El Salvador’s General Amnesty Law in U.S. Federal Court Cases

We have examined El Salvador’s adoption of its General Amnesty Law, litigation in its courts regarding the validity of that Law under its own legal system and its impact on the defendants who had been convicted for involvement in the murders of the Jesuit priests.[1]

The General Amnesty Law also has been invoked by Salvadoran defendants as a defense to civil lawsuits for money damages in U.S. federal courts. But the U.S. courts have determined that the amnesty is limited to Salvadoran judicial proceedings and thus does not bar the U.S. lawsuits.[2]

In the U.S. lawsuit against Alvarao Saravia for complicity in the 1980 assassination of Archbishop Oscar Romero, the U.S. court held him liable for $10 million compensatory and punitive damages for crimes against humanity. The court saw the General Amnesty Law and the dismissal of the Salvadoran criminal case against him as evidence of the plaintiff’s inability to obtain any judicial relief in that country. It thereby eliminated any U.S. 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 by the court.[3] 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.[4]

Another U.S. civil lawsuit for money damages was brought against 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 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. The federal appeals court in early 2009 upheld that verdict.[5]

In the Carranza case, the trial court twice rejected the defendant’s argument that the Salvadoran amnesty law barred the U.S. lawsuit after the court concluded that the law did not purport to bar claims outside El Salvador.[6]  The appellate court affirmed this ruling.[7]

On October 5, 2009, Carranza’s petition for review by the U.S. Supreme Court was denied.[8] Carranza, therefore, unsuccessfully argued 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.” In addition, Carranza pointed out that the Truth Commission Report also provided findings on crimes perpetrated by the FMLN, including the assassination of four unarmed U.S. Marines. This was the predicate for Carranza’s unsuccessful argument that the U.S. Supreme Court should consider “the implications of adjudicating monetary claims on behalf of members of groups committed to killing American soldiers.”[9]

Carranza’s petition to the U.S. Supreme Court was supported by the Government of El Salvador (then under the control of the right-wing 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 asserted that the amnesty law “was a principal, if not the pivotal, requirement of the [Peace Accords].”[10]

In addition, the Government of El Salvador asserted to the U.S. Supreme Court that plaintiffs had failed to exhaust their remedies in the Salvadoran courts as the Salvadoran Supreme Court had held in 2000, [11]that the country’s courts had discretion to waive the immunity of the amnesty law in particular cases involving “fundamental human rights.”[12]  In the Sixth Circuit Court of Appeals, however, 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.”[13]


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

[2]   Doe v. Saravia, 348 F. Supp. 2d 1112 (E.D. Cal. 2004); 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), aff’d, 559 F.3d 486 (6th cir. 2009), cert. denied, 2009 WL 1513107 (U.S. Sup. Ct. Oct. 5, 2009); Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002), cert. denied, 537 U.S. 1147 (2003)(jury verdict for two Salvadoran generals by relatives of the four American church women who were raped an murdered in El Salvador in 1980; appellate court affirmed); Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2005)(jury verdict of $54.6 million for three Salvadoran plaintiffs against two Salvadoran generals; appellate court affirmed).

[3]  Doe v. Saravia, 348 F. Supp. 2d at 1133-34, 1151-53.

[4]  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.

[5]  Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009); CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[6]  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).

[7]  Chavez v. Carranza, 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.  (Brief Amici Curiae [26 international human rights law professors] in Support of Appellees and Affirmance at 14-15, Chavez v. Carranza (6th Cir. May 14, 2008).)

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

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

[10]  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).

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

[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]  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).

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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