Tag: universal jurisdiction

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]

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[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)

Spanish Court Upcoming Trial Over 1989 Murders of Salvadoran Jesuit Priests

On June 8, 2020, the Spanish National Court in Madrid will commence a trial over the November 16, 1989, murders in El Salvador of six Jesuit priests, their housekeeper and her daughter. The sole defendant will be Inocente Orlando Montano, who at the time was a Colonel and the Vice-Minister of Public Security in that country and who on November 19, 2017, was extradited from the U.S., where he had been living, to Spain to stand trial.[1]

On May 20, 2011, the Spanish court had issued the equivalent of an indictment of 20 Salvadoran military officers, including Montano, for this horrible crime and thereafter requested El Salvador to extradite 15 of them still living in that country to Spain to stand trial, but the Salvadoran courts refused to do so. (As of November 2017, one of the four others had died, two were cooperating with the prosecution and one had been tried, convicted and imprisoned for this crime in El Salvador.) [2]

The law, including universal jurisdiction, facts and circumstances leading up to this trial have been discussed in many previous posts. [3]

The prosecution will be lead by attorneys from The Guernica Centre for International Justice and Spanish co-counsel Oilé & Sesé Abogadas. According to the Centre,

  • “The trial for the murder of the Jesuits and the two women they employed is extremely significant. This trial has the potential to reopen the discussion in Spain about the necessity and importance of an effective universal jurisdiction law. It also supports the ongoing realization that countries like Spain need to ensure that victims of human rights violations can find redress when legal avenues have been foreclosed in other jurisdictions due to restrictive legislation, corrupt judiciaries, impunity, or political opposition. This trial also comes at a time when Salvadoran civil society is struggling to push forward investigations and prosecutions in El Salvador following the Supreme Court’s repeal of the Amnesty Law in 2016, while simultaneously political sectors in El Salvador threaten to enact legislation that once again could shield those most responsible from prosecution and criminal sanctions.”

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[1] Bernabéu, Email: Trial Date Set for the Jesuits Massacre Case (Feb. 17, 2020); Former Salvadoran Military Officer Extradited from U.S. to Spain for Trial in Jesuits Murder Case, dwkcommentaries.com (December 1, 2017).

[2] Update on Status of Extradition of Defendants in Spain’s Criminal Case Regarding the 1989 Salvadoran Murders of the Jesuit Priests, dwkcommentareies.com (Aug. 22, 2016); Spain Ready to Proceed with Case Over the 1989 Killing of Jesuit Priests in El Salvador, dwkcommenaries.com (Nov. 19, 2017).

[3] See the posts listed in “The Jesuit Priests” section of List of Posts to dwkcommentaries—Topical:  EL SALVADOR.

Former Salvadoran Military Officer Extradited from U.S. to Spain for Trial in Jesuits Murder Case 

On November 29 Inocente Orlando Montano Morales, a former Salvadoran military officer, was extradited from the U.S. to Spain to face trial in the 1989 murders of five Jesuit priests in El Salvador.[1]

On November 30 Montano appeared before Judge Manuel Garcia Castellón of Spain’s National Court, who sent the Salvadoran to prison for pre-trial detention because the Spanish probe showed Montano had taken an “active part in the decision and design of the assassinations” and because there was a risk he would flee the jurisdiction. (Montano arrived at the court by ambulance and entered the court in a wheelchair.) [2]

Montano is to return to the court next week for testimony in the case.

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[1] Reuters, U.S. Deports Ex-Salvadoran Officer to Face Trial on Massacre of Priests, N.Y. Times (Nov. 29, 2017); Faus, The United States extradites to Spain the Salvadoran colonel implicated in the murder of Ellacuría, El Pais (Nov. 30, 2017). Many previous posts in this blog have discussed the murders of the Jesuits and legal proceedings regarding this horrendous crime, including Spain’s case under the principle of universal jurisdiction and the U.S. proceedings for extradition of Montano; they may be found in “The Jesuit Priests” section of List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2] Reuters, Spanish Court Orders Prison for Ex-Salvadoran Officer Over Priests’ Massacre, N.Y. Times (Nov. 30, 2017); Assoc. Press, Salvadoran Official Jailed Pending Trial for Jesuits’ Death, N.Y. Times (Nov. 30, 2017); Pérez, Prison for a Salvadoran ex-military for the murder of the Jesuits in 1989, El Pais (Nov. 30, 2017).

Further Delay in Extradition of Former Salvadoran Military Officer to Spain   

A post last month discussed the U.S. district court’s delay of proceedings regarding the proposed extradition of Inocente Orlando Montano, a former Salvadoran military officer, to Spain for trial for his alleged participation in the 1989 murders of Jesuit priests in El Salvador. The reason was the court’s desire for additional briefing on some of the issues.

