International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur)

As previously reported, the ICC has been investigating the situation in Sudan (Darfur) for genocide, crimes against humanity and war crimes since July 1, 2002, at the request of the U.N. Security Council.[1]

On June 8, 2011, the ICC Prosecutor made his semi-annual report to the U.N. Security Council on the status of his office’s investigations and prosecutions in this matter.[2] The following are the main points of that report:

  • There are three pending ICC prosecutions from Sudan (Darfur). In two of them–Harun and Kushayh and Bashir–the defendants are still at large, and thus the proceedings have not really commenced. In the third case against two rebel commanders, the parties have agreed to certain facts and limited the trial to three issues: (1) whether a certain attack by the rebels was unlawful; (2) if the attack is deemed to be unlawful, whether the defendants were aware of the factual circumstances that established its illegality; and (3) whether the African Union Mission in Sudan was a peacekeeping mission in accordance with the U.N. Charter. In this third case, the defendants do not dispute their participation in the attack and both have committed to surrender voluntarily to the ICC.
  • The Prosecutor also said his office was considering presenting a fourth Sudanese case to the Court’s Pre-Trial Chamber for its decision whether or not to issue arrest warrants.
  • All of these cases concern past alleged crimes. In addition, the Prosecutor reported that the following crimes were continuing: bombing attacks targeting or indiscriminately affecting civilians; ground attacks targeting civilians; widespread sexual and gender-based violence; attacks on human rights defenders, civil society members and community leaders; deliberately inflicting conditions of life calculated to cause physical destruction of groups of people; forcible transferring of populations; recruitment and use of child soldiers; and concealing information on crimes.
  • The government of Sudan has announced its investigations of these alleged crimes and the creation of new entities to do so, but there are no such investigations, and the announcements are parts of a governmental policy of covering up the crimes and avoiding international scrutiny.
  • When the ICC exposes these crimes, the reaction of President Bashir and other leaders has been “to deny the crimes entirely, attribute them to other factors (such as inter-tribal feud), divert attention by publicizing . . . ceasefire agreements that are violated as soon as they are announced and threaten the international community with retaliation and even more crimes. . . . Bashir has successfully transformed public knowledge of his criminal responsibility as a negotiating tool.”
  • “It is the challenging responsibility of the . . . Security Council to use the information exposed by the [ICC] to stop the crimes in Darfur, to protect the civilians in Darfur. The [ICC] Prosecution, fulfilling its mandate, is willing to assist.”

After the submission of this report, the Council’s 15 members went into private session to discuss the report. They were joined by representatives of 37 other countries.[3]

Immediately after this Security Council meeting there were reports of a “growing sense of panic” in central Sudan with 60,000 displaced people, blocked relief convoys, ethnic clashes and many deaths. This week the Council was given an alarming report about current violence and threatened ethnic cleansing.[4] In short, the armed conflict in Darfur has not stopped. Nor has the illegal intentional practice of targeting civilians.

Sudanese President Bashir’s evasion of arrest to face ICC charges continues to make the news. On June 13th, Hillary Clinton, U.S. Secretary of State, addressed African leaders at a meeting of the African Union in Addis Ababa, Ethiopia and pressed them to abandon authoritarian rulers. President Bashir also was in Addis Ababa for the meeting, but left before Clinton arrived.[5] On June 14th Amnesty International urged Malaysia to withdraw an invitation to President Bashir to attend an upcoming economic forum and to arrest him if he came. On June 16th Amnesty International made a similar plea to China after its announcement that Bashir would be visiting that country next week supposedly to talk about seeking peace in his country.[6]


[1] See Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[2]  ICC Office of Prosecutor, Thirteenth Report of the [ICC] Prosecutor to the UN Security Council [on Sudan (Darfur)] (June 8, 2011); ICC Office of Prosecutor, Statement to the [U.N.] Security Council on the situation in Darfur, the Sudan (June 8, 2011); U.N. Security Council,6548th Meeting (June 8, 2011); U.N. Security Council, Press Release: President of Sudan Has Learned To Defy Security Council . . . . (June 8, 2011).

[3]  U.N. Security Council, 6549th (closed) meeting (June 8, 2011).

[4]  Gettleman, U.N. Officials Warn of a Growing ‘Panic” in Central Sudan as Violence Spreads, N.Y. Times (June 15, 2011); Lynch, Obama expresses concern over Sudan violence, Wash. Post (June 16, 2011); Reeves, In Sudan, genocide anew?, Wash. Post (June 17, 2011); Totten, Is Omar Hassan al-Bashir Up to Genocide Again?, N.Y. Times (June 18, 2011).

[5] Myers, Clinton Presses Africans to Abandon Authoritarian Rulers, Singling Out Qaddafi, N.Y. Times (June 13, 2011).

[6] AP, Amnesty urges Malaysia to withdraw invitation to Sudan president or arrest him when he arrives, Wash. Post (June 14, 2011); AP, China Invites Sudan Leader Accused of War Crimes, N.Y. Times (June 16, 2011); AP, US Seeks China’s Help in Sudan as Alarm Grows, N.Y. Times (June 16, 2011); AP, Sudan leader al-Bashir to skip Malaysia forum amid calls to arrest him on war crime charges, Wash. Post (June 15, 2011).

El Salvador’s Current Controversy over Its General Amnesty Law and Supreme Court

As indicated in a prior post, the issue of the constitutionality under Salvadoran law of the General Amnesty Law has not gone away. Indeed, that issue and a new law regarding its Supreme Court (Decree 743) have precipitated a major, still-unresolved controversy in the country.[1]

As an outsider, I have found it difficult to understand and analyze this controversy. I, therefore, will try to summarize what has been happening. I cannot predict how this will turn out, but will conclude with my observations and questions.

