The words and music about vocation at the January 26th and February 9th worship services at Minneapolis’ Westminster Presbyterian Church have inspired my general thoughts about vocation set forth in a prior post. Now I reflect on my own vocations.
Until I was in my early 40’s, I had no religious beliefs after high school and no sense of vocation.
That started to change in 1981 when I joined Westminster and embraced what I now see as my first vocation: serving the church as a ruling elder (1985-1991) and over time as an active member of several of its committees (Spiritual Growth, Communications and Global Partnerships). More recently I joined its Global Choir. After all, a new member covenants to find “a definite place of usefulness” in the church.
For 10 years (2003-2013) I served as chair of Global Partnerships, which supervises the church’s partnerships with churches and other organizations in Cuba, Cameroon, Palestine and for a time in Brazil. This lead to my going on three mission trips to Cuba, one to Cameroon and another to Brazil. As a result, I established personal friendships with people in those countries as part of our collective, and my personal, vocation of being present with our brothers and sisters in other parts of the world and standing in solidarity with them. I also learned about the history, culture and current issues of those countries. This in turn lead to a strong interest in promoting reconciliation between the U.S. and Cuba and Cuban religious freedom, and as a U.S. citizen I have endeavored to do just that.
This sense of religious institutional vocation also encompassed my serving on the Board of Trustees of United Theological Seminary of the Twin Cities for another 10-year period (1988-1998). In my small way, I helped nurture future ministers of the church. In the process I got to know interesting members of the faculty, administration and board and about the life of U.S. seminaries.
I, however, initially struggled with how to integrate my newly reclaimed religious beliefs and my life as a practicing lawyer, and over the years found ways to share this struggle with others, especially with my fellow lawyers.
One way I discovered a vocation in the practice of law resulted from experiencing the bitterness and lack of reconciliation between opposing parties in litigation and, too often, as well between their lawyers, including myself. This experience lead in the late 1980’s through the 1990’s to a personal interest in, and writing and speaking about, alternative dispute resolution (ADR), one of whose objectives is resolution of such disputes more amicably, and to my active participation in the ADR Section of the Minnesota State Bar Association.
Another and more powerful vocation involving my professional life emerged when a senior partner of my law firm in the mid-1980’s asked me to provide legal counsel to the firm’s client, the American Lutheran Church (“ALC” and now the Evangelical Lutheran Church in America). The problem: how should the ALC respond to information that the U.S. immigration agency (INS) had sent undercover agents into worship services and Bible-study meetings at ALC and Presbyterian churches in Arizona that provided sanctuary or safe places to Salvadorans and Guatemalans fleeing their civil wars.
The conclusion of this engagement was the ALC and the Presbyterian Church (USA)—my own denomination—jointly suing the U.S. government to challenge the constitutionality of such spying. Eventually the U.S. district court in Arizona held that the U.S. Constitution’s First Amendment “free exercise” of religion clause protected churches from unreasonable government investigations.
U.S. immigration law was in the background of this case, but I did not know anything about that law. I, therefore, sought to remedy that deficiency by taking a training course in asylum law from the Minnesota-based Advocates for Human Rights.
I then volunteered to be a pro bono lawyer for a Salvadoran seeking asylum in the U.S. because of his claim to a well-founded fear of persecution in his home country because of his political opinions and actions opposing its government. Again, my initial motivation for this action was to be a better lawyer for the ALC.
I discovered, however, that being a pro bono asylum lawyer was my passionate vocation while I was still practicing law and continued doing so until I retired from the practice in the summer of 2001. In addition to El Salvador, my other clients came from Somalia, Afghanistan, Burma and Colombia. I was able to assist them in obtaining asylum and thereby escape persecution. In the process, I learned more about asylum law and other aspects of immigration law as well as the horrible things that were happening in many parts of the world. I was able to use my experience and gifts in investigating and presenting facts and legal arguments to courts and officials and came to see this as one of the most important and rewarding vocations I have ever had.
In the process of this asylum work, I also learned for the first time about the humbling and courageous ministry and vocation of Salvadoran Archbishop Oscar Romero, who was assassinated in March 1980 because he repeatedly spoke out against human rights violations in his country. He now is my personal saint. I also learned about the important and courageous work in that country by the Jesuit priests and professors at the University of Central America, six of whom were murdered in November 1989 for the same reason, and they too have become heroes for me.
Another Salvadoran I met on my first trip to that country enriched my sense of the potential for vocation in practicing law. He was Salvador Ibarra, a lawyer for the Lutheran Church’s human rights office, who spoke about the joy he experienced in his work.
After retiring from the full-time practice of law in 2001, I served as an Adjunct Professor at the University of Minnesota Law School (2002 through 2010) to co-teach international human rights law. I thereby hoped to encourage law students to become interested in the field and to include such work in their future professional lives. Thus, this became another vocation with the side benefit of enabling me to learn more about the broader field of international human rights.
I chose another retirement in 2011, this time from part-time teaching, in order to start this blog about law, politics, history and religion. I came to see it as yet another vocation. I think it important to share my religious experiences and beliefs in the midst of active consideration of legal and political issues and demonstrate that it is possible for an educated, intelligent individual to have such beliefs.
In 2011 as a member of the planning committee for my Grinnell College class’ 50th reunion. I thought we should do more to remember our deceased classmates than merely list their names in our reunion booklet. I, therefore, suggested that if each committee member wrote five or six obituaries, we would have written memorials for all of our departed classmates. However, no one else volunteered to participate in this project so I did it all myself except for a few written by spouses. After the reunion, I continued to do this when the need arises.
Although this project required a lot of work, I came to see it as pastoral work and rewarding as I learned about the lives of people, many of whom I had not really known when we were together as students. I drew special satisfaction when I learned that a classmate who had died in his 30’s had two sons who had never seen the College annuals that had a lot of photographs of their father as a physics student and co-captain of the football team, and I managed to find a set of those annuals which were sent to the sons. I thus came to see this as a vocation.
Many of these vocations resulted from invitations from others to do something, which I accepted. Initially the invitations did not seem to be calls for a vocation, and it was only after doing these things and reflecting upon them that I saw them as such.
The concept of vocation often seems like doing something for others without any personal rewards other than feeling good about helping others. I, therefore, am amazed by the many ways I have been enriched by these endeavors. I have learned about different areas of the law, different countries and the lives of interesting people, living and dead.
I feel blessed that I have discovered at least some of the work that God has called me to do, in Frederick Buechner’s words, “the work that I need most to do and that the world most needs to have done.”
Or as Rev. Hart-Andersen said on February 9th, “When Jesus calls we get up and go, stepping forward in the direction of the one calling us. Being a follower of Jesus is not a destination . . . . Being called to follow Jesus is a way of life, a pilgrimage on which we embark together.”
