Tag: Oscar Romero

International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves[2]  and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3]  We also have summarized the Salvadoran criminal case regarding this crime[4] and the work of the Truth Commission for El Salvador as it pertains to this crime.[5] Now we look at El Salvador’s General Amnesty Law and its impact on the Jesuits’ case.[6]

Adoption of the General 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). 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.[7]

This legislation had been recommended by then President Cristiani and passed by the ARENA- party-controlled Assembly over objections by the U.N. Secretary General and the new Salvadoran Human Rights Ombudsman. It should also be noted that the Truth Commission had not recommended any amnesty as the Commissioners thought that was a decision for the people to make after an appropriate dialogue on the subject. But the manner in which the General Amnesty Law was rushed through the legislature was later seen by at least one of the Truth Commissioners as “unseemly at the very least, indicative of a lack of respect for the democratic processes, and thus incompatible with the spirit of the Peace Accords.” [8]

In passing the General Amnesty Law, the Government overruled the agreed-on terms of the National Reconciliation Law of January 23, 1992, that provided amnesty for combatants in the civil war, but not for (1) persons convicted by juries and (2) those named by the Truth Commission as responsible for serious human rights violations, but that allowed the latter exception to amnesty to be overruled by the National Assembly six months after the issuance of the Truth Commission Report and presumably after public debate about any such overruling. Significantly the National Reconciliation Law of 1992 was a political compromise. The right-wing ARENA party that controlled the government wanted a blanket amnesty that would have immunized all persons committing any war crimes while opposition parties wanted a more limited amnesty, and the two sides instead agreed to the compromise provision just noted.[9]

Impact of the General Amnesty Law on the Jesuits Case in El Salvado

In 1993, pursuant to the General Amnesty Law, Colonel Benavides and the others who had been convicted in the Jesuits case were released from prison.[10]

 Salvadoran Litigation over the General Amnesty Law

 Immediately after the adoption of this law, Salvadoran human rights organizations brought a lawsuit to challenge its constitutionality, but the Salvadoran Supreme Court in 1993 rejected that claim. The court, in part, justified its conclusion by relying upon the following provision of Article 6(5) of the Protocol II to the Geneva Convention relating to the Protection of Victims of Non-International Armed Conflicts: “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.” [11]

This broad reading of the above provision of Protocol II of this Geneva Convention, however, is not sustained by the International Committee of the Red Cross (ICRC), which has primary responsibility for monitoring world-wide compliance with the Geneva Conventions. Instead, the ICRC says it is inappropriate to grant amnesty to persons who have violated international humanitarian law, i.e., the law of war; Article 6(5) instead was intended to encourage amnesty or immunity for combatants so long as they act in accordance with that humanitarian law.[12]

Moreover, notwithstanding this provision of Protocol II, El Salvador’s General Amnesty Law and similar laws in other countries have been criticized by the Inter-American Commission on Human Rights as violating the American Convention on Human Rights. Similar criticisms have been leveled against this and similar laws in other countries under the American Convention on Human Rights and other multilateral human rights treaties by the Inter-American Court of Human Rights, the U.N. Secretary-General, several U.N. human rights bodies, the European Court of Human Rights and international criminal tribunals.[13] These arguments also have been advanced by human rights NGOs.[14]

Again in 2000 the Salvadoran Supreme Court upheld the constitutionality of the General Amnesty Law, but this time it also held that each investigative judge could determine whether application of the law in a particular case would interfere with the country’s treaty obligations or with reparation of a fundamental right, and if it would so interfere, the judge would not have to apply the law.[15]

The importance of the General Amnesty Law and whether it is constitutional under Salvadoran law has not gone away. Indeed, right now these are hot topics in El Salvador, as we will see in the next post.

In any event, as a result of the General Amnesty Law, the author is not aware of any new Salvadoran criminal prosecutions of those named in the Truth Commission Report, and the Commission’s recommendation of eventual punishment of the guilty by the Salvadoran government has been rejected. Moreover, in the years since the Supreme Court’s 2000 decision announcing the ability of a judge in an individual case to not apply the amnesty law, the author is not aware of any instance in which that has been done.

