Tag: Truth Commission for El Salvador

Oscar Romero’s Assassination

Capilla de Hospital de la Divina Providencia
Capilla de Hospital de la Divina Providencia

On March 24, 1980, Monsignor Oscar Romero was delivering what turned out to be his last homily in the beautiful, intimate, modern chapel at a cancer hospital in San Salvador that was across the street from Romero’s small apartment.[1]

A red four-door Volkswagen drove up in front of the chapel. A man in the back seat of the car raised his rifle and fired a single shot through the open front door of the chapel. Romero fell and died behind the altar just after he had said, “May this body immolated and this blood sacrificed for humans nourish us also, so that we may give our body and our blood to suffering and to pain–like Christ, not for self, but to bring about justice and peace for our people.”

The Truth Commission for El Salvador, the U.S. District Court for the Eastern District of California and the Inter-American Commission on Human Rights have made the following findings regarding the assassination of Romero:[2]

  • On March 24, 1980, Roberto D’Aubuisson had a meeting with three members of his security team: Alvaro Saravia, Eduardo Avila and Fernando Sagrera. Avila said that later that day Romero would be celebrating mass at the Capilla and that this would be a good opportunity to kill him. D’Aubuisson ordered that this be done and put Saravia in charge of the operation. When someone said a sniper would be needed, Avila said he would contact one through Mario Molina, who was another member of D’Aubuisson’s security team. Yet another member of the team, Amado Antonio Garay, was assigned to be the driver for the assassin.
  • Later that same day in the parking lot of the Camino Real Hotel in San Salvador, according to the Truth Commission, the assassin (a bearded man) with a rifle got into a red, four-door Volkswagen that was driven by Garay. A different account of this meeting was provided by Garay himself in testimony in the U.S. federal court case. Upon instructions from Saravia, Garay testified that he drove the car to a house in San Salvador, where Saravia entered and brought out a tall bearded man carrying a long rifle with a telescopic lens. Before the car left, Saravia told the bearded man, “It is better to shoot in the head because maybe he [might] have a bulletproof vest. You have to be sure he got killed.” Saravia told Garay that he would be provided protection by men in another car.
  • The bearded man told Garay where to go, and on the way, the bearded one said, “I can’t believe it, I’m going to shoot a priest.”
  • Garay drove to the Capilla, and the bearded man told him to stop at its main entrance. Garay saw people sitting in the pews of the chapel and a priest speaking at the altar.
  • The assassin then fired a single high-velocity .22 caliber bullet from the rear seat of the Volkswagen through the open entrance door of the Capilla. The bullet hit and killed Romero.
  • Afterwards, upon D’Aubuisson’s order, another member of his security team, Walter Antonio “Musa” Alvarez, received 1,000 colones, and he and Saravia paid the assassin.
  • In the proceedings before these three institutions, the assassin himself was not identified.[3]

[1] See Post: Archbishop Oscar Romero’s Last Homily (Oct. 6, 2011).

[2]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 127-31(March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html%5B“Truth Commission Report”];Doe v. Saravia, 348 F. Supp.2d 1112, 1121-23(E.D. Cal. 2004)(Sararvia held liable to relative of Romero for $10 million of compensatory and punitive damages for crimes against humanity and extrajudicial killing for Saravia’s role in the assassination of Romero); Monsignor Romero v. El Salvador, Rep. No. 37/00 ¶¶ 53-54 (Inter-American Comm’n Human Rights, Case No. 11.481, April 13, 2000).

[3]  Truth Commission Report at 130. A Salvadoran newspaper recently reported that the Romero assassin was at the time a deputy sergeant of the Salvadoran National Guard and a member of the security team for former Salvadoran President Arturo Molina. (Valencia, Gabriela & David, The sniper who killed Romero was a former National Guard, Diario Co Latino (Sept. 9, 2011).

International Criminal Justice: The Spanish Court’s Criminal Case Regarding the Salvadoran Murders of the Jesuit Priests

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).

