Guilty Judgment in 1989 Murder of Jesuit Priests in El Salvador   

On September 11, 2020, Spain’s highest criminal court, the Audiencia Nacional, found former Salvadoran Colonel, Inocente Orlando Montano (now 77 years old), guilty of the “terrorist murders” of  five Jesuit priests who were Spaniards, in San Salvador, the Capital of El Salvador, 31 years ago. The court found that Montano took part in the decision to “execute Ignacio Ellacuría as well as anyone in the area – regardless of who they were – so as not to leave behind any witnesses.”

The court then sentenced Montano to 26 years, eight months and one day for each of the five murders for a total of 133 years. However, he will not spend more than 30 years in prison, the judges said. This was after a trial of the only Salvadoran military officer who was extradited to Spain to stand trial under the international legal principle of universal jurisdiction authorizing jurisdiction in a state other than the site of the crime for human rights crimes.[1]

The Spanish NGO that was involved in the case, Guernica Centre for International Justice, published a background of the case, daily reports about the trial and the court’s decision. [2]

Also killed  in the same event were a Salvadoran Jesuit and two Salvadoran women, but those killings were not before the Spanish court.

The path to this legal judgment has been long and complicated.

The Murder of the Jesuit Priests

The murder of the Jesuit priests, one of the most horrendous crimes during the country’s civil war, occurred in the early hours of November 16, 1989, when a group of Salvadoran soldiers entered the campus of the Central American University (UCA) in San Salvador. They made their way to the residences of the Jesuit priests, who were UCA professors and advocates for the poor people of the country, and shot and killed the five Spanish priests–Father Ignacio Ellacuria (UCA’s Rector), Ignacio Martin-Barò (UCA’s Vice Rector), Segundo Montes (Director of UCA’s Human Rights Center), Armando Lòpez and Juan Ramôn Moreno.  The murdered Salvadoran Jesuit was Joaquin Lôpez y Lôpez, and the two murdered Salvadoran women were the priests’ cook and her daughter.[3]

Salvadoran Legal Proceedings Over This Crime

Immediately afterwards high officials of the Salvadoran military engaged in attempting to cover up its involvement in this horrendous crime, but international outrage and pressure caused the country to create a Salvadoran commission that investigated and reported that four officers and five soldiers were responsible for this crime and they along with another officer were brought to trial in that country for this crime in September 1991. A jury decided that the five officers were guilty of various crimes and sentenced them to prison, but acquitted the five soldiers. [4]

In 1992 the Salvadoran legislature enacted a General Amnesty Law that led that year to the release from prison of those convicted of the Jesuit murders.[5] In 2016, however, the Salvadoran Supreme Court held that the General Amnesty Law was unconstitutional, and at least one of those who had been convicted, sentenced and then released under that Law (Colonel Guillermo Alfredo Benavides Moreno) was ordered to return to prison after the invalidation of that Law.[6]

The Truth Commission for El Salvador[7]

On January 16, 1992, the Salvadoran government and the FMLN rebels signed the peace agreement to end the civil war. One of its provisions was the creation of the Truth Commission for El Salvador, whose report on March 15, 1993 had detailed findings about the murder of the Jesuits, including the following:

  • “There is substantial evidence that on the night of 15 November 1989, then Colonel René Emilio Ponce, in the presence of and in collusion with General Juan Rafael Bustillo, then Colonel Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel Francisco Elena Fuentes, gave Colonel Guillermo Alfredo Benavides the order to kill Father Ignacio Ellacuría and to leave no witnesses. For that purpose, Colonel Benavides was given the use of a unit from the Atlacatl Battalion, which two days previously had been sent to search the priest’s residence.”
  • “There is full evidence that:

(a) That same night of 15 November, Colonel Guillermo Alfredo Benavides informed the officers at the Military College of the order he had been given for the murder. When he asked whether anyone had any objection, they all remained silent.