Additional proceedings on the merits have been further delayed due to the poor health of the 75-year old Montano resulting in the court’s April 28 order to have him transferred to the Federal Medical Center at Butner, North Carolina for “acute care.” This was based upon his attorneys’ report that he was suffering from “numerous ailments beyond those associated with a man of his age. His bladder cancer left him dependent on a colostomy bag. He remains susceptible to a re-occurrence of a C-Diff infection which is difficult to diagnose and treat. During the nearly four years of his incarceration – 21 months for the immigration conviction and 2 years during these extradition proceedings – he developed Type II diabetes. He also increasingly suffers from arthritis in his legs and cannot move without a walker.”[1]

In the meantime the U.S. submitted a brief addressing whether the U.S.-Spain extradition treaty’s requirement for “dual criminality” was satisfied and whether U.S. due process requirements would be met by an extradition of Montano.[2]

Dual Criminality Requirement Was Met

The U.S. asserted that this requirement meant that “the acts or conduct underlying the [Spanish] charges would be proscribed by similar criminal provisions under either U.S. federal law, the law of the state where the [extradition] hearing is held, or the law of a preponderance of the states.” (P. 23)

Here, according to the U.S. brief, the Spanish charges were under its terrorist murder statute, and while a U.S. federal statute (18 U.S.C. § 2332), as the Magistrate Judge found, was not identical, “the primary distinction is one of scope, not character.” Indeed, “the basic evil proscribed by both countries’ statutes is murder.” (Pp. 23-24)

Moreover, said the U.S. brief, “the murder of a U.S. citizen abroad under circumstances similar to those” involved in the murder of the Jesuit priests who were Spanish citizens in El Salvador would be a crime under U.S. federal law. (P. 25)

Extradition Here Would Satisfy U.S. Due Process

The U.S. brief also asserted the validity of the Magistrate Judge’s conclusion that “it is well-established that Congress may criminalize extraterritorial conduct” and doing so when a U.S. citizen is murdered abroad is a valid exercise of that power and does not violate due process when anyone would know that murder is proscribed. “Protection of one’s citizens from murder [in another country] implicates a significant national interest, and enforcement of that interest is not arbitrary.” (Pp. 31-34)

Conclusion

Now we wait to see if Montano’s attorney responds to the government’s brief on the merits and whether Montano’s health will permit further proceedings.

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[1] Motion for Conditional Release During Pendency of Habeas Proceedings, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 7, 2017); Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 28, 2017).

[2] Amended Memorandum in Support of Motion To Dismiss Application for Writ of Habeas Corpus, Morales v. Elks, No. 5:16-HC-2066-BO (E.D.N.C. Apr. 17, 2017).

 

Delay in U.S. Extradition of Inocente Orlando Montano Morales to Spain for Trial in Murder of the Jesuit Priests in El Salvador

 

Previous posts have discussed U.S. proceedings for extradition to Spain of Inocente Orlando Montano Morales (“Montano”), a former Salvadoran military officer, for his alleged participation in the murder of six Jesuit priests in El Salvador in November 1989. Such extradition was approved in February 2016 by a U.S. Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina, and thereafter Montano challenged that decision by filing an application for a writ of habeas corpus in that court with a hearing in November 2016 on that application and the Government’s motion to dismiss the application.[1]

Four months later, on March 27, 2017, U.S. District Judge Terrence W. Boyle entered an order denying the Government’s dismissal motion without prejudice and requesting the parties to submit new briefs to address certain issues.[2]

Judge Boyle’s analysis started with the assertions that (a) Spain’s criminal case against Montano and others was based upon its law prohibiting “terrorist murder” in other countries of its nationals, five of whom were the murdered Jesuit priests; and (b) the bilateral extradition treaty between Spain and the U.S. required under these circumstances that U.S. law provided “for the punishment of such an offense committed in similar circumstances.”

Thus, for Judge Boyle, the issue to be addressed by the parties in subsequent briefs was whether the U.S. Constitution and law and international law provided for U.S. prosecution of such an offense under similar circumstances. The balance of the Judge’s Order suggests that he has serious doubts that this is so.

He starts with this legitimate premise: “Universal jurisdiction is an international law doctrine that recognizes a ‘narrow and unique exception’ to the general requirement that nations have a jurisdictional nexus before punishing extraterritorial conduct committed by non-nationals” (quoting an Eastern District of Virginia case that was affirmed by the Fourth Circuit, which has jurisdiction over Judge Boyle’s court). This “narrow and unique exception,” he implicitly says, is limited to offenses that “rise to the level of universal concern.”

International Law Issue

Judge Boyle then makes a questionable assertion, which he pins on the parties’ alleged previous arguments, that Spain’s charges for “terrorist acts involving the murder of five Jesuit priests” do not rise to the level of universal concern, such as piracy or genocide.” For this proposition the Judge cites section 404 of the Restatement (Third) of Foreign Relations Law [of the U.S.] (1987), which says, in part, that “offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps terrorism.” (Emphasis added; p. 3, n.2.) Two pages later the Judge cites United States v. Yousef, 327 F.3d 56, 107-08 (2d Cir. 2003), which apparently concluded that “terrorism . . . does not provide a basis for universal jurisdiction” although also observing that treatises like the previously cited Restatement are not primary sources of customary international law.

