Tag: Inter-American Commission on Human Rights

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.

Inter-American Commission on Human Rights Decides Guantanamo Bay Detainee’s Case Against U.S. Is Admissible on the Merits

On March 30, 2012, the Inter-American Commission on Human Rights (“IACHR” or “Commission”) decided that a case against the U.S. was admissible for determination on the merits.

The case was brought by Djamel Ameziane, who left his home country of Algeria in the early 1990s to avoid a bloody civil war. Thereafter he lived in Austria and Canada for many years until Canada denied his asylum  application. Fearing deportation to Algeria, he fled to Afghanistan just before the U.S. invasion in October 2001. Like many others, he then went to Pakistan to escape the war. There he was picked up and sold to U.S. forces for a bounty. In early 2002 Ameziane was transferred to the U.S. detention facility at Guantanamo Bay, Cuba, where he has been held ever since without any charges being filed against him. Documents about his hearings at Guantanamo Bay are available on the web.)

In February 2005 he filed a habeas corpus petition with the U.S. District Court in Washington, D.C. There were some preliminary pre-trial and appellate skirmishes, but the case has been stayed or postponed indefinitely by court order.

Thus being left without an effective remedy in U.S. federal court, Ameziane on August 6, 2008, filed with the IACHR a petition and a request for precautionary measures (akin to a preliminary injunction) against the U.S.

Two weeks later, the Commission issued its Urgent Precautionary Measures that required the U.S. immediately to do the following:1.

  1. “[T]ake all measures necessary to ensure that . . . Ameziane is not subjected to cruel, inhuman or degrading treatment or torture during the course of interrogations or at any other time, including but not limited to all corporal punishment and punishment that may be prejudicial to [his] physical or mental health;
  2. [T]ake all measures necessary to ensure that . . . Ameziane receives prompt and effective medical attention for physical and psychological ailments and that such medical attention is not made contingent upon any condition;
  3.  [T]ake all measures necessary to ensure that, prior to any potential transfer or release, . . .    Ameziane is provided an adequate, individualized examination of his circumstances through a fair and transparent process before a competent, independent and impartial decision maker; and
  4.  [T]ake all measures necessary to ensure that . . . Ameziane is not transferred or removed to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture or other mistreatment, and that diplomatic assurances are not being used to circumvent the United States’ non-refoulement obligations.”

In October 2010 the Commission held a hearing in the case. Evidence was provided about Ameziane’s lack of effective remedies in U.S. courts, his continuing need to be protected from forcible transfer to Algeria and his plea for resettlement in a safe third country.

Eighteen months later the Commission issued its previously mentioned decision that the case was admissible for proceedings on the merits. Thereafter Ameziane’s attorneys immediately renewed their request that the IACHR facilitate a dialogue between the U.S. and other countries belonging to the Organization of American States toward the safe resettlement of men such as Ameziane, as indefinite detention at Guantánamo will not end unless the international community offers safe homes for the men who cannot return to their countries of nationality for fear of torture or persecution. The attorneys also asked the U.S. Government to direct the U.S. Department of Defense to certify Ameziane for transfer, or, if necessary, authorize a “national security waiver” of the transfer restrictions for him. (Under the National Defense Authorization Act for FY2012, he needs a certification or waiver before he can be released.)

Now we wait to see what happens in this case.

Ameziane’s attorneys are from the Center for Constitutional Rights, which is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights.

Methods of Enforcing International Human Rights Norms

There are numerous ways in which international human rights norms are enforced, many of which already have been examined in this blog. Here is at least a partial list of such methods:

  • Countries like the U.S. that are parties to certain regional organizations like the Organization of American States can be sued for alleged violations of human rights treaties in bodies like the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
  • Complaints about a country’s alleged violations can be reported to special rapportuers with specific subject-matter competence for an investigation and report.
  • Countries like the U.S. that are parties to certain human rights treaties like the Convention Against Torture submit reports to treaty bodies for review and recommendations for improving their compliance with the treaties.
  • All members of the U.N. are subject to Universal Periodic Review (UPR) by the U.N. Human Rights Council and obtain recommendations for ways they can improve their human rights records.
  • Victims of certain human rights violations can obtain protection through being recognized as a “refugee.”
  • Truth commissions can investigate and promulgate the results of those investigations as the “truth” of past violations which then can be used as evidence in the previously mentioned procedures.