(b) The operation was organized by then Major Carlos Camilo Hernández Barahona and carried out by a group of soldiers from the Atlacatl Battalion under the command of Lieutenant José Ricardo Espinoza Guerra and Second Lieutenant Gonzalo Guevara Cerritos, accompanied by Lieutenant Yusshy René Mendoza Vallecillos.”

Prior Proceedings in Spain’s Case[8]

In November 2008 a U.S. NGO (Center for Justice & Accountability) and a Spanish NGO filed a criminal case over the killing of the Jesuits  against 14 Salvadoran military officers and the country’s former President Cristiani. In January 2009 the Spanish court accepted the case against the military officers and soldiers, but declined to do so with respect to Cristiani although reserving the right to do so later.

On May 30, 2011, the Spanish court issued an indictment and arrest warrants for 20 of the top leaders of El Salvador’s civil war, accusing them of crimes against humanity and state terrorism in meticulously planning and carrying out the killings of the Jesuit priests in November 1989. One was Inocente Orlando Montano, who in 1989 was the vice minister of public safety.

Subsequently in complicated proceedings El Salvador denied extradition of all these requests for those living in the country. Only Montano, who had been living in the U.S. and who had been tried and convicted for lying in U.S. immigration papers, was extradited to Spain by the U.S.

Conclusion

After this decision by the Spanish court, UCA requested the Criminal Chamber of El Salvador’s Supreme Court to resolve a long-pending appeal by six other former military officers accused of involvement in the Jesuits murders so that their guilt can be adjudicated. UCA’s Rector, Andreu Oliva, said, “”We are confident that the evidence presented at the Spanish hearing will serve to hold a trial here in El Salvador, since it is evident that, given the indications in the sentence, there are other parties involved who are in El Salvador and that there is no reason why they are not judged in our country.” This requires the “urgent” opening of the archives of the country’s Armed Forces. [9]

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[1] Assoc. Press, Spain imprisons ex-colonel for Jesuits slain in El Salvador, Wash. Post (Sept. 11, 2020); Jones, Ex-Salvadoran colonel jailed for 1989 murder of Spanish Jesuits, Guardian (Sept. 11, 2020); Jones, Spanish trial brings hope of justice for victims of Salvadoran death squads, Guardian (Sept. 7, 2020); Marroquin, 133 years in prison for ex-colonel Montano for the Jesuits case, elsalvador.com (Sept. 12, 2020); Spanish court rules in Jesuit massacre case.elsalvadorperspectives (Sept. 11, 2020);

[2] Guernica Centre, Trial Date Set for the Jesuits Massacre Case (Feb. 18, 2020); (background of case); Guernica Centre, The Jesuit Massacre Trial 2020: Daily Trial Briefings: #01 (06/08/20), # 02 (06/10/20), # 03 (06/11/20), # 04 (07/08/20), # 05 (07/09/20), # 06 07/10/20), # 07 (07/13/20), # 08 (07/14/20), # 09 (07/15/20); Guernica Centre, The Jesuit Massacre Trial, guernica37.com (Sept. 11, 2020). This NGO’s name memorializes the April 28, 1937 bombing of the Spanish town of Guernica by German Nazi warplanes at the request of Spanish General Francisco Franco during the Spanish Civil War. The number of casualties originally was estimated to be over 1,700, but now is believed to have been under 300. “Guernica” is also the name of a famous Picasso painting about the bombing on display at the Spanish Museo Reina Sofia in Madrid. (Bombing of Guernica, Wikipedia; Guernica (Picasso), Wikipedia.)

[3] See International Criminal Justice: The Salvadoran Murders of the Jesuit Priests, dwkcommentaries.com (June 2, 2011).

[4] International Criminal Justice: Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests, dwkcommentaries.com (June 7, 2011); International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests, dwkcommentaries.com (June 8, 2011).

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

[6] Reinstatement of Sentence of Former Salvadoran Military Officer for Participating in Murder of Jesuit Priests, dwkcommentaries.com (May 13, 2017).