[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May31, 2011).

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

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

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

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

[6]  In subsequent posts, we will examine the Jesuits case in the Inter-American Commission on Human Rights and the Spanish court.

[7]  I-A Comm’n Human Rights, Report on the Situation in El Salvador § II (4) (Feb. 11, 1994); Doe v. Saravia, 348 F. Supp. 2d at 1133;  U.S.State Dep’t, El Salvador Human Rights Practices, 1993, at 1 (Jan. 31, 1994); Hemisphere Initiatives,  Justice Impugned: The Salvadoran Peace Accords and the Problem of Impunity at 6-7 (June 1993); Lawyers Committee for Human Rights, El Salvador’s Negotiated Revolution: Prospects for Legal Reform at 62-79; Popkin at 135, 150-52; Brief Amici Curiae [26 international human rights law professors] in Support of Appellees and Affirmance at 4, Chavez v. Carranza (6th Cir. May 14, 2008) [“Law Professors Amici Brief”].

[8]  Miller, Compromise Amnesty Law OK’d in Salvador–Central America, Los Angeles Times, Jan. 24, 1992; Popkin at 150-52; Buergenthal at 536-38.There, however, was no significant political support for repeal of the General Amnesty Law, and in 1994 the FMLN said that if the Law were held unconstitutional, it would support a new, narrower amnesty law. Popkin at 157.

[9]   Id.

[10]  IACHR, Ellacuria v. El Salvador, Rep. No. 136/99 ¶ 36 (Case No. 10.488 Dec. 22, 1999); New Charges Barred in Salvador Killings, N. Y. Times, Oct. 24, 2000.

[11]  Popkin at 152-53; International Comm. of Red Cross, http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=475&t=art. Subsequently courts in South Africa and Chile apparently followed this ruling of the El Salvador Supreme Court. (Popkin at 153.)

[12]  Roht-Arriaza, Combating Impunity: Some Thoughts on the Way Forward, 59 Law & Contemp. Problems 93, 97 (Fall 1996); Roht-Arriaza, The Developing Jurisprudence on Amnesty, 20 Hum. Rts. Q. 843, 865-66 (1998); IACHR, Cea, et al, v, El Salvador . Rep. No. 1/99, ¶ 116 (Case No. 10.480 Jan. 27, 1999); Popkin at 154.

[13]  U.N. Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances–Mission to El Salvador ,  ¶¶  62-75, 83 (Oct. 26, 2007); U.N. Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances  ¶  426 (Jan. 10, 2008); U.N. Human Rights Comm., Concluding Observations of the Committee: El Salvador   ¶ 6 (July 22, 2003);  U.N. Human Rights Comm., Concluding Observations of the Committee: Republic of Congo  ¶ 12 (2000); U.N. Human Rights Comm., General Comment 20, ¶ 15 (Mar. 10, 1992); U.N. Comm. on Elimination of Racial Discrimination, Concluding Observations of the Committee: El Salvador   ¶ ¶ 15, 22 (April 4, 2006); U.N. Hum. Rts. Comm’n, General Recommendations of the Special Rapporteur on Torture ¶ (k) (2003); U.N. Gen. Ass’bly Res. 47/133, Declaration on the Protection of All Persons from Enforced Disappearances , Art. 18 (1) (Feb. 12, 1993); IACHR, 1985-1986 Annual Report of IACHR, ch. V (“only the appropriate democratic institutions—usually the legislature—with the participation of all the representative sectors, are the only ones called upon to determine whether or not to decree an amnesty of [sic] the scope thereof, while amnesties decreed previously by those responsible for the violations has [sic] no juridical validity”);  Law Professors Amici Brief at 8-29; Weissbrodt at 500-01.

