U.S. Board of Immigration Appeals Affirms Deportation (Removal) of Former Salvadoran General José Guillermo Garcia

As mentioned in a prior post, in October 2009, the Department of Homeland Security charged that General Jose Guillermo Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable (or deportable) from the U.S. under the Immigration and Nationality Act on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.

The seven-day trial or hearing on these charges before an immigration judge was held in February 2013, and a year later the judge issued his 66-page decision in the case ordering that Garcia should be removed (or deported) from the U.S.This conclusion was based upon the judge’s findings that:

  • “As head of the armed forces and the most powerful person in El Salvador, [García] fostered, and allowed to thrive, an institutional atmosphere in which the Salvadoran Armed Forces preyed upon defenseless civilians under the guise of fighting a war against communist subversives. Instead of institutional changes that would decrease the incidents of killings and torture by the military, [García] failed to stamp out death squads within the security forces.  Likewise, despite contemporaneous evidence that members of the military had been involved in the [1980] assassination of Archbishop Oscar Romero, [1] a man who could have been an ally in bringing about change and peace in El Salvador, [García] failed to adequately investigate.”
  • García helped conceal the involvement of soldiers who killed four American churchwomen in 1980.[2]
  • He “knew or should have known” that army troops had slaughtered the villagers, including women and children, in the hamlet of El Mozote in 1981.[3]

On December 15, 2015, the U.S. Board of Immigration Appeals upheld and finalized the removal order of Garcia in a decision that has not yet been made public. Whether he would exercise his right to appeal to a U.S. court of appeals was not immediately known.

This case has been conducted under the auspices of the Center for Justice and Accountability (CJA), a California-based human rights non-governmental organization. Its Legal Advisor Carolyn Patty Blum applauded the BIA’s decision. She said: “Minister of Defense Jose Guillermo García was the most powerful man in El Salvador during a reign of state terror in which tens of thousands of innocent Salvadorans were slaughtered.  CJA applauds the Department of Homeland Security for its vigorous pursuit of García before the Immigration Court and the Board of Immigration Appeals and thanks our client Dr. Juan Romagoza, once again, for testifying in court proceedings against General García, as he had in the case of former Minister of Defense Eugenio Vides Casanova, deported earlier this year. We hope that García can be swiftly removed from the U.S. and face justice in El Salvador for the El Mozote massacre and the many other crimes committed under his command. It has been a long battle for justice for our clients and other victims who suffered horrendous repression during García’s rule in El Salvador.”

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[1] This blog has published many posts about Oscar Romero.

[2] This blog has published many posts about the American Churchwomen.

[3] This blog has published many posts about El Mozote.

 

 

 

 

 

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.

Developments in Using U.S. Immigration Law To Enforce International Human Rights

As noted in a prior post, U.S. immigration law provides at least two means of enforcing international human rights.

Removal or Deportation from the U.S. 

Foreigners can be deported or removed from the U.S. if they “ordered, incited, assisted, or otherwise participated in genocide . . . or . . . any act of torture . . . or . . . any extrajudicial killing.” (Intelligence Reform and Terrorism Prevention Act of 2004 sec. 5501, 118 Stat. 3638, 3740 (2004).

Responsibility for enforcing these provisions lies in the Human Rights Violators and War Crimes Unit (HRVWCU) within the National Security Investigations Division (NSID) of the Homeland Security Investigations (HIS) Directorate of the U.S. Immigration and Customs Enforcement (ICE) of the Department of Homeland Security.

This unit conducts investigations focused on foreign human rights violations by individuals in the U.S. in an effort to prevent the U.S. from becoming a safe haven to those individuals who engage in the commission of war crimes, genocide, torture and other forms of serious human rights abuses from conflicts around the globe. Since fiscal year 2004, ICE has arrested more than 250 individuals for human rights-related violations under various criminal and/or immigration statutes. During that same period, ICE has denied more than 117 individuals from obtaining entry visas to the United States and created more than 20,000 subject records, which prevented identified human-rights violators from attempting to enter the United States. In addition, ICE successfully obtained deportation orders to physically remove more than 590 known or suspected human rights violators from the United States.

Currently, ICE is pursuing more than 1,900 leads and removal cases that involve suspected human rights violators from nearly 96 different countries.

Illustrating such cases are two former Salvadoran military officers, Carlos Eugenio Vides Casanova and Jose Guillermo Garcia,[1] and a former Guatemalan military officer, Pedro Pimentel Rios.

In 2012, an immigration judge ruled that Casanova could be deported for his role in multiple acts of killings and torture committed by the Salvadoran military, including the 1980 slayings of the four American churchwomen.