These various institutions or mechanisms operate independently of one another. Other than the first two, they have limited power to force a recalcitrant government to change its behavior. Yet they also are all engaged in an interactive global struggle against impunity for violators of international human rights norms.

The Inter-American Commission on Human Rights Issues Important Decision on Judicial Independence

Ecuadorian plate

On July 22, 2011, the Inter-American Commission on Human Rights (IACHR) issued an important decision regarding judicial independence when it concluded that Ecuador had violated the American Convention on Human Rights over its 2004 dismissal of eight of the 18 judges of its Constitutional Court. A little over three months later, in November 2011, the Commission referred the case to the Inter-American Court of Human Rights.

The key fact for this case was the Ecuadorian National Congress’ November 25, 2004, termination of all the 18 principal and alternate members of Ecuador’s Constitutional Court, eight of whom filed a complaint with the IACHR.  This key fact occurred in the following context:

  • In January 2003 during the presidency of Gustavo Noboa three of the petitioning former judges were designated by the Congress as Judges of the Constitutional Court for four-year terms.
  • In March 2003 during the presidency of Lucio Gutierrez the other five of the petitioning former judges were designated by the Congress as Judges of the Constitutional Court for four-year terms.
  • On March 24, 2003, all of the 18 Judges of the Court took office.
  • Apparently sometime between March 24 and June 13, 2003, the Court in Case No. 004-2003-TC (“Case # 4”) decided that a labor statute was unconstitutional.
  • On June 13, 2003, a resolution was introduced in the Congress to censure five of the judges for their votes in Case # 4. Another version of this resolution was introduced three days later.
  • Apparently sometime between March 24, 2003, and May 31, 2004, the Court in Case No. 025-2003-TC (“Case # 25”) decided that certain provisions of Ecuador’s Electoral Law were unconstitutional.
  • On May 31 and July 7, 2004, two similar resolutions were introduced in the Congress to censure six of the Judges for their votes in Case # 25.
  • On November 9, 2004, an application for the impeachment of President Gutierrez was thwarted, but the details of this are not spelled out in the IACHR’s decision.
  • On November 24, 2004, President Gutierrez announced the Government’s intent to ask Congress to reorganize the Court in order to “depoliticize” it. In response the Court published an announcement in the national press that removing the sitting judges by a mere congressional resolution would be illegal and that impeachment was the only proper method for such removal.
  • On November 25, 2004, the Congress passed a resolution declaring that all the judges of the Constitutional Court had been illegally designated in 2003 and, therefore, terminating them. On the same day, the Congress designated new members of the Court.
  • On December 1, 2004, the Congress held an impeachment proceeding for five of the petitioners and one other Judge. In that proceeding the Congress debated the previously mentioned four proposed resolutions censuring the judges, but did not adopt any of these resolutions. Nor did the Congress overturn its November 25th resolution terminating the judges.

In February 2005 eight of the former Judges filed a complaint with the IACHR alleging that their removal violated the American Convention on Human Rights. Two years later, in February 2007, the Commission decided that most, but not all, of the complaint was admissible, i.e., was entitled to be treated on the merits.

Another four-plus years passed, and on July 22, 2011, the Commission issued its decision on the merits. It concluded that the State of Ecuador had violated the rights to a fair trial, to freedom from ex post facto laws and to judicial protection enshrined in the following articles of the American Convention:

  • “Article 8. Right to a Fair Trial.  1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”
  • “Article 8. Right to a Fair Trial.  2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: .
  • b. prior notification in detail to the accused of the charges against him; . . .
  • h. the right to appeal the judgment to a higher court.”
  • “Article 9. Freedom from Ex Post Facto Laws. No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.”
  • “Article 25. Right to Judicial Protection. 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.”

