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.

Almudena Bernabeu
Almudena Bernabeu

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.

Inocente Orlando Montano
Inocente Orlando Montano

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.

The El Mozote Masacre: Inter-American Court of Human Rights Determines El Salvador Violated American Convention on Human Rights

El Mozote
El Mozote

On December 11, 1981, the Salvadoran military detained and systematically executed virtually all of the 200 men, women and children in the small village of El Mozote in the northern part of the country. Others in nearby villages also were executed in the military’s “scorched earth” offensive.[1]

Now we look at this case before the Inter-American Court of Human Rights (the Court).

 Invoking the Court’s Jurisdiction

As previously reported, the Commission on November 3, 2010, decided that the State of El Salvador had violated the American Convention on Human Rights in various respects regarding the Massacre and recommended various actions be taken by the State to redress the crimes. The State was given two months from December 8, 2010, to do so.

As of March 8, 2001, however, the State had not responded to the Commission regarding its implementation of the recommendations. Therefore, on that date, the Commission submitted the case to the Court for enforcement of those recommendations.

At the Court’s April 23, 2012, hearing in the matter, an attorney for the State said it would comply with whatever the Court decided.

The Court’s Judgment

Inter-American Court of Human Rights
Inter-American Court of Human Rights

On October 25, 2012, the Court rendered its judgment concluding that El Salvador had violated the American Convention on Human Rights with respect to the Massacre, and on December 10, 2012 (International Human Rights Day and the day before the 31st anniversary of the Massacre), the Court publicly released the judgment.[2]

Preliminarily the Court commended El Salvador for accepting all of the factual assertions of the petitioner and victims’ representative and for Salvadoran President Mauricio Funes’ January 16, 2012, apology for the Massacre and commitment to provide remedies for victims and their relatives.[3]

The Court essentially endorsed or affirmed the Commission’s conclusions that the Salvadoran State had violated the following provisions of the American Convention of Human Rights regarding the Massacre:

  • (a) the rights to life, humane treatment and personal liberty of the victims who were executed extrajudically;
  • (b) the special rights of children who were executed extrajudically;
  • (c ) the rights to humane treatment and privacy of the women who were raped;
  • (d) the right to property of the murdered victims and the survivors whose homes were destroyed and whose means of livelihood were stolen or eliminated;
  • (e) the right to humane treatment of the survivors and relatives of the murdered victims;
  • (f) the right of freedom of movements and residence of those who were forcibly displaced; and
  • (g) the rights to a fair trial and judicial protection of the survivors and relatives of the murdered victims.

The court devoted considerable attention to the Salvadoran Law of General Amnesty after noting that unlike its earlier cases invalidating amnesty laws, this Law refers to acts committed in the context of an internal armed conflict and, therefore, implicates the competing considerations of Article 6(5) of Protocol II to the Geneva Convention Relating to the Protection of Victims of Non-International Armed Conflicts. That article provides:

  •  ”At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

According to the Court, this provision of the Additional Protocol is not absolute as there is an obligation under international law for a state to investigate and prosecute war crimes and crimes against humanity. Therefore, the Court concluded, the General Amnesty Law is contrary to the letter and spirit of the Peace Accords ending the Salvadoran civil war, to international law and to the American Convention on Human Rights. Accordingly that Law is without legal effect in this case and may not continue to obstruct the investigation of the facts and the identification, prosecution and punishment of those responsible for these crimes.[4]

The Court, therefore, ordered the State of El Salvador to:

  • (i) continue with the full commissioning of the “Register of Victims and Relatives of Victims of Grave Human Rights Violations during the Slaughter of El Mozote “and take the necessary measures to ensure its permanence in time and budget allocation to operate effectively;
  • (ii) initiate, promote, reopen, direct, and continuing conclude, as appropriate, with the utmost diligence, investigations of all the facts of the violations declared in this judgment, in order to identify, prosecute and, if necessary, punish those responsible;
  • (iii) ensure that the General Amnesty Law . . . [is] not an obstacle to the investigation of the facts of this case or the identification, prosecution and punishment of those responsible for them and other serious human rights violations similar that occurred during the armed conflict in El Salvador;
  • (iv) investigate . . . the conduct of the officials who obstructed the investigation and allowed [offenders] to remain in impunity and, after due process, apply . . . administrative sanctions, disciplinary or criminal sanctions to those found responsible;
  • (v) carry out a survey of the available information on possible burial or burial sites . . . which should be protected for preservation, . . .[in order to] initiate a systematic and rigorous, with adequate human and financial resources,. . .  exhumation, identification and, if necessary, return of the remains of those executed to their families;
  • (vi) implement a development program for [the affected] communities] communities . . . .;
  • (vii) ensuring appropriate conditions so that the displaced victims can return to their home communities . . .permanent[ly], if they choose, and implement a housing program in the areas affected by the massacres of this case;
  • (viii) implement a comprehensive care and treatment of physical, mental and psychosocial [injuries];
  • (ix) publish the judgment;
  • (x) [produce and] perform an audiovisual documentary about the serious crimes committed in the massacre of El Mozote and surrounding areas;
  • (xi) implement a permanent program or compulsory course on human rights, including gender and childhood [rights], . . . [for] all ranks of the Armed Forces of the Republic of El Salvador; and
  • (xii) pay the compensation by way of compensation for material and moral damages, and reimbursement of costs and expenses.