Spain currently is in the process of adopting an amendment to its statute regarding universal jurisdiction for one of its courts. This post will examine that forthcoming amendment after looking at the background of that amendment.
Background
Under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture. (This was discussed in a prior post.)
Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court (La Audiencia Nacional) for the following crimes: (a) genocide; (b) terrorism; (c) piracy and hijacking of aircraft; (d) falsification of foreign currency; (e) prostitution and corruption of minors or incompetents; (f) trafficking in illegal, psychotropic, toxic and narcotic drugs; and (g) any other crimes under international treaties or conventions that should be prosecuted in Spain.
In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.
Finally the 2009 amendment specified that for such Spanish jurisdiction to exist, another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there were such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.
The New Amendment
On February 11, 2014, Spain’s Congress of Deputies (Congreso de los Diputados), the lower house of the country’s bicameral legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Since the same political party (Party Popular) also controls Spain’s Senate, it is anticipated that the Senate will pass the bill as well. Here are the principal provisions of the amendment:
The following specific crimes were added for universal jurisdiction: (i) war crimes (crimes against persons or goods in armed conflict); (ii) torture and crimes against moral integrity; (iii) crimes under the Convention on the Physical Protection of Nuclear Material; (iv) crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence; (v) offenses of corruption between private or international economic transactions; and (vi) crimes of enforced disappearances under the International Convention for Protection of All Persons from Enforced Disappearances.
Greater specificity was provided for offenses other than piracy covered by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol; offenses other than hijacking of aircraft under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and its Supplemental Protocol; crimes against sexual freedom committed on children; and trafficking in human beings.
For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.
For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
Only public prosecutors and victims may initiate criminal proceedings under universal jurisdiction; other private individuals or groups (acusaciones populares) may not do so.
Pending cases under the universal jurisdiction provision would be stayed and thereafter dismissed if they could not satisfy these new conditions.
There currently are 12 cases under this jurisdictional provision pending in Spanish courts, and presumably they all will be dismissed under this new amendment. They are the following:
Genocide in Tibet. In 2006 the court commenced an investigation against five former Chinese Communist leaders, including former President Jiang Zemin, for alleged genocide in Tibet. In November 2013, the court issued arrest warrants for these individuals, and in early February 2014, the court rejected the prosecutor’s motion to quash the warrants. As a result, the court on February 10th asked INTERPOL to issue international arrest warrants for the Chinese individuals.
Genocide in Guatemala. In 2003 the court commenced an investigation of eight former senior Guatemalan officials for alleged genocide, terrorism and torture.
Genocide in Sahara. In 2006 a NGO commenced a case against 31 Moroccan military officers for alleged genocide in the Sahara Desert.
Genocide in Rwanda. In 2005 an investigation was commenced against 69 senior Rwandan officials for alleged genocide and murder, and in 2008 arrest warrants were issued for 40 Rwandan soldiers.
Holocaust. In 2008 a case was commenced by Spanish survivors of the Holocaust against four SS guards, and in 2009 international arrest warrants were issued for three of these guards.
Murder of Spanish Diplomat. In 2012 the court commenced an investigation against seven Chilean officials for alleged participation in the 1976 kidnapping and assassination of a Spanish diplomat, Carmelo Soria. Last year a Chilean court rejected Spain’s request for the arrest of the officials.
Persecution of Falun Gong. In 2006 the court started an investigation of alleged persecution of Falun Gong practitioners by the Chinese government between 1999 and 2002.
Israeli Attack on “Freedom Flotilla” to Gaza. In 2010 the court started an investigation of Israeli officials for alleged war crimes and crimes against humanity for an armed assault on ships with materials for Palestinians in Gaza.
Murder of Spanish Journalist. In 2003 the court started an investigation of alleged U.S. military personnel in the 2003 death of a Spanish journalist, Jose Couso, in Iraq.
Torture of Detainees on CIA Flights. In 2006 the court started an investigation of possible violations by CIA or other U.S. personnel with respect to detainees on CIA flights stopping at an airport in Spanish territory.
Iraqi attack on Iranian refugee camp. In 2009 the court started to investigate an alleged Iraqi military attack on an Iranian refugee camp in 2008.
Murder of the Jesuit priests. In 1999 the court commenced to investigate the 1989 murders of six Jesuit priests in El Salvador, and in 2011 the court ordered the arrest of 20 former Salvadoran military officials.
The immediate precipitating causes for the Spanish government’s seeking and obtaining approval of this amendment at this time are widely seen as the Spanish court’s issuance of arrest warrants, and seeking INTERPOL arrest warrants, for high officials of the Chinese Communist Party, including a former president of the country, for alleged genocide in Tibet; China’s vehement protests of these developments; and the Spanish government’s desire for a friendly economic relationship with China.
Indeed, on February 11th, China’s Foreign Ministry said, “China is extremely dissatisfied with and resolutely opposed to the wrong actions of the relevant Spanish [court] taken while ignoring China’s solemn position. Whether or not this issue can be appropriately dealt with is related to the healthy development of ties. We hope that the Spanish government can distinguish right from wrong.”
Human rights groups opposed the current proposed amendment. Amnesty International, Human Rights Watch, the Center for Justice and Accountability and 14 others argue that under multilateral treaties ratified by Spain it has a legal obligation to prosecute any suspected offender of those treaties—regardless of where the crime was committed,[2] who is found in Spain. Moreover, these groups say, the International Court of Justice explained in the case Belgium v. Senegal, this duty to prosecute arises “irrespective of the existence of a prior request for the extradition of the suspect” and requires States to adopt legislation giving its courts the necessary jurisdiction.
Conclusion
Although I regard myself as an human rights advocate and have great respect for Amnesty International and the other NGOs that have opposed the amendment, I dissent from their objections.
In my opinion, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction. Indeed, as noted above, but not acknowledged in the NGOs’ objections, the amendment expands the crimes that are subject to universal jurisdiction and provides greater specificity for some of the crimes previously covered by the statute. This is important for future use of the statute and for due process notice to individuals who may be charged with such crimes in the future.
The main objection appears to be the amendment’s requirement for universal jurisdiction in some instances for an accused foreigner to be present (habitually resident or found) in Spain. This is akin to the U.S. constitutional due process requirement for a defendant to be present in the jurisdiction in order for personal jurisdiction in civil cases to exist, and I believe it is a reasonable requirement for criminal cases in Spain under its universal jurisdiction provisions.
Moreover, in many, if not all, of the previously mentioned 12 pending cases in Spain, the defendants have never been in Spain, and this has lead to the Spanish court’s unsuccessful efforts to enforce its own arrest warrants or the INTERPOL international arrest warrants. As a result, actual criminal prosecutions in these 12 cases have not even been commenced.