No independent legal research has been conducted on this issue, but it should be noted that the Restatement is a thirty-year-old secondary authority and that the Yousef case is 14 years old, is from another circuit court and thus is only persuasive authority at best and Judge Boyle merely says this case has been cited by Montano.

The complex Yousef case involved three defendant foreigners who appealed from judgments of conviction for multiple violations of U.S. law, including a conspiracy to bomb a Philippines Airline aircraft flying from the Philippines to Japan. The appellate court rejected the defense arguments that the U.S. had no jurisdiction for this charge because U.S. “law provides a separate and complete basis for jurisdiction over [this and other charges] . . . [U.S.] law is not subordinate to customary international law or necessarily subordinate to treaty-based international law and, in fact, may conflict with both . . . [and because] customary international law does provide a substantial basis for jurisdiction by the [U.S.] over each of these counts, although not . . . under the universality principle.”

Indeed, the Second Circuit in Yousef held in 2003 that “customary international law currently does not provide for the prosecution of ‘terrorist’ acts under the universality principle, in part due to the failure of States to achieve anything like consensus on the definition of terrorism.” (Emphasis added.) The court also noted that those offenses supporting universal jurisdiction under customary international law — that is, piracy, war crimes, and crimes against humanity —. . . now have fairly precise definitions and that have achieved universal condemnation.” (Emphases added.)

Such definitions of “war crimes” and “crimes against humanity” are found in Articles 7 and 8 of the Rome Statute of the International Criminal Court, which has jurisdiction over “the most serious crimes of concern to the international community as a whole,” including crimes against humanity” and “war crimes.” Here are the relevant parts of that Statute:

  • One of the “crimes against humanity” is “murder” “when committed as part of a widespread or systematic attack directed against any civilian population” or “a course of conduct involving the multiple commission of [murder] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” Given the circumstances of the Salvadoran Civil War and the actions of the Salvadoran military, circa 1989, these conditions for this type of crime against humanity should be satisfied.
  • One of the “war crimes” is “willful killing” of “persons . . . protected under the provisions of the relevant Geneva Convention.” Here, that is the Fourth Geneva Convention (Geneva Convention Relative to the Protection of Civilian Persons in Time of War), which protects “Persons taking no active part in the hostilities” against “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.”

Therefore, although not yet subjected to complete legal analysis, a respectable argument for this issue for extradition can and should be made.

U.S. Legal Issues

 Judge Boyle also raised two issues of U.S. law: (1) whether there was a U.S. law that would justify a U.S. criminal charge against Montano for his alleged participation in the killing of the Jesuit priests and (2) whether such a hypothetical U.S. charge would satisfy the U.S. constitutional requirement for “due process of law” under the Fifth Amendment.

I leave these issues to the subsequent briefs of the parties.

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[1] See posts listed in “The Jesuit Priests” section of List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2] Order, Morales v. Elks, No. 5:16-HC-2066-BO (E.D. N.C. Mar. 27, 2017).

Update on Status of Extradition of Defendants in Spain’s Criminal Case Regarding the 1989 Salvadoran Murders of the Jesuit Priests 

Previous posts have reported that the National Court of Spain in 2008 commenced a criminal investigation of the 1989 murder of six Jesuit priests and their housekeeper and her daughter in El Salvador. In May 2011 the Spanish court issued the equivalent of an indictment of 20 former Salvadoran military officials for their alleged involvement in those murders.[1]

One of these defendants had died; one had been living in the U.S.; two have been cooperating with the Spanish investigation; and the whereabouts of three are unknown. The other 13 are believed to be living in El Salvador.

Ever since May 2011 Spanish authorities have been seeking extradition of 13 of these men from El Salvador and one from the United States. But extradition has not happened yet. Here is an update on the status of those efforts.

 Developments in El Salvador

In December 2011 Spain requested extradition of 13 of them who were then believed to be in El Salvador. In May 2012, however, the Supreme Court of El Salvador denied extradition of the 13 on the ground that the country’s constitution prohibited extradition of its citizens.

In August 2015, in an unrelated case, the Constitutional Chamber of the Salvadoran Supreme Court ruled that, according to a treaty on international cooperation in criminal matters to which El Salvador is a party, an INTERPOL red notice requires both the identification of the location of the defendants and their arrest and detention pending an additional filing, such as an extradition request. This decision appeared to be in direct conflict with the just mentioned Court’s May 2012 ruling against extradition in the Spanish case.[2]

In response to the August 2015 ruling, the Salvadoran Human Rights Ombudsman, David Morales, on November 16, 2015, petitioned the country’s Supreme Court to review its 2012 decisions refusing to arrest and order the extradition of 13 former military officials who were subjects of the INTERPOL arrest warrants.[3]

The Ombusman also issued a resolution asking Spanish authorities to re-issue the arrest warrants for extradition purposes in this case. This request was endorsed in the Spanish case by the U.S.-based Center for Justice and Accountability (CJA) and the Spanish Association for Human Rights (APDHE).

