Inter-American Court of Human Rights

Salvadoran Responses to Invalidation of Its Amnesty Law

As reported in a prior post, the Supreme Court of El Salvador in July 2016 invalidated the country’s 1993 Amnesty Law that had barred criminal prosecution of the most serious violations of human rights during their civil war.

In response the Salvadoran government is preparing legislation to implement that decision and replace that Amnesty Law. In addition, there have been recent important developments regarding three of those violations: (1) the 1980 assassination of Archbishop Oscar Romero; (2) the 1981 El Mozote massacre; and (3) the 1987 assassination of human rights advocate Herbert Anaya Sanabria. All of these developments originally were posted in Tim’s El Salvador Blog and are re-posted or incorporated here with permission.[1]

New Legislation

The Salvadoran government is preparing draft legislation to implement the court ruling and replace the amnesty law. According to an article in Salvador’s El Faro newspaper, the Salvadoran government is seeking advice on such a new law from Juanita Goebertus, an expert Colombian lawyer who participated in the peace accords signed by the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) in 2016. [2]

The key issue is what crimes that were committed during the war are not protected from prosecution and those that are so protected. The ruling of the court only nullified the amnesty law as it applied to “crimes against humanity.”

Tim’s El Salvador Blog suggests the only crimes against humanity and perhaps war crimes are not exempt from prosecution, but I think that is too narrow. An apparent quotation from the Supreme Court decision in that Blog says the non-exemption applies to “the cases contained in the report of the Truth Commission, as well as those others of equal or greater gravity and transcendence.”

The Rome Statute of the International Criminal Court provides in Article 1 that it shall have “jurisdiction over persons for the most serious crimes of international concern,” which are specified (with definitions) in Articles 6, 7 and 8 as “crimes against humanity,” “war crimes,” and “the crime of genocide.”[3]

According to Tim’s Blog, another issue to be addressed in the new legislation is “whether perpetrators of crimes against humanity will face criminal punishment including jail time.” A Salvadoran newspaper “suggests that both ARENA and the FMLN would like legislation in which the possibility of jail time is eliminated. What is left unclear is what process will exist to judge responsibility for these crimes and what reparations might be available to victims. Nor is it clear if the victims have had a voice in defining any of this process.”

Romero Assassination

On March 23–the day before the 37th anniversary of the assassination of Archbishop Romero–“human rights lawyers filed a petition with a court in the capital of San Salvador to reopen the case of this assassination. They are asking the court to proceed judicially to establish the facts and the responsible parties for this horrible crime.” [4]

El Mozote Massacre

Previous posts have discussed the 1981 massacre near the Salvadoran village of El Mozote and various legal proceedings regarding this atrocity. [5]

“Twenty ex-members of El Salvador’s military, including high-ranking generals, [this March] have been cited to appear in court in San Francisco Gotera, in Morazan department, in connection with the 1981 El Mozote massacre. On March 29 a Salvadoran court held a hearing to notify nine of these men, including former Defense Minister Jose Guillermo Garcia, ex-chief-of staff Rafael Flores, five other former colonels and two others who did not appear in court that they are being investigated for their alleged roles in the El Mozote massacre. Former Defense Minister Garcia had no comments to the court or the press regarding this development. On March 30 an additional nine former military officials were similarly notified. [6]

This is the first case in a court in El Salvador involving El Mozote and the first case to proceed after last year’s nullification of the 1993 Amnesty Law.”

“The cited officers include general José Guillermo García, ex-minister of defense; general Rafael Flores Lima, ex-chief of the Joint Chiefs of Staff of the Armed Forces; Colonel Jaime Flores Grijalva, ex-commander of the Third Infantry Brigade; General Juan Rafael Bustillo, ex-commander of the Salvadoran Air Force; and other lower ranking officers involved in the events.”

“The crimes alleged include murders, aggravated rape, kidnapping, acts of terrorism and other offenses.”

“The actions of the judge in San Francisco Gotera responds to a petition by the legal team for the victims headed by Tutela Legal ‘María Julia Hernández.’ The human rights lawyers have complained about the slow, passive approach being taken by the Attorney General’s office which has not moved the case forward despite the removal of the Amnesty Law and a judgment of the Inter-American Court for Human Rights requiring the government of El Salvador to investigate and prosecute these crimes against humanity.”[7]

“The December 1981 El Mozote massacre was perhaps the worst atrocity of El Salvador’s twelve year civil war. All but one of the civilians taking refuge in the small village of El Mozote, more than 800 men, women, children and babies, were brutally killed by the Salvadoran army. It is a tragedy the world must never forget.”