[7]  United Nations, El Salvador Agreements: The Path to Peace  From Madness to Hope: the 12-year war in El Salvador (July 1992); Report of the Commission on the Truth for El Salvador (Mar. 15, 1993).

[8]  International Criminal Justice: The Spanish Court’s Criminal Case Regarding the Salvadoran Murders of the Jesuit Priests, dwkcommentaries.com (June 15, 2011); International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of  Jesuit Priests, dwkcommentaries.com (May 31, 201i); Former Salvadoran Military Officer Extradited from U.S. to Spain for Trial in Jesuits Murder Case, dwkcommentaries.com (Dec. 1, 2017). See generally posts listed in “The Jesuit Priests” section of List of Posts to dwkcommantaries—Topical: EL SALVADOR.

[9] Marroquin, The UCA asks the Criminal Chamber to resolve the appeal of the Jesuits case, elsalvador.com (Sept. 11, 2011); Calderon, Condemnation of Montano gives hope to prosecute masterminds of Jesuit massacre, says UCA, Laprensa Grafica (Sept. 11, 2020)

Spanish Court Issues Decision on Use of Universal Jurisdiction

On October 3, 2014, the 20 judges of the Criminal Chamber (Sala de lo Penal) of Spain’s National Court (Audiencia Nacional) issued an important ruling on Spain’s use of universal jurisdiction (UJ). In order to understand this decision, we first must look at UJ under customary international law and at Spain’s incorporation of this principle into its statutory law.

Customary International Law Regarding Universal Jurisdiction

Under customary international law and certain treaties, a nation state’s courts have UJ over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.

Spain’s Statutes Regarding Universal Jurisdiction

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court for certain crimes, including genocide; terrorism; and any other crimes under international treaties or conventions that should be prosecuted in Spain.

In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.

The 2009 amendment also specified that for such Spanish jurisdiction to exist, another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there were such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.

In March 2014, Spain’s legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Here are the principal provisions of the amendment that have been at issue in the October 3, 2014, decision by the Criminal Chamber of the National Court and in other recent judicial cases:

  • For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.
  • For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
  • Certain crimes were added for universal jurisdiction, including war crimes (crimes against persons or goods in armed conflict); torture and crimes against moral integrity; and crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence.[1]

The Criminal Chamber’s Decision Regarding Universal Jurisdiction

The October 3, 2014, Criminal Chamber’s decision concerned use of UJ in (i) the Jesuits Massacre Case; (ii) the Guatemala genocide case; (iii) the case against American service members for alleged murder of a Spanish cameraman in the Iraq war; (iv) the case against U.S. personnel for alleged torture of detainees at Guantanamo Bay; and (v) cases involving alleged Female Genital Mutilation (FGM).[2]

Jesuits Massacre Case.[3] The Chamber unanimously decided that Spain had UJ over the lower court’s criminal investigation of the November 1989 murders in El Salvador of the Spanish Jesuit priest, Ignacio Ellacuria, five fellow Jesuit priests and their cook and her daughter. Although the statutory amendment imposed limits on UJ for crimes against humanity, such charges could be considered in this case because they are related to the murder charges for which there is clear UJ.

The Chamber further explained that upon having asserted jurisdiction over a set of criminal facts that constitute the state terrorism crime, Spanish Judges have jurisdiction over all other crimes connected to the facts investigated, even if that crime is a crime against humanity.

The Chamber’s decision was a result of an appeal from a decision by Judge Eloy Velasco, who handled the Jesuits case and who previously had indicted 20 Salvadoran military officials for murder, terrorism, and crimes against humanity. Velasco rejected the crime against humanity claim and decided to continue only with the terrorism claim. The appeal was brought by the U.S.-based Center for Justice & Accountability and the Spanish Pro Human Rights Association.

Guatemala Genocide case.[4] The Chamber also decided that investigations in the Guatemala Genocide case involving claimed UJ could proceed for the moment, but the Chamber did so on procedural grounds without reaching the merits.

