Previous posts have discussed U.S. proceedings for extradition to Spain of Inocente Orlando Montano Morales (“Montano”), a former Salvadoran military officer, for his alleged participation in the murder of six Jesuit priests in El Salvador in November 1989. Such extradition was approved in February 2016 by a U.S. Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina, and thereafter Montano challenged that decision by filing an application for a writ of habeas corpus in that court with a hearing in November 2016 on that application and the Government’s motion to dismiss the application.[1]
Four months later, on March 27, 2017, U.S. District Judge Terrence W. Boyle entered an order denying the Government’s dismissal motion without prejudice and requesting the parties to submit new briefs to address certain issues.[2]
Judge Boyle’s analysis started with the assertions that (a) Spain’s criminal case against Montano and others was based upon its law prohibiting “terrorist murder” in other countries of its nationals, five of whom were the murdered Jesuit priests; and (b) the bilateral extradition treaty between Spain and the U.S. required under these circumstances that U.S. law provided “for the punishment of such an offense committed in similar circumstances.”
Thus, for Judge Boyle, the issue to be addressed by the parties in subsequent briefs was whether the U.S. Constitution and law and international law provided for U.S. prosecution of such an offense under similar circumstances. The balance of the Judge’s Order suggests that he has serious doubts that this is so.
He starts with this legitimate premise: “Universal jurisdiction is an international law doctrine that recognizes a ‘narrow and unique exception’ to the general requirement that nations have a jurisdictional nexus before punishing extraterritorial conduct committed by non-nationals” (quoting an Eastern District of Virginia case that was affirmed by the Fourth Circuit, which has jurisdiction over Judge Boyle’s court). This “narrow and unique exception,” he implicitly says, is limited to offenses that “rise to the level of universal concern.”
International Law Issue
Judge Boyle then makes a questionable assertion, which he pins on the parties’ alleged previous arguments, that Spain’s charges for “terrorist acts involving the murder of five Jesuit priests” do not rise to the level of universal concern, such as piracy or genocide.” For this proposition the Judge cites section 404 of the Restatement (Third) of Foreign Relations Law [of the U.S.] (1987), which says, in part, that “offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps terrorism.” (Emphasis added; p. 3, n.2.) Two pages later the Judge cites United States v. Yousef, 327 F.3d 56, 107-08 (2d Cir. 2003), which apparently concluded that “terrorism . . . does not provide a basis for universal jurisdiction” although also observing that treatises like the previously cited Restatement are not primary sources of customary international law.
No independent legal research has been conducted on this issue, but it should be noted that the Restatement is a thirty-year-old secondary authority and that the Yousef case is 14 years old, is from another circuit court and thus is only persuasive authority at best and Judge Boyle merely says this case has been cited by Montano.
The complex Yousef case involved three defendant foreigners who appealed from judgments of conviction for multiple violations of U.S. law, including a conspiracy to bomb a Philippines Airline aircraft flying from the Philippines to Japan. The appellate court rejected the defense arguments that the U.S. had no jurisdiction for this charge because U.S. “law provides a separate and complete basis for jurisdiction over [this and other charges] . . . [U.S.] law is not subordinate to customary international law or necessarily subordinate to treaty-based international law and, in fact, may conflict with both . . . [and because] customary international law does provide a substantial basis for jurisdiction by the [U.S.] over each of these counts, although not . . . under the universality principle.”
Indeed, the Second Circuit in Yousef held in 2003 that “customary international law currently does not provide for the prosecution of ‘terrorist’ acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism.” (Emphasis added.) The court also noted that those offenses supporting universal jurisdiction under customary international law — that is, piracy, war crimes, and crimes against humanity —. . . now have fairly precise definitions and that have achieved universal condemnation.” (Emphases added.)
Such definitions of “war crimes” and “crimes against humanity” are found in Articles 7 and 8 of the Rome Statute of the International Criminal Court, which has jurisdiction over “the most serious crimes of concern to the international community as a whole,” including crimes against humanity” and “war crimes.” Here are the relevant parts of that Statute:
- One of the “crimes against humanity” is “murder” “when committed as part of a widespread or systematic attack directed against any civilian population” or “a course of conduct involving the multiple commission of [murder] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” Given the circumstances of the Salvadoran Civil War and the actions of the Salvadoran military, circa 1989, these conditions for this type of crime against humanity should be satisfied.
- One of the “war crimes” is “willful killing” of “persons . . . protected under the provisions of the relevant Geneva Convention.” Here, that is the Fourth Geneva Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War), which protects “Persons taking no active part in the hostilities” against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”
Therefore, although not yet subjected to complete legal analysis, a respectable argument for this issue for extradition can and should be made.
U.S. Legal Issues
Judge Boyle also raised two issues of U.S. law: (1) whether there was a U.S. law that would justify a U.S. criminal charge against Montano for his alleged participation in the killing of the Jesuit priests and (2) whether such a hypothetical U.S. charge would satisfy the U.S. constitutional requirement for “due process of law” under the Fifth Amendment.
I leave these issues to the subsequent briefs of the parties.
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[1] See posts listed in “The Jesuit Priests” section of List of Posts to dwkcommentaries—Topical: EL SALVADOR.
[2] Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D. N.C. Mar. 27, 2017).