[14]  E.g., Equipo de Concertacion por la paz, la dignidada y la justicia social, Evaluacion de 15 anos despues de la firma de los Acuerdos de Paz en El Salvador  (Jan. 16, 2007);  Equipo Regional de Monitoreo y Analisis de Derechos Humanos en Centroamerica, Derechos Humans y Conflictividad en C.A.: Violencia, impunidad y megaproyectos contra la vida y la dignidad  (June 2008); Equipo Regional de Monitoreo y Analisis de Derechos Humanos en Centroamerica, 2008-2009 Informe Sobre Derechos Humanos y Conflictividad en Centroamerica at 30, 67-68 (2009).

[15]  Brief of Amicus Curiae Republic of El Salvador, Carranza v. Chavez, 2009 WL 1511733 (U.S. Sup. Ct. No. 08-1497 May 28, 2009); Brief Amici Curiae [26 international human rights law professors] in Support of Appellees and Affirmance at 14-15, Chavez v. Carranza (6th Cir. May 14, 2008) [“Law Professors Amici Brief”].

My Pilgrimage to El Salvador, April 1989

For my second Salvadoran asylum case, I decided that I needed to go to El Salvador to do investigations for the case and to learn more about the country. In April 1989 I made my first of six trips to the country. I went with a group led by Minneapolis’ Center for Global Education at Augsburg College.[1]

The Salvadoran Civil War was still going on, and on the day we arrived her Attorney General was assassinated with a car bomb. In response, the Salvadoran military forces were in the streets with their automatic rifles at the ready, stopping everyone to provide identification. People in the “popular organizations” were being arrested. It was a very dangerous and tense 10 days in the country.

These days turned out to be the most intense religious and spiritual experience of my life. It was and still is a major reason why I now say that El Salvador liberated this American lawyer in many ways and helped him integrate his religious faith with his professional life.

We went to a service of solidarity for a Catholic priest who that week had received death threats. The service was in a screened recreational building next to a very dusty soccer field. As we entered, we were handed mimeographed sheets with words for hymns of the people about Archbishop Oscar Romero, who had been murdered nine years earlier. Thus began my learning about Romero.[2]

Our group visited the office of COMADRES in a small house in the city. (It is the committee of the mothers of the disappeared and assassinated). A young woman talked about her jailing and torture earlier that week. Right behind her I saw a bust of Robert Kennedy representing the very first Robert F. Kennedy Human Rights Award. It was granted to COMADRES for its struggle for amnesty for political prisoners, information regarding the “disappeared” and punishment for those responsible for human rights violations.[3] (During the Reagan Administration, the U.S. would not grant a U.S. visa to a COMADRES representative to come to the U.S. to receive the award.)

At the COMADRES’ office I also saw a framed copy en espanol of the Universal Declaration of Human Rights,[4] which I had never regarded as important and about which I knew nothing. Even though I could not read the Spanish text, I could see that it was an inspirational document for these people. This experience came rushing back to me when later I learned about the Universal Declaration.

Our group met with Phil Anderson, a Lutheran pastor from Minnesota who was working in El Salvador for Lutheran World Federation. Earlier that week he had sent faxes to the Federation’s headquarters in Switzerland with information about the arrests of many people from the popular organizations so that the next day the headquarters could send faxes of complaints to the Government of El Salvador. I gained a new appreciation for the work of international organizations around the world and about the sinister messages that are sent when they are kicked out of a country.

My fellow travelers on this trip were from the Washington, D.C. Synod of the Evangelical Lutheran Church of America (the successor of the Lutheran Church in America, my client in the Sanctuary Movement case). Through their connections I was introduced to the significant work in El Salvador of its small Lutheran Church and its Bishop Medardo Gomez, who is frequently regarded as the spiritual heir to Archbishop Romero.[5]

We also met Salvador Ibarra, a lawyer for the human rights office of the Lutheran Church of El Salvador. He told us that in late 1980 a judge had appointed him to represent one of the Salvadoran national guardsmen accused of raping and murdering the four American church women.[6] Someone from the U.S. Embassy then asked Ibarra to call a press conference and announce that he had investigated and had found no involvement of higher officials in this horrible crime. This, however, was not true, and he refused to hold a press conference. In response he received death threats that prompted him and his family to flee the country. His wife told him that he was stupid to put her and their children’s lives at risk, and she took the children and divorced him. Yet Ibarra subsequently returned to his country to be a human rights lawyer and thereby continued to put his life on the line. He spoke about the joy he had in his work as a lawyer for people whose human rights were at greater risk.