On January 4, 2016, the Spanish court’s Judge Velasco honored that plea by requesting INTERPOL to re-issue the international arrest warrants for all the Jesuit Massacre case defendants who reside in El Salvador for their extradition to Spain to face the charges.

On January 6, the Salvadoran government said it will cooperate in the execution of those warrants and the extradition of former Salvadoran military officials and soldiers, but that the country’s Supreme Court would make the final decision.

In February 2016 Salvadoran authorities arrested and detained four of the former Salvadoran military officials who are sought for this Spanish criminal case. The four were former colonel Guillermo Alfredo Benavides Moreno; former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. The Salvadoran National Civilian Police (PNC) force said that it would “continue the search and capture of the rest of the wanted persons and will inform the public in the opportune moment.” To date, however, no additional arrests have been reported.

On July 14, 2016, the full Supreme Court of El Salvador was scheduled to release its decision on the latest request to issue extradition warrants in this case. The day before, however, the Constitutional Chamber of the Court decided that the country’s Amnesty Law was unconstitutional, which was discussed in a prior post. As a result, the full Supreme Court stayed further proceedings about the extradition warrants.

On August 16, 2016, the Supreme Court unanimously, 15-0, decided that former colonel Guillermo Alfredo Benavides Moreno could not be extradited.[4] The court, 11-4, also ordered that Benavides be detained in a Salvadoran prison in accordance with his conviction and imposition of a 30-year sentence by a Salvadoran court before passage of the amnesty law; after the passage of that law Benavides was released from prison. As a result, extradition was barred by a provision of the El Salvador-Spain extradition treaty that says extradition can be denied “if the person whose extradition is requested “has been tried and finally acquitted or convicted [of the same crime].”

The Supreme Court, however, has not yet ruled on the request to extradite the other three men– former sergeants Ramiro Ávalos Vargas and Tomás Zárpate Castillo; and former corporal Ángel Pérez Vásquez. They also were tried by a Salvadoran court for illegal homicide, which is an essential element of the crime now being pursued in Spain, but these three men were acquitted in a Salvadoran trial with many alleged irregularities. Strict application of the rationale of the above Supreme Court decision and the cited provision of the extradition treaty and the underlying notion of no double jeopardy suggest that they too should not be subject to extradition, but the irregularities in their trial are impediments to that analysis.[5] We now await the Salvadoran Supreme Court’s ruling on these three men.

Developments in United States

As explained in a prior post, a Magistrate Judge in the U.S. District Court for the Eastern District of North Carolina on February 5, 2016, upheld the requested extradition of Orlando Montano Morales to Spain in this case. https://dwkcommentaries.com/2016/02/06/resumption-of-spanish-criminal-case-over-1989-salvadoran-murder-of-jesuit-priests/

On April 1, 2016, Montano filed in that court an Application for a Writ of Habeas Corpus, which is the only way for him to appeal or challenge that decision.[6]

On April 26, the U.S. moved to dismiss that habeas application. Its brief argued that the certification of extraditability would not be overturned if there was any evidence warranting the finding that there was a reasonable ground to believe that the individual was guilty of the crime in the foreign country and that there was such evidence in this case. On June 10 the U.S. submitted its reply to the petitioner’s opposition to the dismissal motion; it argued that the response raised no issues needing further rebuttal.[7]

Montano Morales, however, was not finished. On July 21, he submitted another brief arguing that there was insufficient evidence to support the certification order’s probable cause conclusion. He also asserted that the court should consider certain declassified U.S. government cables with respect to the probable cause conclusion. On August 10, the U.S. again rejected Montano’s arguments, emphasizing that the habeas review was “limited to ascertaining ‘whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty of the asserted crimes’” and that there was such evidence.[8] (Emphasis added.)

The matter is now submitted for decision by U.S. District Judge Terrance W. Boyle.

According to Patty Blum, senior legal adviser with the Center for Justice and Accountability, which filed the original complaint in the Jesuit case with the Spanish court in 2008 and which supported the request for extradition of Montano, the habeas corpus application is unlikely to “get much traction substantively” as the order granting extradition already rejected the core arguments of the new petition and the Magistrate Judge “did a thorough job of reviewing the record and giving a reasoned, detailed opinion.”[9]

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[1] Prior posts covered the marvelous ministries of these Jesuit priests and their university (University of Central America or UCA); the circumstances of their horrible murders; the Salvadoran military’s attempted cover-up of their involvement in these crimes; the flawed Salvadoran criminal prosecution of a few of the military personnel so involved and their absolution by a Salvadoran amnesty law; the investigation and report on these crimes by the Truth Commission for El Salvador; other legal proceedings regarding these crimes; the Spanish criminal case over these crimes; El Salvador’s 2012 denial of Spain’s request for extradition of most of the suspects in the case; and the commemoration of the 25th anniversary of the Jesuit martyrs in November 2014. These posts are identified in reverse chronological order of posting in a computer-generated list.  They also are identified in logical sequence in “The Jesuit Priests” section of my manually prepared List of Posts to dwkcommentaires—Topical: El Salvador. There also is extensive discussion of the Spanish case in the website of the Center for Justice and Accountability, the U.S.-based human rights organization that is involved in that case.