The first step in this still unfolding drama was the May 30, 2011, decision by a Spanish court to issue criminal arrest warrants for 20 Salvadoran military officers and soldiers for their alleged participation in the November 1989 murder of the six Jesuit priests.[2]

The next step was the adoption without debate three days later (June 2, 2011) of Decree 743 by the votes of the conservative political party legislators of the Salvadoran legislature (the National Assembly) with abstentions from all but two of the FMLN legislators and by the signing of the law the next day (June 3, 2011) by  President Funes of the FMLN party. Decree 743 requires through July 2012 the five-member Constitutional Chamber of the Salvadoran Supreme Court to act unanimously in order to declare a law unconstitutional.[3]

Decree 743 and the highly unusual and hasty manner in which it was adopted have caused major citizen protests in the capitol city and debate in the media and various organs of the State.[4]

Much debate and speculation has centered on why the Decree was proposed and adopted by the legislators from the conservative political parties. Foremost, as former President Cristiani, who is now the President of the ARENA political party, has admitted, was concern that the Constitutional Chamber would invalidate the General Amnesty Law. Was there worry that a decision invalidating that amnesty law would facilitate a Salvadoran court’s enforcing the Spanish arrest warrants? The conservative political parties, it is true, also disliked some of the recent decisions by the four moderate or progressive members of the Chamber that have invalidated various laws. Was that the main reason? If so, why did the Decree have to be adopted so quickly without debate? The “sunset” provision of Decree 743 is also seen as an implicit recognition that it is aimed at the four progressive members of the Chamber in that their current three-year terms expire in July 2012.

So too there is debate and speculation as to why President Funes from the FMLN political party quickly supported the Decree when the FMLN itself did not. Was there pressure by the U.S., which does not want El Salvador to withdraw from the Central American Free Trade Agreement (CAFTA) and to stop using the U.S. Dollar as the country’s currency and, therefore, feared the Constitutional Chamber’s invalidating those laws? Was something not yet known promised Funes by the conservative political parties in exchange for his supporting the Decree? Some speculate that Funes did so to gain support in the National Assembly for a moderate legislative agenda. True?

The third step in this drama was the Constitutional Chamber’s decision in a case on June 6th (only three days after the adoption of Decree 743) that decided, by four of the five magistrates, that the country’s Budget Act 2011 was unconstitutional in two respects and that the just-adopted Decree 743 itself was unconstitutional. Decree 743 was held to violate the principle of separation of powers and to interfere with the constitutional powers of the Chamber; the decree, according to the court, was also adopted by the legislature in an unconstitutional manner.[5]

Yet another wrinkle was added to this controversy by the announcement on June 8th by Cristiani, as President of the ARENA political party. He said that ARENA had supported Decree 743 on June 2nd because of rumors that the Chamber was about to declare the General Amnesty Law unconstitutional.  On June 8th (only six days after the legislature’s adoption of the Decree), however, Cristiani said that the information about the Chamber’s impending invalidation of the General Amnesty Law was erroneous and that instead the Chamber had made a “clear demonstration” that it did not intend to invalidate the amnesty. Therefore, Cristiani said, ARENA would be introducing a bill to repeal that Decree. This about-face, he said, was to end the conflict over the Decree and to promote dialogue among the three branches of government.[6]

This ARENA reversal itself has created more controversy and speculation. Why did it change its mind in only six days? Did it really want to end the conflict over the Decree and promote dialogue? Did it receive secret and improper leaks from the Chamber that it would not invalidate the General Amnesty Law? Was there in fact no pending case regarding the Amnesty Law? Was it discovery that the Chamber seven years ago had ruled that the Amnesty Law did not apply to the murders of the Jesuits because no administration may grant amnesty to itself?[7] Was it due to the Chamber’s June 6th decision holding that the Decree was unconstitutional and by respected attorneys publicly taking the same position?[8]

However, later on the very same day as the ARENA announcement of changing its position (June 8th), an attorney filed two cases with the Chamber challenging the constitutionality of the General Amnesty Law and El Salvador’s being a party to CAFTA. Will this cause ARENA to change its mind again?

The FMLN positions in this controversy are even more baffling. On June 2nd all but two of the FMLN legislators abstained on voting on Decree 743, saying it was a blow to democracy. The June 8th ARENA reversal of position on the Decree, therefore, presumably would be welcomed by the FMLN. The FMLN, however, also reversed its position. Its spokesman now said that the Decree had “no reverse gear” and that the Chamber’s June 6th invalidation of the Decree was a danger for the other institutions of the government. Why was the FMLN party taking these positions?[9]

President Funes from the FMLN appears to be the only participant who has had a consistent position. When he signed the Decree, he has said he did so because it was constitutional, it would prevent a looming conflict between the legislature and the judiciary and it would not obstruct the operations of the Chamber. Was this the real reason? After the ARENA reversal of position, he still supported the Decree and said that ARENA’s change appeared to reflect an improper agreement with the Chamber not to declare the amnesty unconstitutional and an improper attempt to influence the Chamber and cast doubt on the independence of some judges.[10] (The next day both ARENA and the President of the Supreme Court denied the existence of any agreement regarding the amnesty law between the Constitutional Chamber and ARENA or Cristiani.)[11]

As an outsider without full knowledge of all the facts, all I can do is speculate and raise questions.

The timing and manner of the adoption of Decree 743 and the comments by Cristiani suggest to me that the Decree is most directly connected with the Spanish court’s issuance of the indictment and warrants.

First, I had thought that the validity or invalidity of the General Amnesty Law had become a theoretical issue. That Law grants amnesty for certain crimes committed before January 1, 1992 (the end of the Civil War) or over 19 years ago. But for that time period, El Salvador had a 10-year statute of limitations for such crimes that in December 2000 was held to bar a new Salvadoran criminal case over the murders of the Jesuits without regard to the General Amnesty Law.[12] Although there is a basis under international law for challenging the validity of such a short statute of limitations for such horrendous crimes,[13] that appeared to me to be unlikely to succeed in El Salvador.

Second, the Spanish indictment was issued on May 30th and gave the defendants, the majority of whom are still Salvadoran residents, only 10 days (until June 9th) to surrender themselves to the Spanish court before additional steps would be taken to secure their arrests.[14] On June 2d (only three days after the issuance of the indictment) the National Assembly without debate adopted Decree 743, and the next day (June 3) it was signed by President Funes and enacted into law. This suggests to me a desire by the conservative political parties (and the President) to have Decree 743 in place before the Spanish court would take steps to have the Salvadoran courts issue arrest warrants for the defendants and thereby give those defendants a possible legal basis (the General Amnesty Law) to resist the arrest warrants. Is this what happened?