Assassination of Human Rights Advocate Herbert Anaya Sanabria

“Salvadoran Attorney General Douglas Meléndez announced that his office is reopening the case involving the 1987 assassination of human rights advocate Herbert Anaya Sanabria.According to an Amnesty International Report in 1988, his killing, carried out by men in plain clothes using silencers on their guns, followed repeated harassment and threats directed at Anaya himself and at other independent human rights monitors in El Salvador.”

“Although a trial convicted an ERP guerrilla member,Jorge Miranda, for the murder, most believe that the assassination was carried out by government forces. Miranda was released from prison because of the now invalidated Amnesty Law, but the Attorney General said that Miranda would need to be tried again and that if any relative or other interested persons had information about other material actors or intellectual authors of the crime, the prosecutors would pursue any leads.”

Conclusion

We will be paying close attention to Tim’s El Salvador Blog to keep us apprised of further developments on these matters.

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[1] Amnesty or restorative justice?, Tim’s El Salvador Blog (Mar. 28, 2017); Oscar Romero–37 years after his assassination, Tim’s El Salvador Blog (Mar. 24, 2017); Court cites high military commanders in El Mozote massacre case, Tim’s El Salvador Blog (Mar. 15, 2017); Salvador Attorney General opens new war crimes case, Tim’s El Salvador Blog (Mar. 22, 2017); Historic first step towards justice at El Mozote, Tim’s El Salvador Blog (Mar. 31, 2017). Congratulations and appreciation for Tim’s faithful publication of his blog for the last 13 years.

[2] Rauda, Presidencia busca una nueva ley que permita a los criminales de guerra evitar la cárcel, El Faro (Mar. 26, 2017).

[3] The Rome Statute also includes in Article 5(1) (d) “the crime of aggression” as within the jurisdiction of the ICC, but it was not defined until the States Parties did so at the Review Conference of June 2010, and its ratification and applicability is a complex subject that does not need to be addressed here since the crime of aggression seems less relevant to instances of civil war like El Salvador’s.

[4] There have been numerous posts about Romero and his assassination. See posts listed in the “Oscar Romero” section of List of Posts to dwkcommentaries–Topical: EL SALVADOR.

[5] See posts listed in the “El Mozote Massacre” section of List of Posts to dwkcommentaries–Topical: EL SALVADOR. A recent article describes the aftermath of the massacre. (Maslin, The Salvadoran Town That Can’t Forget, The Nation (Mar. 30, 2017).)

[6] Ramos, El Mozote sienta en el banquillo al general del Ejército más oscuro, El Faro (Mar. 30, 2017).; Rauda, Pedro Chicas resurrects to prosecute those responsible for El Mozote, El Faro (Apr. 1, 2017)(Google translate).

[7] The decision of the Inter-American Court of Human Rights regarding the El Mozote massacre was discussed in this post: The el Mozote Massacre: Inter-American Court of Human Rights Determines El Salvador Violated the American Convention on Human Rights, dwkcommentaries.com (Dec. 16, 2012).

Other Legal Proceedings Regarding the Murders of the Jesuit Priests of El Salvador and Their Housekeeper and Her Daughter

As we have seen in a recent post, the Spanish criminal investigation and prosecution of former Salvadoran military officers and soldiers for the murders of the Jesuit priests and their housekeeper and her daughter are still pending and hopefully the case will go to trial in 2015 against at least one of the 19 Salvadoran military officers and soldiers charged with the crime.

There, however, have been other legal proceedings regarding this horrible crime. Here is a summary of these proceedings.

Other Proceedings

Salvadoran Investigations. Immediately after the murders, the Salvadoran military took steps to destroy evidence and to cover up their involvement in the crime while supposedly conducting an independent investigation of the crime. With widespread international outrage at the crime, the Minister of Defense was forced to establish a Special Honor Commission, consisting of five officers and two civilians to do a more thorough investigation. It concluded that nine people were responsible for the murders: four lower-ranking officers and five soldiers. International Criminal Justice: Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests (June 7, 2011), http://dwkcommentaries.com/2011/06/07/international-criminal-justice-salvadoran-militarys-attempted-cover-up-of-its-committing-the-murders-of-the-jesuit-priests/.

