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).
The U.S. designation of Cuba as a “state sponsor of terrorism” already has been shown to be ridiculous.[1]
Now the U.S. has done it again in the State Department’s recently released Country Reports on Terrorism 2010.[2] The following is the complete text of the U.S. “rationale” for so designating Cuba:
“Overview: Designated as a State Sponsor of Terrorism in 1982, the Government of Cuba maintained a public stance against terrorism and terrorist financing in 2010, but there was no evidence that it had severed ties with elements from the Revolutionary Armed Forces of Colombia (FARC) and recent media reports indicate some current and former members of the Basque Fatherland and Liberty (ETA) continue to reside in Cuba. Available information suggested that the Cuban government maintained limited contact with FARC members, but there was no evidence of direct financial or ongoing material support. In March, the Cuban government allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members.
Cuba continued to denounce U.S. counterterrorism efforts throughout the world, portraying them as a pretext to extend U.S. influence and power.
Cuba has been used as a transit point by third-country nationals looking to enter illegally into the United State. The Government of Cuba is aware of the border integrity and transnational security concerns posed by such transit and investigated third country migrant smuggling and related criminal activities. In November, the government allowed representatives of the Transportation Security Administration to conduct a series of airport security visits throughout the island.
Legislation and Law Enforcement:Cuba did not pass new counterterrorism legislation in 2010. The Cuban government continued to aggressively pursue persons suspected of terrorist acts in Cuba. In July, Venezuela extradited Salvadoran national Francisco Antonio Chavez Abarca to Cuba for his alleged role in a number of hotel and tourist location bombings in the mid to late 1990s. In December, a Cuban court convicted Chavez Abarca on terrorism charges and sentenced him to 30 years in prison. Also in December, the Cuban Supreme Court commuted the death sentences of two Salvadorans, René Cruz León and Otto René Rodríguez Llerena, who had been convicted of terrorism, and sentenced them both to 30 years.
Regional and International Cooperation:Cuba did not sponsor counterterrorism initiatives or participate in regional or global operations against terrorists in 2010.”
One of the implicit factual predicates for the most recent designation of Cuba as a “state sponsor of terrorism” is true: FARC and ETA have been designated “Foreign Terrorist Organizations” by the State Department, and such designations presumably are well founded. But what has Cuba done with respect to these two organizations? This report itself indicates that Cuba has done practically nothing with or for the FARC or ETA. The report states, “the Cuban government maintained limited contact with FARC members” and “there was no evidence of direct financial or ongoing material support.” (Emphasis added.) In addition, the report says, “the Cuban government allowed Spanish Police to travel to Cuba to confirm the presence of suspected ETA members.”
The most recent report states “some current and former members of . . . (ETA) continue to reside in Cuba.” But the report does not say how many. Nor does it state the particulars of their residence in Cuba. Moreover, in last year’s report, the State Department conceded that some of these FARC and ETA members were in Cuba to participate in peace negotiations with the governments of Columbia and Spain.
Other qualifications to this basis for the “state sponsor of terrorism” designation were made in a prior State Department annual antiterrorism report, which said that “on July 6, 2008, former Cuban President Fidel Castro called on the FARC to release the hostages they were holding [in Colombia] without preconditions.” Fidel “also had condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians [in Colombia] who had no role in the armed conflict.”[3]
Furthermore, former President Jimmy Carter while visiting Cuba in March 2011 had a meeting with the Spanish and Colombian Ambassadors to Cuba. The two Ambassadors said “they were not concerned about the presence of members of FARC, ETA, and ELN [another Colombian rebel group] in Cuba. Indeed, they maintained that this enhances their ability to deal more effectively with these groups. In fact, ETA members are there at the request of the Spanish government.”[4]
The second basis for the most recent designation is “Cuba continued to denounce U.S. counterterrorism efforts throughout the world, portraying them as a pretext to extend U.S. influence and power.” From my following Cuba news over the last year, this is a fair assessment, in my opinion, of the Cuban government’s public statements about U.S. foreign policy. But Cuba is a sovereign nation. It has a right to express its views of U.S. policies and actions. This does not amount to Cuba or any other country’s being a “state sponsor of terrorism.”
The third basis for the most recent designation is Cuba’s allegedly being “used as a transit point by third-country nationals looking to enter illegally into the United States.” I do not know if this is true, but even if it is, Cuba is hardly unique in the Western Hemisphere for this phenomenon. And the U.S. report admits that this last year Cuba “allowed representatives of the [TSA] . . . to conduct a series of airport security visits throughout the island.”
The fourth basis for the most recent designation is Cuba’s not adopting new counterterrorism legislation in 2010 and not sponsoring counterterrorism initiatives or participating in regional or global operations against terrorists in 2010. Again, I do not know if this is true, but even if it is, it does not justify the designation. Moreover, the report undermines this purported basis for the designation with its admission that the “Cuban government continued to aggressively pursue persons suspected of terrorist acts in Cuba.”
In short, the U.S. has no legitimate basis for designating Cuba as a “state sponsor of terrorism.”[5]
[1] See Post: The Ridiculous U.S. Designation of Cuba as a “State Sponsor of Terrorism” (May 20, 2011).