Third, Cristiani was a subject of the original criminal complaint in Spain and a potential additional indicted defendant in the Spanish case.[15] Thus, he has a profound personal interest in having Salvadoran legal defenses to any future attempt by the Spanish court to have him arrested in his home country. Just this month he has been the principal spokesman for ARENA regarding its original support of Decree 743 and tying it to trying to ensure that the General Amnesty Law is not invalidated. Was this at least part of Cristiani and ARENA’s motivation for their original support of Decree 743?

Fourth, it is much more difficult to understand the reasons why President Funes immediately signed the Decree when his political party (the FMLN) was opposed. His rationale as stated on June 10th is not persuasive to me as an outsider. I, therefore, wonder if President Funes had received threats that the Salvadoran military (or a paramilitary organization) would intervene to prevent the removal of these officers from the country? Was the perceived elimination of a threatened invalidation of the General Amnesty Law by requiring unanimity in the Constitutional Chamber seen as a way to prevent the extradition of the military men through the courts and thus avoid a military intervention or coup?

Finally, is it possible that all of this controversy is unnecessary? Could the Constitutional Chamber hold the General Amnesty Law constitutional, but like the U.S. federal courts conclude it is not applicable to proceedings in other countries?[16]


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

[2]  See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011).

[3] Marinero, Funes sanciona reformas para que fallos de amparos e inconstitucionalides sean por decision unanime, (June 3, 2011), http://www.lapagina.com; ?Donde se gesto el decreto que le puso el freno legal a la Sala de lo Constitucional?, (June 4, 2011),www.lapagina.com.sv; Voices from El Salvador, Institutional Coup in El Salvador (June 4, 2011), http://voiceselsalvador.wordpress.com/2011/06/04/institutional-coup-in-el-salvador; Voices from El Salvador, Salvadorans Protest the Government’s Actions Against Constitutional Court (June 6,2011), http://voiceselsalvador.wordpress.com/2011/06/06/salvadorans-protest-the-governments-actions-against-constitutional-court; Tim’s El Salvador Blog, Broad opposition to Decree 743 (June 8, 2011),   http://luterano.blogspot.com/2011/06/broad-opposition-to-decree-743.html.

[4] Id.; Ortiz, Attorney Oscar Luna condemns the decree 743 (June 13, 2011), http://www.lapagina.com.sv (English translation; Luna is El Salvador’s human rights ombudsman); Discussions in the Constitutional Court in El Salvador (June 13, 2011), http://www.centralamericadata.com (Salvadoran Chamber of Commerce and Industry calls for repeal of Decree 743); Voices on the Border, The Debate Over Decree 743 Continues (June 14, 2011).

[5] Arauz, Constitutional Chamber hereby declared the decree that would tie the hands, elfaro (June 6, 2011), http://www.elfaro.com.sv; Merinero, Guerra de poderes en El Salvador: La Corte Suprema declara inapplicable el articulo que exige unanimidad en fallos de la Sala de lo Constitucional, (June 6, 2011), http://www.lapagina.com.sv.

[6] Huete, Henriquez & Cabrera, ARENA perida derogatoria de decreto 743, La Prensa Grafica (June 8, 2011), http://www.laprensagrafica.com; Arauz, ARENA retract the decree against FMLN urges Chamber and fulfill, elfaro (June 8, 2011).; Perez, ARENA se retracta y promote pedir la derogacion del decreto 743, (June 8, 2011), http://www.lapagina.com.sv; Otto & Marinero, ARENA contra la pared: ya hay dos recursos de inconstitucionalidad contra la Ley de Amnistia y el TLC (June 8, 2011), http://www.lapagina.com.sv.

[7]  I have not seen this case myself, but it is referenced in one of the articles about the current controversy. I solicit information about this case.

[8] See n.6.

[9] E.g., FMLN reiterated it would not support repeal of Decree 743 (June 14, 2011), http://www.lapagina.com.sv.

[10] Guzman, Funes: “Aqui no ha habido ningun compadre hablado entre el presidente y la derecha, (June 6, 2011), http://www.lapagina.com.sv; Guzman, Funes: La confesion publica de ARENA es una injerencia inacceptable en el Organo Judicial, (June 10, 2011), http://www.lapagina.com.sv.

[11] Voices on the Border, The Debate Over Decree 743 Continues (June 11, 2011).

[12]  No New Trial Set in Deaths of 6 Jesuits, Miami Herald, Dec. 14, 2000.

[13]   E.g., Barrios Altos v. Peru, 2001 Inter-Am. Ct. H.R. (Ser. C) No. 75, ¶ 41 (Mar. 14, 2001); Convention on the Non-Applicabilty of Statutory Limitations to War Crimes and Crimes Against Humanity, Art. I (war crimes, crimes against humanity and genocide); European Convention on the Non-Applicability of Statutory Limitation to Crimes Against Humanity and War Crimes, Art. 1 (crimes against humanity, genocide, war crimes and “any other violation of a rule or custom of international law which may hereafter be established and which the Contracting Party concerned considers . . . as being of a comparable nature to [the previous crimes]”); Inter-American Convention on Forced Disappearance of Persons, Art. VII; Rome Statute of the International Criminal Court, Art. 29 (genocide, war crimes and crimes against humanity). Moreover, El Salvador apparently has a new statute that has no time limit for criminal prosecutions for torture, genocide, war crimes and certain other crimes occurring after sometime in 1996. (Ruth A. Kok, Statutory Limitations in International Criminal Law at 45 (Cambridge, U.K.: Cambridge Univ. Press 2007).)

[14] 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.

[15]  See Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011).

[16] See Post: El Salvador’s General Amnesty Law in U.S. Federal Court Cases (June 14, 2011).

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

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.