[3] Id.; CJA, Spanish National Court Indictments and Arrest Warrants (May 30, 2011)(in Spanish), http://www.cja.org/downloads/JesuitsArrestWarrants.pdf;  CJA, Update: Spanish Judge Issues Indictments and Arrest Warrants in Spanish Jesuits Massacre Case (May 31, 2011), http://www.cja.org/article.php?id=1004.

[4] Id.

[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.

[6]  CJA, El Salvador: The Jesuits Massacre Case, http://www.cja.org/cases/jesuits.shtml; CJA, Spanish National Court To Pursue Criminal Investigation into 1989 Massacre of Jesuit Priests in El Salvador (Jan. 13, 2009); CJA, Spanish National Court’s Order Admitting the Complaint (Jan. 13, 2009)(in Spanish), http://www.cja.org/downloads/Jesuits_Order_Admitting_Complaint.pdf.

[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.)

[9] Id.

International Criminal Justice: The Jesuits Case Before the Inter-American Commission on Human Rights

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves[2]  and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3]  We also have summarized the Salvadoran criminal case regarding this crime.[4] Along the way we have encountered the findings regarding this crime by the Truth Commission for El Salvador and what that Commission was and how it did its work.[5] Yet another facet of this case has been exposed: El Salvador’s General Amnesty Law and its impact on the Jesuits case.[6]

Now we look at the Jesuits case in the Inter-American Commission on Human Rights (IACHR), headquartered in Washington, D.C.  It receives and analyzes petitions alleging human rights violations under the American Convention [Treaty] on Human Rights. When a petition meets certain conditions of eligibility, the IACHR solicits the views of the concerned State, investigates the violations and issues a report that typically sets forth its findings and conclusions plus recommendations to the State concerned.[7] As of 1993, according to a U.S. bar association, the IACHR “decides few cases, usually after a long delay, and often its decisions are not drafted in a persuasive manner,” and its “decisions receive very little notice, are not cited or relied on in other cases, and are often not obeyed.” [8]

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 IACHR 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.  Subsequently the government asked for dismissal on the ground that the case had been duly prosecuted in the country.[9]

Ten years later (December 22, 1999), the Commission issued its report making detailed findings about the murder and subsequent events and concluding that the state had violated the American Convention. It found the Truth Commission Report to be credible and placed heavy reliance on it.[10] As a result, the IACHR 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.[11] The IACHR set forth its legal reasoning why that Law was invalid.[12]

Almost another 12 years now have passed since the IACHR’s decision, and still the government of El Salvador has not complied with these recommendations.[13]

In November 2009, however, on the 20th anniversary of the murder of the Jesuit priests, El Salvador at least partially complied with the recommendation for reparations. President Mauricio Funes presented the nation’s highest award (National Order of Jose Matias Delgado) to the Jesuit priests’ relatives as an act of atonement. Finally the Funes’ Administration formally advised the IACHR 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.[14]

The IACHR has had three other cases that were investigated by the Truth Commission and at least two other cases of human rights abuses during El Salvador’s civil war. In all of these cases the IACHR concluded that the country had violated the American Convention on Human Rights and made recommendations similar to the ones in the Jesuits case. For the most part, El Salvador has not adopted IACHR’s recommendations in these cases.[15]

In January 2010, however, President  Funes took steps for compliance with the recommendations to make reparations to the victims of these crimes, including the Jesuits case. President 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. Fuenes also made a formal apology to all of the victims of these crimes and asked for their forgiveness. In addition, Fuenes created three commissions (i) to offer redress to the victims, (ii) to search for children who went missing during the war; and (iii) to provide attention to disabled combatants. (The country’s Vice President, Salvador Sanchez Ceren, simultaneously apologized for the actions of FMLN guerrillas during the civil war.)[16]

[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: El Salvador’s Military’s Attempt To Cover-Up Its Committing the Murders of the Jesuit Priests (June 7, 2011).

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

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

[6]  See Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011). A future post will discuss the current Salvadoran controversy regarding the General Amnesty Law and the Constitutional Chamber of the country’s Supreme Court.

