Tag: Alien Tort Statute

 

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.