 

International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests

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] Now we examine the Salvadoran criminal prosecution of some of the individuals involved in this crime.[4]

The murders of the Jesuit priests caused such a huge international uproar that El Salvador had to do something to make it appear as if it were pursuing justice in the case. As a result, in January 1990 it commenced criminal prosecution of five Salvadoran military officers and five soldiers of the Atlacatl Battalion. Colonel Guillermo Alfredo Benavides Moreno, the Director of the Military College, was accused of having given the order to murder the priests. Three Lieutenants were accused of commanding the operation. The five soldiers were accused of committing the murders.

The pre-trial proceedings took nearly two years. During this time, Colonel (now General) René Emilio Ponce, Colonel (now General) Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel (now General) Gilberto Rubio Rubio pressured lower-ranking officers not to mention orders from above in their testimony to the court.

Finally, the trial by jury took place in September 1991 in the building of the Supreme Court of Justice and was broadcast live on television. Several ranking military officers attended the trial with the defendants’ families. On the last day of the trial, during the defendants’ closing arguments, a large crowd outside the courthouse shouted chants in favor of the defendants, interrupting the trial. In closing arguments, defense counsel barely mentioned the crime itself. Instead, they asked the jury to reject foreign intervention and pressure, emphasized that five of the six victims were Spanish born, and argued that the military generally and the defendants in particular were heroes protecting the nation against terrorism.

The five-person jury, whose identity was kept secret, was charged with deciding the charges of murder and acts of terrorism. The other charges were left to the judge to decide.

Benevides was convicted of all eight counts of murder and instigation and conspiracy to commit acts of terrorism. One of the Lieutenants was convicted of one count of murder (the 16-year-old girl), instigation and conspiracy to commit acts of terrorism and being an accessory. Benevides and this Lieutenant were sentenced to 30 years imprisonment. The other two Lieutenants were convicted of instigation and conspiracy to commit acts of terrorism; they were sentenced to three years imprisonment, but released on bail and continued to serve in the military. A Lieutenant Colonel was convicted of being an accessory and sentenced to three years imprisonment, but he too was released on bail and continued to serve in the military. The five soldiers were acquitted of all charges.

International observers of the trial thought the jury verdict defied logic and the weight of the evidence.

In March 2000 and soon after the Inter-American Commission on Human Rights had issued a report on the case that will be discussed in a subsequent post, the Central American University (UCA), where the Jesuit priests had taught, sought to open a new Salvadoran criminal case regarding their murders, ultimately to no avail. UCA asked the country’s Attorney General to do so on the basis of UCA’s charges against former President Cristiani and five members of the Armed Forces High Command, including former General and Defense Minister Emilio Ponce.  Then Salvadoran President Flores opposed the request, and the Attorney General refused to do so, but the Salvadoran Supreme Court ruled that only a court could decide to reopen such a case.[5]

Thereafter (October 2000), a lower court rejected the prosecutor’s request to reopen the old case because it was “without legal substance” while ordering the prosecutor to conduct a new investigation to determine whether there were legitimate grounds for reopening the case.[6]

The Attorney General then conducted a new investigation and reapplied to a court to reopen the case, this time against Cristiani and four military officers, including Ponce. Once again, however, the lower court refused to do so in December 2000 on the ground that any new charges were barred by the country’s 10-year statute of limitations. Immediately afterwards Ponce and the other three officers held a press conference where Ponce accused left-wing groups of trying to de-stabilize the country by making these charges and admitted that he and his fellow former officers were concerned about developments elsewhere in Latin America, especially the fate of Augusto Pinochet in Chile and former Argentine military officers.[7]


[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: Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests (June 7, 2011).

[4] This post’s summary of the Salvadoran criminal case is extracted from the Commission for the Truth for El Salvador’s Report: From Madness to Hope: The 12-year war in El Salvador  at 45-54 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html  [“Commission Report”]. See also Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador at 121-208 (Washington, D.C.; Georgetown Univ. Press 1993). In future posts we will talk about the Truth Commission for El Salvador; the country’s general amnesty; the Jesuits case before the Inter-American Commission for Human Rights; the Spanish implementation of the principle of universal jurisdiction; and more details about the Spanish case regarding this crime.

[5]  UCA Press Release (Mar. 27, 2000, http://www.uca.edu.sv/neuvo/pressrelease.html; Lanchin, Salvador ex-president accused of killings, BBC News, Mar. 28, 2000; El Salvador Former Air Force Chief Denies Role in Killings, Miami Herald, Mar. 29, 2000; The Necessity and Importance of the Truth, Processo, April 5, 2000, http://www.uca.edu.sv/publica/proceso/proci897.html;UCA Impugns the Attorney General of the Republic’s Decision on the Jesuit Case, Processo, April 26, 2000,  http://www.uca.edu.sv/publica/proceso/proci899.html#doc;  New Charges Barred in Salvador Killings, N. Y. Times, Oct. 24, 2000; Editorial: The Impunity of Power, Processo, Oct. 25, 2000;  Darling, El Salvador to Reopen Murder Probe; Attorney general, under pressure, will investigate an ex-president and others in 1989 slayings of six Jesuit priests, Los Angeles Times, Oct. 26, 2000; No New Trial Set in Deaths of 6 Jesuits, Miami Herald, Dec. 14, 2000; Lanchin, Salvadorean ex-general issues warning, BBC News, Dec. 15, 2000.

[6]  Id.

[7]  Id.

.

Reading PPE at Oxford

Once I knew I would be going to the University of Oxford in the Fall of 1961, I had to decide what I was going to study. At the time, most American Rhodes Scholars read for a second bachelor’s degree that involved Oxford’s traditional tutorial style of education. (Today, more choose to seek advanced degrees.)

I rejected “reading” Jurisprudence for a B.A. degree because at the time that required translation of Roman law from Latin into English, a skill I did not have and did not think I could acquire “on the side” while doing everything else at Oxford.