[2] Spanish Judge Re-Issues Request for the Arrest of Military Officials, CJA (Dec. 2015); Dalton, Spain calls for arrest of 18 soldiers accused of killing priests in El Salvador, El Pais (Dec. 23, 2015); Reuters, El Salvador will cooperate in arrest of 17 former soldiers accused of killing priests, Guardian (Jan. 6, 2015); Labrador, Spain orders again capture Jesuit Salvadoran military case, El Faro (Jan. 5, 2016).

[3] Human Rights Ombudsman asks extradition slaughter of Jesuits, El Mundo (Nov. 16, 2015).

[4] Labrador, Arauza & Zabiań, Court refuses to extradite Colonel Benavides, but agrees to send him to prison, El Faro (Aug. 17, 2016); Melendez, Supreme Court Decides Not To Extradite Jesuit Case, LaPrensa Grafica (Aug. 17, 2016); Reuters, El Salvador Court Denies Extradition of former Colonel to Spain, N.Y. Times (Aug. 17, 2016).

[5] The Salvadoran trial was covered in a prior post as was the release of Colonel Benavides under the Amnesty Law.

[6] Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241, et seq, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 1, 2016).

[7] Memorandum in Support of Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (April 26, 2016); Response in Opposition to Federal Respondents’ Motion To Dismiss Application for Writ of Habeas Corpus, and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (May 18, 2016); United States’ Reply to Petitioner’s Response in Opposition Regarding Motion To Dismiss Application for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (June 10, 2016).

[8] Supplemental Filing To Support Petition for Write of Habeas Corpus and Request for Hearing, Montano Morales v. Elks, No. 5:16-HC-2066-BO (July 21, 2016); Government’s Response to Supplemental Filing To Support Petition for Writ of Habeas Corpus, Montano Morales v. Elks, No. 5:16-HC-2066-BO (Aug. 10, 2016).

[9] Cooper & Hodges, Extradition appeal among setbacks in Jesuit massacre, Nat’l Cath. Rep. (April 13, 2016); Assoc. Press, Ex-Salvadoran colonel fights extradition in Jesuit killings (Apr. 1, 2016).

Resumption of Spanish Criminal Case Over 1989 Salvadoran Murder of Jesuit Priests?                      

As discussed in a prior posts, Spain’s National Court in 2008 commenced a criminal investigation of the 1989 murder of six Jesuit priests and their housekeeper and her daughter in El Salvador. In May 2011 the Spanish court issued the equivalent of an indictment of 20 former Salvadoran military officials for their alleged involvement in those murders.[1]

In December 2011 Spain requested extradition of 13 of them who were in El Salvador and two who were believed to be in the U.S. (Two of the others could not be located, another two were in the process of cooperating with the Spanish judge in the case and another had died.) In May 2012, however, the Supreme Court of El Salvador denied extradition of the 13 on the ground that the country’s constitution prohibited extradition of its citizens while one of those was in the U.S. in U.S. custody on criminal charges (Inocente Orlando Montano Morales). As a result, it appeared that the Spanish case had been road-blocked

Now there are signs in the U.S., Spain and El Salvador that the case will be resumed.

U.S. Court Approves Extradition of a Salvadoran Suspect to Spain

On April 8, 2015, the U.S. Department of Justice filed a complaint for U.S. extradition of Montano to Spain. A hearing on that complaint was held on August 19, 2015, before U.S. Magistrate Judge Kimberly Swank, U.S. District Court (Eastern District, North Carolina).[2]

On February 5, 2016, the Magistrate Judge issued her decision upholding the requested extradition. She agreed with the Spanish evidence that showed that Mr. Montano was present at a meeting of the military high command that ordered the murders, which were carried out by an elite Salvadoran unit trained by the U.S. military. “A government official who acts in collaboration with others outside the scope of his lawful authority,” she wrote, “may reasonably be considered a member of an armed gang under the Spanish terrorist murder statute.”[3]

The key conclusions of the decision were: (a) “There is currently in force an extradition treaty between the United States and Spain;” (b) Montano “was charged in Spain with extraditable offenses under the terms of the extradition treaty between the United States and Spain, namely the terrorist murder of five Jesuit priests of Spanish origin and nationality;” and (c) “Probable cause exists to believe [Montano] committed the charged offenses of terrorist murder.”

Therefore, the Magistrate Judge concluded that Montano was subject to extradition and certified this finding to the U.S. Secretary of State as required by 18 U.S.C. § 3184.