I know this is true in the case against 20 former Salvadoran military officers for their alleged involvement in the horrendous murders of the six Jesuit priests and their housekeeper and her daughter in El Salvador in November 1989. I think it is outrageous that these 20 individuals so far have not faced any criminal accountability or punishment for their alleged complicity in this awful crime and thus have de facto immunity or impunity for their actions, and I had hoped that the criminal case in Spain under its universal jurisdiction statute would bring them to justice. But unfortunately that has not happened. (Other posts on Spain’s case regarding the Jesuits’ murders, 6/15/11 and 8/26/11.)
Objection also has been made to the amendment’s imposing a requirement for universal jurisdiction in some instances for Spain to have denied a request for extradition. But at least as I read the English translation of the amendment, this requirement exists only for those foreigners who are temporarily in Spain and does not apply to foreigners who habitually reside in the country. For the passers-by this seems like a due process concern. How would you like while on holiday for one week on the Costa Brava to be charged with a serious crime by a Spanish court for something you allegedly did in the U.S. 10 years ago?
Furthermore, the amendment’s limitations also appear to be reasonable to make efficient use of Spanish judicial resources.
Finally, the Spanish government, in my opinion, has a legitimate interest in its efforts to have friendly economic relations with China as Spain continues to struggle to emerge from its economic difficulties, including high unemployment. Pursing justice for horrible crimes committed elsewhere is a laudable purpose and goal, but it is not the only purpose and goal of the Spanish government or any country’s government.
As an U.S. scholar stated, “With unemployment at 25 percent, Spaniards would be right to wonder why their officials were using taxpayer resources for other peoples’ problems and simultaneously risking even more Iberian jobs.”
[2] These treaties include the Geneva Conventions; the U.N. Convention against Torture; the International Convention for the Protection of All Persons from Enforced Disappearances; the Hague Convention for the Suppression of Unlawful Seizure of Aircraft; and the Convention on the Physical Protection of Nuclear Material.
On August 27, 2013, the federal court in Boston, Massachusetts sentenced Inocente Orlando Montano to 21 months in prison for violating U.S. immigration laws.
To obtain certain relief under those laws, Montano had stated to U.S. immigration officials that he had never served in any foreign military service, had never received military weapons training and had never been involved in persecuting others. A year ago he pleaded guilty to three counts of a federal indictment for those statements.[1]
In fact, Montano had served in the Salvadoran military, had received such training and had been involved in persecuting others. The record in the U.S. criminal case established the following:
During the Salvadoran Civil War, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.” [2]
Before the November 1989 murder of the Jesuit priests in El Salvador, Montano was an active participant in trying to publicly discredit the priests, including publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA) who was one of those murdered, as one “fully identified with subversive movements.”
In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)[3]
After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in charge of investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”[4]
Moreover, in May 2011, Montano was one of 20 former Salvadoran military officials who were subjects of arrest warrants by a Spanish court investigating the murder of the Jesuit priests, and in December 2011 the Spanish court issued a request to the U.S. for Montano’s extradition to Spain to face trial on those charges.[5]
Judge Douglas P. WoodlockMoakley U.S. Courthouse
The 21-month prison sentence was imposed by U.S. District Judge Douglas P. Woodlock.
The Judge noted that the site of the sentencing hearing–the Boston federal courthouse–was named after former U.S. Congressman John Joseph (“Joe”) Moakley, who had lead a congressional investigation of the murders of the Jesuits and whose words from a speech he had given at the site of the Jesuits murders had been engraved on the front of the courthouse: “There is no such thing as half justice. You either have justice or you don’t. You either have a democracy in which everyone–including the powerful–is subject to the rule of law or you don’t.”
Judge Woodlock closed the sentencing hearing by quoting the final summation of Justice Robert Jackson in the 1946 Nuremberg trials of Nazi perpetrators:
“These defendants now ask this Tribunal to say that they are not guilty of planning, executing, or conspiring to commit this long list of crimes and wrongs. They stand before the record of this Trial as bloodstained Gloucester stood by the body of his slain king. He begged of the widow, as they beg of you: ‘Say I slew them not.’ And the Queen replied, ‘Then say they were not slain. But dead they are…’ If you were to say of these men that they are not guilty, it would be as true to say that there has been no war, there are no victims, there has been no crime.”
Judge Woodlock then added, “In El Salvador, “there was a war, there are victims, and there has been a crime.”
[1] A prior post reported on early developments in the U.S. criminal case against Montano.
[3] A prior post discussed the actual murders of the Jesuits along with their housekeeper and her daughter while another post reviewed the Truth Commission’s report regarding same.
[4] The attempted cover up of the Salvadoran military’s planning and commission of the murders was discussed in a prior post while another post reviewed the Salvadoran criminal case about the murders.
[5] A prior post covered the Spanish court’s arrest warrants; another, developments in that case; and another, the requests for extradition. After Montano’s sentencing, the Center for Justice and Accountability, which backed the case against Montano, said that the U.S. has indicted that it would be amenable to his extradition to Spain after he had served his U.S. sentence.
Three methods of enforcing international human rights norms are found in U.S. laws relating to immigration.[1]
Introduction
First, certain foreign human rights violators can be deported or removed from the U.S. As section 237(a)(4)(D) of the Immigration and Nationality Act (INA) states: “Any alien . . . in and admitted to the [U.S.] . . . shall . . . be removed if the alien . . . (ii) ordered, incited, assisted, or otherwise participated in genocide, as defined in section 1091(a) of title 18, United States Code . . . ; (iii) outside the [U.S.] . . . committed, ordered, incited, assisted, or otherwise participated in . . . (I)any act of torture, as defined in section 2340 of title 18, United States Code; or (II) under color of law of any foreign nation, any extrajudicial killing, as defined in section 3(a) of the Torture Victim Protection Act of 1991 (28 U.S.C. 1350 note).” [2]
Generals Casanova (left) and Garcia (right)
This provision of U.S. immigration law currently is being used with respect to former Salvadoran military officers Carlos Eugenio Vides Casanova and Jose Guillermo Garcia, who jointly had been held civilly liable for torture in their country by U.S. federal courts under the Alien Tort Statute(ATS)[3] and the Torture Victims Protection Act (TVPA),[4] but who jointly had escaped similar civil liability under the TVPA for the torture and murder of the four American churchwomen in El Salvador.
These two immigration cases were brought by the Human Rights Violators and War Crimes Center of the U.S. Immigration and Customs Enforcement agency (ICE) of the Department of Homeland Security (DHS), whose mission is to “prevent the admission of foreign war crimes suspects, persecutors and human rights abusers into the [U.S.],” to “identify and prosecute individuals who have been involved and/or responsible for the commission of human rights abuses across the globe” and to “remove, whenever possible, those offenders who are located in the [U.S.].”
Second, certain foreign human rights violators who had gained legal entry or presence in the U.S. can be criminally prosecuted for committing fraud in obtaining a U.S. visa or other immigration benefit (18 U.S.C. § 1546(a)) or committing perjury in statements to U.S. immigration officials (18 U.S.C. § 1621(2)).