On February 6, 2014, the U.S. Board of Immigration Appeals (BIA) heard Casanova’s appeal from this decision. The main issue was his argument that the removal order was unjustified because the U.S. tacitly had approved the aggressive tactics of the Salvadoran military. In response the ICE attorney argued that U.S. support for the Salvadoran military did not excuse Casanova’s actions and that the U.S. repeatedly had demanded that the Salvadoran military clean up its human rights record. One of the three BIA judges asked whether Casanova was “too far up the chain [of command] to control those units?” The ICE attorney said “no” as Casanova himself testified at his own trial that he kept tight control of the unit. Once the BIA issues its decision, the losing party has the right to appeal to a federal court of appeals.

On February 26, 2014, an immigration judge ordered Garcia to be removed or deported from the U.S. after a trial had determined that he had helped conceal the involvement of soldiers who killed four American churchwomen in 1980 and that he “knew or should have known” that army troops had slaughtered the villagers, including women and children, in the hamlet of El Mozote in 1981. Garcia plans to appeal to the BIA.

In July 2010, ICE charged Guatemalan Pedro Pimentel Rios with being deportable for having assisted or otherwise participated in extrajudicial killings during the Dos Erres massacre in that country. In May 2011 an immigration judge, after trial, determined that he had in fact participated in extrajudicial killings in that massacre and ordered his removal to his home country. That removal occurred in July 2011.

After his return to Guatemala, he was tried by a three-judge court and found guilty of participation in the massacre and sentenced to imprisonment of 6,060 years (30 years for each of the 201 victims). This sentence was largely symbolic since Guatemalan law does not permit prison terms longer than 50 years.

U.S. Conviction and Imprisonment

Foreigners who had gained legal entry or presence in the U.S. can be criminally prosecuted for committing fraud in obtaining a U.S. visa or other immigration benefit (18 U.S.C. § 1546(a)) or committing perjury in statements to U.S. immigration officials (18 U.S.C. § 1621(2)) for failure to disclose their involvement in foreign human rights violations.

Responsibility for enforcing these provisions lies in the U.S. Department of Justice’s Human Rights and Special Prosecutions Section, which “primarily investigates and prosecutes cases against human rights violators and other international criminals . . . for genocide, torture, war crimes, and recruitment or use of child soldiers, and for immigration and naturalization fraud arising out of efforts to hide their involvement in such crimes.”

Examples of such cases are those involving former Salvadoran military officer, Innocente Orlando Montano, and two former Guatemalan military officers, Gilberto Jordan and Jorge Sosa Orantes.

Montano allegedly was involved in various human rights violations in his country, including the November 1989 murder of the six Jesuit priests and their housekeeper and her daughter.[5] Based on his guilty plea, on August 27, 2013, the federal court in Boston, Massachusetts sentenced Inocente Orlando Montano to 21 months in prison for violating U.S. immigration laws.

In 2010, Guatemalan Gilberto Jordan was arrested in Florida for allegedly lying on naturalization forms that allowed him to become a U.S. citizen. He pleaded guilty to failing to disclose on those forms that he had participated in the 1982 killings of at least 162 countrymen in the village of Dos Erres. In September 2010 a federal judge sentenced him to 10 years imprisonment

On October 1, 2013, Jorge Sosa Orantes, a Guatemalan military officer who lead a massacre of a village in his home country, was convicted by a federal jury for making false statements and unlawfully procuring U.S. citizenship when he applied for U.S. residency in 1997 and when he obtained citizenship a decade later. On February 10, 2014, the presiding judge sentenced Sosa with a revocation of his U.S. citizenship and imprisonment for 10 years.

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[1] Garcia and Casanova jointly had been held civilly liable for torture in their country by U.S. federal courts under the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA), but who jointly had escaped similar civil liability under the TVPA for the torture and murder of the four American churchwomen in El Salvador.

U.S. Orders Deportation of Former Salvadoran General

 

General Jose Guillermo Garcia
General Jose Guillermo Garcia

 

As mentioned in a prior post, in October 2009, the Department of Homeland Security charged that General Jose Guillermo Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable (or deportable) from the U.S. under the Immigration and Nationality Act on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.

 

According to that post, on February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges.

On February 26, 2014, the judge issued his 66-page decision in the case.[1] The judge found that:

  • “As head of the armed forces and the most powerful person in El Salvador, [García] fostered, and allowed to thrive, an institutional atmosphere in which the Salvadoran Armed Forces preyed upon defenseless civilians under the guise of fighting a war against communist subversives. Instead of institutional changes that would decrease the incidents of killings and torture by the military, [García] failed to stamp out death squads within the security forces.  Likewise, despite contemporaneous evidence that members of the military had been involved in the [1980] assassination of Archbishop Oscar Romero,[[2]] a man who could have been an ally in bringing about change and peace in El Salvador, [García] failed to adequately investigate.”