[2] U.S. Dep’t of State, Country Reports on Terrorism 2010 (Aug. 19, 2011), http://www.state.gov/s/ct/rls/crt/2010/index.htm; DeYoung, Terorrism report arrives with a whimper, Wash. Post (Aug. 19, 2011). The Cuban government immediately denounced this report, saying Cuba had an “unblemished” record of fighting terrorism. (Assoc. Press, Cuba Rejects Continued Inclusion on US Terror List, N.Y. Times (Aug. 20, 2011).)
[5] Last year the Council on Foreign Relations basically came to the same conclusion. (Council on Foreign Relations, State Sponsors: Cuba (March 23, 2010), http://www.cfr.org/cuba/state-sponsors-cuba/p9359.)This July the U.S. Congressional Research Service reviewed the arguments, pro and con, for the designation of Cuba as a “state sponsor of terrorism.” It did not come to a conclusion as to whether the designation was justified, but it does not rebut my analysis. (See Congressional Research Service, Cuba: Issues for the 112th Congress (July 15, 2011), http://www.fas.org/sgp/crs/row/R41617.pdf.
In May 2011 Justus Majyambere, a major in the Rwandan Defense Forces, apparently visited the U.S. Military Staff College at Fort Leavenworth, Kansas as an official representative of his government. The purpose of the visit was to obtain ideas for starting a military college in Rwanda.[1]
That sounds like a positive development.
But Majyambere is under indictment by a Spanish court for alleged involvement in the killing of nine employees of a Spanish NGO in Rwanda and the Democratic Republic of the Congo. Therefore, he is under an Interpol “red notice,” a worldwide bulletin that is roughly equivalent to an arrest warrant. As a result, he reportedly was arrested upon his recent arrival in the U.S., but mysteriously was not detained and sent to Spain.[2]
If all of this is true, it is contrary to repeated statements by U.S. Ambassador-at-Large for War Crimes, Stephen Rapp, about U.S. supporting the arrest of fugitives from international criminal justice.[3] It is also contrary to the global goal of punishing and deterring violations of international humanitarian and human rights law.
[3] See Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: Possible U.N. Security Council Referral of Syrian Human Rights Abuses to ICC (June 18, 2011).
As previously noted, a Spanish court on May 30, 2011, issued an indictment and arrest warrants for 20 of El Salvador’s former top military leaders and soldiers, accusing them of crimes against humanity and state terrorism in meticulously planning and carrying out the killings of six Jesuit priests in November 1989.[1]
The Spanish indictment essentially follows the factual findings regarding the murders and the cover-up that was set forth in the Report of the Truth Commission for El Salvador.[2] The indictment, however, offers greater factual details.[3]
The indictment also emphasizes the military’s formal chain of command as well as the informal power of the military’s “Tandona of 1966,” i.e., the military officers who had graduated from the Salvadoran military college in 1966 and who in 1989 held the major positions of official power. In 1989 these officers, the indictment says, feared the proposed reform and restructuring of the military that was being discussed as a condition for a peace agreement to end the civil war. Such reforms would result in reduction in the Tandona’s power and ability to embezzle from U.S. military aid. They, therefore, were bitter opponents of the Jesuits, and especially Father Ellacuria, who were major public advocates for such negotiations. [4]
The criminal case was filed in November 2008 by a U.S. NGO (Center for Justice & Accountability) and a Spanish NGO against 14 Salvadoran military officers plus former Salvadoran President Cristiani.[5]
In January 2009, the Spanish National Court accepted the case and formally charged the 14 fourteen former officers and soldiers named in the complaint with crimes against humanity and state terrorism for their role in the massacre. Additionally the court reserved the right, during the course of the investigation, to indict Cristiani for his alleged role in covering up the crime.[6]
The May 2011 indictment discusses Crisitani’s attending meetings at the military’s headquarters for several hours immediately before the murders were committed and his providing false information months later about a military search of the UCA campus that preceded the murders. But the Spanish court did not indict Cristiani and did not provide reasons for that decision not to charge Cristiani.[7]
The indictment also mentions that the U.S. Central Intelligence Agency (CIA) had an office in the Salvadoran military headquarters in November 1989 and that some U.S. military advisors attended meetings at that headquarters with El Salvador’s top military leaders in the 24 hours preceding the murders. But there is no discussion in the indictment as to whether this involvement carries criminal implications for U.S. personnel.[8]
In addition, the indictment states that in January 1990 one of the U.S. officers (Maj. Eric Buckland) told his U.S. superiors that Colonel Benavides had given the order to kill Father Ellacuria. Until January 2010, the indictment reports, public information about the Salvadoran investigation of this crime had not mentioned possible involvement of the country’s top military officers. Thus, the revelation by Maj. Buckland was explosive in El Salvador because Benavides was a member of the “Tandona of 1966.”[9]
The Center for Justice & Accountabilty of San Francisco, California is a 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. CJA uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law and advance the rule of law.[10]
[1] See Post: International Criminal Justice: Spanish Court Issues Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011).
[2] See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011); Post: International Criminal Justice: The Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests (June 7, 2011); Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011).
