Guilty Judgment in 1989 Murder of Jesuit Priests in El Salvador   

On September 11, 2020, Spain’s highest criminal court, the Audiencia Nacional, found former Salvadoran Colonel, Inocente Orlando Montano (now 77 years old), guilty of the “terrorist murders” of  five Jesuit priests who were Spaniards, in San Salvador, the Capital of El Salvador, 31 years ago. The court found that Montano took part in the decision to “execute Ignacio Ellacuría as well as anyone in the area – regardless of who they were – so as not to leave behind any witnesses.”

The court then sentenced Montano to 26 years, eight months and one day for each of the five murders for a total of 133 years. However, he will not spend more than 30 years in prison, the judges said. This was after a trial of the only Salvadoran military officer who was extradited to Spain to stand trial under the international legal principle of universal jurisdiction authorizing jurisdiction in a state other than the site of the crime for human rights crimes.[1]

The Spanish NGO that was involved in the case, Guernica Centre for International Justice, published a background of the case, daily reports about the trial and the court’s decision. [2]

Also killed  in the same event were a Salvadoran Jesuit and two Salvadoran women, but those killings were not before the Spanish court.

The path to this legal judgment has been long and complicated.

The Murder of the Jesuit Priests

The murder of the Jesuit priests, one of the most horrendous crimes during the country’s civil war, occurred in the early hours of November 16, 1989, when a group of Salvadoran soldiers entered the campus of the Central American University (UCA) in San Salvador. They made their way to the residences of the Jesuit priests, who were UCA professors and advocates for the poor people of the country, and shot and killed the five Spanish priests–Father Ignacio Ellacuria (UCA’s Rector), Ignacio Martin-Barò (UCA’s Vice Rector), Segundo Montes (Director of UCA’s Human Rights Center), Armando Lòpez and Juan Ramôn Moreno.  The murdered Salvadoran Jesuit was Joaquin Lôpez y Lôpez, and the two murdered Salvadoran women were the priests’ cook and her daughter.[3]

Salvadoran Legal Proceedings Over This Crime

Immediately afterwards high officials of the Salvadoran military engaged in attempting to cover up its involvement in this horrendous crime, but international outrage and pressure caused the country to create a Salvadoran commission that investigated and reported that four officers and five soldiers were responsible for this crime and they along with another officer were brought to trial in that country for this crime in September 1991. A jury decided that the five officers were guilty of various crimes and sentenced them to prison, but acquitted the five soldiers. [4]

In 1992 the Salvadoran legislature enacted a General Amnesty Law that led that year to the release from prison of those convicted of the Jesuit murders.[5] In 2016, however, the Salvadoran Supreme Court held that the General Amnesty Law was unconstitutional, and at least one of those who had been convicted, sentenced and then released under that Law (Colonel Guillermo Alfredo Benavides Moreno) was ordered to return to prison after the invalidation of that Law.[6]

The Truth Commission for El Salvador[7]

On January 16, 1992, the Salvadoran government and the FMLN rebels signed the peace agreement to end the civil war. One of its provisions was the creation of the Truth Commission for El Salvador, whose report on March 15, 1993 had detailed findings about the murder of the Jesuits, including the following:

  • “There is substantial evidence that on the night of 15 November 1989, then Colonel René Emilio Ponce, in the presence of and in collusion with General Juan Rafael Bustillo, then Colonel Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel Francisco Elena Fuentes, gave Colonel Guillermo Alfredo Benavides the order to kill Father Ignacio Ellacuría and to leave no witnesses. For that purpose, Colonel Benavides was given the use of a unit from the Atlacatl Battalion, which two days previously had been sent to search the priest’s residence.”
  • “There is full evidence that:

(a) That same night of 15 November, Colonel Guillermo Alfredo Benavides informed the officers at the Military College of the order he had been given for the murder. When he asked whether anyone had any objection, they all remained silent.

(b) The operation was organized by then Major Carlos Camilo Hernández Barahona and carried out by a group of soldiers from the Atlacatl Battalion under the command of Lieutenant José Ricardo Espinoza Guerra and Second Lieutenant Gonzalo Guevara Cerritos, accompanied by Lieutenant Yusshy René Mendoza Vallecillos.”