Innocente Orlando Montano
This set of provisions currently is being used with respect to another former Salvadoran military officer, Innocente Orlando Montano, who allegedly was involved in various human rights violations in his country, including the November 1989 murder of the six Jesuit priests and their housekeeper and her daughter.[5]
Sergei Magnitsky Grave
Third, last year the U.S. adopted the so-called Magnitsky Act which bans the issuance of U.S. visas to Russian individuals involved in certain human rights violations, including the detention, abuse or death of Sergei Magnitsky, a Russian lawyer and auditor who died in a Moscow prison in 2009 after investigating fraud involving Russian tax officials.[6]
Discussion
Vides Casanova
After an eight-day trial, a U.S. immigration judge on February 22, 2012, issued his 151-page decision on charges by DHS that Casanova, who had been residing in the U.S. since his retirement from the Salvadoran military in 1989, was removable from the U.S. on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador under the previously cited INA provisions. [7]
The immigration judge found that Casanova had ” assisted or otherwise participated in (a) “the extrajudicial killings of the four American churchwomen, five other named individuals, 29 unnamed others plus “countless civilians committed by the Salvadoran Armed Forces and Salvadoran National Guard while under [his] . . . command” and (b) “the torture of [Arce]” and “countless unnamed individuals [who had been] tortured by the Salvadoran [security forces] while under [his] . . . command.” Therefore, the immigration judge concluded that Casanova was removable from the U.S. under the previously cited statutory provision.
On August 16, 2012, the Immigration Judge denied Casanova’s application for cancellation of the removal order. The Judge held that the INA barred Casanova from seeking cancellation of removal, that under Board of Immigration (BIA) precedent immigration judges could not apply the doctrine of equitable estoppel against the U.S. Government and that the statutory provision authorizing his removal that was added in 2004 was explicitly made retroactive, thus rendering any contrary international law irrelevant.
On September 17, 2012, Vides Casanova appealed the latter decision to the Board of Immigration Appeals, where it is now pending.
Jose Guillermo Garcia
In October 2009, DHS charged that Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable from the U.S. under the previously cited INA provisions on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.[8]
On February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges. Closing briefs are due on June 3 and reply briefs by July 5. Thereafter the judge will issue a “timely written decision.”
The trial record consists of nine volumes of documents and the testimony of former U.S. Ambassador to El Salvador, Robert E. White; Dr. Juan Romagoza Arce (a plaintiff in the successful ATS and TVPA case against Garcia and Casanova); Dr. Terry Karl (expert witness); Garcia; and Ana Carolina Montoya (Garcia’s daughter).
Ambassador White testified to his frequent conversations with Garcia from March 1980 to early 1981, when the Ambassador urged Garcia to clean up human rights abuses and hold the perpetrators responsible. Garcia, however, failed and refused to do so even though he had admitted to White that 1% of the military were in the death squads. Garcia had expressed approval of the November 1980 assassination of the leadership of an opposition political party and of the strategy of assassinations as a means of dealing with dissidents.
Arce testified to his abduction in December 1980 and his horrendous torture over 22 days at a military barracks and the National Guard headquarters.
Dr. Karl, a Stanford University political science professor who has studied El Salvador for many years, testified that during the period Garcia was Minister of Defense (October 1979-April 1983) (1) he was the most powerful person, de facto and de jure, in the country; (2) the Salvadoran military engaged in widespread and systematic attacks on civilians; (3) Garcia was in control of the military; (4) Garcia presided over instituting measures of state terror; (5) Garcia’s actions gave a “green light” for human rights abuses; (6) Garcia promoted and protected known human rights abusers and fostered impunity of his fellow officers; and (7) Garcia repeatedly denied human rights abuses were occurring. She also described the widespread and systematic use of torture by the various units of the Salvadoran security forces.
Garcia testified that he did not commit or order any acts of torture or extrajudicial killings. He admitted that he knew there were widespread human rights abuses in the military while he was Minister of Defense; that “was public knowledge” and “can’t be denied.” He, however, had tried to identify and hold the perpetrators accountable, but the available evidence was insufficient to have successful prosecutions.
During questioning by the immigration judge, Garcia repeatedly admitted that he know of torture and other abuses by the military, but that he lacked control. Yes, he said, he did bear responsibility for those abuses, but not culpability.
Innocente Orlando Montano
In February 2012 the federal court in Massachusetts indicted Montano for perjury and lying to U.S. immigration officials in connection with his applications for Temporary Protected Status (TPS) in the U.S. under the previously cited criminal code provisions.
On September 13th he pleaded guilty to three counts of immigration fraud and three counts of perjury as a result of (a) his stating a false date of entry to the U.S. that qualified for TPS instead of his actual date of entry which did not so qualify and (b) his false statements to immigration officials that he had never served in a military unit, had never received military weapons training and had never been involved in persecution of others.
Since then the parties have been exchanging briefs on the appropriate sentence. The Government is recommending one of 51 months while Montano argues that is too long.
The Government’s Sentencing Memorandum of January 8, 2013, makes an interesting and, in my opinion, compelling argument for its recommendation. Here are its main points:
During the Salvadoran civil war, Montano quickly rose to the highest echelon of its security forces, and the forces he commanded were responsible for death squad activities and numerous other human rights abuses. According to expert witness, Dr. Terry Karl, there were at least 1,169 such violations, including 65 extrajudicial killings, 51 disappearances and 520 cases of torture. His appointment as Vice Minister for Public Security coincided with “a strong resurgence [in such crimes] . . . aimed at prominent civilians and civilian groups.”
Before the November 1989 murder of the Jesuit priests, Montano was an active participant in trying to publicly discredit the priests, including his publicly calling Ignacio Ellacuria, the Jesuit Rector of the University of Central America (UCA), as one “fully identified with subversive movements.”
In November 1989, according to the 1993 report of the Truth Commission for El Salvador, Montano was a member of a “small group of elite officers, one of whom gave the official order to ‘kill Ellacuria and leave no witnesses.” (Later in 1993 the Ad Hoc Commission, which was established by the Peace Accords that ended the Salvadoran civil war, recommended that virtually the entire military command, including Montano, be removed from office.)
After the murder of the Jesuits, Montano aided the cover up of the involvement of the security forces in this crime. He publicly insisted that the FMLN, not the security forces, had committed the crime. Although Montano initially was responsible for investigating the crime, he did not do anything to do so. He also pressured lower level military officers not to disclose the orders to kill Ellacuria and leave no witnesses to the Salvadoran court in subsequent charge of investigating the crime. In addition, Montano refused to cooperate with, or be interviewed by, the investigating judge, and in 2000 publicly rejected the claim that he was the indirect author of the murders, rebuked the Jesuits at UCA of “raking up the past” and called the reopening of the case as “orchestrated by the left” as part of “an international leftist plan.”