The Court concluded with a statement that it would monitor full compliance with the judgment and terminate the case only after there has been such compliance.

Reaction to the Court’s Judgment

Immediately after the public release of the judgment, the Salvadoran government issued a public statement that it respects the judgment and assumes responsibility for complying therewith. The government specifically recognized that the victims and their families are entitled to moral and economic reparations which would be met within the government’s resources and powers. As the Court’s judgment acknowledged, the Salvadoran government since at least December 2011 had started the process of moral and economic reparations for these crimes.

Another problem of Salvadoran law that was not present in the Salvadoran criminal case about El Mozote and, therefore, was not addressed by the Inter-American Court in this case is a relatively short statute of limitations (10 years) for such crimes that were committed in 1981. Although, in my opinion, such limitations are subject to the same legal analysis and conclusion of invalidity as the Court’s treatment of the General Amnesty Law, difficulties in complying with the Court’s order will probably be presented by these short statutes of limitation with respect to any attempted criminal prosecutions.

Indeed, Salvadoran courts already have used the 10-year statute of limitations to bar criminal cases regarding the 1980 rapes and murders of the four American churchwomen and the 1989 murders of the six Jesuit priests and their housekeeper and her daughter.

Moreover, one of the reasons for statutes of limitation for civil and criminal cases around the world is to protect the right to fair trial for both parties, but especially defendants. The longer that time passes between the events in dispute and the investigation and trial, the greater the risk of loss of evidence through death or incapacity of parties and witnesses and loss or destruction of documents and other physical evidence plus general loss of memory of the events. Here, 31 years already have passed since the Massacre.

Perhaps a Salvadoran criminal court could adopt in such circumstances the U.S. legal doctrine of “laches.” In U.S. law, it is an equitable defense in civil cases, not criminal cases, when the defendant alleges that as a result of delay in the plaintiff’s asserting the claim, circumstances have so changed that make it unjust for the plaintiff’s claim to be granted. One example of such changed circumstances is relevant testimony or other evidence is no longer available to defend against the claim. Laches is similar to a statute of limitations defense, but laches may be invoked before the statute of limitations has expired.

We will have to see how this and other issues develop initially in El Salvador and then in the Inter-American Court.


[1] A prior post set forth a brief summary of the facts of the Massacre, the investigation of same by the Truth Commission for El Salvador and the subsequent adoption of the Salvadoran General Amnesty Law and the dismissal of a criminal case on the basis of that Law. Another post  reviewed the El Mozote case in the Inter-American Commission on Human Rights.

[2]  Available online are the judgment itself, an official summary of the judgment and the Court’s press release about the judgment.

[3] An earlier post discussed the Salvadoran government’s December 2011 public apology for the Massacre and its January 2012 commitment to commence moral and economic reparations.

[4] The President of the Court, Judge Diego Garcia Sayan (Peru), submitted a concurring opinion with a more extensive analysis of the issue of the validity of the General Law of Amnesty. He emphasized the difficult choices facing a country that seeks to end an internal armed conflict. Another concurring opinion was submitted by Judge Eduardo Vio Grossi (Chile), who urged the Court in another case to focus on whether a fetus should be considered a “person” or “human being” under the American Convention on Human Rights.

Dismissal of Spanish Criminal Case Against Judge Baltasar Garzón Over Franco-Era Investigation

Spanish Flag

On February 27th, the Spanish Supreme Court, 6 to 1, dismissed the criminal case against Judge Baltasar Garzón over his investigation of human rights violations by the Franco regime. A prior post reviewed this criminal case while posts on February 14th and 21st  explored reactions to the case. This case will investigate the recent dismissal and the immediate reactions to that decision.