Prior Proceedings in Spain’s Case[8]

In November 2008 a U.S. NGO (Center for Justice & Accountability) and a Spanish NGO filed a criminal case over the killing of the Jesuits  against 14 Salvadoran military officers and the country’s former President Cristiani. In January 2009 the Spanish court accepted the case against the military officers and soldiers, but declined to do so with respect to Cristiani although reserving the right to do so later.

On May 30, 2011, the Spanish court issued an indictment and arrest warrants for 20 of the top 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 the Jesuit priests in November 1989. One was Inocente Orlando Montano, who in 1989 was the vice minister of public safety.

Subsequently in complicated proceedings El Salvador denied extradition of all these requests for those living in the country. Only Montano, who had been living in the U.S. and who had been tried and convicted for lying in U.S. immigration papers, was extradited to Spain by the U.S.

Conclusion

After this decision by the Spanish court, UCA requested the Criminal Chamber of El Salvador’s Supreme Court to resolve a long-pending appeal by six other former military officers accused of involvement in the Jesuits murders so that their guilt can be adjudicated. UCA’s Rector, Andreu Oliva, said, “”We are confident that the evidence presented at the Spanish hearing will serve to hold a trial here in El Salvador, since it is evident that, given the indications in the sentence, there are other parties involved who are in El Salvador and that there is no reason why they are not judged in our country.” This requires the “urgent” opening of the archives of the country’s Armed Forces. [9]

=============================

[1] Assoc. Press, Spain imprisons ex-colonel for Jesuits slain in El Salvador, Wash. Post (Sept. 11, 2020); Jones, Ex-Salvadoran colonel jailed for 1989 murder of Spanish Jesuits, Guardian (Sept. 11, 2020); Jones, Spanish trial brings hope of justice for victims of Salvadoran death squads, Guardian (Sept. 7, 2020); Marroquin, 133 years in prison for ex-colonel Montano for the Jesuits case, elsalvador.com (Sept. 12, 2020); Spanish court rules in Jesuit massacre case.elsalvadorperspectives (Sept. 11, 2020);

[2] Guernica Centre, Trial Date Set for the Jesuits Massacre Case (Feb. 18, 2020); (background of case); Guernica Centre, The Jesuit Massacre Trial 2020: Daily Trial Briefings: #01 (06/08/20), # 02 (06/10/20), # 03 (06/11/20), # 04 (07/08/20), # 05 (07/09/20), # 06 07/10/20), # 07 (07/13/20), # 08 (07/14/20), # 09 (07/15/20); Guernica Centre, The Jesuit Massacre Trial, guernica37.com (Sept. 11, 2020). This NGO’s name memorializes the April 28, 1937 bombing of the Spanish town of Guernica by German Nazi warplanes at the request of Spanish General Francisco Franco during the Spanish Civil War. The number of casualties originally was estimated to be over 1,700, but now is believed to have been under 300. “Guernica” is also the name of a famous Picasso painting about the bombing on display at the Spanish Museo Reina Sofia in Madrid. (Bombing of Guernica, Wikipedia; Guernica (Picasso), Wikipedia.)

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

[4] International Criminal Justice: Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests, dwkcommentaries.com (June 7, 2011); International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests, dwkcommentaries.com (June 8, 2011).

[5] International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case, dwkcommentaries.com (June 11, 2011).

[6] Reinstatement of Sentence of Former Salvadoran Military Officer for Participating in Murder of Jesuit Priests, dwkcommentaries.com (May 13, 2017).

[7]  United Nations, El Salvador Agreements: The Path to Peace  From Madness to Hope: the 12-year war in El Salvador (July 1992); Report of the Commission on the Truth for El Salvador (Mar. 15, 1993).

[8]  International Criminal Justice: The Spanish Court’s Criminal Case Regarding the Salvadoran Murders of the Jesuit Priests, dwkcommentaries.com (June 15, 2011); International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of  Jesuit Priests, dwkcommentaries.com (May 31, 201i); Former Salvadoran Military Officer Extradited from U.S. to Spain for Trial in Jesuits Murder Case, dwkcommentaries.com (Dec. 1, 2017). See generally posts listed in “The Jesuit Priests” section of List of Posts to dwkcommantaries—Topical: EL SALVADOR.