In my subsequent work as a pro bono asylum lawyer and human rights advocate, I continued to be inspired by Salvador Ibarra. How easy it was for me as a large law-firm lawyer in Minneapolis to do this work. I did not have to risk my life as he did.

Our group visited the “22nd of April” community in San Salvador. This community was a three-block area of land on a steep hill between railroad tracks above and a road below. It had been used as a garbage dump, but on April 22nd in the early 1980’s displaced Salvadorans (“desplazados”) started to occupy it. In April of 1989 there were at least 10,000 people living there. They were mainly women and small children because teenage and adult males were fighting in the civil war or had been killed or disappeared. The people lived in “houses”– some of concrete blocks and tin roof; others of cheap tin or aluminum sheets or scrap lumber; yet others made with cardboard.

We walked around “22nd of April” with its pastor–Father Jim Barnett, a Dominican priest from Sioux Falls, South Dakota. He talked about his ministry of accompaniment and solidarity. He was inspired by the example of Archbishop Oscar Romero, who had entered the total experience of the poor–physical, spiritual, social, economic and political–and who had spoken about the church’s need to be incarnated in the life of the people and the institutional injustice and violence in El Salvador.

Another stop on our trip was UCA, the Universidad de Centro America, a Jesuit institution with a beautiful, serene campus on a hill in the capital city.[7] We spent an hour with Father Jon Sobrino, a noted liberation theologian.[8]  Only seven months later six of his fellow Jesuit priests were brutally murdered at that very place by the Salvadoran Armed Forces. (Sobrino escaped this fate because he was in Thailand giving lectures.)[9]

We went to the small, modern, beautiful, serene Chapel of Divine Providence on the quiet grounds of a cancer hospital. This is where Oscar Romero was assassinated while celebrating mass on March 24, 1980. (Across the street was the three-room apartment where Romero lived. No luxurious Archbishop’s palace for him.) Along the way to the chapel I saw graffiti messages: “Romero vive!” (“Romero lives!”)

The Cathedral of San Salvador, on the other hand, is in el centro with all the noise and hurly-burly of buses and other traffic. In April 1989 the building was not finished. (Romero had halted all construction because he did not think it was right for the church to be spending money on its building when the people were suffering from poverty and human rights abuses.) On the steps were women from COMADRES with their bullhorns protesting against the latest wave of repression. Inside, scraps of linoleum were on the floor along with scattered plain wooden benches. In the right transept was Romero’s tomb–plain concrete and covered with flowers and prayers of the people. As I stood there, the words “My body broken for you” from the Christian sacrament of communion echoed in my mind.

[1]  Center for Global Education, http://www.augsburg.edu/global/.

[2]  Later posts will discuss the life and witness of Archbishop Romero and why he is my personal saint.

[3]  Robert F. Kennedy Center for Justice & Human Rights, http://www.rfkcenter.org/ourwork/humanrightsaward.

[4]  Universal Declaration of Human Rights, http://www1.umn.edu/humanrts/instree/b1udhr.htm.

[5]  Medardo Gomez, Fire Against Fire (Minneapolis, MN: Augsburg Fortress 1990); Medardo Gomez, And the Word Became History (Minneapolis, MN: Augsburg Fortress 1992).

[6]  E.g., Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002), cert. denied, 537 U.S. 1147 (2003); Gonzalez, 2 Salvadoran Generals Cleared by U.S. Jury in Nuns’ Deaths, N.Y. Times, Nov. 4, 2000, at A3.

[7]  Universidad Centroamericana “José Simeón Cañas,” http://www.uca.edu.sv/.