When Montano left El Salvador for the U.S. in 2001, there was “a great likelihood [he] . . . was motivated, at least in part, . . . [by] fear that he was vulnerable to prosecution for his role in the Jesuit murders.”
A fear of such vulnerability grew out of the arrest in 1998 of Chilean General Pinochet and of his being stripped of his immunity and ordered in 2001 to stand trial in Chile; the 1999 case against an Argentine military officer; a case against a Honduran general; and the June 2001 conviction of a Guatemalan military officer for the extrajudicial execution of a Roman Catholic bishop.
Also supporting such a likely fear was the Salvadoran election of March 2000 which gave the FMLN (the former guerrilla organization) a legislative majority and which immediately thereafter precipitated calls for reopening the Jesuit case from the Rector of UCA and the Archbishop of San Salvador. To the same effect were decisions in 2000 by the country’s courts that its General Amnesty Law could not be applied to human rights violations by public officials while in office and that even though the statute of limitations had run out in the Jesuits case, the writ of amparo could still be used for that crime.
Given the strength of the Government’s justification for the recommended sentence, the lack of any real response from Montano and the skeptical questioning of Montano by the judge, I have little doubt that the judge will find the grounds for removal substantiated by the evidence and order him removed or deported from the U.S.
Magnitsky Act Developments
On April 12, 2013, the Obama Administration issued a list of 18 Russians who were barred from entering the U.S. and whose assets, if any, in the U.S. were frozen, pursuant to this statute. Most were individuals tied to the death of Mr. Magnitsky, but two had been implicated in notorious murders of a Chechen dissident and an American journalist. There were other more highly placed Russian officials on a nonpublic list.
The reaction to the release of this list was mixed. Russian officials, or course, were critical although a Russian legislator said the Obama Administration was taking a “minimalist path” to avoid a deeper crisis before the visit this week to Russia by the Administration’s National Security Advisor, Tom Donilon. Mr. Megnitsky’s U.S. client and major advocate for the Act when it was in Congress, William F. Browder, said, “We’ve just crossed the threshold. This is the end of impunity.” U.S. Senator John McCain, however, said the list was “so damaging” because it was not robust enough and promised new legislation to go after Russian abusers.
The next day (April 13th) Russia retaliated by issuing a list of 18 U.S. citizens who were barred from entering Russia because of their alleged human rights violations. It included two people involved in preparing the so-called “torture memos” –David Addington, Chief of Staff to Vice President Dick Cheney, 2005-2009; and John Yoo, Assistant U.S. Attorney General, 2001-2003–and two who had responsibilities for the operations of the Guantanamo Bay detention facilities– Geoffrey D. Miller, retired U.S.Army Major General, Commandant of Joint Task Force Guantanamo, 2002-2003; and Jeffrey Harbeson, U.S. Navy officer, Commandant of Joint Task Force Guantanamo, 2010-2012. The others on the list were U.S. officials involved in the prosecution and trial of a Russian arms dealer and a Russian pilot allegedly involved in drug trafficking.
Russian officials said the U.S. must realize it cannot conduct its relationship with Russia “in the spirit of mentoring and undisguised diktat.” The statement continued, “Our principled opinion on this unfriendly step is well known: under the pressure of Russophobically inclined U.S. congressmen, a severe blow has been dealt to bilateral relations and mutual confidence. The war of lists is not our choice, but we had no right to leave this open blackmail unanswered.”
Conclusion
These three immigration cases show the interactive nature of the enforcement of international human rights norms. Casanova and Garcia were named as involved in some of the worst human rights abuses in El Salvador by the Truth Commission for El Salvador, and its conclusions were then used by the Inter-American Commission on Human Rights in cases against the State of El Salvador and by U.S. courts in civil lawsuits under the ATS and the TVPA. All of the results of these proceedings were then used in these three U.S. immigration cases.
Another interactive element in these cases is the competent, sustained efforts of the Center for Justice and Accountability in supporting the successful civil lawsuit against Casanova and Garcia under the ATS and TVPA and pressing ICE’s Human Rights Violators and War Crimes Center to bring these immigration cases. The Center is a California-based 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.”
The Magnitsky Act, in my opinion, is a different matter. I think it was unnecessary because the previously mentioned INA provisions now being used in the Casanova and Garcia immigration cases could be used to deny U.S. visas to the named Russians. I also think it was and is imprudent because it interferes with U.S. relations with Russia and our national interest in trying to obtain Russian assistance on problems with Syria and North Korea, for example. Professor of Russian Studies at NYU, Stephen Cohen, shares the latter view.
Yes, it is true that some of these means of enforcement are weaker than criminal conviction and imprisonment of the violators. Some only involve recommendations to the state (here, El Salvador) by such organizations as the Inter-American Commission on Human Rights. In this post we are concerned, in part, with orders by a country (here, the U.S.) for a violator to leave the country. But such “weakness” is a necessary consequence of a world essentially structured on the basis of an individual state’s sovereignty. Over time these various mechanisms hopefully will be improved and strengthened.
[1] Asylum, of course, is another part of immigration law that enforces human rights as covered in other posts. Additional ways of enforcement are discussed in another post.
[2] This provision about removal of foreign human rights violators was added by section 5501 of the Intelligence Reform and Terrorism Prevention Act of 2004, 118 Stat. 3638, 3740 (2004). The same language bars such a person from obtaining a visa for legal entry into the U.S. (Id. § 212(a)(3)(E)(ii), (III).)
[3] The ATS (28 U.S.C.§1350) provides that U.S.”district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the [U.S.].” Many prior posts have discussed this statute and cases thereunder.
[4] The TVPA (28 U.S.C.§1350 note) provides, “An individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture [or extrajudicial killing] shall, in a civil action, be liable for damages . . . .” Many prior posts have discussed this statute and cases thereunder.
[5] A Spanish court under the principle of universal jurisdiction has charged Montano and other Salvadoran military officers with complicity in the murders of the Jesuit priests and their housekeeper and daughter. The Spanish government has asked the U.S. to extradite Montano and another former officer now living in the U.S. to Spain to stand trial on such charges, but the U.S. apparently has not yet acted upon the request. A similar request to El Salvador for extradition of other former officers has been rejected. A summary of these and other developments in the Jesuits case is available on this blog.
[6] The complete title of the statute is the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012. Sections 404 (a) and 405(a) of the Act make ineligible for U.S. visas individuals identified on a subsequent U.S. presidential list of those “responsible for the detention, abuse, or death of . . . Magnitsky, participated in efforts to conceal the legal liability for the detention, abuse, or death of . . . Magnitsky, financially benefitted from the detention, abuse, or death of . . . Magnitsky, or was involved in the criminal conspiracy uncovered by . . . Magnitsky.” That presidential list is also to include a list of individuals “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals seeking–(A) to expose illegal activity carried out by officials of the Government of the Russian Federation; or(B) to obtain, exercise, defend, or promote internationally recognized human rights and freedoms, such as the freedoms of religion, expression, association, and assembly, and the rights to a fair trial and democratic elections, in Russia.”