Note that the above provisions of the Convention do not specifically address the issue of termination of judges. The Commission, however, concluded that the principle of judicial independence was set forth in Article 8 (1) and “represents one of the basic pillars of a democratic system” and that the Inter-American Court of Human Rights had stated that “one of the principal purposes of the separation of public powers is to guarantee the independence of judges.” Thus, “the duty of respecting and ensuring that right [of persons facing prosecution or appearing before courts] has implications that are directly related to the procedures whereby judges are appointed and removed.” Indeed, said the IACHR in this case, it and the Inter-American Court “have repeatedly held that the principle of judicial independence gives rise to a series of guarantees: appropriate appointment procedures, fixed terms in office, and guarantees against external pressure.”  Therefore, judges “can be removed from office solely for the commission of disciplinary offences that are previously and clearly set out in the Constitution or domestic law, and in strict compliance with the guarantees of due process.”

As a result, the IACHR recommended that the State of Ecuador (1) reinstate the petitioners in similar positions with the same remuneration, benefits and rank for the period of time remaining in their four year terms or to reasonably indemnify them; (2) pay them their wages and other benefits from the time of termination to the end of their terms; (3) publicize the violations; and (4) adopt measures to assure the independence of the judiciary.

This July 22, 2011, decision was kept confidential while Ecuador considered whether and how to implement these recommendations. However, by November 28, 2011, the IACHR concluded that Ecuador was not going to implement the recommendations. The Commission, therefore, referred the case to the Inter-American Court of Human Rights and asked the Court to order Ecuador to do what the Commission had recommended.

According to the Commission, this case was not just important for Ecuador. The Commission told the Court, this case “will allow [the Court] to establish principles that will contribute to the strengthen[ing] of the independence of the Judiciary in the democracies of the Hemisphere” and will “affect the inter-American public order of human rights.” We now await further proceedings in this case before the Inter-American Court of Human Rights.

Judicial independence is not just an important issue in Ecuador and the rest of Latin America. It is also an issue in the U.S.A. with Newt Gingrich’s outrageous recent suggestion that U.S. federal law enforcement authorities should arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings. It surfaces too in the European Union’s current concern over Hungary’s proposed mandatory early retirement rules  to force out judges and allow the government to appoint their replacements.

Former President of Mexico Is Sued in U.S. Federal Court for Alleged Human Rights Violations

Ernesto Zedillo

On September 16, 2011, ten anonymous Mexican nationals sued Ernesto Zedillo, the former President of Mexico, in U.S. federal court in New Haven, Connecticut.[1]

The complaint asserts claims for money damages in excess of $10 million under the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).[2] The ATS allows claims by “an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[3] The TVPA allows claims by an “individual’s legal representative” who has been subject to “extra judicial killing” against an “individual [acting] under actual or apparent authority, or color of law, of any foreign nation” who commits the extra-judicial killing.[4]

Acteal Massacre bodies
Acteal Massacre Caskets

The case centers on a Mexican militia’s December 22, 1997, attack on civilians in the village of Acteal in Chiapas, Mexico.  At the time some of the villagers were troubled by the fighting in their area involving an indigenous insurgent group, the Zapatistas, and had formed a pacifist group known as “Las Abejas” or “The Bees.” On December 21st they started a retreat in and around their local church to pray and fast in the name of peace. On the second day of the retreat an anti-Zapatista militia armed with assault rifles surrounded the church and opened fire, killing 45 and wounding 17.[5]