[8]  Wikipedia, Jon Sobrino, http://en.wikipedia.org/wiki/Jon_Sobrino.

[9]  Sobrino, et al., Companions of Jesus: The Jesuit Martyrs of El Salvador (Maryknoll, NY: Orbis 1990); Center for Justice & Accountability, Jesuits Massacre Case, http://www.cja.org/article.php?list=type&type=84.

My Christian Faith

Jesus was a human being who had a special, if not unique, relationship with God the Creator.

By his life and by his death, Jesus demonstrated to the people of his time and to all people of all time how we as His brothers and sisters should live our lives.

The first foundation of my Christian faith is Jesus’ encounter with a clever lawyer in Luke 10:25-37. The lawyer asked Jesus a trick question as to what the lawyer had to do to inherit eternal life. The lawyer did not really want to know the answer; instead, the lawyer wanted Jesus to give an answer that could be twisted to incriminate him. Jesus ducked the question and instead responded with another question: “What is written in the law? How do you read it?” The lawyer replied, “Love God with all your heart, soul, strength and mind and your neighbor as yourself.” Jesus then said the lawyer had answered correctly and that he would live if he did exactly that.

The lawyer, however, would not let it end there. He then asked what he thought was another trick question of Jesus, “And who is my neighbor?” Again, the lawyer did not really want to know the answer; instead he wanted Jesus to provide an answer that could also be twisted against him. Again, however, Jesus did not answer directly, but instead told the Parable of the Good Samaritan without the punch line identifying the good neighbor. Once again Jesus asked the lawyer to fill in the blank, this time to identify the good neighbor in the story. The lawyer did just that by saying, “The one who had mercy on [the man by the side of the road].” Jesus then said, “Go and do likewise.” (Luke 10: 29-37)

Parenthetically as a lawyer myself I have to say that the lawyer in this passage was clever, but not clever enough. The really clever lawyer would not have let Jesus refuse to answer the question. Instead the lawyer would say something like “I am not here to answer questions. My job is to ask the questions. Yours is to answer my questions.” And if this encounter were in a courtroom, the lawyer would ask the judge to instruct the witness to answer the question.

Returning to the Parable of the Good Samaritan, one of the lessons of this story for me is that your neighbor whom you should love as yourself is anyone and everyone and that they can appear when you least expect them. That sets forth a daunting assignment. I have never met this challenge and never can.

That leads to the second foundation of my Christian faith. God knows that we fail and yet forgives us. The most powerful statement of God’s forgiveness comes in another story by Jesus, The Parable of the Prodigal Son (Luke 15: 11-31), http://www.biblegateway.com/passage/?search=Luke%2015&version=NIV.  As an only son and as a father of two sons, I see myself in this story as the older, resentful son as well as the younger, lost son and more recently as the father.

The meaning of these two stories for me is captured by the third foundation of my Christian faith, the following statement by my personal saint, Salvadoran Archbishop Oscar Romero:

“The kingdom is not only beyond our efforts, it is beyond our vision.”

“We accomplish in our lifetime only a tiny fraction of the magnificent enterprise that is God’s work. Nothing we do is complete, which is            another way of saying that the Kingdom always lies beyond us.”

“No statement says all that could be said. No prayer fully expresses our faith. No confession brings perfection. No pastoral visit brings        wholeness. No program accomplishes the church’s mission. No set of goals and objectives includes everything.”

“That is what we are all about. We plant seeds that one day will grow. We water seeds already planted, knowing that they hold future promise. We lay foundations that will need further development. We provide yeast that produces effects beyond our capabilities.”

“We cannot do everything, and there is a sense of liberation in realizing that. This enables us to do something, and to do it very well. It may be incomplete, but it is a beginning, a step along the way, an opportunity for the Lord’s grace to enter and do the rest.”

“We may never see the end results, but that is the difference between the master builder and the worker. We are workers, not master builders; ministers, not messiahs. We are prophets of a  future that is not our own.”