The Dismissal Decision Itself

The Supreme Court aquitted Garzón of the crime of trespass (knowingly making an unjust resolution) for trying to open an investigation into the crimes of Francoism.

According to the Court, Garzón overstepped his authority and “exceeded himself in the interpretation of the law” by investigating the Franco-era disappearances, but his actions did not constitute an abuse of power.

The Court said a search for truth regarding Civil War atrocities is necessary and legitimate, but that such a search should be conducted by other state institutions, not by an investigative judge. In short, historians have a role as do judges, but they must not be mixed.The court also acknowledged that Mr. Garzón attempted “to improve the situation” of Civil War victims who “have the right to know the facts and recover their dead” relatives.

Spain’s amnesty law, the Court concluded, was enacted with the full consensus of political forces in 1977 and was not a law “approved by the victors, those in power to cover up their crimes.” It was an instrument of reconciliation, not a law of amnesty like those enacted by some of the South American dictatorships. As a result, the Spanish amnesty law is valid and can only be repealed by Parliament, not by judges.

One of the Supreme Court judges, Judge Sánchez Melgar, filed a concurring opinion. He agreed that the charges should be dismissed, but on the ground that Garzón lacked the necessary intent to abuse the judicial function.

The sole dissentingjudge, Judge Jose Manuel Maza, stated that Garzón should have been convicted of willful trespass for instigating a procedure to serve the subjective intentions of the complainants against people already dead and for crimes that had been amnestied or at least, were clearly prescribed by the statute of limitations. The good intentions of Garzón were irrelevant, the dissenter stated.

The full text of the decision (en espanol) is available online.

Reactions to the Dismissal Decision

Human rights organizations although pleased with the dismissal had negative comments about the entire criminal cases against Judge Garzón.

Human Rights Watch said, “The real losers are the reputation of the Spanish judiciary and those — in Spain, in detention at Guantánamo or in countries around the world where there is no justice — who knew they could count on at least one independent judge to apply human rights laws without fear of the political consequences.” This organization also called for Spain to “repeal the 1977 amnesty law” and  “assist the families of Franco’s victims in their long quest for truth and justice.”

Amnesty International urged the Spanish authorities to “do justice” in Spain and investigate the crimes of the Civil War and Francoism. AI added, “There should be no impunity in Spain for such heinous crimes.”

Spain’s Association for the Recovery of Historical Memory urged its Supreme Court to “act urgently, and rule on how these atrocities [of the Franco era] are to be legally pursued.”

Spain’s Justice Minister, on the other hand, said that Spain had “a strong and independent judiciary” and that “[n]one of the [unjustified] criticism against the Supreme Court . . . has made it lose its prestige in the eyes of Spanish citizens.” The decision, not surprisingly, was also defended by Spain’s Supreme Judicial Council.

The Wall Street Journal’s editorial opined that the decision was “a troubling blow to the 1977 amnesty covering the bloody misdeeds of Spain’s authoritarian period—the deliberate “forgetting” of the past to which contemporary Spain owes so much.The purpose of [Spain’s] amnesty is not to dishonor the victims of atrocities or to vindicate the perpetrators. It is to ensure that the sins of the guilty do not engender new strife among the innocents, and that those sins are not exploited for political gain. It was never the place of a crusading judge to substitute his politics for the will of a country seeking to move forward.”

Conclusion

As a U.S. lawyer, I reiterate my plea for comments by those more knowledgeable about Spanish law and procedure to clarify or correct my accounts of this and the other two  cases against Judge Garzón.

Developments in El Salvador Cases before the Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights (IACHR) in 1999 determined that El Salvador had violated the American Convention on Human Rights with respect to the 1989 murders of six Jesuit priests along with their housekeeper and her daughter. As a result, the Commission recommended that El Salvador undertake a complete and impartial investigation to identify, try and punish the perpetrators of that crime, make reparations for the violations and repeal its General Amnesty Law.[1]

In 2000 the IACHR determined that El Salvador had violated the American Convention on Human Rights with respect to the 1980 assassination of Archbishop Oscar Romero and made similar recommendations with respect to this crime.[2]

As we have seen, El Salvador has not implemented these recommendations other than making  important symbolic public confessions of state responsibility and pleas for forgiveness along with praise for the victims of these crimes.[3]

In October 2011, the IACHR held a working session on the status of El Salvador’s implementation of the Commission’s recommendations in these cases. Two non-governmental human rights organizations (Human Rights Institute at the University of Central America and the Center for Justice and International Law) expressed frustration over the failure of the state to implement these recommendations. They also complained about the failure of El Salvador to cooperate with the Jesuits case in the courts of Spain by failing to enforce the INTERPOL Red Notice for the arrests of some of the defendants in that case.[4]

Unfortunately there is not much that the IACHR can do to change these circumstances. Nor can President Funes do much more because his political party (the FMLN) does not control the country’s legislature or office of the prosecutor.