Zedillo, shortly after his election as President in 1994, allegedly decided to break a ceasefire with the Zapatistas and instituted a plan know as “Plan de Campana Chiapas ’94,” which involved arming and training local militia groups. In addition, the Mexican military and Zedillo allegedly were involved or at least aware of the Acteal attack. Afterwards, Zedillo and his administration allegedly were actively engaged in trying to cover up the Mexican government’s involvement in the massacre. This cover-up included charging and convicting innocent people of the crime, as was confirmed in 2009 by the Mexican Supreme Court when it overturned 20 of the 37 convictions on the grounds that the prosecution had fabricated testimonies and tampered with evidence. [6]

Zedillo has not yet responded to the complaint, but immediately after the suit was commenced he said the accusations were “infamous and irresponsible” and “totally groundless and obviously false.” He had similar dismissive comments in 2005 about a complaint about the Acteal massacre that had been filed against Mexico in the Inter-American Commission on Human Rights.[7] In 2010, by the way, the Commission decided that the complaint was admissible, i.e., subject to further proceedings, on most of Mexico’s alleged violations of the American Convention on Human Rights with respect to this incident.[8]

The Connecticut lawsuit was filed over six years after the expiration of the 10-year statute of limitations for suits under the ATS and the TVPA. However, under certain circumstances this limitations period can be suspended or tolled. Thus, we can anticipate that Zedillo will raise this affirmative defense. Indeed, the plaintiffs’ complaint anticipates this defense by alleging that the statute of limitations should be suspended or tolled because of the alleged cover-up of governmental involvement in the massacre that was not revealed until the Mexican Supreme Court’s August 12, 2009, reversal of 20 convictions for the reasons previously stated and because of the government’s intimidation of members of the Chiapas indigenous community.[9]

Another affirmative defense that can be anticipated is the plaintiffs’ alleged failure to exhaust “adequate and available remedies in the place in which the conduct giving rise to the claim occurred [here, Mexico].” Again the complaint anticipates this defense with allegations of absence of adequate legal remedies in Mexico and of their exhaustion of the available remedies.[10]

By January 6, 2012, Zedillo is to file his motion to dismiss for lack of subject matter jurisdiction that will include a request for the court to ask the U.S. government for its opinion as to whether Zedillo has immunity as a former head of a sovereign state.[11]

Since 2002 Zedillo has been the Director of the Yale Center for the Study of Globalization and is believed to live in the New Haven, Connecticut area.[12]

[1] Henderson & Stephenson, Zedillo accused of massacre cover-up, Yale Daily News (Sept. 21, 2011); Navarro, Zedillo faces massacre claims in U.S., Guardian (Dec.27, 2011); Civil Docket Sheets, Doe v. Zedillo, Case No. 3-11-cv-01433-AWT (D. Conn. as of Dec. 28, 2011); 1997 Acteal Massacre, http://acteal97.com. It is surprising that there has been no mention of this case in the New York Times or Washington Post.

[2]  Id.

[3]  See Post: The Alien Tort Statute, 1789-1980 (Oct. 21, 2011); Post: U.S. Circuit Court’s 1980 Decision Validates Use of Alien Tort Statute To Hold Foreign Human Rights Violators Accountable (Oct. 23, 2011); Poat: The Alien Tort Statute, 1980-2004 (Oct. 25, 2011); Post: Alien Tort Statute Interpreted by U.S. Supreme Court in 2004 (Nov. 9, 2011); Post: The Alien Tort Statute, 2004-Present  (Nov. 14, 2011).

[4]  Post: The Torture Victims Protection Act (Dec. 10, 2011).

[5] See n.1 supra. The “Las Abejas” or “The Bees” have said that the plaintiffs are not members of their group and that their group is not interested in obtaining money for the massacre. (Stephenson, Plaintiffs in Zedillo case questioned, Yale Daily News (Oct. 5, 2011); Stephenson, Zedillo lawsuit lacks clear backers, Yale Daily News (Oct. 19, 2011).)

[6]  See n.1 supra.

[7]  Id.; Post, Zedillo says allegations are untrue, Yale Daily News (Feb. 14, 2005).

[8]  Manuel Santiz Culebra, et al. (Acteal Massacre), Rep. No. 146/10 (IACHR Nov. 1, 2010).