[5] CJA, Criminal Charges Filed before the Spanish National Court for 1989 Massacre of Jesuit Priests in El Salvador (November 13, 2008); CJA, Summary of Complaint in English (Nov. 18, 2009), http://www.cja.org/downloads/Jesuits_Summary_of_Complaint_in_English.pdf. Under Spanish law, citizens and NGOs may initiate criminal proceedings by filing criminal complaints as popular prosecutors.
[7] CJA, Spanish National Court Indictments and Arrest Warrants (May 30, 2011)(in Spanish), http://www.cja.org/downloads/JesuitsArrestWarrants.pdf. There was a report that a former Salvadoran military officer testified to the Spanish court that Cristiani had advance knowledge of the planned assassinations and approved them. (Tim’s El Salvador Blog, More developments in Jesuits Case in Spain (July 7, 2010).)
[8] In November 2009 the Spanish court was provided with many declassified U.S. documents relating to the crime from the National Security Archive of George Washington University through the testimony of an analyst from the Archive and the expert testimony of Professor Terry Karl of Stanford University. At the same time, there were newspaper reports that the U.S. military attaché at the U.S. Embassy and a senior State Department official knew in advance that the Salvadoran military was planning to kill Ellacuria. (Id.; The CIA knew that the military of El Salvador would kill Ellacuria, El Mundo (Nov. 15, 2009)(English translation); Doyle, The Right to Information is the Right to Justice: Declassified Documents and the Assassination of the Jesuits in El Salvador (Nov. 16, 2009), http://nsarchive.wordpress.com; Sainz, CIA documents shed light on Jesuit massacre in El Salvador, (Nov.20, 2009), http://www.lapresnsagrafica.com/el-sa…-salvador.html (English translation); CJA, First International Witnesses To Testify in Madrid in the El Salvador Jesuits Massacre Case (Nov. 23, 2009); Ayala, El Salvador: Declassified Docs Shed Light on Jesuits Massacre Case (Nov. 27, 2009), http://ipsnews.net.); Tim’s El Salvador Blog, Spanish Paper–US know of attack on Jesuits in advance, (Nov. 28, 2009), http://luterano.blogspot.com.)
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] Now we examine the Salvadoran criminal prosecution of some of the individuals involved in this crime.[4]
The murders of the Jesuit priests caused such a huge international uproar that El Salvador had to do something to make it appear as if it were pursuing justice in the case. As a result, in January 1990 it commenced criminal prosecution of five Salvadoran military officers and five soldiers of the Atlacatl Battalion. Colonel Guillermo Alfredo Benavides Moreno, the Director of the Military College, was accused of having given the order to murder the priests. Three Lieutenants were accused of commanding the operation. The five soldiers were accused of committing the murders.
The pre-trial proceedings took nearly two years. During this time, Colonel (now General) René Emilio Ponce, Colonel (now General) Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel (now General) Gilberto Rubio Rubio pressured lower-ranking officers not to mention orders from above in their testimony to the court.
Finally, the trial by jury took place in September 1991 in the building of the Supreme Court of Justice and was broadcast live on television. Several ranking military officers attended the trial with the defendants’ families. On the last day of the trial, during the defendants’ closing arguments, a large crowd outside the courthouse shouted chants in favor of the defendants, interrupting the trial. In closing arguments, defense counsel barely mentioned the crime itself. Instead, they asked the jury to reject foreign intervention and pressure, emphasized that five of the six victims were Spanish born, and argued that the military generally and the defendants in particular were heroes protecting the nation against terrorism.
The five-person jury, whose identity was kept secret, was charged with deciding the charges of murder and acts of terrorism. The other charges were left to the judge to decide.
Benevides was convicted of all eight counts of murder and instigation and conspiracy to commit acts of terrorism. One of the Lieutenants was convicted of one count of murder (the 16-year-old girl), instigation and conspiracy to commit acts of terrorism and being an accessory. Benevides and this Lieutenant were sentenced to 30 years imprisonment. The other two Lieutenants were convicted of instigation and conspiracy to commit acts of terrorism; they were sentenced to three years imprisonment, but released on bail and continued to serve in the military. A Lieutenant Colonel was convicted of being an accessory and sentenced to three years imprisonment, but he too was released on bail and continued to serve in the military. The five soldiers were acquitted of all charges.
International observers of the trial thought the jury verdict defied logic and the weight of the evidence.
In March 2000 and soon after the Inter-American Commission on Human Rights had issued a report on the case that will be discussed in a subsequent post, the Central American University (UCA), where the Jesuit priests had taught, sought to open a new Salvadoran criminal case regarding their murders, ultimately to no avail. UCA asked the country’s Attorney General to do so on the basis of UCA’s charges against former President Cristiani and five members of the Armed Forces High Command, including former General and Defense Minister Emilio Ponce. Then Salvadoran President Flores opposed the request, and the Attorney General refused to do so, but the Salvadoran Supreme Court ruled that only a court could decide to reopen such a case.[5]
Thereafter (October 2000), a lower court rejected the prosecutor’s request to reopen the old case because it was “without legal substance” while ordering the prosecutor to conduct a new investigation to determine whether there were legitimate grounds for reopening the case.[6]
The Attorney General then conducted a new investigation and reapplied to a court to reopen the case, this time against Cristiani and four military officers, including Ponce. Once again, however, the lower court refused to do so in December 2000 on the ground that any new charges were barred by the country’s 10-year statute of limitations. Immediately afterwards Ponce and the other three officers held a press conference where Ponce accused left-wing groups of trying to de-stabilize the country by making these charges and admitted that he and his fellow former officers were concerned about developments elsewhere in Latin America, especially the fate of Augusto Pinochet in Chile and former Argentine military officers.[7]
[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011).