[1] Post: International Criminal Justice: The Jesuits Case Before the Inter-American Commission on Human Rights (June 13, 2011).

[2] Post: Oscar Romero’s Assassination Case in the Inter-American Commission on Human Rights (Oct. 13, 2011).

[3] See nn. 1, 2 supra.

[4] Center for Justice & Int’l Law, El Salvador is still in breach of the IACHR recommendations in the case of Monsignor Romero and the slaughter at the UCA (Oct. 27, 2011); Impunity continues for the crimes of the 1980s, Tim’s El Salvador Blog (Nov. 5, 2011); Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011); Post: The Current Controversy Over El Salvador’s General Amnesty Law and Supreme Court (June 16, 2011); Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011).

Litigation Against Conspirators in the Assassination of Oscar Romero

 

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).

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

Over the last several weeks there have been significant developments in El Salvador, the U.S. and Spain regarding the Spanish court’s criminal case against 20 Salvadoran military officers for their alleged involvement in the November 1989 murders of six Jesuit priests. These developments arise out of the May 30, 2011, Spanish court’s issuance of arrest warrants for the 20 defendants on charges of crimes against humanity and state terrorism in planning and carrying out the murders.[1]

After May 30th Spain enlisted the assistance of the International Police Organization or INTERPOL, the world’s largest international police organization, with 188 member countries, to facilitate cross-border police co-operation and to prevent or combat international crime. INTERPOL in turn issued RED NOTICES identifying the 9 of the 20 defendants believed to be living in El Salvador (the Salvadoran Nine) and their indictment by the Spanish court. (Another RED NOTICE is believed to have been issued for a defendant believed to be living in the U.S.) Such RED NOTICES typically are treated as requests for provisional arrests of the subjects of the notices so that the formal process of requests for their extradition to Spain, in this case, can be made.[2]

El Salvador Developments

In El Salvador, in late July a lawyer for the Nine requested the National Civilian Police (PNC) to not execute the Red Notices on the ground that the crime already had been prosecuted by Salvadoran courts.[3] In addition, on August 7th the Nine turned themselves in to a military base near San Salvador, presumably because of a belief that as former military officers they would have some protection there. That same day, however, the country’s Minister of Defense turned them over to civilian authorities who kept the Nine in custody at one of the country’s military facilities.[4]

Thereafter, the Nine filed habeas corpus petitions with the Constitutional Chamber of El Salvador’s Supreme Court. On August 24th the Chamber rejected the petitions on the ground that there was a request for their extradition to Spain.[5]

Minutes later on August 24th, however, the 15-member Salvadoran Supreme Court decided, 10 to 2, that the RED NOTICES for the Nine only served to locate people accused of crimes by another country. The Notices did not authorize arrests. That could happen only if there were a formal extradition request, and no such request had been received by El Salvador. If Spain in fact made an extradition request, the court would consider it.[6]

The reaction to the decision within El Salvador was predictable; those who supported the military were happy; those who wanted to see justice for the Jesuits were disappointed.[7]

In response to the Salvadoran Supreme Court ruling, a Spanish court official has said that Spain cannot issue a formal extradition request to El Salvador for the Nine because Spain has not been notified that they are under arrest. The Spanish court, therefore, has asked El Salvador to clarify the legal status of the Nine after the Salvadoran court’s August 24th ruling. [8]

Does this leave the issue at an impasse? El Salvador will not authorize an arrest because there is no extradition request, and Spain will not or cannot issue extradition requests because there are no arrests?