[7]  IACHR, What is the IACHR?, http://www.cidh.oas.org/what.htm . (The other human rights body for the Americas is the Inter-American Court of Human Rights, which is located in San José, Costa Rica.)

[8]  Comm. on Int’l Human Rights of the Ass’n of Bar of City of N.Y., The Inter-American Commission on Human Rights: a Promise Unfulfilled at 3 (1993).  The author believes these 1993 conclusions about the IACHR are still valid and invites comments on this topic.

[9]  Ignacio Ellacuria, et al. v. El Salvador, Rep. No. 136/99 ¶¶ 1-3 (IACHR Case No. 10.488, Dec. 22, 1999).

[10]  Id. ¶¶ 25-26, 52, 59-60, 69-72, 75-86, 179-80, 184, 209, 219, 230-31.

[11]  Id. ¶¶ 4, 52-142, 143-96, 237-38, 241.

[12]  Id. ¶¶ 192-232. Accord  Cea et al v. El Salvador, Rep. No. 1/99  ¶¶ 105-17, 160 (Case No. 10.480, Jan. 27, 1999).

[13]  CJA, El Salvador: The Jesuits Massacre Case, http://www.cja.org/cases/jesuits.shtml.

[14] IACHR, Press Release No. 78/09: IACHR Concludes Its 137th Period of Sessions (Nov. 13, 2009); Aleman, El Salvador awards highest honors to 6 Jesuit priests killed by army 20 years ago, Washington Examiner (Nov. 16, 2009).

[15] Monsignor Romero v. El Salvador, Rep. No. 37/00 ¶¶ 1-2 (IACHR Case No. 11.481, April 13, 2000); Admissibility of  El Mozote Massacre, Rep. No. 24/06, ¶¶ 1-29  (IACHR Case No. 10.720, Mar. 2, 2006); COMADRES, Rep. No. 13/96, ¶¶  1-2, 5-7, 28 (IACHR Case No. 10.948, Mar. 1, 1996);  Cea, et al. v. El Salvador, Rep. No. 1/99 (IACHR Case No. 10.480 Jan. 27, 1999); Vasquez v. El Salvador, Rep. No. 65/99 (IACHR Case No. 10.228 Apr. 13, 1999).

[16] Cervantes, Funes pide perdon por abusos durante la Guerra (Jan. 16, 2010),www.elfaro.net/es; IACHR, Press Release NO. 4/10: IACHR Welcomes El Salvador’s Recognition of Responsibility and Apology for Grave Human Rights Violations During the Armed Conflict (Jan. 21, 2010); El Salvador President Apologizes to War Victims, Latin American Herald Tribune (Jan. 22, 2010). The author is not aware of what has happened with these three commissions and invites comments with such information.

 

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

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

Adoption of the General Amnesty Law

Five days after the delivery of the Truth Commission Report in March 1993, El Salvador’s National Assembly adopted the General Amnesty Law for the Consolidation of the Peace (Decree 486). It granted in Article 1: “a full, absolute and unconditional amnesty to all those who participated in any     way in the commission, prior to January 1, 1992 [the end of the civil war], of political crimes or common crimes linked to political crimes or common crimes in which the number of persons involved is no less than twenty.”

This law’s Article 6 stipulated that the amnesty shall apply “to the persons referred to in article 6 of the National Reconciliation Law . . . of January 23, 1992 [i.e., to those who would be named or implicated in the anticipated Truth Commission Report].” In addition, Article 2 of the Law broadened the definition of “political crime” to include “crimes against the public peace,” “crimes against the activities of the courts,” and crimes “committed on the occasion of or as a consequence of the armed conflict, without regard to political condition, militancy, affiliation or ideology.” Article 4 stated that all pending cases should be dismissed and all individuals being held should be released while anyone charged in the future could obtain dismissal of the charges. In addition, Article 4 provided that the amnesty extinguished all civil liability.[7]

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

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

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

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

 Salvadoran Litigation over the General Amnesty Law

 Immediately after the adoption of this law, Salvadoran human rights organizations brought a lawsuit to challenge its constitutionality, but the Salvadoran Supreme Court in 1993 rejected that claim. The court, in part, justified its conclusion by relying upon the following provision of Article 6(5) of the Protocol II to the Geneva Convention relating to the Protection of Victims of Non-International Armed Conflicts: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those   deprived of their liberty for reasons related to the armed conflict, whether they are  interned or detained.” [11]

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

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

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

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

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

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

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

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

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

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

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

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

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

[9]   Id.