[2] See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).
[3] See Post: International Criminal Justice: Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests (June 7, 2011).
[4] This post’s summary of the Salvadoran criminal case is extracted from the Commission for the Truth for El Salvador’s Report: From Madness to Hope: The 12-year war in El Salvador at 45-54 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html [“Commission Report”]. See also Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador at 121-208 (Washington, D.C.; Georgetown Univ. Press 1993). In future posts we will talk about the Truth Commission for El Salvador; the country’s general amnesty; the Jesuits case before the Inter-American Commission for Human Rights; the Spanish implementation of the principle of universal jurisdiction; and more details about the Spanish case regarding this crime.
[5] UCA Press Release (Mar. 27, 2000, http://www.uca.edu.sv/neuvo/pressrelease.html; Lanchin, Salvador ex-president accused of killings, BBC News, Mar. 28, 2000; El Salvador Former Air Force Chief Denies Role in Killings, Miami Herald, Mar. 29, 2000; The Necessity and Importance of the Truth, Processo, April 5, 2000, http://www.uca.edu.sv/publica/proceso/proci897.html;UCA Impugns the Attorney General of the Republic’s Decision on the Jesuit Case, Processo, April 26, 2000, http://www.uca.edu.sv/publica/proceso/proci899.html#doc; New Charges Barred in Salvador Killings, N. Y. Times, Oct. 24, 2000; Editorial: The Impunity of Power, Processo, Oct. 25, 2000; Darling, El Salvador to Reopen Murder Probe; Attorney general, under pressure, will investigate an ex-president and others in 1989 slayings of six Jesuit priests, Los Angeles Times, Oct. 26, 2000; No New Trial Set in Deaths of 6 Jesuits, Miami Herald, Dec. 14, 2000; Lanchin, Salvadorean ex-general issues warning, BBC News, Dec. 15, 2000.
A Spanish court yesterday issued arrest warrants for 20 of the top military leaders of El Salvador’s civil war, accusing them of crimes against humanity and state terrorism in meticulously planning and carrying out the killings of six Jesuit priests in November 1989.[1]
Among the men named in the indictment were Rafael Humberto Larios, who was the Salvadoran defense minister at the time; Juan Orlando Zepeda, the vice defense minister; Rene Emilio Ponce, leader of the Army’s Joint Chiefs of Staff; and Inocente Orlando Montano, the vice minister of public safety. Mr. Ponce, who is believed to have given the order for the killings, died this month in El Salvador. Mr. Montano is in custody.
The Jesuit priests were the leader and professors at the Universidad de Centro America (UCA) in San Salvador, the capitol of El Salvador. The Rector of the University of Central America, the Rev. Ignacio Ellacuría, had organized an open public forum about the country’s problems. All six were noted professors who had published papers about the country’s problems, and most of them also had served as pastors in communities around the capital city.[2]
At the time of the murders, El Salvador was engaged in a civil war with leftist guerillas, and supporters of the Salvadoran government said that UCA was the “logistical center of Communist subversion.” The Jesuits at UCA were “agents of the Marxist conspiracy at the service of the Kremlin.” Ellacuria, they said, directed “all Marxist-Leninist strategy in Central America.” The Jesuits, according to these government supporters, were “the intellectual authors who have directed the guerillas.” [3]
This important development raises many issues that will be discussed in subsequent posts: (a) the work of the priests and UCA in the life of El Salvador; (b) the facts relating to the murders; (c) the criminal prosecution of some of the military officers in El Salvador; (d) the investigation and report about this horrendous crime by the Truth Commission for El Salvador; (d) the subsequent general amnesty adopted by the Salvadoran legislature; (e) the investigation and report about this crime by the Inter-American Commission on Human Rights; (f) the background of the case before the Spanish court; (g) the important work by international human rights non-governmental organizations like the Center for Justice & Accountability that has been a leader in the case in Spain; and (h) the international law principle of universal jurisdiction and Spain’s implementation of that principle.
As a result of my involvement with El Salvador over the last 26 years, my six visits to the country and to UCA itself and my investigation of the above issues, the latest development in the Spanish case is very important to me legally, spiritually and emotionally. Through all of these activities, I have come to see that there is an ever-evolving interactive global struggle against impunity for violators of human rights and that many courts, other international and domestic governmental and non-governmental institutions and people play different and important roles in this process. [4]
[1] Malkin, From Spain, Charges Against 20 in the Killing of 6 Priests in El Salvador in 1989, N.Y. Times (May 31, 2011); Center for Justice & Accountability, Spanish Judge Issues Indictments and Arrest Warrants in Jesuits Massacre Case (May 30, 2011), http://www.cja.org/article.php?id=1004.
[2] Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador (Washington, D.C.; Georgetown Univ. Press 1993) [“Doggett”]; Jon Sobrino, et al., Companions of Jesus: The Jesuit Martyrs of El Salvador (Maryknoll, NY; Orbis Books 1990).