Salvadoran Criminal Charges. The murders of the Jesuit priests caused such a huge international uproar that El Salvador had to do something to make it appear as if it were pursuing justice in the case. As a result, in January 1990 the Salvadoran government commenced a criminal prosecution of five Salvadoran military officers and five soldiers of the Atlacatl Battalion. The highest-ranking officer was Colonel Guillermo Alfredo Benavides Moreno, the Director of the Military College, who was accused of having given the order to murder the priests. (International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests (June 8, 2011).)

Salvadoran Criminal Trial. After lengthy pre-trial proceedings, this criminal trial finally took place in September 1991. Benevides was convicted of all eight counts of murder and instigation and conspiracy to commit acts of terrorism. One of the Lieutenants was convicted of one count of murder (the 16-year-old girl), instigation and conspiracy to commit acts of terrorism and being an accessory. Benevides and this Lieutenant were sentenced to 30 years imprisonment. The other two Lieutenants were convicted of instigation and conspiracy to commit acts of terrorism; they were sentenced to three years imprisonment, but released on bail and continued to serve in the military. A Lieutenant Colonel was convicted of being an accessory and sentenced to three years imprisonment, but he too was released on bail and continued to serve in the military. The five soldiers were acquitted of all charges. (Id.)

Salvadoran Truth Commission Investigation and Report. The Peace Accords of January 1992 that ended the Salvadoran Civil War established the Truth Commission for El Salvador to investigate the most serious crimes that had occurred during the war, including the murders of the Jesuits. Its March 1993 final report found the following facts regarding the murders:

On the night of 15 November 1989, then Colonel René Emilio Ponce, in the presence of ad 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 had been sent to search the priests’ residence two days previously.
That same night, Colonel Guillermo Alfredo Benavides informed the officers at the Military College of the order for the murder. When he asked whether anyone had any objection, they all remained silent.
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.
Subsequently, all these officers and others, including General Gilberto Rubio Rubio, knowing what had happened, took steps to conceal the truth, including destruction of evidence.

(International Criminal Justice: The Jesuits Case in The Truth Commission for El Salvador (June 9, 2011).)

Adoption of Salvadoran Amnesty Law. Five days after the delivery of the Truth Commission Report in March 1993, El Salvador’s National Assembly adopted the General Amnesty Law for the Consolidation of the Peace (Decree 486). Its provisions included “a full, absolute and unconditional amnesty to all those who participated in any way in the commission, prior to January 1, 1992 [the end of the civil war], of political crimes or common crimes linked to political crimes or common crimes in which the number of persons involved is no less than twenty.” (International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011).)

Implementation of Amnesty Law. Immediately after the adoption of the Amnesty Law and pursuant to this Law, Colonel Benavides and the Lieutenant who had been convicted and imprisoned in the Jesuits case were released from prison. (Id.)

Instigation of Case before the Inter-American Commission on Human Rights. Meanwhile, 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 Inter-American Commission on Human Rights 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. (International Criminal Justice: The Inter-American Commission on Human Rights’ Case Regarding the Jesuit Priests (June 13, 2011).)

Investigation and Report by the Inter-American Commission on Human Rights. Ten years later (December 22, 1999), the Inter-American Commission issued its report. Relying heavily on the findings of the Truth Commission, the report made detailed findings about the murder and subsequent events and concluded that the state had violated the American Convention. As a result, the Commission 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. (The Commission did not, and does not, have the power to order any of the states to do anything. (Id.)[1]

Conclusion

Now twenty-five years after the crimes and 15 years after the Inter-American Commission’s report, no one has been convicted of the crime and imprisoned other than the two officers who were convicted by a Salvadoran court and who briefly were in prison before being released under the Amnesty Law.

Moreover, the government of El Salvador has not fully complied with the Commission’s recommendations.

In November 2009, however, El Salvador presented the nation’s highest award (National Order of Jose Matias Delgado) to the Jesuit priests’ relatives as an act of atonement and formally advised the Commission 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.

In addition, in January 2010, Salvadoran President Mauricio 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. Funes then made a formal apology to all of the victims of these crimes and asked for their forgiveness and created a commission to offer redress to the victims. (Id.)