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

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

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

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

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

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

International Criminal Justice: The Jesuits Case in The Truth Commission for El Salvador

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves[2]  and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3]  We also have summarized the Salvadoran criminal case regarding this crime.[4] Along the way we have encountered the findings regarding this crime by the Truth Commission for El Salvador. Now we see what that Commission was and how it did its work.[5]

In January 1992, under United Nations’ auspices, the Government of El Salvador and the FMLN, a Salvadoran guerrilla group, successfully concluded their long negotiations to end the 12 years of civil war. The Peace Accords represent a genuine compromise: the FMLN renounced its aspiration to seize the state by military force and impose radical economic changes while the government and its political supporters relinquished their historical control and violent opposition to change.[6] The Accords laid out sweeping reforms to permit the FMLN to participate in political life, to transform the institutions that had accounted for the major human rights violations and to achieve greater equity in the economic and social life of the country.[7]

The Peace Accords also created the Commission for the Truth for El Salvador.[8] Its inclusion developed out of the desire of both sides for at least symbolic justice focused on the most notorious cases with the U.N. providing the compromise formula for such a commission.[9] The U.N. Secretary-General appointed the three members of the Commission. Notably none of its members was Salvadoran because its work was perceived to be too dangerous for anyone who lived in the country.[10]

The Commission was charged to consider and resolve “the need to clarify and put an end to any indication of impunity on the part of officers of the armed forces, particularly in cases where respect for human rights is jeopardized.”[11]

More specifically, the Commission was to investigate “serious acts of violence that have occurred since 1980 and whose impact on society urgently demands that the public should know the truth.”[12] In conducting these investigations, the Commission was to take into account “the exceptional importance that may be attached to the acts to be investigated, their characteristics and impact, and the social unrest to which they gave rise” and the “need to create confidence in the positive changes which the peace process is promoting and to assist the transition to national reconciliation.”[13]

In addition, the Commission was to make “legal, political or administrative” recommendations for specific cases as both sides had agreed that the Commission could recommend criminal prosecutions.[14] More generally, the Commission recommendations “may include measures to prevent the repetition of such acts, and initiatives to promote national reconciliation.”[15] Under the Peace Accords, the parties “undertake to carry out the Commission’s recommendations.”[16]

The Commission was to conduct its activities “on a confidential basis.” It was not to “function in the manner of a judicial body.” It could use “whatever sources of information it deems useful and reliable.” It could “interview, freely and in private,” anyone. Its procedures should “yield results in the short term, without prejudice to the obligations incumbent on the Salvadoran courts to solve such cases and impose the appropriate penalties on the culprits.”[17]

In evaluating and implementing this Mandate regarding its procedures and methodology, the Commission made the following decisions:

  • It would investigate individual cases or acts that outraged Salvadoran society and/or international opinion as well as a series of individual cases with similar characteristics revealing a pattern of violence or ill treatment that also outraged Salvadoran society.
  • Its sources would be confidential.
  • It would interview people and receive reports from governments and international bodies.
  • It would take all possible steps to ensure the reliability of the evidence used to arrive at a finding; to verify, substantiate and review all statements of facts by checking them against a large number of sources whose veracity had been established and by not basing any finding on a single source or witness or only on a secondary source.
  • It would name perpetrators of human rights violations.
  • Its report would specify the degree of certainty for each finding.  “Overwhelming evidence” would indicate “conclusive or highly convincing evidence.”  “Substantial evidence” would indicate “very solid evidence.”  “Sufficient evidence” would indicate “more evidence to support the . . . finding than to contradict it.”[18]