[9] Marroquin, The UCA asks the Criminal Chamber to resolve the appeal of the Jesuits case, elsalvador.com (Sept. 11, 2011); Calderon, Condemnation of Montano gives hope to prosecute masterminds of Jesuit massacre, says UCA, Laprensa Grafica (Sept. 11, 2020)

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

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

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

 Other Proceedings

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

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

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

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

  • On the night of 15 November 1989, then Colonel René Emilio Ponce, in the presence of ad in collusion with General Juan Rafael Bustillo, then Colonel Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel Francisco Elena Fuentes, gave Colonel Guillermo Alfredo Benavides the order to kill Father Ignacio Ellacuría and to leave no witnesses. For that purpose, Colonel Benavides was given the use of a unit from the Atlacatl Battalion, which had been sent to search the priests’ residence two days previously.
  • That same night, Colonel Guillermo Alfredo Benavides informed the officers at the Military College of the order for the murder. When he asked whether anyone had any objection, they all remained silent.
  • The operation was organized by then Major Carlos Camilo Hernández Barahona and carried out by a group of soldiers from the Atlacatl Battalion under the command of Lieutenant José Ricardo Espinoza Guerra and Second Lieutenant Gonzalo Guevara Cerritos, accompanied by Lieutenant Yusshy René Mendoza Vallecillos.
  • Subsequently, all these officers and others, including General Gilberto Rubio Rubio, knowing what had happened, took steps to conceal the truth, including destruction of evidence.

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

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

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

Instigation of Case before the Inter-American Commission on Human Rights. Meanwhile, on the same day the Jesuit priests were murdered (November 16, 1989), Americas Watch, a non-governmental human rights organization, filed a complaint with the Inter-American Commission on Human Rights alleging that the Salvadoran government had violated the American Convention [Treaty] on Human Rights with respect to the murder of the Jesuits and their cook and her daughter.  (International Criminal Justice: The Inter-American Commission on Human Rights’ Case Regarding the Jesuit Priests (June 13, 2011).)

Investigation and Report by the Inter-American Commission on Human Rights. Ten years later (December 22, 1999), the Inter-American Commission issued its report. Relying heavily on the findings of the Truth Commission, the report made detailed findings about the murder and subsequent events and concluded that the state had violated the American Convention. As a result, the Commission recommended that the government conduct an expeditious, effective investigation and prosecute and punish those who were involved “without reference to the amnesty,” to make reparations and to render the General Amnesty Law null and void. (The Commission did not, and does not, have the power to order any of the states to do anything. (Id.)[1]

Conclusion

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

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

In November 2009, however, El Salvador presented the nation’s highest award (National Order of Jose Matias Delgado) to the Jesuit priests’ relatives as an act of atonement and formally advised the Commission and the Inter-American Court of Human Rights that the Salvadoran state accepted the binding nature of their past decisions involving the country and the state’s responsibility to implement their recommendations in those cases.

In addition, in January 2010, Salvadoran President Mauricio Funes admitted that during the civil war state security forces “committed serious human rights violations and abuses of power,” including “massacres, arbitrary executions, forced disappearances, torture, sexual abuse, arbitrary deprivation of freedom” and other acts of repression. Funes then made a formal apology to all of the victims of these crimes and asked for their forgiveness and created a commission to offer redress to the victims. (Id.)

========================================================

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

Former Salvadoran Colonel Inocente Orlando Montano To Serve 21 Months in U.S. Prison

Inocente Orlando Montano
Inocente Orlando Montano

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. Woodlock
Judge Douglas P. Woodlock
Moakley U.S. Courthouse
Moakley 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.

[2] Dr. Karl’s expert report is available online.

[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.

CJA re Jesuits–http://cja.org/article.php?list=type&type=84

Enforcement– https://dwkcommentaries.com/2013/04/14/enforcement-of-international-human-rights-norms-with-u-s-immigration-laws/

Enforcement of International Human Rights Norms with U.S. Immigration Laws

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)
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
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
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.

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

 

El Mozote
El Mozote

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

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

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

These horrible crimes have reverberated ever since then.

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

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

  • In March 2006 the Inter-American Commission on Human Rights (IACHR) made a preliminary decision in a case about the massacre, and four years later (November 2010), it made its decision on the merits.
  • On January 16, 2012, the President of El Salvador, Mauricio Funes, made an important public statement about his Administration’s decisions regarding redresses for the Massacre.
  • On October 25, 2012, the Inter-American Court of Human Rights, which had accepted the IACHR’s appeal from its own decision in order to enforce its recommendations, rendered its judgment in the El Mozote case and released that judgment to the public on December 10, 2012 (International Human Rights Day).