[9]  Complaint ¶¶ 120-133. See 28 U.S.C. § 1350, note §2(c ). See Post: Litigation Against Conspirators in the Assassination of Oscar Romero (Oct. 10, 2011); Post: Former Salvadoran Generals Held Liable for $54.6 Million for Failure To Stop Torture (Nov. 11, 2011); Post: Former Salvadoran Vice-Minister of Defense Held Liable for $6 Million for Torture and Extrajudicial Killing (Nov. 13, 2011); Post: The Torture Victims Protection Act (Dec. 10, 2011).

[10] Complaint ¶¶ 234-238.. See 28 U.S.C. § 1350, note §2(b). See posts in n.9 supra.

[11]  Scheduling Order, Doe v. Zedillo (Dec. 6, 2011). Within 30 days after the court dockets the U.S. government’s substantive response to such a request, the plaintiffs shall file their response to the dismissal motion. Within another 30 days after the plaintiffs’ response, Zedillo shall file his reply brief. (Id.) After all of these papers have been submitted, presumably the court will schedule a hearing on the dismissal motion and sometime thereafter issue the court’s decision on that motion.

[12] Ernesto Zedillo Biography, http://www.ycsg.yale.edu/center/zedillo.html;Lee, Zedillo takes globalization center post, Yale Daily News (April 5, 2002).

Oscar Romero’s Assassination

Capilla de Hospital de la Divina Providencia
Capilla de Hospital de la Divina Providencia

On March 24, 1980, Monsignor Oscar Romero was delivering what turned out to be his last homily in the beautiful, intimate, modern chapel at a cancer hospital in San Salvador that was across the street from Romero’s small apartment.[1]

A red four-door Volkswagen drove up in front of the chapel. A man in the back seat of the car raised his rifle and fired a single shot through the open front door of the chapel. Romero fell and died behind the altar just after he had said, “May this body immolated and this blood sacrificed for humans nourish us also, so that we may give our body and our blood to suffering and to pain–like Christ, not for self, but to bring about justice and peace for our people.”

The Truth Commission for El Salvador, the U.S. District Court for the Eastern District of California and the Inter-American Commission on Human Rights have made the following findings regarding the assassination of Romero:[2]

  • On March 24, 1980, Roberto D’Aubuisson had a meeting with three members of his security team: Alvaro Saravia, Eduardo Avila and Fernando Sagrera. Avila said that later that day Romero would be celebrating mass at the Capilla and that this would be a good opportunity to kill him. D’Aubuisson ordered that this be done and put Saravia in charge of the operation. When someone said a sniper would be needed, Avila said he would contact one through Mario Molina, who was another member of D’Aubuisson’s security team. Yet another member of the team, Amado Antonio Garay, was assigned to be the driver for the assassin.
  • Later that same day in the parking lot of the Camino Real Hotel in San Salvador, according to the Truth Commission, the assassin (a bearded man) with a rifle got into a red, four-door Volkswagen that was driven by Garay. A different account of this meeting was provided by Garay himself in testimony in the U.S. federal court case. Upon instructions from Saravia, Garay testified that he drove the car to a house in San Salvador, where Saravia entered and brought out a tall bearded man carrying a long rifle with a telescopic lens. Before the car left, Saravia told the bearded man, “It is better to shoot in the head because maybe he [might] have a bulletproof vest. You have to be sure he got killed.” Saravia told Garay that he would be provided protection by men in another car.
  • The bearded man told Garay where to go, and on the way, the bearded one said, “I can’t believe it, I’m going to shoot a priest.”
  • Garay drove to the Capilla, and the bearded man told him to stop at its main entrance. Garay saw people sitting in the pews of the chapel and a priest speaking at the altar.
  • The assassin then fired a single high-velocity .22 caliber bullet from the rear seat of the Volkswagen through the open entrance door of the Capilla. The bullet hit and killed Romero.
  • Afterwards, upon D’Aubuisson’s order, another member of his security team, Walter Antonio “Musa” Alvarez, received 1,000 colones, and he and Saravia paid the assassin.
  • In the proceedings before these three institutions, the assassin himself was not identified.[3]

[1] See Post: Archbishop Oscar Romero’s Last Homily (Oct. 6, 2011).