On March 15, 1993, the Commission delivered its report to the U.N. Security Council, the Government of El Salvador, the FMLN and the National Commission for the Consolidation of Peace (COPAZ). The Report made findings on 32 cases of serious acts of violence, one of which was the murders of the Jesuit priests.[19]

The Commission had no power to prosecute anyone, and it recommended against immediate prosecutions by the Salvadoran government because the Commission believed the Salvadoran judicial system was not capable of handling such cases.[20] Instead, the Commission’s findings on specific cases were intended to be used by the Salvadoran judicial system after it had been reformed to make “whatever final decisions they consider appropriate at this moment in history.”[21]

Finally  the Truth Commission Report has been held by U.S. federal courts to meet standards of trustworthiness and thus was admissible into evidence in cases involving El Salvador.[22]  The Inter-American Commission on Human Rights has reached the same conclusion for cases from the country.[23]

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

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

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

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

[5]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 13-14, 26-171 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html  [“Commission Report”]; Margaret Popkin, Peace without Justice: Obstacles to Building the Rule of Law in El Salvador at 3, 6-7, 41, 46-48, 50-57 (University Park, PA: Penn. State Univ. Press 2000) [“Popkin”]; Inter-American Commission on Human Rights, Annual Report 1991, ch. IV (Feb. 14, 1992); Inter-American Commission on Human Rights, Report on the Situation of Human Rights in El Salvador § I (1) (Feb. 11, 1994).

[6]  Terry Karl, El Salvador’s Negotiated Revolution, 71 Foreign Affairs 147, 148 (1992).

[7]  United Nations, El Salvador Agreements: The Path to Peace (1992) [“Peace Accords”]; Unitarian Universalist Service Comm.,  Provisional Summary of Key Accords by Salvadoran Negotiators (Jan. 15, 1992); Search for Justice, The Salvadoran Peace Accords: A Synopsis (circa Jan. 15, 1992) [“Accord Synopsis“]; El Rescate Human Rights Dep’t, The Salvadoran Peace Accords: An Outline (1992); Popkin at 3-4, 83-95; Human Rights Watch, World Reports: El Salvador (2001); Human Rights Watch, World Reports: El Salvador (2002).

[8]  Id.

[9]  Popkin at 87-94.

[10]  Accord Synopsis; Commission Report; Popkin at 87-88, 94-95, 121-24; Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vanderbilt J. Transnat’l L. 497, 499-500, 503-04 (1994) [“Buergenthal”]. Thomas Buergenthal was one of the members of the Truth Commission, and from 2000 to 2010 he was a judge on the International Court of Justice. (Int’l Court of Justice, Judge Thomas Buergenthal, http://www.icj-cij.org/court/index.php?p1=1&p2=2&p3=1&judge=11.)

[11]  Peace Accords at 53; Commission Report at 18; Popkin at 109-11.

[12]  Peace Accords at 17, 29; Commission Report at 18.

[13]  Peace Accords at 17, 30; Commission Report at 18; Popkin at 109-11.

[14]  Peace Accords at 30; Commission Report at 18; Popkin at 94.

[15]  Peace Accords at 30; Commission Report at 18; Popkin at 109-11.

[16]  Peace Accords at 31; Commission Report at 19.

[17]  Peace Accords at 30, 53; Commission Report at 22.

[18]  Commission Report at 22-25; Popkin at 112-20. The El Salvador Government tried to persuade the Commission not to name individuals. Buergenthal at 519-22 (Commissioners assumed from the start that alleged perpetrators would have to be named and not to do so would reinforce the impunity that was supposed to end); Popkin at 113-14; David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process  at 499-500 (4th ed. 2009) [“Weissbrodt”].

[19]  Commission Report at 43-171.

[20]   Commission Report at 177-79; Popkin at 131-39, 140-43.

[21]  Commission Report at 13.

[22]  Doe v. Saravia, 348 F. Supp. 2d 1112, 1131-32, 1255 (E.D. Cal. 2005); Chavez v. Carranza, 413 F. Supp. 2d 891, 903-04 (W.D. Tenn. 2005), aff’d, 559 F.3d 486, 496 (6th Cir. 2009), cert. denied, 130 S. Ct. 110 (2009); Fed. R. Evid. 801 (c), 803 (8).