The judge also found that General García helped conceal the involvement of soldiers who killed four American churchwomen in 1980.[3] In addition, he “knew or should have known” that army troops had slaughtered the villagers, including women and children, in the hamlet of El Mozote in 1981.[4]

As a result, the judge ordered that Garcia should be removed (or deported) from the U.S. The lawyer for Mr. Garcia said there will be an appeal.

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[1] This summary of the decision is based upon a New York Times article and a more extensive analysis by the Center for Justice and Accountability. The actual decision is also available on the web.

[2] This blog has many posts about Archbishop Romero.

[3] This blog also has posts about the ministries and murders of the American churchwomen.

[4] The El Mozote massacre also has been a subject in this blog.

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.

The El Mozote Massacre: Recent Salvadoran Efforts To Redress the Crimes

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.[1]

El Mozote Memorial
El Mozote Memorial

On the 30th anniversary of the Massacre (December 10, 2011), the Salvadoran Foreign Minister, Hugo Martinez, went to El Mozote and asked for forgiveness for the “blindness of state violence” and to honor “the memory of hundreds of innocent people who were murdered” in that Massacre.[2]

A month later, on January 16, 2012 (the 20th anniversary of the signing of the Salvadoran Peace Accords ending the country’s civil war), Salvadoran President Mauricio Funes went to El Mozote and announced various efforts to redress the crimes relating to the Massacre.[3]

President Funes @ El Mozote
President Funes @                  El Mozote

Funes publicly acknowledged that Salvadoran soldiers of the Atlactal Battalion had committed the massacre and apologized on behalf of the State for this atrocity. He asked for forgiveness for what he called “the biggest massacre of civilians in the contemporary history of Latin America.”

Funes said there could be no true peace until there is justice to provide compensation to victims and penalties for perpetrators. He also announced the following in response to the massacre:

  • He asked the Attorney General to review existing legislation and propose amendments or new laws to allow criminal sanctions to be imposed on those who participated in the worst human rights violations. Funes also noted that the Salvadoran Supreme Court already had decided that the General Amnesty Law did not protect those guilty of war crimes and could not be used to self-amnesty those who were in charge of the military during the period 1989-1994 (government officials from the Arena political party).
  • Funes instructed the Armed Forces to stop honoring former officers who were linked to this massacre, including Domingo Monterrosa Barrios, who was the commander of the Brigade involved.
  • He requested political parties and others to stop honoring people who could be linked to such violations, which was interpreted as a message to the ARENA political party to stop honoring its founder, Roberto D’Aubuisson, and to the FMLN party to do likewise with Shafik Handal.
  • The government will conduct an investigation to identify all victims of the massacre.
  • The government will create a National Reparations Program for Victims of massacres and other human rights violations.
  • The government will declare El Mozote a cultural center.
  • The government will establish a community health clinic for El Mozote.
  • The government will assist agricultural production in the area, construct paved roads and improve potable water service, build a lodging house for elderly people without families and provide computers to the local school.

I do not know whether and to what extent these promised actions were actually implemented. I invite comments with information on this issue.

Interestingly the apology by Foreign Minister Martinez and the announcement by President Funes came while a case regarding the Massacre was pending in the Inter-American Court of Human Rights. Its judgment on the merits was issued on October 25, 2012 and made public on December 10, 201s. It will be discussed in a subsequent post.


[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 concerned the proceedings about El Mozote in the Inter-American Commission on Human Rights. An excellent collection of posts about El Mozote is on “Tim’s El Salvador Blog.”

[2] Muth, El Mozote–30th anniversary commemoration, Tim’s El Salvador Blog (Dec. 12, 2011); Editorial: El Mozote, elfaro (Dec. 12, 2011) [Google translation].

[3]  This account of the January 16th statement is based upon the following: Assoc. Press, El Salvador: President Apologizes for 1981 Massacre, N.Y. Times (Jan. 16, 2012); Carias, Funes ordered the army not to call heroes human rights violators, elfaro (Jan. 17, 2012)[Google translation]; Editorial: Funes asks for forgiveness and to investigate war crimes, lapagina (Jan. 17, 2012) [Google translation]; Flores, Request for forgiveness includes repair programs for victims in El Mozote, Diario Co Latino (Jan. 17, 2012) [Google translation].

lapaginaJan2012–http://www.lapagina.com.sv/nacionales/61107/Funes-pide-perdon-e-investigar-los-crimenes-de-guerra

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The El Mozote Massacre: The Inter-American Commission on Human Rights

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.[1]

IACHRlogo

Now we look at a case regarding this Massacre before the Inter-American Commission on Human Rights (IACHR or Commission).[2]

The Petition to the Commission

In October 1990 (nearly nine years after the Massacre) the Oficina de Tutela Legal of the San Salvador Archbishop’s Office filed a petition with the IACHR alleging various human rights violations by the State of El Salvador in connection with the massacres in El Mazote and five other nearby villages.

