Update on Spain’s Case Regarding the Murders of the Jesuits of El Salvador

Spain’s National Court (Audicencia Nacional) since November 2008 has been conducting a criminal case regarding the murders of six Jesuits priests and their housekeeper and her daughter in El Salvador on November 16, 1989. This lead in January 2009 to the Spanish equivalent of indictments of 14 former Salvadoran military officials and soldiers for murder, crimes against humanity and state terrorism. In May 2011 the court added six indictees and issued 20 international arrest warrants. Thereafter in November 2011 Spain issued requests for extradition of these men to Spain to face the charges. [1]

However, in August 2011 El Salvador’s Supreme Court refused to enforce the Interpol arrest warrants for 13 of the indictees who were living in that country and in May 2012 denied the requests for their extradition on the ground that the country’s constitution prohibited extradition of its citizens. Another indictee, Inocente Orlando Montano, had been living in the U.S. and now is in U.S. prison after pleading guilty to lying multiple times to U.S. immigration officials. (One indictee, former Colonel René Emilio Ponce, died during the prior proceedings.)

Just this October the Spanish court’s Criminal Chamber, en banc, decided that the court did have jurisdiction over all of the charges: murder, crimes against humanity and state terrorism.

Last week Almudena Bernabeu, CJA’s International Attorney and Transitional Justice Program Director and the lead private attorney for the prosecution in this case, was in El Salvador to discuss the case in connection with the twenty-fifth anniversary of these horrible crimes. [2]

First, she reported that the case is now at a standstill because none of the suspects is physically present in Spain.

Next year, however, she hopes this will change. In April of 2015, Senor Montano will complete his incarceration in the U.S. [3] By then the U.S. must decide whether it will honor Spain’s request to extradite Montano to Spain.

Although the U.S. is not legally required to consult with El Salvador on this issue, as a matter of inter-state courtesy the U.S. probably would do so, she said. Therefore, Bernabeu has conferred with officials of the Salvadoran government, who have confirmed that there is absolute willingness to collaborate with the Spanish process for the extradition of Mr. Montano from the U.S.  Thus, it is important to know that when the U.S. faces the decision whether to extradite Montano, the government of El Salvador has decided not to interfere.

Second, upon such an extradition and Montano’s arrival in Spain, the Spanish case would be re-activated to prepare the case for trial, presumably within 30 days.

Third, if, however, the U.S. deported Montano to El Salvador, the Salvadoran courts probably would refuse to extradite him in light of their prior refusal to extradite to Spain other indictees in the case who are Salvadoran citizens. In that event, the case in Spain could not proceed further.

Fourth, Bernabeu said she unsuccessfully has tried three times to have former Salvadoran President Alfredo Cristiani added as a defendant and indictee because she believes the evidence shows he ultimately was responsible for the crime committed by the military’s High Command and was an accessory to the killing. Indeed, she said that the testimony of two former Salvadoran military officials and documents, including declassified U.S. documents from the CIA, FBI and Department of Defense, show that Cristiani knew of the plan to kill the Jesuits before the murders happened. Whatever the reasons, the Spanish court has been reluctant to join a former foreign president as a defendant. [4]

Fifth, she said El Salvador’s General Amnesty Act of 1993 was a major problem for this case and others like it. This was so even though the Inter-American Commission on Human Rights in December 1999 decided in the Jesuits case that the Amnesty Law violated the American Convention on Human Rights and ordered El Salvador to declare it null and void and even though the Inter-American Court of Human Rights in December 2012 in another case (the El Mozote Massacre) ordered El Salvador to repeal the Amnesty Act. [5] That has not yet happened, but the Constitutional Chamber of El Salvador’s Supreme Court sometime soon is expected to rule on the constitutionality of that Act.

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[1] The Spanish court has jurisdiction over the case under Spain’s statute for universal jurisdiction over the most serious crimes of international concern. This statute is an implementation of the international legal principle of universal jurisdiction whereby a state has universal jurisdiction over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator.  A detailed summary of the Jesuits case along with some of the court documents and other materials is available on the website of the non-profit Center for Justice and Accountability (CJA) based in San Francisco, California. CJA, the sponsor of the case in Spain. It is an international 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.

[2] This account of Bernabeu’s comments is based upon Castillo, 25 Yrs After El Salvador Priest Killings, Groups Press for Justice, NBC News (Nov. 13, 2014); Labrador & Fatima, The government of El Salvador has decided not to hinder Montano’s extradition to Spain, El Faro (Nov. 14, 2014); Jaminez, Await Extradition of Montano, DiarioCoLatino (Nov. 15, 2014); Dalton, “Cristiani knew at time of slaughter of Jesuits in El Salvador,” El Pais (Nov. 17, 2014). El Faro also recently published (a) a collection of articles from other Salvadoran newspapers evidencing the right’s hatred of the Jesuits before their murders; (b) biographies of the murdered priests, their housekeeper and her daughter and the six Salvadoran military personnel who were prosecuted for the crime in El Salvador (with only two convicted and then subsequently released from prison on the basis of the General Amnesty law); (c) an article describing how that Salvadoran prosecution for this crime was impeded by their attorney general; (d) an archive of U.S. diplomatic cables and other documents about the crime; and (e) a hyperlinked collection of El Faro’s prior articles about the Jesuits case.

[3] The U.S. legal proceedings against Montano are discussed in prior posts and comments: Comment [to “Spain Requests Extradition” post]: Ex-Salvadoran Military Officer [Montano] Indicted for Alleged Violations of U.S. Immigration Laws (Feb. 12, 2012); Comment [to “Spain Requests Extradition” post]: Former Salvadoran Military Officer [Montano] Pleads Guilty to Lying to U.S. Immigration Officials (Sept. 15, 2012); Former Salvadoran Colonel Inocente Orlando Montano To Serve 21 Months in U.S. Prison (Sept. 5, 2013).

[4] On December 16, 2008, the U.S. Embassy in El Salvador sent a cable to the U.S. Secretary of State. It reported that earlier that month senior officials of the Salvadoran government went to Spain and met with its attorney prosecuting the Jesuits case and with other top-level Spanish government officials, who said they were embarrassed about the case’s seeking to add Alfredo Cristiani, El Salvador’s former president, as a defendant. The Spanish prosecutor also promised support and cooperation to the Salvadoran officials.

[5] Yet another post reviewed the decision in the El Mozote Massacre case by the Inter-American Court of Human Rights.