The Center for Justice and Accountability (CJA), which has supported the extradition of Montano, said that this decision was “thorough, erudite and sweeping in scope [and] turns on a central legal ruling: As a government official, Montano collaborated with others to carry out the murders, acting beyond the scope of his official authority.  As such, Montano can be considered a terrorist. This finding is a vindication of the years of struggle of the Salvadoran people against a repressive military which tried to turn reality on its head by calling anyone who defied it – including the Jesuits priests – terrorists. It is gratifying that a US court has recognized the true reality and named its leaders, Montano one of the most powerful, what they were – terrorists.”  CJA added: “The Assistant U.S. Attorney was persuasive in all aspects of his arguments, ably representing the interests of Spain in the U.S. judicial process.”

Carlos Martín Baró, the plaintiff in CJA’s Jesuits Massacre Case in Spain and brother of Father Ignacio Martín Baró, S.J., one of the murdered priests, said: “My brother had a broad desire to help people. When he encountered the poverty and inequality of El Salvador, he realized the problem was deeper, and he dedicated his entire life to helping the people of that country.  The fact that the Colonel Montano may face trial in Spain won’t heal the pain but is a victory for all people who seek justice.”

Under the previously mentioned U.S. federal statute (18 U.S.C. § 3184) the Secretary of State “shall issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made.” This statute on its face does not appear to grant the Secretary the discretion to deny the request for extradition. Moreover, since the U.S. Department of Justice brought the prosecution of Montano for immigration fraud and then for his extradition, it appears exceedingly unlikely that Secretary of State John Kerry would not provide the necessary warrant for extradition.

Now we wait to see if Montano exercises his right under Federal Rule of Civil Procedure 73 (c) and Federal Rule of Appellate Procedure 4(a) to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit within 30 days “after entry of the judgment or order being appealed from,” which presumably is February 5.

 Spain and El Salvador’s Apparent Cooperation on Extradition of Other Suspects

 In August 2015, in an unrelated case, the Constitutional Chamber of the Salvadoran Supreme Court ruled that, according to a treaty on international cooperation in criminal matters to which El Salvador is a party, an INTERPOL red notice requires both the identification of the location of the defendants and their arrest and detention pending an additional filing, such as an extradition request. This decision appears in direct conflict with the Court’s May 2012 ruling against extradition in the Spanish case over the Jesuit murders.[4]

In response to this recent ruling, on November 16, 2015, the Salvadoran Human Rights Ombudsman, David Morales, petitioned the country’s Supreme Court to review its 2012 decisions refusing to arrest and order the extradition of 11 former military officials who were subjects of the INTERPOL arrest warrants,[5]

The Ombudsman also issued a resolution asking Spanish authorities to re-issue the arrest warrants, for extradition purposes in the Jesuits Massacre Case. This request was endorsed in the Spanish case by CJA and the Spanish Association for Human Rights (APDHE).

On January 4, 2006, the Spanish court’s Judge Velasco honored that plea by requesting INTERPOL to re-issue the international arrest warrants for all the Jesuit Massacre case defendants who reside in El Salvador for their extradition to Spain to face the charges.

On January 6, the Salvadoran government said it will cooperate in the execution of those warrants and the extradition of 17 former Salvadoran military officials and soldiers (one of whom is the previously mentioned Montano in the U.S.), but that the country’s Supreme Court would make the final decision.

On the other hand, a former Salvadoran Defense Minister, Humberto Corado, who was not involved in the killings, has requested support for those subject to the INTERPOL arrest warrants from the ARENA political party because their party members were the government officials in charge at the time of the killings and issued orders that the military carried out. He also argued that the country’s amnesty law should prevent the Spanish case from proceeding further,[6]

On February 5 and 6, 2016, Salvadoran police detained four of the 17 former military officials. The police also are looking for the other 12 (excluding Montano). This is despite some earlier police reluctance to do so. These arrests and searches are seen as a first step towards extradition. These actions were endorsed on February 6 by President Salvador Sanchez Ceren, who stressed that the country was “committed to comply with international standards” and that there were INTERRPOL red notices calling for arrest. He also urged those subject to arrest to comply for decision on extradition to be made by the Supreme Court.[7]

Conclusion

There now appears to be some hope that those accused of complicity in the murder of the Jesuits will face criminal charges in Spain. The main obstacle now is the Salvadoran Supreme Court, which will have to decide whether the new arrest warrants and request for extradition will be honored.

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[1] Prior posts that were tagged “Jesuits” covered the marvelous ministries of these Jesuit priests and their university (University of Central America or UCA); the circumstances of their horrible murders; the Salvadoran military’s attempted cover-up of their involvement in these crimes; the flawed Salvadoran criminal prosecution of a few of the military personnel so involved and their absolution by a Salvadoran amnesty law; the investigation and report on these crimes by the Truth Commission for El Salvador; other legal proceedings regarding these crimes; the Spanish criminal case over these crimes; El Salvador’s 2012 denial of Spain’s request for extradition of most of the suspects in the case; and the commemoration of the 25th anniversary of the Jesuit martyrs in November 2014.