Truth Commission for El Salvador

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

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

El Salvador’s Adoption of the General Amnesty Law

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

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

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

Dismissal of El Salvador’s El Mozote Criminal Case

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

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

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


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

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

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

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

The 1981 El Mozote Massacre in El Salvador

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

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

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

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

Truth Commission

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

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

Inter-American Commission on Human Rights

In October 1990 the Oficina de Tutela Legal of the San Salvador Archbishop’s Office filed a petition with the IACHR alleging various human rights violations by the State of El Salvador in connection with the massacres in El Mozote and five other nearby villages.[2]

The government did not seriously challenge the allegations as to what happened in the villages. Instead, it asserted that (a) the case was not admissible to the IACHR because the petitioners had not exhausted their remedies in the country; (b) there was a criminal investigation precipitated by a complaint that was not made until 1990; (c ) the investigation proceeded properly despite great external difficulties caused by the war; (d) the case properly was dismissed in accordance with the General Amnesty Law; and (e) and the petitioners had failed to appeal that dismissal.

In March 2006 (16 years after the filing of the petition), the IACHR issued a report determining that the petition was admissible, i.e., eligible for further proceedings. The parties (petitioners and the government) were proper parties under the American Convention on Human Rights. The petition alleged violations of the Convention occurring within the territory of a party to the Convention after it had become such a party. Most importantly for admissibility, the exception to the requirement for exhaustion of domestic remedies was satisfied: the systematic violations of human rights in the country made it impossible to file a complaint prior to 1990, appeals of dismissals based on the General Amnesty Law were not necessary, and the state had the responsibility to initiate criminal proceedings based on the Supreme Court’s recognition or creation in 2000 of possible exceptions to that Law and had not exercised that option. In reaching these conclusions, the IACHR relied, in part, on the Truth Commission Report.

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

Inter-American Court of Human Rights

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

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

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

Salvadoran President Mauricio Funes’ Statement About El Mozote

El Mozote Memorial
President Funes @ El Mozote

January 16, 2012, was the 20th anniversary of the signing of the Salvadoran Peace Accords. On that date President Funes went to El Mozote where he made an important speech about the massacre, He publicly acknowledged that Atlactal Battalion soldiers committed the massacre and apologized on behalf of the State for this atrocity. He asked for forgiveness for what he called “the biggest massacre of civilians in the contemporary history of Latin America.” (A video of the speech in the original Spanish is on the web.)

Funes said there could be no true peace until there is justice to provide compensation to victims and penalties for perpetrators. He also announced the following in response to the massacre:

  • He asked the Attorney General to review existing legislation and propose amendments or new laws to allow criminal sanctions to be imposed on those who participated in the worst human rights violations. Funes also noted that the Salvadoran Supreme Court already had decided that the General Amnesty Law did not protect those guilty of war crimes and could not be used to self-amnesty those who were in charge of the military during the period 1989-1994 (government officials from the Arena political party).
  • Funes instructed the Armed Forces to stop honoring former officers who were linked to this massacre, including Domingo Monterrosa Barrios, who was the commander of the Brigade involved.
  • Funes also requested political parties and others to stop honoring people who could be linked to such violations, which was interpreted as a message to the ARENA political party to stop honoring its founder, Roberto D’Aubuisson, and to the FMLN party to do likewise with Shafik Handal.
  • The government will conduct an investigation to identify all victims of the massacre.
  • The government will create a National Reparations Program for Victims of massacres and other human rights violations.
  • The government will declare El Mozote a cultural center.
  • The government will establish a community health clinic for El Mozote.
  • The government will assist agricultural production in the area, construct paved roads and improve potable water service, build a lodging house for elderly people without families and provide computers to the local school.

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


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

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

 

Former Salvadoran Military Officer Is Determined to Have Assisted in Torture and Murder

Vides Casanova

This week a U.S. immigration judge in Orlando, Florida after trial found that former Salvadoran General and Minister of Defense Carlos Eugenio Vides Casanova had assisted in acts of torture and murder committed by soldiers under his command. Now he is subject to further proceedings potentially leading to his deportation from the U.S. where he has lived for many years as a legal resident.