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[1] There has been much debate in El Salvador about whether or not the Amnesty Law is valid and/or should be abolished. The country’s Supreme Court is expected in the next several months to decide whether the Law is constitutional. Meanwhile, U.S. courts have determined that the Salvadoran Amnesty Law is not applicable to litigation in U.S. courts.

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.

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.

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.

Organization of American States Strengthens the Inter-American System of Human Rights [1]

OAS General Assembly, 3/22/13 (Photo: OEA OAS Photostream [2])

On March 22, 2013, the Extraordinary General Assembly of the Organization of American States (OAS)[3] adopted by acclamation a resolution strengthening the Inter-American System of Human Rights (“the System”).[4] The resolution had the following provisions:

Requested the Inter-American Commission on Human Rights (“Commission”), an autonomous OAS organ that promotes and protects human rights in the American hemisphere, to continue to move forward with application of its responses to suggestions for reform by a special working group and the Commission’s March 18, 2013, reform of its rules.
Instructed OAS’ Permanent Council[5] to continue the dialogue on the “core aspects for strengthening” the System.
Urged the Commission to put into practice pending recommendations for reform.
Encouraged the Commission “to strengthen its efforts in the promotion of human rights, including through its support to national systems.”
Reaffirmed the OAS General Assembly’s commitment to obtain full financing of the
System through OAS’ Regular Fund “without prejudice to the financing of the other mandates” of the OAS.
Requested the OAS Secretary General to submit to the OAS Permanent Council “a detailed, up-to-date analysis of the full operating costs” of the System.
Proposed that the Commission “strengthen all its rapporteurships, including by giving consideration to granting special status to all existing rapporteurships, based on adequate financing, without prejudice to its other responsibilities.”[6]
Urged “OAS member states [i.e., U.S., Canada and seven others] to ratify or accede to . . . all inter-American human rights instruments, especially the American Convention on Human Rights,” and for the U.S., Canada and eight other states “to accept . . . the contentious jurisdiction of the Inter-American Court of Human Rights.”[7]

Understanding the significance of this resolution requires elaboration.

1.1. Recommendations of the Special Working Group. In its December 2011 report the Special Working Group proposed changes to the Commission’s rules regarding individual petitions and cases; precautionary measures; monitoring of human rights in member states; promotion of human rights; a permanent presidency; financing and allocation of resources; and dissemination of criteria and jurisprudence.[8] The most controversial ones that were seen by many as efforts to muzzle the Commission were these:

Restrict the Commission’s discretion in granting “precautionary measures,” by, among other things, setting forth “precise objective criteria” for granting same and determining whether the situation was “serious and urgent.” The addition of such criteria would help states as well as alleged victims who are affected by such measures.
Require its annual report to cover human rights conditions in all OAS members, not just those with the most pressing problems.
Reduce the activities and funding of the Special Rapporteur on Freedom of Expression by eliminating its separate funding and instead requiring balanced funding of all rapporteurs as well as eliminating this one’s special report.
Require the Commission to devote more time and resources to the general promotion of human rights and thereby reduce its time and resources to deciding individual complaints.
Impose restrictions on the Commission’s decisions regarding individual complaints.

1.2. Commission’s Responses to Recommendations of Special Working Group. On October 23, 2012, the Commission issued its second response expressing agreement with most of these recommendations.

However, the Commission did disagree with the recommendation to assign balanced resources to all of its rapporteurships. It pointed out that the first source of funds for the Commission is the OAS Regular Fund, which covers only 54% of the Commission’s financial needs. This necessitates soliciting outside funds, some of which are designated for specific purposes (one of which implicitly is for the Freedom of Expression Rapporteurship). “[P]rohibitting or impeding any of [these] . . . funding sources would lead to the immediate structural weakening of the thematic rapporteurships and units, as well as [their] . . . important promotional and technical assistance activities.”

Moreover, the request for balanced or equal allocation of resources legitimately was seen as a back-door way to reduce the funding for the Rapporteurship for Free Expression and hence its work, an objective of those states that had been criticized for retaliation against journalists and media for criticism of the governments.

1.3. Commission’s Recent Changes in Its Rules and Policies. On March 18, 2013 (only four days before the OAS General Assembly was to consider the whole subject of reforming the System), the Commission adopted a resolution amending its rules and adopting certain institutional policies, effective August 1, 2013.