Instead, like many American Rhodes Scholars, I chose Philosophy, Politics and Economics or PPE.[1] It was also known as “Modern Greats” to indicate that it was designed in the 1920’s to replicate some of the features of Classics or Greats or Literae Humaniores (Greek and Latin), one of Oxford’s traditional and famous courses of study. PPE, on the other hand, was designed to be a well-balanced course of study of the social problems of the modern world.[2]

PPE was organized in two subjects in each of the three PPE disciplines: General Philosophy (from Descartes to the present); Moral and Political Philosophy; Theory and Working of Political Institutions; British Political and Constitutional History Since 1830; Principles of Economics; and Economic Organization. The student also selected two additional subjects to study; I chose two in economics–Public Finance and Currency and Credit.

During Oxford’s three eight-week terms of the academic year, you had two tutorials a week in these subjects. For the six required subjects there were usually only two students with tutors from your own college. For the optional subjects, you usually were alone in the tutorial and sometimes with a tutor from another Oxford college who specialized in those subjects.

Each week the tutor would set the problem and suggest relevant readings for the next week. The subject would always be put as a question that required you to come to a conclusion and marshal the evidence and arguments for your conclusion. Here are examples of such problems:

  • “The Left was never right.” Discuss this verdict with regard to British foreign policy between the world wars. Was the Right ever wrong?
  • What do we mean by “James who now does this is the same person who did that?” How do we know we are correct?
  • Is the City [London’s financial industry] vital to the U.K.’s role in world trade?
  • Can it ever be justifiably claimed that a tariff is imposed for revenue purposes only?
  • Is infallibility a pre-condition for knowledge? If not, why do we often think it is?

During the following week, if you were doing your work, you would read at least the suggested readings and prepare an essay analyzing the problem. At the following tutorial one of the students (if there were two) would read his essay, and the tutor would comment, ask questions and start discussions about the problem. The tutorials, by the way, were held in the tutor’s rooms in the college, and the students were required to wear their academic gowns. (Although I was a Rhodes Scholar, I was not a scholar of Worcester College and, therefore, was not entitled to wear a scholar’s longer gown. Instead, I wore a skimpy “commoner’s gown.”)

The philosophy tutorials were the most difficult and frustrating for me. Oxford was then in the throes of linguistic analysis with its emphasis on careful examination of the language of philosophical argument.[3] We frequently were assigned very abstruse articles in British philosophical journals —Mind and Proceedings of the Aristotelian Society. One of the articles that I recall had a title like “What do we mean when we say this is a Grade A apple?” I kept wondering  why I was spending my time reading these articles. Usually, however, during the tutorial I would say to myself that this was a worthy activity for someone like the tutor who was really good at it. But it was not for me. The tutor probably would say to himself, “Oh, these pragmatic Americans, they don’t get it.”

In addition to preparing for and participating in tutorials, the students could, if they wished, attend university-wide lectures on the PPE subjects (or, if you wished, on any other subjects that interested you.) I attended some and heard some of the famous Oxford dons of the day: J. R. Hicks (economist), Gilbert Ryle (philosopher) and A. J. Ayer (philosopher) are ones that I remember.

Finally during your “vacs” (vacations) and especially the “long vac” (the four-month summer vacation), you were encouraged to study independently. During one vac, for example, I spent several weeks at St. Deiniol’s Library (n/k/a Gladstone’s Library), a residence library near Hawarden, Wales[4] where I had room and board and a quiet library in which to study. (The Library was founded for “Divine Learning” by William Ewart Gladstone, Britain’s 19th century Prime Minister, and is close to Hawarden Castle, which was Gladstone’s estate.)[5]

At the end of each term, as I recall, your tutors gave practice exams, which were evaluated and returned with comments. Also at least once a year one of your tutors would give an “oral report card” on your performance to the head of your college.

The only “real” examinations were those given at the end of your time at Oxford. This memorable experience will be described in a subsequent posting.

As I reflect on this educational experience, I especially value the way that the subjects were presented to the students. You were forced to come to a conclusion and justify that conclusion, rather than saying a lot about a subject and avoiding coming to your own conclusions. You also had great freedom. You could look for, and read, resources beyond those suggested by the tutor. You could attend lectures if you wanted to. Given the one-on-one nature of tutorials, a student could not hide and never say a word.


[1]  Two of the more famous American Rhodes Scholars, Pete Dawkins and Bill Bradley, for example, read PPE. (See Post: Oxford in New York City (May 17, 2011).) Bill Clinton, who was a Rhodes Scholar at Oxford, 1968-70, started in PPE, but soon abandoned the program because he thought it was too repetitive of his U.S. undergraduate education. Clinton first switched to a graduate degree program (B. Litt. in Politics) that did not involve tutorials, but required a 50,000-word dissertation. His tutor, however, persuaded him that was a mistake and to switch instead to a graduate degree (B. Phil. in Politics), that had tutorials, essays, exams and a shorter thesis. Clinton made the switch, but did not finish this program and did not earn an Oxford degree; his memoir says he chose to go to Yale Law School rather than finishing the Oxford degree. (Bill Clinton, My Life at 141-43, 171 (New York: Knopf  2004); Ralph Evans (editor), Register of Rhodes Scholars 1903-1995 at 306 (Oxford: Rhodes Trust 1996).) In 2003 my wife and I attended a celebration of the centennial of the Rhodes Scholarships at Westminster Hall in London where Clinton was one of the speakers. He said his family was always embarrassed he had never earned an Oxford degree, but that year his daughter Chelsea redeemed the family honor by earning such a degree the prior day. (Bill Clinton, Speech: Rhodes Trust Centenary Celebration, July 2, 2003, http://www.clingtonfoundation.org.) Other American Rhodes Scholar-politicians who read PPE are U.S. Senator Richard Lugar and former Senators David Boren and Paul Sarbanes. (Register of Rhodes Scholars 1903-1995 at 201, 203, 269.) The current British Prime Minister, David Cameron, also read PPE, as did other prominent U.K. politicians (Harold Wilson, Edward Heath, Shirley Williams, Edwina Castle). (Wikipedia, David Cameron, http://en.wikipedia.org/wiki/David_Cameron; BBC News, Why does PPE rule Britain? (Oct. 31, 2010), http://www.bbc.co.uk/news/magazine-11136511.