[4] See Post: My First 10 Years of Retirement (April 23, 2011); Post: International Criminal Justice: Introduction (April 26, 2011); Post: The Sanctuary Movement Case (May 22, 2011); Post: Becoming a Pro Bono Asylum Lawyer (May 24, 2011); Post: My Pilgrimage to El Salvador, April 1989 (May 25, 2011).
The U.S. State Department, pursuant to legislative authority, annually identifies countries that have “repeatedly provided support for acts of international terrorism” and designates them as “state sponsors of terrorism.”[1] The U.S. currently designates the following four countries as “state sponsors of terrorism:” Cuba, Iran, Sudan and Syria.[2] Note that Libya and North Korea, which were previously on the list, are no longer present; these are two stories for others to pursue.
The following is the complete text of the State Department’s rationale for its most recent designation of Cuba:[3]
“The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates, while at the same time remaining critical of the U.S. approach to combating international terrorism. Although Cuba no longer supports armed struggle in Latin America and other parts of the world, the Government of Cuba continued to provide physical safe haven and ideological support to members of three terrorist organizations that are designated as Foreign Terrorist Organizations by the United States.”
“The Government of Cuba has long assisted members of the Revolutionary Armed Forces of Colombia (FARC), the National Liberation Army of Colombia (ELN), and Spain’s Basque Homeland and Freedom Organization (ETA), some having arrived in Cuba in connection with peace negotiations with the governments of Colombia and Spain. There was no evidence of direct financial support for terrorist organizations by Cuba in 2009, though it continued to provide safe haven to members of the FARC, ELN, and ETA, providing them with living, logistical, and medical support.”
“Cuba cooperated with the United States on a limited number of law enforcement matters. However, the Cuban government continued to permit U.S. fugitives to live legally in Cuba. These U.S. fugitives include convicted murderers as well as numerous hijackers. Cuba permitted one such fugitive, hijacker Luis Armando Peña Soltren, to voluntarily depart Cuba; Peña Soltren was arrested upon his arrival in the United States in October.”
“Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.”[4]
One of the factual predicates for the designation of Cuba as a “state sponsor of terrorism” is true: FARC, ELN and ETA have been designated “Foreign Terrorist Organizations” by the State Department, and such designations presumably are well founded. But what has Cuba done with respect to these three organizations? It has provided “physical safe haven and ideological support to [an unspecified number of their] members.” How many members? What were the particulars of the safe haven? We are not told other than “living, logistical, and medical support.” And some of these members, the State Department concedes, were in Cuba to participate in peace negotiations with the governments of Columbia and Spain. Moreover, by the State Department’s own admission, there “was no evidence of direct financial support [by Cuba] for [these three] . . . organizations in 2009.”
Further qualifications to this basis for the designation were made in the State Department’s prior annual antiterrorism report, which said that “on July 6, 2008, former Cuban President Fidel Castro called on the FARC to release the hostages they were holding [in Colombia] without preconditions.” Fidel “also had condemned the FARC’s mistreatment of captives and of their abduction of civilian politicians [in Colombia] who had no role in the armed conflict.”[5]
The other factual predicate for the most recent designation, I submit, is outright insufficient. Cuba, the State Department says, has continued to permit an unspecified number of U.S. fugitives (“convicted murderers and numerous hijackers”) to live legally in Cuba. Even if true, it is difficult to see how this is support of terrorism. Moreover, we are not told how many such fugitives there are and the circumstances of their cases. The State Department does not even call them “terrorists.” Again, the State Department’s prior annual antiterrorism report on Cuba provides details further undermining this charge. It stated, “The Cuban government continued to permit some U.S. fugitives—including members of U.S. militant groups such as the Boricua Popular, or Macheteros, and the Black Liberation Army to live legally in Cuba. In keeping with its public declaration, the [Cuban] government has not provided safe haven to any new U.S. fugitives wanted for terrorism since 2006.”[6]
The balance of the State Department’s most recent “rationale” is, in fact, complimentary of Cuba. “”The Cuban government and official media publicly condemned acts of terrorism by al-Qa’ida and affiliates.” “Cuba no longer supports armed struggle in Latin America and other parts of the world.” “Cuba cooperated with the United States on a limited number of law enforcement matters.” “Cuba’s Immigration Department refurbished the passenger inspection area at Jose Marti International Airport and provided new software and biometric readers to its Border Guards.” Another complimentary comment was made in the prior annual report: there is “no evidence of terrorist-related money laundering or terrorist financing activities in Cuba.”[7]
The designation of Cuba as a “state sponsor of terrorism” has been reviewed by the Congressional Research Service, which said in 2006: “Cuba was first designated a state sponsor of terrorism in 1982. Although it has ratified all 12 counterterrorism conventions, it has remained opposed to the U.S. global war on terrorism. The CIA judged in August 2003 that ‘We have no credible evidence, however, that the Cuban government has engaged in or directly supported international terrorist operations in the past decade, although our information is insufficient to say beyond a doubt that no collaboration has occurred.'”[8]
Some prior U.S. antiterrorism reports talked about Cuba’s alleged weapons of mass destruction program, but note that there is not any mention of such an alleged program in the most recent report. This canard was also rebutted by the Congressional Research Service: “The Administration’s assertions concerning Cuba’s WMD programs, which some observers dispute, focus on limited biological weapons research and development. Construction at the Juragua nuclear facility (two incomplete Russian nuclear power reactors) was indefinitely postponed in 1997.”[9]
The State Department’s best case for calling Cuba a “state sponsor of terrorism,” upon analysis, is ridiculous. The designation should be rescinded, and the U.S. and Cuba should get down to the real business of engaging in face-to-face, serious negotiations to resolve their many long-accumulated differences.
