoran Murders of the Jesuit Priests

June 15, 2011

As previously noted, a Spanish court on May 30, 2011, issued an indictment and arrest warrants for 20 of El Salvador’s former top military leaders and soldiers, accusing them of crimes against humanity and state terrorism in meticulously planning and carrying out the killings of six Jesuit priests in November 1989.[1]

The Spanish indictment essentially follows the factual findings regarding the murders and the cover-up that was set forth in the Report of the Truth Commission for El Salvador.[2] The indictment, however, offers greater factual details.[3]

The indictment also emphasizes the military’s formal chain of command as well as the informal power of the military’s “Tandona of 1966,” i.e., the military officers who had graduated from the Salvadoran military college in 1966 and who in 1989 held the major positions of official power. In 1989 these officers, the indictment says, feared the proposed reform and restructuring of the military that was being discussed as a condition for a peace agreement to end the civil war. Such reforms would result in reduction in the Tandona’s power and ability to embezzle from U.S. military aid. They, therefore, were bitter opponents of the Jesuits, and especially Father Ellacuria, who were major public advocates for such negotiations. [4]

The criminal case was filed in November 2008 by a U.S. NGO (Center for Justice & Accountability) and a Spanish NGO against 14 Salvadoran military officers plus former Salvadoran President Cristiani.[5]

In January 2009, the Spanish National Court accepted the case and formally charged the 14 fourteen former officers and soldiers named in the complaint with crimes against humanity and state terrorism for their role in the massacre.  Additionally the court reserved the right, during the course of the investigation, to indict Cristiani for his alleged role in covering up the crime.[6]

The May 2011 indictment discusses Crisitani’s attending meetings at the military’s headquarters for several hours immediately before the murders were committed and his providing false information months later about a military search of the UCA campus that preceded the murders. But the Spanish court did not indict Cristiani and did not provide reasons for that decision not to charge Cristiani.[7]

The indictment also mentions that the U.S. Central Intelligence Agency (CIA) had an office in the Salvadoran military headquarters in November 1989 and that some U.S. military advisors attended meetings at that headquarters with El Salvador’s top military leaders in the 24 hours preceding the murders. But there is no discussion in the indictment as to whether this involvement carries criminal implications for U.S. personnel.[8]

In addition, the indictment states that in January 1990 one of the U.S. officers (Maj. Eric Buckland) told his U.S. superiors that Colonel Benavides had given the order to kill Father Ellacuria. Until January 2010, the indictment reports, public information about the Salvadoran investigation of this crime had not mentioned possible involvement of the country’s top military officers. Thus, the revelation by Maj. Buckland was explosive in El Salvador because Benavides was a member of the “Tandona of 1966.”[9]

The Center for Justice & Accountabilty of San Francisco, California is a human rights organization dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress. CJA uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law and advance the rule of law.[10]

[1] See Post: International Criminal Justice: Spanish Court Issues Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011).

[2] See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011); Post: International Criminal Justice: The Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests (June 7, 2011); Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011).

[3] Id.; CJA, Spanish National Court Indictments and Arrest Warrants (May 30, 2011)(in Spanish), http://www.cja.org/downloads/JesuitsArrestWarrants.pdf;  CJA, Update: Spanish Judge Issues Indictments and Arrest Warrants in Spanish Jesuits Massacre Case (May 31, 2011), http://www.cja.org/article.php?id=1004.

[4] Id.

[5] CJA, Criminal Charges Filed before the Spanish National Court for 1989 Massacre of Jesuit Priests in El Salvador (November 13, 2008); CJA, Summary of Complaint in English (Nov. 18, 2009), http://www.cja.org/downloads/Jesuits_Summary_of_Complaint_in_English.pdf. Under Spanish law, citizens and NGOs may initiate criminal proceedings by filing criminal complaints as popular prosecutors.

[6]  CJA, El Salvador: The Jesuits Massacre Case, http://www.cja.org/cases/jesuits.shtml; CJA, Spanish National Court To Pursue Criminal Investigation into 1989 Massacre of Jesuit Priests in El Salvador (Jan. 13, 2009); CJA, Spanish National Court’s Order Admitting the Complaint (Jan. 13, 2009)(in Spanish), http://www.cja.org/downloads/Jesuits_Order_Admitting_Complaint.pdf.