[2]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 127-31(March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html%5B“Truth Commission Report”];Doe v. Saravia, 348 F. Supp.2d 1112, 1121-23(E.D. Cal. 2004)(Sararvia held liable to relative of Romero for $10 million of compensatory and punitive damages for crimes against humanity and extrajudicial killing for Saravia’s role in the assassination of Romero); Monsignor Romero v. El Salvador, Rep. No. 37/00 ¶¶ 53-54 (Inter-American Comm’n Human Rights, Case No. 11.481, April 13, 2000).

[3]  Truth Commission Report at 130. A Salvadoran newspaper recently reported that the Romero assassin was at the time a deputy sergeant of the Salvadoran National Guard and a member of the security team for former Salvadoran President Arturo Molina. (Valencia, Gabriela & David, The sniper who killed Romero was a former National Guard, Diario Co Latino (Sept. 9, 2011).

International Criminal Justice: The Jesuits Case Before the Inter-American Commission on Human Rights

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves[2]  and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3]  We also have summarized the Salvadoran criminal case regarding this crime.[4] Along the way we have encountered the findings regarding this crime by the Truth Commission for El Salvador and what that Commission was and how it did its work.[5] Yet another facet of this case has been exposed: El Salvador’s General Amnesty Law and its impact on the Jesuits case.[6]

Now we look at the Jesuits case in the Inter-American Commission on Human Rights (IACHR), headquartered in Washington, D.C.  It receives and analyzes petitions alleging human rights violations under the American Convention [Treaty] on Human Rights. When a petition meets certain conditions of eligibility, the IACHR solicits the views of the concerned State, investigates the violations and issues a report that typically sets forth its findings and conclusions plus recommendations to the State concerned.[7] As of 1993, according to a U.S. bar association, the IACHR “decides few cases, usually after a long delay, and often its decisions are not drafted in a persuasive manner,” and its “decisions receive very little notice, are not cited or relied on in other cases, and are often not obeyed.” [8]

On the same day the Jesuit priests were murdered (November 16, 1989), Americas Watch, a non-governmental human rights organization, filed a complaint with the IACHR alleging that the Salvadoran government had violated the American Convention [Treaty] on Human Rights with respect to the murder of the Jesuits and their cook and her daughter.  Subsequently the government asked for dismissal on the ground that the case had been duly prosecuted in the country.[9]

Ten years later (December 22, 1999), the Commission issued its report making detailed findings about the murder and subsequent events and concluding that the state had violated the American Convention. It found the Truth Commission Report to be credible and placed heavy reliance on it.[10] As a result, the IACHR recommended that the government conduct an expeditious, effective investigation and prosecute and punish those who were involved “without reference to the amnesty,” to make reparations and to render the General Amnesty Law null and void.[11] The IACHR set forth its legal reasoning why that Law was invalid.[12]

Almost another 12 years now have passed since the IACHR’s decision, and still the government of El Salvador has not complied with these recommendations.[13]

In November 2009, however, on the 20th anniversary of the murder of the Jesuit priests, El Salvador at least partially complied with the recommendation for reparations. President Mauricio Funes presented the nation’s highest award (National Order of Jose Matias Delgado) to the Jesuit priests’ relatives as an act of atonement. Finally the Funes’ Administration formally advised the IACHR and the Inter-American Court of Human Rights that the Salvadoran state accepted the binding nature of their past decisions involving the country and the state’s responsibility to implement their recommendations in those cases.[14]

The IACHR has had three other cases that were investigated by the Truth Commission and at least two other cases of human rights abuses during El Salvador’s civil war. In all of these cases the IACHR concluded that the country had violated the American Convention on Human Rights and made recommendations similar to the ones in the Jesuits case. For the most part, El Salvador has not adopted IACHR’s recommendations in these cases.[15]