[2] Prior posts that were tagged “Montano” discuss the U.S. prosecution, conviction and imprisonment of Montano for U.S. immigration fraud and the proceedings for his extradition to Spain. See also CJA, U.S. Extradition of Montano; Drew, Unusual extradition fight plays out over priests’ slayings, Yahoo News (Aug. 18, 2015); Hodge, Former colonel faces extradition for charges of plotting Jesuits’ slayings, Nat’l Catholic Reporter (Aug. 24, 2015).

[3] Certification of Extraditability & Order of Commitment, In re Request By Spain for the Extradition of Inocente Orlando Montano Morales (No. 2:15-MJ-1021-KS, U.S. Dist. Ct., E. D. N.C., N. Div. Feb. 5, 2016); CJA Press Release, Judge Grants Extradition of Salvadoran Colonel Accused in Jesuit Massacre (Feb. 5, 2015); Malkin, U.S. Judge Approves Extradition of Former Salvadoran Colonel, N.Y. Times (Feb. 5, 2016).

[4] CJA, Spanish Judge Re-Issues Request for the Arrest of Military Officials, CJA (Dec. 2015); Dalton, Spain calls for arrest of 18 soldiers accused of killing priests in El Salvador, El Pais (Dec. 23, 2015); Reuters, El Salvador will cooperate in arrest of 17 former soldiers accused of killing priests, Guardian (Jan. 6, 2015); Labrador, Spain orders again capture Jesuit Salvadoran military case, elfaro (Jan. 5, 2016).

[5] Human Rights Ombudsman asks extradition slaughter of Jesuits, El Mundo (Nov. 16, 2015).

[6] Serrano, They asked military support of ARENA and right before the event of murdered Jesuits, LaPagina (Jan. 6, 2016).

[7] President recommends involved in Jesuit case to be delivered, Diario CoLatino (Feb. 6, 2016); Labrador, Captured soldiers accused in the Jesuit case, Elfaro (Feb. 5, 2016); PNC Accused Military Capture Jesuit Case, DiarioLatino (Feb. 5, 2015); Labrador, Police are still resisting capture by military Jesuit Case, Elfaro (Jan. 25, 2016).

Spanish Court Dismisses Criminal Investigation of Alleged Torture at U.S. Detention Facility at Guantánamo Bay Cuba

On July 17, 2015, Spain’s National Court’s Judge Jose de la Mata terminated Spain’s criminal investigation of alleged torture of detainees at the U.S. detention facility in Guantânamo Bay Cuba. [1]

The reason for the termination was a 2014 statutory amendment narrowing Spain’s universal jurisdiction statute [2] and Spain’s Supreme Court’s May 2015, decision upholding that amendment in its affirmance of the dismissal of a case investigating alleged genocide in Tibet.[3]

More specifically the dismissal of the Guantánamo case was required, said the judge, because the investigation was not directed against a Spanish citizen or a foreigner who was habitually resident in Spain or a foreigner who was found in Spain and whose extradition had been denied.

An appeal from this decision has been taken by the U.S. Center for Constitutional Rights and the European Center for Constitutional and Human Rights. One of the points of the appeal is the assertion that the court ignored evidence of the participation of Spanish police officials in some of the interrogations at Guantánamo. [4]

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[1] Poder Judicial España, El juez propone archivar el ‘caso Guantánamo’ por “no ser competencia española” (July 17, 2015).

[2] Under customary international law and certain treaties, a nation state’s courts have universal jurisdiction (UJ) over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court for certain crimes, including genocide; terrorism; and any other crimes under international treaties or conventions that should be prosecuted in Spain. The March 2014 amendment of this statute, among other things, restricted universal jurisdiction for war crimes to cases where the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.

[3] Spain’s Audiencia Nacional (National Court) in June 2014 decided to terminate its investigation of alleged genocide in Tibet because of the amendment to the statute. Plaintiffs then appealed to Spain’s Supreme Court, which in May 2015 rejected that appeal.

[4] Center for Constitutional Rights, Former Detainees and Human Rights Groups Appeal Spain’s Decision to Discontinue Guantánamo Investigation (July 23, 2015).

Spanish Court Terminates Universal Jurisdiction Case Against Three U.S. Soldiers

On June 9, 2015, Judge Santiago Pedraz Gomez of Spain’s Audiencia Nacional (National Court) terminated Spain’s criminal investigation of three U.S. soldiers for the death of a Spanish cameraman who was killed in Iraq while covering the 2003 allied invasion of the country.