The rules that were changed were Rule 25 (Precautionary Measures); 28 (Requirements for the Consideration of Petitions); 29 (Initial Processing); 30 (Admissibility Procedure); 36 (Decision on Admissibility); 37 (Procedure on the Merits); 42 (Archiving of Petitions and Cases); 44 (Report on the Merits); 46 (Suspension of Time Limit to Refer the Case to the Court; 59 (Annual Report); 72 (Experts); 76 (Provisional Measures); and 79 (Amendment of the Rules of Procedure).

These changes adopted many of the suggestions made by the Special Working Group.

For example, one of the more signficant changes was to Rule 25 covering precautionary measures, which are actions the Commission requests a state to take to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case before its final resolution on the merits, as well as to persons under the jurisdiction of the State concerned, independently of any pending petition or case. The amended rules more precisely identifies the situations for same as “serious and urgent situations presenting a risk of irreparable harm to persons or to the subject matter of a pending petition or case before the organs of the inter-American system” and provides definitions of “serious situation,” “urgent situation” and “irreparable harm.” It also provides that decisions granting, extending, modifying such measures shall contain certain elements.

Similar changes were made to Rule 76 covering provisional measures, which are actions the Commission requests the Inter-American Court to take in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons. The amended rule provides for the first time the following criteria for deciding upon a request for such measures: (a) ” when the State concerned has not implemented the precautionary measures granted by the Commission;” (b) “when the precautionary measures have not been effective; ” (c) “when there is a precautionary measure connected to a case submitted to the jurisdiction of the Court;” or (d) “when the Commission considers it pertinent for the efficacy of the requested measures, to which end it shall provide its reasons.”

Foremost among the new institutional policies was the establishment of the following priorities: promotion of universal ratification of the American Convention on Human Rights and other similar instruments; promotion of economic, social and cultural rights; and development of a plan for a permanent presidency. Other adopted policies generally concerned measures to increase public transparency of the Commission’s activities.

2. Permanent Council’s Continuing Dialogue on Core Aspects of Reforming the System. Although most states and their representatives were ready to end the reform process with the adoption of the March 22nd resolution, they accepted this “open door” for further dialogue as a way to keep those states less friendly to the Commission (especially Ecuador, Venezuela, Bolivia and Nicaragua) involved in the Human Rights System and not renounce the American Convention on Human Rights and other treaties.

3. Commission’s Implementing Pending Reform Recommendations. I do not know what is meant by “pending [reform] recommendations,” and I solicit comments explaining this point. Presumably this refers to the Commission’s March 18th adoption of amended rules and of policy priorities.

4. Commission’s Strengthening Promotion of Human Rights. This is a commendable goal. The problem arises when decisions have to be made for allocation of insufficient financing of all the things that the Commission and Court would like to do to fulfill their mandates. In my opinion, such promotion should not come at the expense of reducing efforts on resolving specific complaints about alleged violations of human rights.

5. OAS’ Obtaining Full Financing of the System. This too is a commendable goal. The problem arises when decisions have to be made for allocation of insufficient financing of all the things that the Commission and Court would like to do to fulfill their mandates.

6. Analysis of Full Operating Costs of the System. This sounds like a straight-forward cost analysis of the Commission and the Inter-American Court of Human Rights (“the Court”).

7. Commission’s Strengthening of Rapporteurships. There now are the following Rapporteurships on the Rights of (i) Indigenous Peoples, (ii) Woman; (iii) Migrant Workers and Their Families; (iv) the Child; (v) Human Rights Defenders; (vi) Persons Deprived of Liberty; and (vii) Afro-Descendants and Against Racial Discrimination.

There also is a Special Rapporteurship on Freedom of Expression, which has a “general mandate to carry out activities for the protection and promotion of the right to freedom of thought and expression.”

Subject to the qualification about outside funding designated for specific purposes, there is no quarrel with the objective of strengthening all of the rapporteurships.

8. Obtaining Universality of Ratification/Accession of the American Convention on Human Rights and Acceptance of Contentious Jurisdiction of the Inter-American Court of Human Rights.

Of the 34 members of the OAS, only 9 have not ratified or acceded to the American Convention on Human Rights with the U.S. and Canada being the major exceptions. Nor have the U.S. and Canada and 10 other states accepted the jurisdiction of the Inter-American Court of Human Rights to decide cases of their alleged violations of that Convention.[9]

The desire for universality expressed in this resolution, in my opinion, is appropriate even though I suspect it is motivated in part by the understandable resentment of the U.S. for not accepting the Convention and the Court’s jurisdiction while simultaneously criticizing other states in the Hemisphere for their violations of human rights.