[23]  Monsignor Romero v. El Salvador, Rep. No. 37/00, ¶¶ 30-54, 88, 120 (IACHR April 13, 2000); Ignacio Ellacuria, et al. v. El Salvador, Rep. No. 136/99, ¶¶ 79-86 (IACHR Dec. 22, 1999); Admissibility of El Mazote Massacre, Rep. No. 24/06, ¶¶ 30-42 (IACHR Mar. 2, 2006).

International Criminal Justice: The Salvadoran Murders of the Jesuit Priests

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] Here we examine the provisional facts of the murders themselves and of the surrounding circumstances.[2]

The Murders

In the early hours of November 16, 1989, a group of Salvadoran soldiers from the Atlacatl Battalion entered the campus of the Central American University (UCA) in San Salvador. They made their way to the Pastoral Centre, which was the residence of Jesuit priests Ignacio Ellacuría, Rector of the University; Ignacio Martín-Baró, Vice-Rector; Segundo Montes, Director of the Human Rights Institute; and Amando López, Joaquín López y López and Juan Ramón Moreno, all teachers at UCA.

The soldiers tried to force their way into the Pastoral Centre. When the priests realized what was happening, they let the soldiers in voluntarily. The soldiers searched the building and ordered the priests to go out into the back garden and lie face down on the ground.

The lieutenant in command gave the order to kill the priests. Fathers Ellacuria, Martín-Baró and Montes were shot and killed by a Private, Fathers López and Moreno by a Deputy Sergeant. Shortly afterwards, the soldiers found Father Joaquín López y López inside the residence and killed him. Another Deputy Sergeant shot Julia Elva Ramos, who was working as a cook in the residence, and her 16-year-old daughter, Celina Mariceth Ramos. Another Private shot them again, finishing them off.

The soldiers then took a small suitcase belonging to the priests containing photographs, documents and $5,000. They also fired a machine gun at the façade of the residence and launched rockets and grenades. Before leaving, they wrote on a piece of cardboard: “FMLN executed those who informed on it. Victory or death, FMLN.”

The FMLN’s “Final Offensive” and the Salvadoran Military’s Response

This horrible crime occurred in the midst of what the FMLN guerrillas called “The Final Offensive.” Most of the nine-year old civil war had been fought in the mountains and countryside. On November 11, 1989, however, “The Final Offensive” was launched to bring the war into the capitol city of San Salvador for the first time.

This assault reached alarming proportions that the Salvadoran armed forces had not expected. The guerrillas gained control of various areas in and around the capitol. They attacked the official and private residences of the President of the Republic and the residence of the President of the Legislative Assembly. They also attacked the barracks of the First, Third and Sixth Infantry Brigades and those of the National Police. In addition, guerrillas blew up one of the main gates of UCA and crossed UCA’s campus.

On November 12, the Government declared a state of emergency and imposed a 6 p.m. to 6 a.m. curfew.

The next day, November 13, at a meeting of the Salvadoran Armed Forces’ General Staff, security commands were created to deal with the FMLN offensive. Each command was headed by an officer under the operational control of Colonel René Emilio Ponce, Chief of the Armed Forces Joint Staff. Colonel Guillermo Alfredo Benavides was designated to head the military complex security command zone. It included the Military College, the Ministry of Defense, the Joint Staff, the National Intelligence Department, two districts where many members of the armed forces lived, the residence of the United States Ambassador and the UCA campus. (It takes less than five minutes to drive from the Salvadoran Ministry of Defense complex (Estado Mayor) to the UCA campus, as I know from visiting them both.)

A national radio channel also was established, the pilot station being Radio Cuscatlán of the armed forces. Telephone calls to the station were broadcast in a “phone-in” in which callers lofted accusations at Father Ellacuria and called for his death.