[7] A previous post discussed this February 2012 decision. The complete (but redacted) text of the February and August 2012 decisions was only made publicly available in April 2013. A summary of this immigration case is available on the web.
[8] A summary of this immigration case is available on the web. Previously (January 2009), Garcia had been indicted for visa fraud and making false statements to U.S. immigration officials, but in September 2009 the indictment was dismissed when a government witness recanted her testimony.
On December 11, 1981, the Salvadoran military detained and systematically executed virtually all of the 200 men, women and children in the small village of El Mozote in the northern part of the country. Others in nearby villages also were executed in the military’s “scorched earth” offensive.[1]
Now we look at this case before the Inter-American Court of Human Rights (the Court).
Invoking the Court’s Jurisdiction
As previously reported, the Commission on November 3, 2010, decided that the State of El Salvador had violated the American Convention on Human Rights in various respects regarding the Massacre and recommended various actions be taken by the State to redress the crimes. The State was given two months from December 8, 2010, to do so.
As of March 8, 2001, however, the State had not responded to the Commission regarding its implementation of the recommendations. Therefore, on that date, the Commission submitted the case to the Court for enforcement of those recommendations.
At the Court’s April 23, 2012, hearing in the matter, an attorney for the State said it would comply with whatever the Court decided.
The Court’s Judgment
Inter-American Court of Human Rights
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 National Court of Spain is processing a criminal case against 20 former Salvador military officers for the November 1989 murders of six Jesuit priests and their cook and her daughter.[1]
On December 2nd the Spanish Government approved the request of Spanish Judge Eloy Velasco to issue requests for extradition of 15 of the men charged in this case.[2]
The government of El Salvador will receive 13 of the requests. Whether or not to grant the request will be a matter for the country’s Supreme Court. A Salvadoran defense attorney says that there will be no extradition because El Salvador already tried a criminal case involving this crime.[3]
The government of the U.S. will receive the other two requests. One will be for extradition of Inocente Orlando Montano, who is living in Massachusetts, has denied the Spanish charges. In the federal court in Boston he is now facing criminal charges of perjury and making false statements on U.S. immigration forms. The other will be for Hector Ulises Cuenca Ocampo, who is believed to be living in California.[4]
Five other former Salvadoran military officers are facing criminal charges in the Spanish case. One is reported to be cooperating with the Spanish court; another is said to be willing to do so; two have not been located; and the last is deceased (General Rene Emilio Ponce).[5]
[1] Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011); Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011).
[2] Assoc. Press, Spain Asks U.S. and El Salvador to Extradite Murder Suspects, N.Y. Times (Dec. 3, 2011).
[3] Guzman, Court awaiting extradition request, lapagina.com.sv (Dec. 2, 2011(Google English translation);Guzman, The extradition of former soldiers to Spain will never give, according to defense, lapagina.com.sv (Dec. 2, 2011(Google English translation).
[4]EUA also asked to send, laprensagrifica.com (Dec. 3, 2011)( Google English translation); Immigration fraud, a former soldier Montano faces 5 years in prison, lapagina.com.sv (Nov. 30, 2011)( Google English translation); Salvadoran ex-officer faces Mass. Perjury charge, http://www.boston.com (Nov. 29, 2011); Criminal Complaint, U.S. v. Montano, Case No. 11m-5193-I6D (D. Mass. Aug. 22, 2011).
[5] Lemus, Spain calls on El Salvador extradition of military slaughter processed by Jesuit, http://www.elfaro.net/es (Dec. 2, 2011)( Google English translation);The judge asked the government to claim 13 soldiers for the killing of Jesuit, http://www.elmundo.es (Nov. 8, 2011) (Google English translation).
The Inter-American Commission on Human Rights (IACHR) in 1999 determined that El Salvador had violated the American Convention on Human Rights with respect to the 1989 murders of six Jesuit priests along with their housekeeper and her daughter. As a result, the Commission recommended that El Salvador undertake a complete and impartial investigation to identify, try and punish the perpetrators of that crime, make reparations for the violations and repeal its General Amnesty Law.[1]
In 2000 the IACHR determined that El Salvador had violated the American Convention on Human Rights with respect to the 1980 assassination of Archbishop Oscar Romero and made similar recommendations with respect to this crime.[2]
As we have seen, El Salvador has not implemented these recommendations other than making important symbolic public confessions of state responsibility and pleas for forgiveness along with praise for the victims of these crimes.[3]
In October 2011, the IACHR held a working session on the status of El Salvador’s implementation of the Commission’s recommendations in these cases. Two non-governmental human rights organizations (Human Rights Institute at the University of Central America and the Center for Justice and International Law) expressed frustration over the failure of the state to implement these recommendations. They also complained about the failure of El Salvador to cooperate with the Jesuits case in the courts of Spain by failing to enforce the INTERPOL Red Notice for the arrests of some of the defendants in that case.[4]
Unfortunately there is not much that the IACHR can do to change these circumstances. Nor can President Funes do much more because his political party (the FMLN) does not control the country’s legislature or office of the prosecutor.
[1] Post: International Criminal Justice: The Jesuits Case Before theInter-American Commission on Human Rights (June 13, 2011).
[2] Post: Oscar Romero’s Assassination Case in the Inter-American Commission on Human Rights (Oct. 13, 2011).
[4] Center for Justice & Int’l Law, El Salvador is still in breach of the IACHR recommendations in the case of Monsignor Romero and the slaughter at the UCA (Oct. 27, 2011); Impunity continues for the crimes of the 1980s, Tim’s El Salvador Blog (Nov. 5, 2011); Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011); Post: The Current Controversy Over El Salvador’s General Amnesty Law and Supreme Court (June 16, 2011); Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011).
On September 8th the ICC Prosecutor announced that he is requesting INTERPOL to issue a “Red Notice” to arrest Muammar Gaddafi for the alleged crimes against humanity of murder and persecution that have been charged by the ICC. The Prosecutor also is seeking such Red Notices for the other two Libyans facing ICC charges.[1] On September 9th INTERPOL isssued these Red Notices. (Nordland, INTERPOL Issues Qaddafi Arrest Warrant as More Libyan Officials Flee, N.Y. Times (Sept. 9, 2001).)
The ICC Press Release says that an “INTERPOL Red Notice seeks the provisional arrest of a wanted person with a view to extradition or surrender to an international court based on an arrest warrant or court decision.” Such notices go to all 188 countries that are members of INTERPOL.