The reason for the termination was a 2014 statutory amendment narrowing Spain’s universal jurisdiction statute[1] and Spain’s Supreme Court’s May 2015, decision upholding that amendment in its affirmance of the dismissal of a case investigating alleged genocide in Tibet.[2]

Judge Pedraz in his June 9th decision deplored this amendment, which “prevents the persecution of any war crime committed against a Spaniard save in the unlikely situation that the alleged culprits have taken refuge in Spain.” As a result, Spaniards will be legally unprotected in similar cases that might arise in future. The Judge said, “Faced with such a crime committed against [Spanish] journalists or persons considered to be part of the civilian population (such as aid workers), neither the relatives nor the prosecutors will be able to request the opening of proceedings [in Spain] to at least identify the victim, request an autopsy or other urgent procedure, or investigate the circumstances.”

Earlier, in March 2014, and immediately after the adoption of the amendment, Judge Pedraz decided that the amendment could not be applied to this case because, he said, it contradicted Spain’s obligations under the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. Under that treaty, he said, Spain was obligated to “prosecute the crime (search for people and make them appear) regardless of the perpetrators’ nationalities and wherever they may be.” Therefore, “the judge must refrain from applying . . . [the new statutory amendment]. The rule of law requires the existence of independent bodies to protect the rights and freedoms of citizens, by impartially applying standards that express the people’s will and control the activities of public authorities.”[3]

This decision was appealed, and in October 2014 the 20 judges of the Criminal Chamber of the National Court allowed the case to proceed for a procedural error by the prosecution without a ruling on the merits.

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[1] Under customary international law and certain treaties, a nation state’s courts have universal jurisdiction (UJ) over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture. Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court for certain crimes, including genocide; terrorism; and any other crimes under international treaties or conventions that should be prosecuted in Spain. The March 2014 amendment of this statute, among other things, restricted universal jurisdiction for war crimes to cases where the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.

[2] Spain’s National Court in June 2014 decided to terminate its investigation of alleged genocide in Tibet because of the amendment to the statute. Plaintiffs then appealed to Spain’s Supreme Court, which in May 2015 rejected that appeal.

[3] The earlier history of this case was discussed in another post.

 

Spain’s Criminal Investigation of 1989 Murders of Jesuits in El Salvador Is Approved by Spain’s Supreme Court

On May 6th Spain’s Supreme Court affirmed its High Court’s criminal investigation and prosecution of former Salvadoran military officials for the 1989 murders of six Jesuit priests and their housekeeper and her daughter at the University of Central America in San Salvador.[1]

The legal issue for the Supreme Court was whether a 2014 amendment to Spain’s statute regarding universal jurisdiction barred further proceedings in the case. Important for the Supreme Court’s conclusion that it did not were (a) the fact that five of the murdered priests were Spanish citizens and (b) “serious and reasonable” indications that El Salvador’s 1991 criminal trial in this case was not held to find those responsible for the murder but instead to obstruct justice, “all of it accompanied by the absence of the necessary guarantees of independence and impartiality.” One of the grounds for the latter reason was the resignation of the Salvadoran prosecutors after the country’s attorney general refused to allow them to call important military officials to testify at the trial.

In previous developments in this case, Spain had issued arrest warrants for former Salvadoran military officials and requested their extradition to Spain, but El Salvador denied the request for most of these men. One of them (former Colonel Inocente Orlando Montano), however, had been living in the U.S., where he was prosecuted, convicted and imprisoned for lying to U.S. immigration about his military record in El Salvador, and on April 8, 2015, the U.S. government filed a request in a U.S. district court in Massachusetts seeking the extradition to Spain of Col. Montano for his alleged role in the 1989 Jesuit massacre.  Montano will now face an extradition hearing before a U.S. magistrate judge and, if ruled extraditable, will be transferred to Spain to stand trial.[2]

Last month Spain’s Supreme Court upheld the dismissals of two High Court investigations of alleged human rights violations by Chinese officials in Tibet under Spain’s universal jurisdiction statute. Still awaiting decision by the Supreme Court are whether the amended universal jurisdiction statute permits investigations of the 1976 murder of Spanish diplomat Carmelo Soria during the Pinochet dictatorship in Chile and the 2010 Israeli attack on volunteers in the Freedom Flotilla, who were bringing aid to Gaza.

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[1] This post is based upon the following: Spain’s Supreme Court, Press Release: The Supreme Court agreed that the High Court continue to investigate the death of five Spanish priests in El Salvador in 1989 (May 6, 2015); Rincoń, Supreme Court approves inquiry into 1989 Jesuit massacre in El Salvador, El Pais (May 7, 2015); Spanish Justice decides to investigate deaths of Jesuits in El Salvador, DiarioCoLatino (May 6, 2015). Previous posts examined the general international law principle of universal jurisdiction; Spain’s universal jurisdiction statute and its 2014 amendment.

[2] Other posts discussed El Salvador’s criminal prosecution regarding the Jesuits’ murders; the early history of Spain’s Jesuits case; Spain’s issuance of criminal arrest warrants in Jesuits case; other developments in Spain’s Jesuits case; Spain’s request for extradition in Jesuits case and El Salvador’s denial of extradition; and update on Spain’s Jesuits case.