[1] Countries determined by the Secretary of State to have repeatedly provided support for acts of international terrorism are designated pursuant to three laws: section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act. (U.S. State Dep’t, Country Reports on Terrorism 2009 (Aug. 5, 2010), http://www.state.gov/s/ct/rls/crt/2009/index.htm.) Such designation results in the following sanctions by the U.S.: (1) a ban on arms-related exports and sales; (2) controls over exports of dual-use items, requiring 30-day Congressional notification for goods or services that could significantly enhance the terrorist-list country’s military capability or ability to support terrorism; (3) prohibitions on economic assistance; and (4) imposition of miscellaneous financial and other restrictions.
The Obama Administration has adopted what it calls “an integrated approach to international criminal justice,” including the International Criminal Court. There are at least six points to this approach, the first three of which are specifically addressed to the ICC.[1]
First, the U.S. will not be seeking U.S. Senate consent to U.S. ratification of the Rome Statute. In January 2010, U.S. Ambassador at Large for War Crimes, Stephen Rapp, publicly stated that no U.S. president was likely to present the Rome Statute to the U.S. Senate for ratification in the “foreseeable future.” Rapp cited fears that U.S. officials would be unfairly prosecuted and the U.S.’s strong national court system as reasons it would be difficult to overcome opposition to ratification. He did not mention the virtual political impossibility in this Congress to obtaining the two-thirds (67) vote in the Senate that would be necessary for ratification.[2] In addition, in March 2011, the U.S. told the U.N. Human Rights Council at the conclusion of its Universal Periodic Review of the U.S. that the U.S. did not accept the recommendations by a number of States that the U.S. ratify the Rome Statute.[3]
Second, the U.S. Administration will not be seeking statutory changes to U.S. statutes and practices that are hostile to the ICC. This conclusion emerges by implication from the absence of any such proposed legislation and from the same political calculus just mentioned. The Obama Administration, therefore, is living with the laws on the books bolstered by a January 2010 legal opinion from the Justice Department’s Office of Legal Counsel that U.S. diplomatic or “informational” support for particular ICC investigations or prosecutions would not violate U.S. law. Other hand-me-downs of past U.S. actions hostile to the ICC are the U.S.’ 102 Bilateral Immunity Agreements or “BIA”s, whereby the other countries agreed not to turn over U.S. nationals to the ICC. The last of these was concluded in 2007. There is no indication that the U.S. will seek to rescind these agreements or to negotiate new ones.[4]
Third, the U.S. instead has been pursuing a policy of positive engagement with the ICC in various ways. Indeed, the U.S. National Security Strategy of May 2010 stated that as a matter of moral and strategic imperative the U.S. was “engaging with State Parties to the Rome Statute on issues of concern and [is] supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”[5]
Foremost for positive engagement is the U.S. participation as an observer at meetings of the ICC’s governing body, the Assembly of States Parties. The U.S. did so in November 2009,[6] March 2010,[7] June 2010[8] and December 2010[9] and has announced its intention to do so at the next meeting in December 2011.
In addition to observing the debates and discussion at these meetings, the U.S. has made positive contributions. The U.S. experience in foreign assistance judicial capacity-building and rule-of-law programs, Ambassador Rapp has said, could help the ICC in its “positive complementarity” efforts, i.e., its efforts to improve national judicial systems. Similarly the U.S. experience in helping victims and reconciling peace and justice demands has been offered to assist the ICC.[10] At the June 2010 Review Conference the U.S. made a written pledge to “renew its commitment to support projects to improve judicial systems around the world.” Such improvements would enable national courts to adjudicate national prosecutions of war crimes, crimes against humanity and genocide and thereby make ICC involvement unnecessary. The U.S. also pledged at the Review Conference to “reaffirm President Obama’s recognition . . . that we must renew our commitments and strengthen our capabilities to protect and assist civilians caught in the [Lord Resistance Army’s] wake [in Uganda], to receive those that surrender, and to support efforts to bring the LRA leadership to justice.”[11]
The June 2010 meeting was the important Review Conference that adopted an amendment to the Rome Statute with respect to the crime of aggression; this will be discussed in a future post. Immediately after the Review Conference Ambassador Rapp and State Department Legal Advisor Koh said that U.S. participation at the Review Conference “worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.” All of this reflected U.S. (a) “support for policies of accountability, international criminal justice, and ending impunity,” (b) the U.S. “policy of principled engagement with existing international institutions” and (c) ensuring that lawful uses of military force are not criminalized.[12]
At the December 2010 meeting, Ambassador Rapp emphasized three ways for the world community to help the important work of the ICC. First was protecting witnesses in cases before the ICC and in other venues from physical harm and death and from bribery attempts. Second was enforcing the ICC arrest warrants and bringing those charged to the Court to face prosecution. Third was improving national judicial systems all over the world. In this regard the U.S. endorsed the recent discussion in the Democratic Republic of the Congo about creating a “mixed chamber” of Congolese and foreign judges in its national judiciary with jurisdiction over genocide, crimes against humanity and war crimes.[13]