This statement also stands as an implicit rebuke to the recent erroneous decision of El Salvador’s Supreme Court that a Red Notice only called for information about the location of individuals named in such notices, not their arrests.[2]
In another ICC development, on August 30, 2011, the Philippines deposited its instrument of ratification of the Rome Statute with the U.N. Secretary General. It will become the 117th State Party to the Statute.[3]
[1] ICC Press Release, ICC Prosecutor Requesting INTERPOL Red Notice for Gaddafi (Sept. 8, 2011). See Post: International Criminal Court and the Obama Administration (May 13, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011); Post: International Criminal Court: Possible Arrests of Three Libyan Suspects (Aug. 22, 2011).
[2] Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011); Comment [to that Post]: Salvadoran Supreme Court’s Decision on INTERPOL RED NOTICE Was Erroneous (Aug. 28, 2011).
[3] ICC Press Release, The Philippines becomes the 117th State to join the Rome Statute system (Aug. 30, 2011).
On September 29-October 1, 2011, the University of Minnesota Department of Spanish and Portuguese Studies will host an “International Symposium: Ongoing Dialogues about Memory and Human Rights: Latin America and the Iberian Peninsula.”[1]
The symposium will address the role that literature, art and film have in the struggles against enforced disappearance, torture, degrading treatment, forced prostitution, human trafficking, violence against immigrants, gender violence, and feminicide. We seek to address the relations between artistic practices and struggles against impunity and between aesthetics and ethics, and to give visibility to current human rights concerns and to the design of practices of memory.
I will be presenting a paper, “The Interactive Global Struggle Against Impunity for Salvadoran Human Rights Violators.”[2] Other participants and their topics are the following:
Jean Franco (Emeritus Professor, Columbia University),“The Ghostly Arts.”
David William Foster (Regents’ Professor of Spanish and Women and Gender Studies, Arizona State University), “Helen Zout’s Desapariciones: Shooting Death.”
Ileana Rodriguez (Humanities Distinguished Professor, Ohio State University),“ Operación Pájaro: Expediente 27, 1998. Obispo Gerardi: Enemigo del Estado.”
Horacio Castellanos Moya (Escritor, periodista), READING from “Insensatez (Senselessness) y Tirana memoria (Tyrant memory).”
Guillermina Wallas (Independent Scholar),“Ciudad y memoria: reclamos de justicia a través de las marcas testimoniales de La Plata (Argentina).”
Margarita Saona (Associate Professor, Department of Spanish, University of Illinois at Chicago), “Memory Sites: From Auratic Spaces to Cyberspace in Peruvian Embattled Memories.”
Amy Kaminsky (Professor, Department of Gender, Women and Sexuality Studies, University of Minnesota), “Memory, Postmemory, Prosthetic Memory: Reflections on the Holocaust and Argentina’s Dirty War.”
Hernán Vidal (Emeritus Professor, Department of Spanish and Portuguese Studies, University of Minnesota),“Verdad universal: notas jurídicas para una hermenéutica cultural basada en los derechos humanos.”
Alicia Kozameh (writer), READING from “Pasos bajo el agua, 259 saltos, uno inmortal, Mano en vuelo,y “Bosquejo de alturas.” Barbara Frey (Program director, Human Rights Program. University of Minnesota),”Forms and Practices of Human Rights Advocacy.”
Felix de la Concha (Artist),“Facing Memories: Portraits with Testimonies.”
Patrick J. McNamara, (Associate Professor, Department of History, University of Minnesota,“Memory Without Metaphor: Cognition and the Art of Human Rights in Mexico.”
Raul Marrero Fente, (Associate Professor, Department of Spanish and Portuguese Studies, University of Minnesota),”Ethics and Law in the Inter-American Human Rights System.”
Luis Martín Estudillo (Associate Professor, University of Iowa),“The Banality of Torture? Earning Democratic Credentials Under Franco.”
Miguel Rep (Artist, cartoonist),“Del derecho humano al humor.”
Regina Marques (Professor of Communication Science at the Polytechnic Institute of Setúbal (Portugal), Member MDM (Movimento Democrático de Mulheres) , CES (Conselho Económico e Social) and WIDF’s (Women’s International Democratic Federation) bureau), “ Women’s Rights as Human Rights. Vulnerabilities in Portugal and in Europe. The Gap Between the Law and Life.”
Javier Sanjinés (Professor, Department of Romance Languages and Literatures, University of Michigan),”Estética y Derechos Humanos bajo la Dictadura en Bolivia: el monumentalismo de Fernando Díez de Medina.”
Alicia Gaspar de Alba (Writer, Professor of Chicana and Chicano Studies, English, and Women’s Studies at UCLA), READING from “Desert Blood: The Juarez Murders.”
Leigh Payne, (Professor of Sociology and Latin American Studies, University of Oxford, Visiting Professor, Department of Political Sciences, University of Minnesota), “The Struggle Against Silence and Forgetting in Brazil.”
Alexis Howe, (Assistant Professor, Dominican University), “Madness and Disappearance: El infarto del alma” by Diamela Eltit and Paz Errázuriz.
Ofelia Ferrán, (Associate Professor, Department of Spanish and Portuguese, University of Minnesota), “Mala gente que camina, by Benjamín Prado: Uncovering the Plot of Franco’s ‘Stolen Children’ in Contemporary Spain.”
[1] Univ. Minnesota, Dep’t of Spanish & Portuguese Studies, International Symposium: Ongoing Dialogues about Memory and Human Rights: Latin America and the Iberian Peninsula, http://spanport.umn.edu/news/index.php?entry=297980. The Symposium will be held at the Maroon, Gold and the Gateway Rooms of the McNamara Alumni Center, 200 Oak St. SE, Minneapolis, MN 55455. For further information contact Professor Ana Forcinito (aforcini@umn.edu) or Jaime Hanneken (hanne045@umn.edu).
[2] An earlier version of this paper was presented at an October 2009 conference in Rio de Janeiro, Brazil and has been published (in Portuguese translation) in Memorie e Justica by Brazil’s Museau da Republica (Museum of the Republic).