Salvadoran Military’s Focus on UCA

The Salvadoran military’s response to the FMLN offensive devoted a lot of effort to UCA, which was very close to the Ministry of Defense complex and which was seen by many in the armed forces as a “refuge of subversives.” Colonel Juan Orlando Zepeda, Vice-Minister for Defense, publicly accused UCA of being the center of operations where FMLN terrorist strategy was planned. Colonel Inocente Montano, Vice-Minister for Public Security, stated publicly that the Jesuits were fully identified with subversive movements. Sectors of the armed forces identified the Jesuit priests with FMLN because of the priests’ special concern for those sectors of Salvadorian society who were poorest and most affected by the war.

On November 12th, a Salvadoran military detachment was stationed to watch who went in and out of UCA. Starting the next day no one was permitted onto the campus.

On November 13th, Colonel Ponce ordered a search of UCA premises. According to Colonel Ponce, he ordered the search because he had been informed that there were over 200 guerrillas inside the UCA campus.

The search was entrusted to a Lieutenant with 100 men from the Atlacatl Battalion. Another Lieutenant  of the National Intelligence Department joined the troops at the entrance to UCA to assist with the search. One of the Lieutenants personally directed the search of the Jesuits residence. They found no signs of any guerrilla presence, war material or propaganda. After completing the search, one of the  Lieutenants reported the results to higher officers.

On November 15th at 6.30 p.m. there was a meeting of the General Staff with military heads and commanders to adopt new measures to deal with the offensive. Colonel Ponce authorized the elimination of ringleaders, trade unionists and known leaders of FMLN, and a decision was taken to step up bombing by the Air Force and to use artillery and armored vehicles to dislodge FMLN from the areas it controlled.

The Minister of Defence, General Larios, asked whether anyone objected. No hand was raised. It was agreed that Salvadoran President Alfredo Cristiani would be consulted about the measures.

After the meeting, the officers stayed in the room talking in groups. One of these groups included Colonel Ponce, Colonel Zepeda and Colonel Montano. Colonel Ponce called over Colonel Guillermo Alfredo Benavides, who was the Director of the Military College. In front of four other officers, Ponce ordered Benavides to eliminate Father Ellacuria and to leave no witnesses. He also ordered him to use the unit from the Atlacatl Battalion which had carried out the search two days earlier.

That same night, November 15th, between 10 p.m. and 11 p.m., Benavides met with the officers under his command. Colonel Benavides told them that he had just come from a meeting at the General Staff at which special measures had been adopted to combat the FMLN offensive. Colonel Benavides said that the situation was critical and it had been decided that artillery and armored vehicles should be used. He also told them that all known subversive elements must be eliminated.

Colonel Benavides specifically said that he had received orders to eliminate Father Ignacio Ellacuria and to leave no witnesses. Colonel Benavides asked any officers who objected to this order to raise their hands. No one did.

After the meeting, the leader of the Atlacatl Battalion decided that in order to try to blame the deaths on the FMLN, they would use an AK-47 rifle that had been captured from the FMLN, instead of regulation firearms, and that they would leave no witnesses. After the murders, they would simulate an attack and leave a sign mentioning FMLN.

Two pick-up trucks with the soldiers from the Atlacatl Battalion left the Military College and joined other soldiers of the Atlacatl Battalion. They then proceeded to the Pastorale Center of UCA and committed the murders as previously described.

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

[2] This post’s factual recitation 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 37-71 (Washington, D.C.; Georgetown Univ. Press 1993). Although, as will be discussed in a subsequent post, the Truth Commission adhered to an objective and reasonable methodology in conducting its investigations and writing its report, it must be recognized that there was no cross-examination of witnesses by attorneys for the accused or full opportunity for them to present evidence in their own defense. Thus, the findings of the Truth Commission must be taken as provisional in nature. In other future posts we will talk about the Salvadoran military’s efforts to cover up their participation in this crime; the Salvadoran criminal prosecution of some of the military officers who were involved and the subsequent Salvadoran general amnesty for them and others; 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.

International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests

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).

[3] Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 49 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html;  Doggett at 17.

[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).