The U.S. also is meeting with the ICC’s Prosecutor and other officials to find ways the U.S. can support current prosecutions (consistent with U.S. laws). [14]
As another means of positive engagement with the ICC, the U.S. has continued to support the March 2005 U.N. Security Council referral of the Sudan (Darfur) situation to the ICC, and the U.S. has refused to support any effort to exercise the Council’s authority to suspend any ICC investigations or prosecutions of Sudanese officials for a 12-month period. In January 2009, Susan Rice, the U.S. Ambassador to the U.N., stated that the U.S. supports “the ICC investigation and the prosecution of war crimes in Sudan, and we see no reason for an Article 16 deferral” by the Council. Following the ICC’s issuance of an arrest warrant for Omar al-Bashir, President of Sudan, in March 2009, Ambassador Rice reiterated U.S. support for the Court on Darfur and the requirement of Sudan to cooperate with the ICC. [15]
More recently, the U.S. supported the use of the ICC with respect to Libya. The previously discussed U.N. Security Council Resolution 1970 that referred the Libyan situation to the ICC Prosecutor was prepared by the U.S. and 10 other Council members.[16] During the Council’s discussion of the resolution, U.S. Ambassador Susan Rice stated, “For the first time ever, the Security Council has unanimously referred an egregious human rights situation to the [ICC].”[17]
Three days after the Security Council resolution on Libya, the U.S. Senate unanimously approved a resolution deploring the situation in Libya and Colonel Gadhafi. This resolution also stated that the Senate “welcomes the unanimous vote of the United Nations Security Council on resolution 1970 referring the situation in Libya to the [ICC] . . . .”[18]
Another means of the U.S.’ positive engagement with the ICC is U.S. public diplomacy supporting the Court–publicly support the arrest and prosecution of those accused by the ICC’s Prosecutor and publicly criticizing those who seek to thwart such arrests. In any event, the U.S. has ceased its hostility and harsh rhetoric against the Court.[19]
Fourth, the U.S. will continue to offer financial support and advice to strengthen other national court systems, particularly in the Democratic Republic of Congo. As previously mentioned, this policy is part of the U.S. positive engagement with the ICC, but it is also part of the broader approach to international criminal justice.[20]
Fifth, the U.S. will continue to support the final work of the ad hoc criminal tribunals for Rwanda and the former Yugoslavia that were established by the U.N. Security Council with limited time periods of existence. The U.S. will do so by providing funding, by supporting their work diplomatically and politically and by providing evidence and concrete support to the prosecutors and defendants. In particular, the U.S. will work in the Security Council “to create a residual mechanism for the ad hoc tribunals that will safeguard their legacy and ensure against impunity for fugitives still at large” after those tribunals cease to exist.[21]
Ambassador Rapp also has noted that the era of the U.N.’s establishing ad hoc and short-lived tribunals like the International Criminal Tribunal for Rwanda to address specific problems was over. Only the ICC would be in business for future problems. Therefore, the U.S. needed to be positively engaged with the ICC.[22]
Sixth, the U.S. has said that it must work with countries that exercise universal jurisdiction (like Spain) when there is some relation between the country and the crime. Exactly what that means is not clear. Ambassador Rapp publicly has endorsed the principle of universal jurisdiction as another way to hold human rights violators accountable. On the other hand, as will be discussed in a future post, Spain has at least two pending criminal cases against high-level U.S. officials under Spain’s statute implementing this jurisdictional principle.[23]
In conclusion, we have seen that there is substance to the claim that the Obama Administration has developed “an integrated approach to international criminal justice.” Although I personally believe the U.S. should become a full-fledged member of the ICC, I recognize the current political impossibility of that happening and believe that the U.S. is doing everything that it can to support the important work of the ICC and other courts that are tackling, in the words of Article 1 of the Rome Statute, the “most serious crimes of international concern.”
[3] On January 4, 2011, the Human Rights Council’s Working Group on the Universal Periodic Review of the U.S. issued its final report on the UPR of the U.S. It set forth all the recommendations of the States without endorsement by the Working Group as a whole. This report again included the specific recommendations for the U.S. to ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America ¶¶ 92.1, 92.2, 92.16, 92.25, 92.28, 92.36 (Jan. 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/100/69/PDF/G1110069.pdf?OpenElement.) On March 8, 2011, the U.S. submitted its response to this final report. Among other things, the U.S. specifically rejected the recommendations that the U.S. ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America: Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review ¶¶ 29, 30 (March 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/116/28/PDF/G1111628.pdf?OpenElement.) Nevertheless, the Council adopted the Working Group report in March 2011. (U.N. Human Rights Council, HR Council Media: Human Rights Council concludes sixteenth session (March 25, 2011).)
[4] AMICC, The Obama’s Administration’s Evolving Policy Toward the International Criminal Court (March 4, 2011), http://www.amicc.org/docs/ObamaPolicy.pdf; Congressional Research Service, International Criminal Court Cases in Africa: Status and Policy Issues (March 7, 2011), http://fpc.state.gov/documents/organization/158489.pdf. See Post: The International Criminal Court and the G. W. Bush Administration (May 12, 2011).