Conclusion

The previously mentioned controversial recommendations by the Special Working Group were promoted by states that had been targets of individual complaints and of criticisms by the Special Rapporteur on Freedom of Expression. Foremost among these states was Ecuador, which has become notorious for its legal claims against the media for criticism of its government and by states that understandably resent the U.S.’ not being a party to the American Convention on Human Rights and not consenting to the contentious jurisdiction of the Court. This background will be discussed in a subsequent post.

[1] The author would like to thank Mexican attorney, Juan Carlos Arjona Estevez, for his assistance in preparing this post. Muchas gracias, amigo!

[2] This photo is subject to license with OAS.

[3] The OAS was established in 1951 to achieve among its member states “an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence.” Its supreme organ is the General Assembly, which is composed of delegations of the member states.

[4] The OAS Human Rights System includes the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. A chronology of the Human Rights System reform process is available on the Commission’s website. Some of the work of the Commission has been discussed in prior posts.

[5] The OAS Permanent Council under Chapter XII of the OAS Charter is the organ that is in overall charge of its activities pursuant to delegations by the OAS General Assembly or other organs.

[6] Starting in 1990, the Commission began creating thematic rapporteurships under the leadership of an individual who is an expert in the area in order to devote attention to certain groups, communities, and peoples that are particularly at risk of human rights violations due to their state of vulnerability and the discrimination they have faced historically. The aim of creating a thematic rapporteurship is to strengthen, promote, and systematize the Commission’s own work on the issue.

[7] In footnotes to the consensus resolution, Guatemala urged the Commission to (i) move its headquarters from Washington, D.C. to San Jose, Costa Rica (which hosts the Court and the Inter-American Institute for Human Rights); (ii) draft a proposed protocol to the American Convention on Human Rights to establish standards for precautionary measures (akin to preliminary injunctions in U.S. law); (iii) limit the Commission’s commissioners and special/thematic rapporteurs to a single term; (iv) set 2015 as the date for attaining full financing of the System; and (v) placing all rapporteurships under the leadership of the commissioners.

[8] The Special Working Group’s report with 53 recommendations for the Commission was adopted by the OAS Permanent Council on January 25, 2012 and ratified by the OAS General Assembly on June 5, 2012.

[9] The Court’s Statute’s Article 2(1) provides that its “adjudicatory jurisdiction shall be governed by . . . Articles 61, 62 and 63 of the Convention,” and the latter’s Article 62 requires a state’s declaration “unconditionally, or on the condition of reciprocity, for a specified period, or for specific cases” that it “recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention.”

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

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 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]

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

The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent Salvadoran General Amnesty Law and Dismissal of Criminal Case

On December 11, 1981, the Salvadoran military (Atlacatl Battalion) detained and systematically executed virtually all of the men, women and children in the small village of El Mozote in the northern part of El Salvador. The men first were tortured and then executed. Then the women were killed. Finally the children were killed. Over 200 of the victims subsequently were identified plus many others who were not so identified. This happened as part of the military’s “Operacion Rescate” that sought to eliminate the guerrilla presence in the area and that also committed massacres in other villages at the same time.[1]

In late January 1982 information about the massacres started to become publicly available, and protests began. The Salvadoran government, however, “categorically denied” that a massacre had taken place and did not immediately initiate any judicial investigations of the events.

Over eight years later (1990) criminal proceedings were commenced in El Salvador, and in November1992 court-ordered exhumations started.

These horrible crimes have reverberated ever since then.

The Truth Commission for El Salvador in March 1993 delivered its report on the El Mozote Massacre, which will be described below along with the immediate Salvadoran adoption of the General Amnesty Law and its being the basis for dismissal of the country’s criminal case about the Massacre.

Additional posts will discuss the following subsequent developments regarding the Massacre:

In March 2006 the Inter-American Commission on Human Rights (IACHR) made a preliminary decision in a case about the massacre, and four years later (November 2010), it made its decision on the merits.

On January 16, 2012, the President of El Salvador, Mauricio Funes, made an important public statement about his Administration’s decisions regarding redresses for the Massacre.