Meanwhile in El Salvador, the controversial Decree 743 that required the Constitutional Chamber of its Supreme Court to act unanimously has been repealed.[9]

U.S. Developments

On or about August 19th defendant Montano was arrested in Virginia on charges of lying to U.S. immigration officials in applying for Temporary Protected Status in the U.S.  On August 23rd he made an appearance at a federal court in Massachusetts, where he had been residing. The next day he was released on a $50,000 bond and confinement to his sister’s house with electronic monitoring. Apparently there has not yet been a RED NOTICE for him.[10]

Earlier (in July) Senators John Kerry, Tom Harkin, Patrick Leahy and Barbara Boxer jointly signed a letter to Secretary of State Hillary Clinton requesting the U.S. to cooperate fully with the Spanish court in this case. The response from an Assistant Secretary of State said the U.S. was monitoring the case and would give any Spanish request for assistance the appropriate consideration.[11]

Spain Developments

In Spain, lawyers for the Nine apparently have decided that offense is the best defense. They have filed charges in the Spanish court alleging that the Spanish judge, Valasco Nunez, acted illegally in the May 31st arrest orders for the 20 Salvadoran former military officers. The basis for the charge is the prior Salvadoran criminal case regarding the murders of the Jesuits, the Salvadoran amnesty law and its statute of limitations barring any such charges at this time. The attorneys also are considering a charge of defamation against the Spanish judge.[12]

Conclusion

As this discussion indicates, the story is far from over. Further developments in this case are expected in all three countries.


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

[2]  INTERPOL, http://www.interpol.int/default.asp; Arauz, Dada & Lemus, Interpol arrest warrants processed 10 Jesuit Salvadoran military case, el Faro (July 29, 2011), http://www.elfaro.net (Google English translation). In addition to the RED NOTICES for the nine officers believed to be living in El Salvador, another was issued for Rene Emilio Ponce, who died in May 2011. (Id.)

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

[4] Center for Justice & Accountability, Press Release: Salvadoran High Commanders Responsible for Jesuit Massacre in 1989 Under Custody in El Salvador (Aug. 10, 2011); Tim’s El Salvador Blog, Officers indicted for Jesuit murders surrender (Aug. 8, 2011),______     ;

[5] Gonzalez & Perez, Supreme Court in the event benefited the Jesuit military, diario colatino (Aug. 25, 2011) (Google English translation).

[6] Id.; Assoc. Press, Salvadoran Supreme Court refuses to detain men charged in 1989 killings of Jesuit priests, Wash. Post (Aug. 24, 2011); Released in the Salvador to military courts in Spain by death of Jesuits, lapagina.com (Aug. 25, 2011) (Google English translation).

[7]  General Zapeda,”national sovereignty has prevailed and has restored peace to the country, lapagina (Aug. 25, 2011) (Zapeda is one of the defendants) (Google English translation); Perez, Munguia Payes, “an episode closes, whatever comes later, lapagina (Aug. 25, 2011)(Payes is Defense Minister) (Google English translation); Calderon, Rodolfo Cardenal, “The decision was somewhat expected, because,” lapagina (Aug. 25, 2011)(Cardenal is former UCA vice chancellor) (Google English translation); Guzman, Siegfried Reyes: “El Salvador has a large debt tp truth and justice, lapagina (Aug. 25, 2011)(Reyes is President of the Legislative Assembly) (Google English translation).

[8] Sainz, Spain seeks El Salvador clarification on suspects, Miami Herald (Aug. 25, 2011); Assoc. Press, Spain Seeks El Salvador Clarification on Suspects, N.Y. Times (Aug. 25, 2011).

[9] Tomorrow Decree 743 will be history, diariocolatino (July 28, 2011). See Post: El Salvador’s Current Controversy over Its General Amnesty Law and Supreme Court (June 16, 2011).

[10] Arsenault, War crime suspect found in Everett [Massachusetts], Boston Globe (Aug. 17, 2011); Assoc. Press, Salvadoran accused in Jesuit deaths held in Mass., Boston Globe (Aug. 23, 2011); Assoc. Press, Suspect in Jesuit deaths out on immigration charge (Aug. 24, 2011); Arsenault, War crimes suspect in house arrest in Saugus [Massachusetts], Boston Globe (Aug. 25, 2011); Aragon, Military accused of slaughter in the U.S. Jesuit was arrested while fleeing to Mexico, elfaro (Aug. 25, 2011) (Google English translation).

[11] Arsenault, War crime suspect found in Everett [Massachusetts], Boston Globe (Aug. 17, 2011);

[12]  Lemus, Military sue Spanish judge to reverse the Jesuit case, elfaro (July 31, 2011) (Google English translation); Aguilar, Military accused of slaughter in Spain by Jesuits are delivered to the army, elfaronet (Aug. 8, 2011). See Post: International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests (June 8, 2011); Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 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).