[11] AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org. The U.S. pledge about the LRA was prompted by the enactment of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009. (Wikisource, Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, http://en.wikisource.org/wiki/ Lord’s_Resistance_Army_Disarmament_and_Northern_Uganda_Recovery_Act_of_2009; U.S. White House, Statement by the President on the Signing of the Lord’s ResistanceArmy Disarmament and Northern Uganda Recovery Act of 2009 (May 24, 2010), http://www.whitehouse.gov/the-press-office/statement-president-signing-
[13]Id. The ICC currently is investigating and prosecuting cases from the DRC. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).
[15] E.g., Statement by President Obama on the Promulgation of Kenya’s New Constitution (Aug. 27,2010), http://www.whitehouse.gov/the-press-office/2010/08/27/statement-president-obama-promulgation-kenyas-new-constitution(“I am disappointed that Kenya hosted Sudanese President Omar al-Bashir in defiance of International Criminal Court arrest warrants for war crimes, crimes against humanity, and genocide. The Government of Kenya has committed itself to full cooperation with the ICC, and we consider it important that Kenya honor its commitments to the ICC and to international justice, along with all nations that share those responsibilities”); U.N. Security Council, Press Release: Briefing Security Council on Sudan, United Nations, African Union Officials Tout Unified Strategy, Linking Peace in Darfur to Southern Sudan Referendum (June 14, 2010), (U.S. Ambassador Rice told Security Council that there was a need “to bring to justice all those responsible for crimes in Darfur, calling on Sudan to cooperate with the [ICC] and expressing deep concern at the Court’s Pretrial Chamber judges recent decision to refer the issue of Sudan’s non-cooperation to the Council”).
[16] U.N. Security Council 6491st meeting (Feb. 26, 2011). Other Council members (Bosnia & Herzogiva, Colombia, France, Germany, Libya and the U.K.) specifically commended the reference to the ICC. The other four Council members who did not join in drafting the resolution were Brazil, China, India and the Russian Federation. In the meeting, the Indian representative noted that “only” 114 of the 192 U.N. Members were parties to the Rome Statute and that five of the 15 Council members, including three permanent members (China, Russia and U.S.), were not such parties. He went on to emphasize the importance of Article 6 of the resolution’s exempting from ICC jurisdiction nationals of States like India that were not parties to the Rome Statute and its preamble’s stating that the Statute’s Article 16 allowed the Council to postpone any investigation or prosecution for 12 months. (Id.) The Brazilian representative was serving as President of the Council and, therefore, may not have participated in drafting the resolution, but she noted that Brazil was a “long-standing supporter of the integrity and universality of the Rome Statute” and expressed Brazil’s “strong reservation” about Article 6’s exemption of nationals of non-States Parties. (Id.) This suggests that the inclusion of Article 6 was the price of obtaining “yes” votes for the resolution from India, China and the Russian Federation. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).
[17] U.N. Security Council 6491st meeting (Feb. 26, 2011).
[18] ___Cong. Record S1068-69 (March 1, 2011) (S. Res. 85).
[22]Id. With the existence of the ICC, there is no need to create future ad hoc tribunals. This fact also avoids the administrative problems ad hoc tribunals face when they near the end of their lives and professional and other staff leave to pursue other opportunities with greater future prospects. (See Amann, Prosecutorial Parlance (9/12/10), http://intlawgrrls.blogspot.com (comments by officials of ICTY and ICTR).)
Since the end of World War II, we the peoples of the world, acting through our nation-state governments, have codified or created numerous international human rights norms. This started with 1945’s Charter of the United Nations and 1948’s Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. Other multilateral human rights treaties have followed, including the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[1]
Given the world’s nation-state sovereignty basis, we the peoples of the world have grappled with the very real problem of how to enforce such norms in order to punish violators, to deter future violations, to provide redress to victims and survivors, and to investigate and promulgate the “truth” about past violations. The response has been the creation of various mechanisms, none of which is perfect: state reporting to U.N. Charter and treaty bodies for review, comment and recommendations; complaints by states and individuals to such bodies for recommended solutions; international investigations of specific countries or problems; civil litigation for money damages against violators in domestic courts and international courts like the Inter-American Court of Human Rights; and truth commissions.[2]
Another response has been seeking to subject violators to criminal sanctions (imprisonment) in national courts under the international law principle of universal jurisdiction whereby a nation’s courts have legitimate criminal jurisdiction over genocide, crimes against humanity and war crimes no matter where in the world such crimes were committed. Criminal sanctions have also been imposed by international criminal tribunals like the Nuremberg and Tokyo War Crimes Tribunals at the end of World War II and more recently by so called ad hoc tribunals created by the U.N. Security Council (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)). Even more recently the International Criminal Court (ICC) has been created.[3] Collectively these mechanisms often are referred to as international criminal justice.
In future posts we will examine a Spanish court’s use of the universal jurisdiction principle to commence criminal investigations. In other posts we will analyze the International Criminal Court and its relations with the United States.
[1] David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 1 (4th ed. 2009) [“Weissbrodt”].