Over the last several weeks there have been significant developments in El Salvador, the U.S. and Spain regarding the Spanish court’s criminal case against 20 Salvadoran military officers for their alleged involvement in the November 1989 murders of six Jesuit priests. These developments arise out of the May 30, 2011, Spanish court’s issuance of arrest warrants for the 20 defendants on charges of crimes against humanity and state terrorism in planning and carrying out the murders.[1]
After May 30th Spain enlisted the assistance of the International Police Organization or INTERPOL, the world’s largest international police organization, with 188 member countries, to facilitate cross-border police co-operation and to prevent or combat international crime. INTERPOL in turn issued RED NOTICES identifying the 9 of the 20 defendants believed to be living in El Salvador (the Salvadoran Nine) and their indictment by the Spanish court. (Another RED NOTICE is believed to have been issued for a defendant believed to be living in the U.S.) Such RED NOTICES typically are treated as requests for provisional arrests of the subjects of the notices so that the formal process of requests for their extradition to Spain, in this case, can be made.[2]
El Salvador Developments
In El Salvador, in late July a lawyer for the Nine requested the National Civilian Police (PNC) to not execute the Red Notices on the ground that the crime already had been prosecuted by Salvadoran courts.[3] In addition, on August 7th the Nine turned themselves in to a military base near San Salvador, presumably because of a belief that as former military officers they would have some protection there. That same day, however, the country’s Minister of Defense turned them over to civilian authorities who kept the Nine in custody at one of the country’s military facilities.[4]
Thereafter, the Nine filed habeas corpus petitions with the Constitutional Chamber of El Salvador’s Supreme Court. On August 24th the Chamber rejected the petitions on the ground that there was a request for their extradition to Spain.[5]
Minutes later on August 24th, however, the 15-member Salvadoran Supreme Court decided, 10 to 2, that the RED NOTICES for the Nine only served to locate people accused of crimes by another country. The Notices did not authorize arrests. That could happen only if there were a formal extradition request, and no such request had been received by El Salvador. If Spain in fact made an extradition request, the court would consider it.[6]
The reaction to the decision within El Salvador was predictable; those who supported the military were happy; those who wanted to see justice for the Jesuits were disappointed.[7]
In response to the Salvadoran Supreme Court ruling, a Spanish court official has said that Spain cannot issue a formal extradition request to El Salvador for the Nine because Spain has not been notified that they are under arrest. The Spanish court, therefore, has asked El Salvador to clarify the legal status of the Nine after the Salvadoran court’s August 24th ruling. [8]
Does this leave the issue at an impasse? El Salvador will not authorize an arrest because there is no extradition request, and Spain will not or cannot issue extradition requests because there are no arrests?
Meanwhile in El Salvador, the controversial Decree 743 that required the Constitutional Chamber of its Supreme Court to act unanimously has been repealed.[9]
U.S. Developments
On or about August 19th defendant Montano was arrested in Virginia on charges of lying to U.S. immigration officials in applying for Temporary Protected Status in the U.S. On August 23rd he made an appearance at a federal court in Massachusetts, where he had been residing. The next day he was released on a $50,000 bond and confinement to his sister’s house with electronic monitoring. Apparently there has not yet been a RED NOTICE for him.[10]
Earlier (in July) Senators John Kerry, Tom Harkin, Patrick Leahy and Barbara Boxer jointly signed a letter to Secretary of State Hillary Clinton requesting the U.S. to cooperate fully with the Spanish court in this case. The response from an Assistant Secretary of State said the U.S. was monitoring the case and would give any Spanish request for assistance the appropriate consideration.[11]
Spain Developments
In Spain, lawyers for the Nine apparently have decided that offense is the best defense. They have filed charges in the Spanish court alleging that the Spanish judge, Valasco Nunez, acted illegally in the May 31st arrest orders for the 20 Salvadoran former military officers. The basis for the charge is the prior Salvadoran criminal case regarding the murders of the Jesuits, the Salvadoran amnesty law and its statute of limitations barring any such charges at this time. The attorneys also are considering a charge of defamation against the Spanish judge.[12]
Conclusion
As this discussion indicates, the story is far from over. Further developments in this case are expected in all three countries.
[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: The Spanish Court’s Criminal Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011).
[2] INTERPOL, http://www.interpol.int/default.asp; Arauz, Dada & Lemus, Interpol arrest warrants processed 10 Jesuit Salvadoran military case, el Faro (July 29, 2011), http://www.elfaro.net (Google English translation). In addition to the RED NOTICES for the nine officers believed to be living in El Salvador, another was issued for Rene Emilio Ponce, who died in May 2011. (Id.)
[3] See Post: International Criminal Justice: Salvadoran Criminal Prosecution of the Murders of the Jesuit Priests (June 8, 2011).
[4] Center for Justice & Accountability, Press Release: Salvadoran High Commanders Responsible for Jesuit Massacre in 1989 Under Custody in El Salvador (Aug. 10, 2011); Tim’s El Salvador Blog, Officers indicted for Jesuit murders surrender (Aug. 8, 2011),______ ;
[5] Gonzalez & Perez, Supreme Court in the event benefited the Jesuit military, diario colatino (Aug. 25, 2011) (Google English translation).
[6]Id.; Assoc. Press, Salvadoran Supreme Court refuses to detain men charged in 1989 killings of Jesuit priests, Wash. Post (Aug. 24, 2011); Released in the Salvador to military courts in Spain by death of Jesuits, lapagina.com (Aug. 25, 2011) (Google English translation).
[7]General Zapeda,”national sovereignty has prevailed and has restored peace to the country, lapagina (Aug. 25, 2011) (Zapeda is one of the defendants) (Google English translation); Perez, Munguia Payes, “an episode closes, whatever comes later, lapagina (Aug. 25, 2011)(Payes is Defense Minister) (Google English translation); Calderon, Rodolfo Cardenal, “The decision was somewhat expected, because,” lapagina (Aug. 25, 2011)(Cardenal is former UCA vice chancellor) (Google English translation); Guzman, Siegfried Reyes: “El Salvador has a large debt tp truth and justice, lapagina (Aug. 25, 2011)(Reyes is President of the Legislative Assembly) (Google English translation).
[8] Sainz, Spain seeks El Salvador clarification on suspects, Miami Herald (Aug. 25, 2011); Assoc. Press, Spain Seeks El Salvador Clarification on Suspects, N.Y. Times (Aug. 25, 2011).
[9]Tomorrow Decree 743 will be history, diariocolatino (July 28, 2011). See Post: El Salvador’s Current Controversy over Its General Amnesty Law and Supreme Court (June 16, 2011).
[10] Arsenault, War crime suspect found in Everett [Massachusetts], Boston Globe (Aug. 17, 2011); Assoc. Press, Salvadoran accused in Jesuit deaths held in Mass., Boston Globe (Aug. 23, 2011); Assoc. Press, Suspect in Jesuit deaths out on immigration charge (Aug. 24, 2011); Arsenault, War crimes suspect in house arrest in Saugus [Massachusetts], Boston Globe (Aug. 25, 2011); Aragon, Military accused of slaughter in the U.S. Jesuit was arrested while fleeing to Mexico, elfaro (Aug. 25, 2011) (Google English translation).
[11] Arsenault, War crime suspect found in Everett [Massachusetts], Boston Globe (Aug. 17, 2011);
[12] Lemus, Military sue Spanish judge to reverse the Jesuit case, elfaro (July 31, 2011) (Google English translation); Aguilar, Military accused of slaughter in Spain by Jesuits are delivered to the army, elfaronet (Aug. 8, 2011). See Post: International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests (June 8, 2011); Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011).