[2]  Handbook to the University of Oxford at 147-50, 158-60 (Oxford: Clarendon Press 1960); Wikipedia, Philosophy, Politics and Economics, http://en.wikipedia.org/wiki/Philosophy,_Politics_and_Economics.

[3]  Wikipedia, Analytical Philosophy, http://en.wikipedia.org/wiki/Analytic_philosophy.

[4]  Wikipedia, Gladstone’s Library, http://en.wikipedia.org/wiki/Gladstone’s_Library.

[5]  Wikipedia, William Ewart Gladstone, http://en.wikipedia.org/wiki/William_Ewart_Gladstone.

The Adam Clayton Powell, Jr. Litigation

On March 1, 1967, the U.S. House of Representatives by a vote of 307 to 116 refused to seat Adam Clayton Powell, Jr., the re-elected African-American Congressman from Harlem, censured him, fined him $25,000, took away his seniority and declared his seat vacant. The grounds were that he had engaged in conduct unbecoming a Congressman: he had refused to pay a libel judgment ordered by a New York state court, had refused to return to his district except on Sunday in order to avoid service of legal process in that case, had misappropriated congressional travel funds and illegally had paid his wife a congressional staff salary for work she had not done.[1]

Soon thereafter Powell along with 13 of his constituents commenced a lawsuit in the U.S. District Court for the District of Columbia to invalidate his exclusion.  The defendants were John McCormack, who was the Speaker of the House, five other House members and three of its staff.  The complaint alleged that the exclusion violated Powell’s constitutional rights: Powell satisfied the constitutional qualifications for membership (age, citizenship and residency) and the exclusion allegedly was based upon his race and color and thereby violated his rights under the Fifth, Thirteenth and Fifteenth amendments to the Constitution.[2]

Powell’s lawyers were William Kunstler, a famous civil rights lawyer;[3] Arthur Kinoy, another prominent civil rights lawyer and Rutgers Law School Professor;[4] Herbert Reid, another civil rights lawyer and Howard Law School Professor;[5] and others.

The House decided that it did not want the Lyndon Johnson Administration’s Justice Department to defend the House’s leadership because of concern that political considerations would prevent the Department from vigorously asserting what the House believed to be its full constitutional prerogatives. Instead, the House took the recommendation of Emmanuel Celler, the Brooklyn Congressman and Chairman of the House Judiciary Committee, to hire as its attorney, Bruce Bromley, a partner in the New York City law firm of Cravath, Swaine & Moore.[6]

Bromley was a graduate of the University of Michigan and the Harvard Law School. He was a lawyer with the Cravath firm for over 50 years with one interruption. In January 1949, New York Governor Thomas E. Dewey, who had been the unsuccessful Republican presidential candidate the prior year, appointed Bromley to New York’s highest court (the Court of Appeals), but in November 1949, Bromley lost the election for a full term. Although he served on the bench for less than a year, thereafter he was always referred to as “Judge Bromley.” While at Cravath, he was the lead lawyer in successful representation of IBM, General Motors and other major corporations.[7]

For the Powell case, Bromley assembled a team of Cravath lawyers to work on the case, including yours truly. I do not recall what issues I worked on and now wish I had kept a journal about my involvement in this case to refresh my recollection. I do remember that another Cravath associate attorney and member of the team, Dorsey D. Ellis, Jr., was an amateur legal historian and was the primary draftsman of an appendix to the eventual Supreme Court brief that discussed the legislative common law of the British House of Commons and the early state legislatures regarding exclusion and expulsion of members of legislatures.[8] Another Cravath associate on the team, Jay Gerber, recently told me that he remembers the issues on which he worked.

The U.S. District Court for the District of Columbia dismissed the case for lack of subject-matter jurisdiction.[9]  The U.S. Court of Appeals for the D.C. Circuit affirmed the dismissal, but on different grounds. It held that the federal courts had subject-matter jurisdiction, but that case was not justiciable, i.e, it was not appropriate for judicial relief because of the separation of powers.[10] The case then went to the U.S. Supreme Court.

Before the Supreme Court argument, the other members of the Cravath team and I went to Washington several days ahead of time to prepare for the argument and to consult with Cravath’s Washington allies and former partners: Lloyd Cutler, who subsequently was White House Counsel for Presidents Carter and Clinton,[11] and John Pickering.[12] Cravath also brought the lawyers’ spouses to Washington on the Sunday before the oral argument in the Supreme Court so that they could watch the proceedings the next day. My wife was on a plane from New York City that Sunday with none other than Congressman Powell.

Although the House’s side had won in the lower federal courts, there were no guarantees that it would prevail in the U.S. Supreme Court. The House was asserting that its power under Article I, Section 5(1) of the Constitution to “be the Judge of the . . . Qualifications of its own members” was an implicit exception from the Article III “judicial Power of the United States [that was] vested in [the Supreme Court]” and the lower federal courts. Thus, the House argued, no federal court had the power to do anything in this case. As a result, it was anticipated that Chief Justice Earl Warren might well ask Judge Bromley in oral argument whether he was claiming that if the House or the Senate hypothetically were to exclude or expel five or six black members-elect in succession that the Supreme Court could do nothing. The answer to this hypothetical question was clearly “yes.”

At the oral argument, as I recall, the Chief Justice in fact asked that question. Bromley’s responded in essence that yes, the Court could do nothing, but that there was no reason to suspect that the House or the Senate might do such a thing and that there was a political remedy by the voters’ re-electing the same people. The Chief Justice and Bromley then got into a colloquy as to which branch of the federal government had the “final” say regarding the Constitution. Bromley said in very limited areas, each house of the Congress had the “final say:” impeachment and removal of federal officials and judging the qualifications of its members. Jay Gerber recalls that the Chief Justice almost fell out of his chair at that answer.