One of the cases which Vides Casanova was determined to have assisted was the December 1980 rape, torture and murder of four American churchwomen by five Salvadoran National Guardsmen. At the time Vides Casanova was the Commander of the Guard. (We already have examined the mission work of the churchwomen, the early investigations of this horrendous crime, the Salvadoran criminal prosecution of the Guardsmen and the Salvadoran Truth Commission’s investigation of the crime.)

The immigration judge also concluded that Vides Casanova had assisted in the torture of two Salvadorans, Juan Romagoza and Daniel Alvarado, who testified against him in hearings last spring in the immigration court in Orlando.

In 2005 Vides Casanova and his fellow former Salvadoran General and Minister of Defense Jose Guillermo Garcia were held liable in U.S. federal court for $54.6 million under the U.S. Alien Tort Statute (ATS) and Torture Victims Protection Act (TVPA). This civil case was brought by Romagoza and Alvarado and another Salvadoran refugee for their torture by Salvadoran military personnel during the period 1979 to 1983.

Earlier Vides Casanova and Garcia had defeated similar civil claims in U.S. federal court over the torture, rapes and murders of the four American churchwomen.

Earlier posts have reviewed the enactment of the TVPA and the history of the Alien Tort Statute for the periods 1789-1979, 1980, 1980-2004, the U.S. Supreme Court decision in 2004 and 2004-present.

The current deportation case was brought by the Human Rights Violators & War Crimes Center, which is a unit of the U.S. Immigration and Customs Enforcement created in 2003 to focus on preventing rights violators from entering this country and deporting those already here.

The Salvadoran Truth Commission’s Investigation of the Murders of the Four American Churchwomen

We already have discussed the mission work in El Salvador of the four American churchwomen, their December 1980 brutal murders, the subsequent non-judicial and judicial investigations and successful Salvadoran criminal prosecutions for these crimes.[1]

The Truth Commission for El Salvador also investigated these crimes and its March 1993 report found:

  • the December 2, 1980, arrests and murders of the churchwomen had been planned prior to the arrival of two of them that evening from Nicaragua;
  •  the National Guard deputy sergeant in charge that night of the killing was carrying out the orders of a superior officer;
  • the Director-General of the National Guard at the time, Carlos Eugenio Vides Casanova, and other high security forces officers knew that members of the National Guard had committed the murders pursuant to orders of a superior officer and were in charge of covering up those facts;
  • Vides Casanova and another officer impeded the gathering of evidence and thereby adversely affected the judicial investigation of the crimes;
  • the two Salvadoran military investigations of this crime (Monterrosa and Zepeda) were not serious and instead sought to conceal the involvement of higher officials;
  • the Minister of Defense at the time, General Jose Guillermo Garcia, made no serious effort to conduct a thorough investigation of responsibility for the murders; and
  • the State of El Salvador failed in its responsibility to conduct a thorough and fair investigation of the crime and to find and punish the culprits.[2]

[1] See Post: The Four American Churchwomen of El Salvador (Dec. 12, 20111); Post: The December 1980 Murders of the Four Churchwomen in El Salvador (Dec. 14, 2011); Post: Non-Judicial Investigations of the 1980 Murders of the Four Churchwomen (Dec. 16, 2011); Post: Judicial Investigations and Criminal Prosecutions of the 1980 Murders of the Four Churchwomen in El Salvador (Dec. 18, 2011).

[2] Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 62-66 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html. See Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011) (summary of the Commission’s mandate and procedures).

Former Salvadoran Vice-Minister of Defense Held Liable by U.S. Courts for $6 Million for Torture and Extrajudicial Killing

On November 27, 1980, Manuel Franco and five other leaders of the Frente Democratico Revolucionario (FDR), a group opposed to the Salvadoran government, were abducted in San Salvador and then tortured and executed.  The Truth Commission for El Salvador found that these crimes had been committed by one or more of the country’s public security forces and that the Salvadoran Treasury Police aided and abetted the violations.[1]

Nicolas Carranza

In 2003, the San Francisco-based Center for Justice and Accountability filed a case on behalf of relatives of these six deceased political leaders in a federal court in the State of Tennessee under the U.S. Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA). The defendant was former Colonel Nicolas Carranza, a naturalized U.S. citizen living in Tennessee, who was Vice-Minister of Defense of El Salvador from late 1979 to early 1981. In that position, he had exercised command and control over the three units of the Security Forces — the National Guard, National Police and Treasury Police.[2]

In late 2005, a civil jury after a three-week trial found Mr. Carranza liable to four of the five Salvadoran plaintiffs for $6 million in compensatory and punitive damages for crimes against humanity, extrajudicial killing and torture. A federal appeals court in early 2009 upheld that verdict.[3] Three aspects of this case are especially noteworthy.