On October 25, 2012, the Inter-American Court of Human Rights, which had accepted the IACHR’s appeal from its own decision in order to enforce its recommendations, rendered its judgment in the El Mozote case and released that judgment to the public on December 10, 2012 (International Human Rights Day).

Truth Commission for El Salvador

The Truth Commission for El Salvador[2] in its April 2003 report found “full proof” that Atlacatl Battalion soldiers “deliberately and systematically killed . . . more than 200 men, women and children, constituting the entire civilian population” of the village of El Mozote. There was “sufficient evidence” that these troops committed other massacres at the same time in nearby other villages. Names of the officers in charge were given. The Commission’s findings on what happened at El Mozote were aided by its retention of an international forensic team that conducted exhumations at the village and by its interviewing eyewitnesses. These efforts constituted a major advance in establishing the truth of the most egregious crimes.

In addition, the Truth Commission found that the Armed Forces High Command had “repeatedly denied” that a massacre had occurred and that Minister of Defense General Jose Guillermo Garcia (“full evidence) and Chief of the Armed Forces Joint Staff General Rafael Florez Lima (“sufficient evidence”) had initiated no investigation of the matter. Finally, the Commission found that the President of the Supreme Court “had interfered unduly and prejudicially, for biased political reasons, in the ongoing judicial proceedings on the case.”

El Salvador’s Adoption of the General Amnesty Law

Only five days after the delivery of the Truth Commission Report, El Salvador’s National Assembly adopted the General Amnesty Law for the Consolidation of the Peace (Decree 486).[3] It granted in Article 1:

“a full, absolute and unconditional amnesty to all those who participated in any way in the commission, prior to January 1, 1992 [the end of the civil war], of political crimes or common crimes linked to political crimes or common crimes in which the number of persons involved is no less than twenty. “

This law’s Article 6 stipulated that the amnesty shall apply “to the persons referred to in article 6 of the National Reconciliation Law . . . of January 23, 1992 [i.e., to those who would be named or implicated in the anticipated Truth Commission Report].” In addition, Article 2 of the Law broadened the definition of “political crime” to include “crimes against the public peace,” “crimes against the activities of the courts,” and crimes “committed on the occasion of or as a consequence of the armed conflict, without regard to political condition, militancy, affiliation or ideology.” Article 4 stated that all pending cases should be dismissed and all individuals being held should be released while anyone charged in the future could obtain dismissal of the charges. In addition, Article 4 provided that the amnesty extinguished all civil liability.

Dismissal of El Salvador’s El Mozote Criminal Case

As noted above, a Salvadoran criminal case about the massacre was commenced in 1990, and in late 1992 court-ordered exhumations started. However, the court suspended the exhumations in February 1993 and declined to hire international forensic specialists to assist in this effort, at the urging of the President of the country’s Supreme Court.

In September 1994 the court dismissed the criminal case on the basis of the General Amnesty Law, and there were no appeals of that dismissal. (In 2000 Oficina de Tutela Legal obtained a court order for resumption of the exhumations as it was not covered by that Law.) [4]

Thus, no one was ever convicted for this crime in El Salvador.

[1] This post supersedes a prior post about the El Mozote Massacre. This preliminary factual statement is based upon the Truth Commission report and Mark Danner’s The Massacre at el Mozote. There also is a detailed account of the Massacre in the November 3, 2010, decision of the IACHR (¶¶ 55-75) that will be discussed in a subsequent post.

[2] The mandate and procedures of the Truth Commission were discussed in a prior post.

[3] A prior post reviewed the circumstances surrounding the adoption of the General Amnesty Law and the Salvadoran courts’ rejection of challenges to the constitutionality of the Law. Another post reviewed U.S. courts’ refusal to use the Law to dismiss civil cases against Salvadorans while another post talked about a 2011 Salvadoran controversy regarding its Supreme Court that may have been related, in part, to another possible challenge to the validity of the Law.

[4] IACHR, Admissibility of El Mozote Massacre, Rep. No. 24/06, ¶¶ 17, 19 (Case No. 10.720 Mar. 2, 2006).

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:

Alleged violators of such rights can be subjected to criminal prosecution by their own national courts, by other nations’ courts under the principle of universal jurisdiction, by so-called ad hoc international criminal tribunals and by the International Criminal Court.

Alleged violators can also be subjected to civil lawsuits for money damages by national courts as in the U.S. under the Alien Tort Statute and the Torture Victims Protection Act.