[7] CJA, Spanish National Court Indictments and Arrest Warrants (May 30, 2011)(in Spanish), http://www.cja.org/downloads/JesuitsArrestWarrants.pdf. There was a report that a former Salvadoran military officer testified to the Spanish court that Cristiani had advance knowledge of the planned assassinations and approved them. (Tim’s El Salvador Blog, More developments in Jesuits Case in Spain (July 7, 2010).)

[8] In November 2009 the Spanish court was provided with many declassified U.S. documents relating to the crime from the National Security Archive of George Washington University through the testimony of an analyst from the Archive and the expert testimony of Professor Terry Karl of Stanford University. At the same time, there were newspaper reports that the U.S. military attaché at the U.S. Embassy and a senior State Department official knew in advance that the Salvadoran military was planning to kill Ellacuria. (Id.; The CIA knew that the military of El Salvador would kill Ellacuria, El Mundo (Nov. 15, 2009)(English translation); Doyle, The Right to Information is the Right to Justice: Declassified Documents and the Assassination of the Jesuits in El Salvador (Nov. 16, 2009), http://nsarchive.wordpress.com; Sainz, CIA documents shed light on Jesuit massacre in El Salvador, (Nov.20, 2009), http://www.lapresnsagrafica.com/el-sa…-salvador.html (English translation); CJA, First International Witnesses To Testify in Madrid in the El Salvador Jesuits Massacre Case (Nov. 23, 2009); Ayala, El Salvador: Declassified Docs Shed Light on Jesuits Massacre Case (Nov. 27, 2009), http://ipsnews.net.); Tim’s El Salvador Blog, Spanish Paper–US know of attack on Jesuits in advance, (Nov. 28, 2009), http://luterano.blogspot.com.)

[9] Id.

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International Criminal Justice: The Jesuits Case Before the Inter-American Commission on Human Rights

June 13, 2011

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves[2]  and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3]  We also have summarized the Salvadoran criminal case regarding this crime.[4] Along the way we have encountered the findings regarding this crime by the Truth Commission for El Salvador and what that Commission was and how it did its work.[5] Yet another facet of this case has been exposed: El Salvador’s General Amnesty Law and its impact on the Jesuits case.[6]

Now we look at the Jesuits case in the Inter-American Commission on Human Rights (IACHR), headquartered in Washington, D.C.  It receives and analyzes petitions alleging human rights violations under the American Convention [Treaty] on Human Rights. When a petition meets certain conditions of eligibility, the IACHR solicits the views of the concerned State, investigates the violations and issues a report that typically sets forth its findings and conclusions plus recommendations to the State concerned.[7] As of 1993, according to a U.S. bar association, the IACHR “decides few cases, usually after a long delay, and often its decisions are not drafted in a persuasive manner,” and its “decisions receive very little notice, are not cited or relied on in other cases, and are often not obeyed.” [8]

On the same day the Jesuit priests were murdered (November 16, 1989), Americas Watch, a non-governmental human rights organization, filed a complaint with the IACHR alleging that the Salvadoran government had violated the American Convention [Treaty] on Human Rights with respect to the murder of the Jesuits and their cook and her daughter.  Subsequently the government asked for dismissal on the ground that the case had been duly prosecuted in the country.[9]

Ten years later (December 22, 1999), the Commission issued its report making detailed findings about the murder and subsequent events and concluding that the state had violated the American Convention. It found the Truth Commission Report to be credible and placed heavy reliance on it.[10] As a result, the IACHR recommended that the government conduct an expeditious, effective investigation and prosecute and punish those who were involved “without reference to the amnesty,” to make reparations and to render the General Amnesty Law null and void.[11] The IACHR set forth its legal reasoning why that Law was invalid.[12]

Almost another 12 years now have passed since the IACHR’s decision, and still the government of El Salvador has not complied with these recommendations.[13]

In November 2009, however, on the 20th anniversary of the murder of the Jesuit priests, El Salvador at least partially complied with the recommendation for reparations. President Mauricio Funes presented the nation’s highest award (National Order of Jose Matias Delgado) to the Jesuit priests’ relatives as an act of atonement. Finally the Funes’ Administration formally advised the IACHR and the Inter-American Court of Human Rights that the Salvadoran state accepted the binding nature of their past decisions involving the country and the state’s responsibility to implement their recommendations in those cases.[14]