First, the trial court determined that the U.S. 10-year statute of limitation was equitably tolled so that the case was not barred even though it was bought at least 20 years after the events in question.[4] The appellate court affirmed this holding.[5]

Second, the trial court determined that the Truth Commission Report was admissible into evidence under the public records exception to the hearsay rule that generally excludes out-of-court statements offered to prove the truth of the matter asserted in the statement. This was the conclusion after determining that the Commission was a “public office or agency,” that the Report set forth “factual findings” as a result of an “investigation made pursuant to authority granted by law,” that it met the standards of “trustworthiness” and that there was no evidence of bias in the Commission’s methodology or conclusions. The court then concluded that the Report’s discussion of the abduction, torture and execution of Franco and the other five FDR leaders was not contradicted by any other evidence and, therefore, granted partial summary judgment to Franco’s widow on the her claim for extrajudicial killing.[6] The appellate court affirmed this ruling.[7]

Third, the trial court twice rejected the defendant’s argument that the Salvadoran General Amnesty Law barred the U.S. lawsuit after the court concluded that said law did not purport to bar claims outside El Salvador.[8] Again the appellate court affirmed this ruling.[9]

On October 5, 2009, the U.S. Supreme Court declined to review the case.[10] The unsuccessful arguments that were advanced for such review, however, are interesting.

Mr. Carranza told the Supreme Court that the lower court’s refusal to bar the suit constituted “an unwarranted intrusion into the sovereign affairs” of El Salvador and undermined “the very vehicle of [its] transformation from a war torn charnel house to a robust democracy.” Moreover, after pointing out that the Truth Commission Report also provided findings on crimes perpetrated by the FMLN, including the assassination of four unarmed U.S. Marines, Carranza argued that the Supreme Court should consider “the implications of adjudicating monetary claims on behalf of members of groups committed to killing American soldiers.”[11]

Carranza’s petition to the U.S. Supreme Court was supported by the Government of El Salvador (then under the control of the ARENA political party). It argued that the ruling of the lower courts “impugns El Salvador’s sovereignty, contradicts international authority, and undermines El Salvador’s democracy.” Ignoring  its own January 1992  Law of National Reconciliation that had banned amnesty for those found responsible by the Truth Commission until at least six months after its Report was released, the Government falsely asserted that the amnesty law “was a principal, if not the pivotal, requirement of the [Peace Accords].”[12]

In addition, the Government of El Salvador told the U.S. Supreme Court that the plaintiffs had failed to exhaust their remedies in the Salvadoran courts as its Supreme Court had held in 2000 that the country’s courts had discretion to waive the immunity of the amnesty law in particular cases involving “fundamental human rights.”[13] This was a new argument, however, that should not be permitted in the appellate process. In the Sixth Circuit Court of Appeals, the Government of El Salvador, again as amicus curiae, did not mention the possible discretionary waiver of the amnesty law by Salvadoran courts and instead asserted that the amnesty law “specifically precludes the [plaintiffs’] claims . . . by granting absolute civil and criminal immunity to . . . Carranza.”[14]

In opposition to the request for Supreme Court review, the plaintiffs said that Carranza now was arguing inconsistently for his immunity in the U.S. case and for his non-immunity in the hypothetical Salvadoran case if the Salvadoran courts were to exercise their discretion to waive the immunity law. Moreover, according to the plaintiffs, Carranza in the trial court had conceded that plaintiffs had exhausted their Salvadoran remedies because the amnesty law would bar such a lawsuit in that country, and then Carranza failed to prove that he was entitled to immunity in the U.S. case.[15]


[1]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador at 58-6266 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html.

[2]  CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[3]  Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009), pet. for cert. filed, 77 U.S.L.W. 3670 (U.S. Sup. Ct. May 28, 2009) (No. 08-1467); CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[4]  Chavez v. Carranza, 407 F. Supp. 2d 925, 927-30 (W.D. Tenn. 2004); Chavez v. Carranza, 2005 WL 2659186,  at 2-3 (W.D. Tenn. 2005).