In June 1969, the U.S. Supreme Court, 7 to 1, reversed the dismissal of the lawsuit. The majority opinion by the Chief Justice held that the federal courts had jurisdiction over the subject matter of the case and that it was justiciable; that it did not constitute a political question that pitted one branch of government against another. Rather, it required “no more than an interpretation of the Constitution” by the Supreme Court.[13]

The majority opinion stated that while the House of Representatives was the sole judge of its members’ qualifications (U.S. Const., Art. I, § 5, cl. 1), the House did not have the power to develop qualifications other than those specified in the Constitution: election certificate, at least 25 years of age, U.S. citizen for at least seven years and an inhabitant of the state in which he or she was elected at the time of election (Art. I, § 2. Cls, 1, 2).

In addition, the Court’s majority opinion noted that while the Constitution states (Art. I, § 5, Cl. 2),”Each House [of Congress] shall be the Judge of the . . . Qualifications of its own Members,” the Constitution  immediately states that each “House may . . . with the Concurrence of two thirds, expel a Member.” The Court, therefore, held that the process leading to the expulsion of a Member, duly sworn and enrolled upon the body’s rolls, was the only constitutional method for a House to give effect to its power to determine the qualifications of its members. The House did not follow this procedure with respect to Congressman Powell. Therefore, he was entitled to a declaratory judgment that he had been unlawfully excluded from the Congress.

In the meantime, Powell had won the May 1967 special election to fill his congressional seat, but did not attempt to be seated.  He then won the next regular election in November 1968 and was seated in the House in January 1969 (approximately five months before the Supreme Court decision) subject to the $25,000 fine and loss of seniority. The next year, however, Powell lost the 1970 Democratic primary election to Charles Rangel and failed to qualify to be on the general election ballot.[14]

Powell was a member of a notable Harlem family. His father, Adam Clayton Powell, Sr., was Pastor of the Abyssinian Baptist Church in Harlem (1908-36) before being succeeded by Powell, Jr., his only son (1937-71).[15] Powell. Jr.’s older son, Adam Clayton Powell, III, was a journalist and media executive,[16] and Powell, Jr.’s younger son, Adam Clayton Powell IV, is a New York State legislator who lost the 2010 Democratic primary election for Congress to the incumbent, Charles Rangel.[17]

Powell, Jr. died in 1972 at age 62.


[1]  Powell v. McCormack, 395 U.S. 486, 489-93 (1969); Wikipedia, Powell v. McCormack, http://en.wikipedia.org/wiki/Powell_v._McCormack.

[2]  Powell v. McCormack, 266 F. Supp. 354 (D.C. DC. 1967).

[3]  Wikipedia, William Kunstler, http://en.wikipedia.org/wiki/William_Kunstler.

[4]  Wikipedia, Arthur Kinoy, http://en.wikipedia.org/wiki/Arthur_Kinoy.

[5]  Ravo, Herbert O. Reid, Sr., 75, Lawyer Who Taught Many Black Leaders, N.Y. Times (June 19, 1991).

[6]  Wikipedia, Bruce Bromley, http://en.wikipedia.org/wiki/Bruce_Bromley.

[7] Wikipedia, Bruce Bromley, http://en.wikipedia.org/wiki/Bruce_Bromley.

[8]  After Cravath, “Dan” Ellis became a member of the faculty at the University of Iowa School of Law and then Professor, Dean and eventually Dean Emeritus and William R. Orthwein Distinguished Professor of Law Emeritus at the University of Washington in St. Louis School of Law. (Washington University in St. Louis, Dorsey Ellis, http://news.wustl.edu/people/Pages/DorseyEllis.aspx.

[9]  Powell v. McCormack, 266 F. Supp. 354 (D.C. D.C. 1967).

[10]  Powell v. McCormack, 395 F.2d 577 (D.C. Cir. 1968).

[11]  Wikipedia, Lloyd Cutler, http://en.wikipedia.org/wiki/Lloyd_Cutler.

[12]  Wikipedia, John H. Pickering, http://en.wikipedia.org/wiki/John_H._Pickering.

[13]  Powell v. McCormack, 395 U.S. 486 (1969).

[14]  Wikipedia, Adam Clayton Powell, Jr., http://en.wikipedia.org/wiki/Adam_Clayton_Powell,_Jr.; Biographical Dictionary of the United States Congress, “Powell, Adam Clayton, Jr.,” http://bioguide.congress.gov/scripts/biodisplay.pl?index=p000477

[15] Wikipedia, Adam Clayton Powell, Sr., http://en.wikipedia.org/wiki/Adam_Clayton_Powell,_Sr.; Abyssinian Baptist Church, History, http://www.abyssinian.org/about-us/history/.

[16]  Wikipedia, Adam Clayton Powell III, http://en.wikipedia.org/wiki/Adam_Clayton_Powell_III.

[17]  Wikipedia, Adam Clayton Powell IV (Politician),  http://en.wikipedia.org/wiki/Adam_Clayton_Powell_IV_(politician).

My Pilgrimage to El Salvador, April 1989

For my second Salvadoran asylum case, I decided that I needed to go to El Salvador to do investigations for the case and to learn more about the country. In April 1989 I made my first of six trips to the country. I went with a group led by Minneapolis’ Center for Global Education at Augsburg College.[1]

The Salvadoran Civil War was still going on, and on the day we arrived her Attorney General was assassinated with a car bomb. In response, the Salvadoran military forces were in the streets with their automatic rifles at the ready, stopping everyone to provide identification. People in the “popular organizations” were being arrested. It was a very dangerous and tense 10 days in the country.

These days turned out to be the most intense religious and spiritual experience of my life. It was and still is a major reason why I now say that El Salvador liberated this American lawyer in many ways and helped him integrate his religious faith with his professional life.

We went to a service of solidarity for a Catholic priest who that week had received death threats. The service was in a screened recreational building next to a very dusty soccer field. As we entered, we were handed mimeographed sheets with words for hymns of the people about Archbishop Oscar Romero, who had been murdered nine years earlier. Thus began my learning about Romero.[2]

Our group visited the office of COMADRES in a small house in the city. (It is the committee of the mothers of the disappeared and assassinated). A young woman talked about her jailing and torture earlier that week. Right behind her I saw a bust of Robert Kennedy representing the very first Robert F. Kennedy Human Rights Award. It was granted to COMADRES for its struggle for amnesty for political prisoners, information regarding the “disappeared” and punishment for those responsible for human rights violations.[3] (During the Reagan Administration, the U.S. would not grant a U.S. visa to a COMADRES representative to come to the U.S. to receive the award.)