The Chamber’s decision was the result of an appeal from the May 2014 decision by Judge Santiago Pedraz Gomez of the National Court. He decided that the case could proceed for two reasons. First, the charges include terrorism—a crime that falls within Spanish extraterritorial jurisdiction whenever there are Spanish victims. Second, the charges of terrorism, genocide, and other atrocities are all based on the same facts. Under Spanish law, as in many European countries, a court’s jurisdiction extends to all criminal charges that arise from the same acts. Because the Court has jurisdiction over the terrorism offenses, Judge Pedraz announced that he will investigate the other connected crimes.

Judge Pedraz’s rationale appears to be the same as the Chamber’s in allowing the Jesuits case to proceed on the merits.

Case Against American Servicemembers for Alleged Murder of a Spanish Cameraman. The lower court has been investigating a case under UJ against American soldiers in the Iraq war for the alleged murder in 2003 of a Spanish cameraman. The Chamber also allowed it to proceed for a procedural error by the prosecution without a ruling on the merits.

The Chamber’s decision was the result of an appeal from a March 2014, decision by the lower court’s Judge Santiago Pedraz Gómez. He held that the amendment could not be applied to this case because, he said, the amendment contradicted Spain’s obligations under the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. The judge stated that the Geneva Convention obliges Spain to “prosecute the crime (search for people and make them appear) regardless of the perpetrators’ nationalities and wherever they may be.” Therefore, the court’s decision said, “The judge must refrain from applying . . . [the new statutory amendment]. The rule of law requires the existence of independent bodies to protect the rights and freedoms of citizens, by impartially applying standards that express the people’s will and control the activities of public authorities.”

Case Against American Personnel for Alleged Torture of Guantanamo Detainees.[5] Another lower court judge has been investigating under UJ the alleged torture by American personnel of Guantanamo detainees. The chamber also allowed it to proceed because of a procedural error by the prosecution without the Chamber addressing the merits.

This decision occurred in an appeal from the March 2014 lower court’s Judge Pablo Ruz’ order. He concluded that under the new amendment “torture and war crimes cannot be pursued . . . because the target of the procedure is not a Spaniard or a resident of Spain.” These restrictions, however, are trumped, held the judge, by international treaties ratified by Spain–the Geneva Conventions and the Convention Against Torture–which force signatory countries to pursue crimes.

Judge Ruz also pointed out that the new amendment stipulates that crimes cannot be pursued in Spain if they are already being investigated by an international court or by the country where they were committed. Therefore, Judge Ruz this March renewed his request to the U.S. Government for information about U.S. investigation of this case. This blogger is not aware of any U.S. response to date to this request.

FGM Cases. The Chamber also unanimously decided that UJ could be used for criminal investigations and prosecutions of alleged Female Genital Mutilation (FGM) where the victims or perpetrators have some connection to Spain. This decision was based, in part, upon Spain’s August 1, 2014, ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence, which requires Spain to prosecute such crimes. The case involved the FGM of a young woman in Gambia in 2005

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[1] Other provisions of the original 1985 statute and the 2014 amendment are covered in a prior post.

[2]This post is based upon prior posts that are embedded above; the Spanish court’s announcement of the decision; Perez, The new universal justice can pursue ablation, El Pais (Oct. 3, 2014); Center for Justice & Accountability, Spanish National Court Upholds Spanish Jurisdiction To Investigate 1989 Massacre of Jesuit Priests in El Salvador (Oct. 3, 2014); Center for Justice & Accountability, Spain Presses Ahead with Guatemala Genocide Case Despite New Limits on Universal Jurisdiction (May 22, 2014). The text of the actual decision by the Criminal Chamber should become available online. Corrections or elaborations of this post by lawyers more knowledgeable about Spanish law are especially welcome.

[3] Some of the filings in the Jesuits case are available online.

[4] Some of the filings in the Guatemala case are available online.

[5] Many of the documents In the Guantanamo torture case are available online.