[5]  Chavez v. Carranza, 559 F.3d at 491-94.

[6]  Chavez v. Carranza, 413 F. Supp. 2d 891, 903-04 (W.D. Tenn. 2005); Fed. R. Evid. 801 (c), 803 (8).

[7]  Chavez v. Carranza, 559 F.3d at 496.

[8]  Chavez v. Carranza, 2005 WL 2659186, at 3-5 (W.D. Tenn. 2005); Chavez v. Carranza, 2006 WL 2434934, at 5 (W.D. Tenn. 2006). See also Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011); Post: El Salvador’s General Amnesty Law in U.S. Federal Courts (June 14, 2011); Post: The Current Controversy Over El Salvador’s General Amnesty Law and Supreme Court (June 16, 2011).

[9]  559 F.3d at 494-96. The plaintiffs’ argument against the amnesty law was supported in the Sixth Circuit by a group of law professors. (Law Professors Amici Brief.)

[10] Carranza v. Chavez, 2009 WL 1513107 (U.S. Sup. Ct. Oct. 5, 2009).

[11]  Petition for Writ of Certiorari, Carranza v. Chavez, 2009 WL 1511732 (U.S. Sup. Ct. No. 08-1467 May 28, 2009).

[12]  Brief of Amicus Curiae Republic of El Salvador in Support of Petitioner [Carranza], Carranza v. Chavez, 2009 WL 1511733, at 2 (U.S. Sup. Ct. No. 08-1467 May 28, 2009).

[13]  Id.

[14]  Brief of Amicus Curiae The Republic of El Salvador in Support of Appellant [Carranza] at 1, 3, Chavez v. Carranza (6h Cir. Apr. 22, 2008) (emphasis added).

[15]  Brief for Respondents Chavez, et al., at 1-2, 5, 7, 9-10, Carranza V. Chavez  (U.S. Sup. Ct. No. 08-1467 June 29, 2009). In reply, Carranza essentially repeated his previous arguments. Reply Brief of Petitioner, Carranza v. Chavez, (U.S. Sup. Ct. No. 08-1467 July 15, 2009).

 

Litigation Against Conspirators in the Assassination of Oscar Romero

 

Alvaro Saravia

As previously mentioned, the Truth Commission for El Salvador named Alvaro Saravia, an aide to Roberto d’Aubuisson, as one of the participants in the plot to assassinate Archbishop Oscar Romero.[1]

When the Truth Commission report was released in March 1993, criminal charges against Saravia were being considered by the Salvadoran courts. Soon thereafter, however, those criminal charges were dismissed pursuant to the country’s hastily enacted General Amnesty Law.[2]

In September 2003, a U.S. human rights organization, the Center for Justice and Accountability, filed a civil lawsuit by a relative of Oscar Romero alleging that Saravia, then a California resident, as an aide to Roberto d’Aubuisson played a key role in organizing this assassination. The case sought money damages under two U.S. statutes, the Alien Tort Statute (ATS) and the Torture Victims Protection Act (TVPA).[3]

A year later, the court held that it had personal jurisdiction over Saravia as he was a resident of the California district and legally had been served with process to commence the case. The court also held that the case (initiated 13 years after the murder) was not barred by the U.S. 10-year statute of limitations under the U.S. equitable tolling doctrine because the plaintiff could not have obtained justice in Salvadoran or U.S. courts due to his legitimate fear of being killing for making such a claim and the Salvadoran government’s erection of roadblocks to Salvadoran judicial remedies. Similarly the lack of any effective Salvadoran judicial remedy meant that the plaintiff did not have to satisfy the TVPA requirement to have exhausted remedies in the foreign country.[4]

In this context, the U.S. court discussed the March 1993 El Salvador amnesty law and the invocation of that law to end the Salvadoran criminal case against Saravia. These actions were seen by the U.S. court as evidence of the plaintiff’s inability to obtain any judicial relief in that country, thereby eliminating any requirement for the plaintiff to have exhausted his Salvadoran remedies. The U.S. court apparently assumed that the Salvadoran amnesty law had no application to the U.S. case as that issue was not discussed.[5] However, the court did receive testimony that the Law was “directed to what the Salvadoran courts should do. It tells the Salvadoran courts how to deal with these cases” and that courts in other countries need not, and should not, take that Law into account.[6]