The IACHR has had three other cases that were investigated by the Truth Commission and at least two other cases of human rights abuses during El Salvador’s civil war. In all of these cases the IACHR concluded that the country had violated the American Convention on Human Rights and made recommendations similar to the ones in the Jesuits case. For the most part, El Salvador has not adopted IACHR’s recommendations in these cases.[15]

In January 2010, however, President  Funes took steps for compliance with the recommendations to make reparations to the victims of these crimes, including the Jesuits case. President Funes admitted that during the civil war state security forces “committed serious human rights violations and abuses of power,” including “massacres, arbitrary executions, forced disappearances, torture, sexual abuse, arbitrary deprivation of freedom” and other acts of repression. Fuenes also made a formal apology to all of the victims of these crimes and asked for their forgiveness. In addition, Fuenes created three commissions (i) to offer redress to the victims, (ii) to search for children who went missing during the war; and (iii) to provide attention to disabled combatants. (The country’s Vice President, Salvador Sanchez Ceren, simultaneously apologized for the actions of FMLN guerrillas during the civil war.)[16]

[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011).

[2]  See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).

[3]  See Post: International Criminal Justice: El Salvador’s Military’s Attempt To Cover-Up Its Committing the Murders of the Jesuit Priests (June 7, 2011).

[4]  See Post: International Criminal Justice: The Salvadoran Criminal Prosecution of the Murders of the Jesuit Priests (June 8, 2011).

[5]  See Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011).

[6]  See Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011). A future post will discuss the current Salvadoran controversy regarding the General Amnesty Law and the Constitutional Chamber of the country’s Supreme Court.

[7]  IACHR, What is the IACHR?, http://www.cidh.oas.org/what.htm . (The other human rights body for the Americas is the Inter-American Court of Human Rights, which is located in San José, Costa Rica.)

[8]  Comm. on Int’l Human Rights of the Ass’n of Bar of City of N.Y., The Inter-American Commission on Human Rights: a Promise Unfulfilled at 3 (1993).  The author believes these 1993 conclusions about the IACHR are still valid and invites comments on this topic.

[9]  Ignacio Ellacuria, et al. v. El Salvador, Rep. No. 136/99 ¶¶ 1-3 (IACHR Case No. 10.488, Dec. 22, 1999).

[10]  Id. ¶¶ 25-26, 52, 59-60, 69-72, 75-86, 179-80, 184, 209, 219, 230-31.

[11]  Id. ¶¶ 4, 52-142, 143-96, 237-38, 241.

[12]  Id. ¶¶ 192-232. Accord  Cea et al v. El Salvador, Rep. No. 1/99  ¶¶ 105-17, 160 (Case No. 10.480, Jan. 27, 1999).

[13]  CJA, El Salvador: The Jesuits Massacre Case, http://www.cja.org/cases/jesuits.shtml.

[14] IACHR, Press Release No. 78/09: IACHR Concludes Its 137th Period of Sessions (Nov. 13, 2009); Aleman, El Salvador awards highest honors to 6 Jesuit priests killed by army 20 years ago, Washington Examiner (Nov. 16, 2009).

[15] Monsignor Romero v. El Salvador, Rep. No. 37/00 ¶¶ 1-2 (IACHR Case No. 11.481, April 13, 2000); Admissibility of  El Mozote Massacre, Rep. No. 24/06, ¶¶ 1-29  (IACHR Case No. 10.720, Mar. 2, 2006); COMADRES, Rep. No. 13/96, ¶¶  1-2, 5-7, 28 (IACHR Case No. 10.948, Mar. 1, 1996);  Cea, et al. v. El Salvador, Rep. No. 1/99 (IACHR Case No. 10.480 Jan. 27, 1999); Vasquez v. El Salvador, Rep. No. 65/99 (IACHR Case No. 10.228 Apr. 13, 1999).

[16] Cervantes, Funes pide perdon por abusos durante la Guerra (Jan. 16, 2010),www.elfaro.net/es; IACHR, Press Release NO. 4/10: IACHR Welcomes El Salvador’s Recognition of Responsibility and Apology for Grave Human Rights Violations During the Armed Conflict (Jan. 21, 2010); El Salvador President Apologizes to War Victims, Latin American Herald Tribune (Jan. 22, 2010). The author is not aware of what has happened with these three commissions and invites comments with such information.

 

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