The Salvadoran government did not seriously challenge the allegations as to what happened in the villages. Instead, it asserted that (a) the case was not admissible to the IACHR because the petitioners had not exhausted their remedies in the country; (b) there was a criminal investigation precipitated by a complaint that was not made until 1990; (c ) the investigation proceeded properly despite great external difficulties caused by the war; (d) the case properly was dismissed in accordance with the General Amnesty Law; and (e) and the petitioners had failed to appeal that dismissal.

IACHR’s Determination of Admissibility of the Petition

 In March 2006 (16 years after the filing of the petition and 25 years after the Massacre), the IACHR determined that the petition was admissible, i.e., eligible for further proceedings. The parties (petitioners and the government) were proper parties under the American Convention on Human Rights. The petition alleged violations of the Convention occurring within the territory of a party to the Convention after it had become such a party.

 Most importantly for admissibility, the exception to the requirement for exhaustion of domestic remedies was satisfied: the systematic violations of human rights in the country made it impossible to file a complaint prior to 1990, appeals of dismissals based on the General Amnesty Law were not necessary, and the state had the responsibility to initiate criminal proceedings based on the Supreme Court’s recognition or creation in 2000 of possible exceptions to that Law and had not exercised that option. In reaching these conclusions, the IACHR relied, in part, on the report of the Truth Commission for El Salvador.

IACHR’s Determination of State Violations

 On November 3, 2010 (20 years after the filing of the Petition and 29 years after the Massacre),  the Commission issued its 79-page merits decision that the “massacres at El Mozote and neighboring locales constituted an unconscionable breach of the most fundamental principles of the American Convention [on Human Rights]. The shocking number of men, women, children and older people who dies at the hands of the Atlacatl Battalion must remain etched in the memory of Salvadoran society so that events such as [these] . . . will never be repeated. The State of El Salvador has an urgent duty to pay its historic debt to the memory of the victims, their surviving relatives, and the people of the country . . . .” (¶ 339)

 More specifically, the IACHR concluded (¶ 340) that the State of El Salvador had violated:

  • (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 Commission directly addressed the Salvadoran General Amnesty Law. That Law “and its application [for dismissal of the El Mozote criminal case] . . . are incompatible with the international obligations of the State of El Salvador under the American Convention [on Human Rights] . . . . [The] amnesty law can have no legal effect and cannot continue to be an obstacle to the investigation of the massacres in El Mozote and neighboring locales, nor to the identification and punishment of those responsible.” (¶ 330). This conclusion was supported by citations to numerous decisions to that effect by the Commission itself and the Inter-American Court of Human Rights and to resolutions by the U.N. General Assembly (¶¶ 314-329).

As  a result, the Commission recommended that within two months the State of El Salvador : (¶¶ 341-342):

  1. “Make adequate reparations for [these] violations of human rights . . . , both in their material and their moral aspect, including the establishment and dissemination of the historic truth of the events, suitable commemoration of the victims who died, and implementation of an appropriate program of psychosocial care for the surviving relatives.”
  2. “Establish a mechanism to ensure that the victims killed in the massacres at El Mozote and neighboring vicinities are identified as fully as possible and take the necessary steps to pursue the exhumation, identification and return of the remains of those victims in accordance with the desires of their families. This mechanism must also facilitate the complete identification of the relatives of the murdered victims, so that they can be eligible for the reparations . . . .”
  3. “Render ineffective the General Amnesty Law . . .  as it prevents the investigation, trial and sanction of those responsible for human rights violations and the rights of victims to truth, justice, and reparation. Also, any other de jure or de facto obstacles, such as judicial or investigative practices, must be eliminated.”
  4. ” {T]he State should proceed immediately to investigate in an impartial, effective manner and within a reasonable time with the purpose to establishing the facts in a completely, identify the intellectual and material authors and impose the sanctions that correspond. In the immediate fulfillment of this obligation, the Salvadoran authorities cannot invoke the validity of the General Amnesty Law  . . . .”
  5. “Annul the General Amnesty Law . . .  and ensure that no similar legal mechanisms are activated to obstruct the clarification and punishment of crimes against humanity such as those that occurred in this case.”
  6. “Take the measures necessary to prevent similar events in the future, in observance of the duty to respect and guarantee human rights recognized in the American Convention [of Human Rights].In particular, implement permanent programs on human rights and international humanitarian law in the armed forces training schools.”

[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.

[2]  Background about the IACHR is set forth in a prior post.