Saravia never responded to the civil complaint and did not participate in any way in this lawsuit. Even though this default constituted, by operation of law, an admission of all the well-pleaded allegations of the complaint and a conclusive establishment of his liability, the court conducted a five-day default hearing, and the plaintiff provided independent evidence in support of the claims, including the live testimony of the driver of the assassin’s car.[7]

The court then entered extensive findings of fact and conclusions of law holding Saravia liable and ordering him to pay $10 million of compensatory and punitive damages to the plaintiff. The court determined that the murder constituted a crime against humanity, because it was part of a widespread and systematic attack intended to terrorize a civilian population. As the court stated, “Here the evidence shows that there was a consistent and unabating regime that was in control of El Salvador, and that this regime essentially functioned as a militarily-controlled government.” The government perpetrated “systematic violations of human rights for the purpose of perpetuating the oligarchy and the military government.” The court also concluded that what happened in El Salvador was the “antithesis of due process” and that there could not be a better example of extrajudicial killing than the killing of Archbishop Romero.[8]

The court received into evidence the Truth Commission Report and relied extensively on it in reaching its findings.[9]

Because Saravia had not participated in this case in any way, there was no appeal, and the district court’s decision became the final judgment. Now Saravia is one of the “most wanted fugitives” for “human rights violations” by the U.S. Immigration and Customs Enforcement agency.[10]

In 2006 and again in 2010, Saravia was reported to be in an unidentified Latin American country for his personal security when he was interviewed by Salvadoran journalists and admitted to his involvement in the assassination plot. He appeared to be a tormented person barely getting by.[11] He has not paid any part of the $10 million judgment and undoubtedly never will.

Roberto d’Aubuisson, who was named as the “intellectual author” of the assassination by the Truth Commission, died of cancer in February 1992, just after the signing of the Peace Accords that created the Truth Commission.[12]  He never was subjected to any criminal or civil charges for this horrific crime. Nor was anyone else other than Saravia.


[1] See Post: Oscar Romero’s Assassination (Oct. 8, 2011). Information about the Truth Commission’s creation and operations has been provided. (See Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011).)

[2]  See Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011).

[3] CJA, Key Conspirator in Assassination of Salvadoran Archbishop Romero Faces Lawsuit in U.S. Court, Sept. 16, 2003, http://www.cja.org/cases/romero.shtmo; Chang, Modesto man accused in ’80 slaying of bishop, San. Fran. Chronicle, Sept. 17, 2003; Branigan, Suit Filed in ’80 Death of Salvadoran Bishop, Washington Post, Sept. 17, 2003.

[4]  Doe v. Saravia, 348 F. Supp.2d 1112, 1118-19, 1142-43, 1147-48 (E.D. Cal. 2004). The roadblocks included the Salvadoran government’s thwarting Saravia’s extradition from the U.S. to El Salvador and the adoption and application of the amnesty law to the Salvadoran criminal case against Saravia. (Id. at 1148.)

[5]  Id. at 1133-34, 1151-53.

[6]  Trial Transcript at 772-73, Doe v. Saravia (E.D. Cal. Sept. 3, 2004), http://www.cja.org/cases/RomeroTranscripts/9-3-04%20Trial%20Transcript.txt. See also Post: El Salvador’s General Amnesty Law in U.S. Federal Court Cases (June 14, 2011).

[7]  348 F. Supp.2d at 1143-44.

[8]  Doe v. Saravia, supra; CJA, El Salvador: Alvaro Rafael Savaria, http://www.cja.org/cases/romero.shtml; Rigoberta Menchu Tum, Justice Comes to the Archbishop, http://www.nytimes.com/2004/08/31/opinion/31menchu.html.

[9]  Doe v. Saravia, 348 F. Supp. 2d at 1131-32.

[10] U.S. I.C.E., News: ICE Most Wanted Fugitive, http://www.icc.gov/pi/investigations/wanted/Rafael_saravia.htm.

[11] Reyesei, Conspirator in Romero assassination speaks out, Nuevo Herald  (Mar. 24, 2006); Tim’s El Salvador Blog, Conspirator in Romero assassination speaks out (Mar. 24, 2006),http://luterano.blogspot.com; Dada, How we killed Archbishop Romero, (Mar. 25, 2010), http://www.elfaro.net.

[12] Severo, Roberto d’Aubuisson, 48, Far-Rightist in Salvador, N.Y. Times (Feb. 21, 1992).