In January 2010, however, President  Funes took steps for compliance with the recommendations to make reparations to the victims of these crimes, including the Jesuits case. President Funes admitted that during the civil war state security forces “committed serious human rights violations and abuses of power,” including “massacres, arbitrary executions, forced disappearances, torture, sexual abuse, arbitrary deprivation of freedom” and other acts of repression. Fuenes also made a formal apology to all of the victims of these crimes and asked for their forgiveness. In addition, Fuenes created three commissions (i) to offer redress to the victims, (ii) to search for children who went missing during the war; and (iii) to provide attention to disabled combatants. (The country’s Vice President, Salvador Sanchez Ceren, simultaneously apologized for the actions of FMLN guerrillas during the civil war.)[16]

[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011).

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

[3]  See Post: International Criminal Justice: El Salvador’s Military’s Attempt To Cover-Up Its Committing the Murders of the Jesuit Priests (June 7, 2011).

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

[5]  See Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011).

[6]  See Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011). A future post will discuss the current Salvadoran controversy regarding the General Amnesty Law and the Constitutional Chamber of the country’s Supreme Court.

[7]  IACHR, What is the IACHR?, http://www.cidh.oas.org/what.htm . (The other human rights body for the Americas is the Inter-American Court of Human Rights, which is located in San José, Costa Rica.)

[8]  Comm. on Int’l Human Rights of the Ass’n of Bar of City of N.Y., The Inter-American Commission on Human Rights: a Promise Unfulfilled at 3 (1993).  The author believes these 1993 conclusions about the IACHR are still valid and invites comments on this topic.

[9]  Ignacio Ellacuria, et al. v. El Salvador, Rep. No. 136/99 ¶¶ 1-3 (IACHR Case No. 10.488, Dec. 22, 1999).

[10]  Id. ¶¶ 25-26, 52, 59-60, 69-72, 75-86, 179-80, 184, 209, 219, 230-31.

[11]  Id. ¶¶ 4, 52-142, 143-96, 237-38, 241.

[12]  Id. ¶¶ 192-232. Accord  Cea et al v. El Salvador, Rep. No. 1/99  ¶¶ 105-17, 160 (Case No. 10.480, Jan. 27, 1999).

[13]  CJA, El Salvador: The Jesuits Massacre Case, http://www.cja.org/cases/jesuits.shtml.

[14] IACHR, Press Release No. 78/09: IACHR Concludes Its 137th Period of Sessions (Nov. 13, 2009); Aleman, El Salvador awards highest honors to 6 Jesuit priests killed by army 20 years ago, Washington Examiner (Nov. 16, 2009).

[15] Monsignor Romero v. El Salvador, Rep. No. 37/00 ¶¶ 1-2 (IACHR Case No. 11.481, April 13, 2000); Admissibility of  El Mozote Massacre, Rep. No. 24/06, ¶¶ 1-29  (IACHR Case No. 10.720, Mar. 2, 2006); COMADRES, Rep. No. 13/96, ¶¶  1-2, 5-7, 28 (IACHR Case No. 10.948, Mar. 1, 1996);  Cea, et al. v. El Salvador, Rep. No. 1/99 (IACHR Case No. 10.480 Jan. 27, 1999); Vasquez v. El Salvador, Rep. No. 65/99 (IACHR Case No. 10.228 Apr. 13, 1999).

[16] Cervantes, Funes pide perdon por abusos durante la Guerra (Jan. 16, 2010),www.elfaro.net/es; IACHR, Press Release NO. 4/10: IACHR Welcomes El Salvador’s Recognition of Responsibility and Apology for Grave Human Rights Violations During the Armed Conflict (Jan. 21, 2010); El Salvador President Apologizes to War Victims, Latin American Herald Tribune (Jan. 22, 2010). The author is not aware of what has happened with these three commissions and invites comments with such information.