At the COMADRES’ office I also saw a framed copy en espanol of the Universal Declaration of Human Rights,[4] which I had never regarded as important and about which I knew nothing. Even though I could not read the Spanish text, I could see that it was an inspirational document for these people. This experience came rushing back to me when later I learned about the Universal Declaration.

Our group met with Phil Anderson, a Lutheran pastor from Minnesota who was working in El Salvador for Lutheran World Federation. Earlier that week he had sent faxes to the Federation’s headquarters in Switzerland with information about the arrests of many people from the popular organizations so that the next day the headquarters could send faxes of complaints to the Government of El Salvador. I gained a new appreciation for the work of international organizations around the world and about the sinister messages that are sent when they are kicked out of a country.

My fellow travelers on this trip were from the Washington, D.C. Synod of the Evangelical Lutheran Church of America (the successor of the Lutheran Church in America, my client in the Sanctuary Movement case). Through their connections I was introduced to the significant work in El Salvador of its small Lutheran Church and its Bishop Medardo Gomez, who is frequently regarded as the spiritual heir to Archbishop Romero.[5]

We also met Salvador Ibarra, a lawyer for the human rights office of the Lutheran Church of El Salvador. He told us that in late 1980 a judge had appointed him to represent one of the Salvadoran national guardsmen accused of raping and murdering the four American church women.[6] Someone from the U.S. Embassy then asked Ibarra to call a press conference and announce that he had investigated and had found no involvement of higher officials in this horrible crime. This, however, was not true, and he refused to hold a press conference. In response he received death threats that prompted him and his family to flee the country. His wife told him that he was stupid to put her and their children’s lives at risk, and she took the children and divorced him. Yet Ibarra subsequently returned to his country to be a human rights lawyer and thereby continued to put his life on the line. He spoke about the joy he had in his work as a lawyer for people whose human rights were at greater risk.

In my subsequent work as a pro bono asylum lawyer and human rights advocate, I continued to be inspired by Salvador Ibarra. How easy it was for me as a large law-firm lawyer in Minneapolis to do this work. I did not have to risk my life as he did.

Our group visited the “22nd of April” community in San Salvador. This community was a three-block area of land on a steep hill between railroad tracks above and a road below. It had been used as a garbage dump, but on April 22nd in the early 1980’s displaced Salvadorans (“desplazados”) started to occupy it. In April of 1989 there were at least 10,000 people living there. They were mainly women and small children because teenage and adult males were fighting in the civil war or had been killed or disappeared. The people lived in “houses”– some of concrete blocks and tin roof; others of cheap tin or aluminum sheets or scrap lumber; yet others made with cardboard.

We walked around “22nd of April” with its pastor–Father Jim Barnett, a Dominican priest from Sioux Falls, South Dakota. He talked about his ministry of accompaniment and solidarity. He was inspired by the example of Archbishop Oscar Romero, who had entered the total experience of the poor–physical, spiritual, social, economic and political–and who had spoken about the church’s need to be incarnated in the life of the people and the institutional injustice and violence in El Salvador.

Another stop on our trip was UCA, the Universidad de Centro America, a Jesuit institution with a beautiful, serene campus on a hill in the capital city.[7] We spent an hour with Father Jon Sobrino, a noted liberation theologian.[8]  Only seven months later six of his fellow Jesuit priests were brutally murdered at that very place by the Salvadoran Armed Forces. (Sobrino escaped this fate because he was in Thailand giving lectures.)[9]

We went to the small, modern, beautiful, serene Chapel of Divine Providence on the quiet grounds of a cancer hospital. This is where Oscar Romero was assassinated while celebrating mass on March 24, 1980. (Across the street was the three-room apartment where Romero lived. No luxurious Archbishop’s palace for him.) Along the way to the chapel I saw graffiti messages: “Romero vive!” (“Romero lives!”)

The Cathedral of San Salvador, on the other hand, is in el centro with all the noise and hurly-burly of buses and other traffic. In April 1989 the building was not finished. (Romero had halted all construction because he did not think it was right for the church to be spending money on its building when the people were suffering from poverty and human rights abuses.) On the steps were women from COMADRES with their bullhorns protesting against the latest wave of repression. Inside, scraps of linoleum were on the floor along with scattered plain wooden benches. In the right transept was Romero’s tomb–plain concrete and covered with flowers and prayers of the people. As I stood there, the words “My body broken for you” from the Christian sacrament of communion echoed in my mind.


[1]  Center for Global Education, http://www.augsburg.edu/global/.

[2]  Later posts will discuss the life and witness of Archbishop Romero and why he is my personal saint.

[3]  Robert F. Kennedy Center for Justice & Human Rights, http://www.rfkcenter.org/ourwork/humanrightsaward.

[4]  Universal Declaration of Human Rights, http://www1.umn.edu/humanrts/instree/b1udhr.htm.

[5]  Medardo Gomez, Fire Against Fire (Minneapolis, MN: Augsburg Fortress 1990); Medardo Gomez, And the Word Became History (Minneapolis, MN: Augsburg Fortress 1992).

[6]  E.g., Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002), cert. denied, 537 U.S. 1147 (2003); Gonzalez, 2 Salvadoran Generals Cleared by U.S. Jury in Nuns’ Deaths, N.Y. Times, Nov. 4, 2000, at A3.

[7]  Universidad Centroamericana “José Simeón Cañas,” http://www.uca.edu.sv/.

[8]  Wikipedia, Jon Sobrino, http://en.wikipedia.org/wiki/Jon_Sobrino.

[9]  Sobrino, et al., Companions of Jesus: The Jesuit Martyrs of El Salvador (Maryknoll, NY: Orbis 1990); Center for Justice & Accountability, Jesuits Massacre Case, http://www.cja.org/article.php?list=type&type=84.