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 1981 El Mozote Massacre in El Salvador

On December 10 and 11, 1981, the Salvadoran military (Atlacatl Battalion) detained and systematically executed virtually all of the men, women and children in the small northern village of El Mozote. The men first were tortured and then executed. Then the women were killed. Finally the children were killed. Over 200 of the victims subsequently were identified plus many others who were not so identified. This happened as part of the military’s “Operacion Rescate” that sought to eliminate the guerrilla presence in the area and that also committed massacres in other villages at the same time.[1]

Over eight years later (1990) criminal proceedings were commenced in El Salvador, and in November 1992 court-ordered exhumations started. By September 1993, however, there were no identifications of the alleged perpetrators of the massacre, and the trial court, therefore, dismissed the case. Thereafter there was no appeal of that dismissal. Thus, no one was ever convicted for this crime.

These horrible crimes have reverberated ever since then. The Truth Commission for El Salvador in 1993 delivered its report on the massacre. In 2006 the Inter-American Commission on Human rights (IACHR) made a preliminary decision in a case about the massacre, and in 2011 it referred the case to the Inter-American Court of Human Rights (the Court). And this year, 2012, the Salvador President made an important statement about the crime.

Truth Commission

The Truth Commission for El Salvador in its April 2003 report found “full proof” that Atlacatl Battalion soldiers “deliberately and systematically killed . . . more than 200 men, women and children, constituting the entire civilian population” of the village. There was “sufficient evidence” that these troops committed other massacres at the same time in nearby other villages. Names of the officers in charge were given. The Commission’s findings on what happened at El Mozote were aided by its retention of an international forensic team that conducted exhumations at the village and by its interviewing eyewitnesses. These efforts constituted a major advance in establishing the truth of the most egregious crimes.

In addition, the Truth Commission found that the Armed Forces High Command “repeatedly denied” that a massacre had occurred and that Minister of Defense General Jose Guillermo Garcia (“full evidence) and Chief of the Armed Forces Joint Staff General Rafael Florez Lima (“sufficient evidence”) had initiated no investigation of the matter. Finally, the Commission found that the President of the Supreme Court “had interfered unduly and prejudicially, for biased political reasons, in the ongoing judicial proceedings on the case.”

Inter-American Commission on Human Rights

In October 1990 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 Mozote and five other nearby villages.[2]

The 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.

In March 2006 (16 years after the filing of the petition), the IACHR issued a report determining 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 Truth Commission Report.

Apparently sometime before March 2011, the IACHR issued its decision on the merits apparently concluding that El Salvador had violated various provisions of the American Convention on Human rights, but this decision is not available on its website.

Inter-American Court of Human Rights

On March 11, 2011, the Commission referred this case to the Court. The Commission’s press release about this referral stated:

“Due to the application of the General Amnesty Law for Consolidation of the Peace, as well as repeated omissions on the part of the Salvadoran State, these grave acts [at El Mozote and other surrounding villages] remain in impunity. To this day, the massacres have not been clarified judicially, nor have appropriate sanctions been imposed, despite the fact that a significant number of the persons responsible have been identified through various sources. Some exhumations were performed in subsequent years, but these did not lead to a reopening of the investigations, despite repeated requests made to the relevant authorities. The case was sent to the Inter-American Court . . . because the Commission deemed that the State had not complied with the recommendations contained in the report on the merits.”

Presumably the Court will be holding a hearing in this case and thereafter rendering a decision on the merits.

Salvadoran President Mauricio Funes’ Statement About El Mozote

EL SALVADOR-WAR CRIME-FUNES — President Funes @ El Mozote

January 16, 2012, was the 20th anniversary of the signing of the Salvadoran Peace Accords. On that date President Funes went to El Mozote where he made an important speech about the massacre, He publicly acknowledged that Atlactal Battalion soldiers 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.” (A video of the speech in the original Spanish is on the web.)

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.
Funes also 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.

This presidential statement at El Mozote went far beyond the previous apology Funes had made for the assassination of Archbishop Romero and the one for the murders of the Jesuit priests and their housekeeper and her daughter.

[1] This preliminary factual statement is based upon the Truth Commission Report and Mark Danner’s The Massacre at el Mozote . The mandate and procedures of the Truth Commission were discussed in a prior Post.

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

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

OLYMPUS DIGITAL CAMERA — 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.