Dismissal of Spanish Criminal Case Against Judge Baltasar Garzón Over Franco-Era Investigation

Spanish Flag

On February 27th, the Spanish Supreme Court, 6 to 1, dismissed the criminal case against Judge Baltasar Garzón over his investigation of human rights violations by the Franco regime. A prior post reviewed this criminal case while posts on February 14th and 21st  explored reactions to the case. This case will investigate the recent dismissal and the immediate reactions to that decision.

The Dismissal Decision Itself

The Supreme Court aquitted Garzón of the crime of trespass (knowingly making an unjust resolution) for trying to open an investigation into the crimes of Francoism.

According to the Court, Garzón overstepped his authority and “exceeded himself in the interpretation of the law” by investigating the Franco-era disappearances, but his actions did not constitute an abuse of power.

The Court said a search for truth regarding Civil War atrocities is necessary and legitimate, but that such a search should be conducted by other state institutions, not by an investigative judge. In short, historians have a role as do judges, but they must not be mixed.The court also acknowledged that Mr. Garzón attempted “to improve the situation” of Civil War victims who “have the right to know the facts and recover their dead” relatives.

Spain’s amnesty law, the Court concluded, was enacted with the full consensus of political forces in 1977 and was not a law “approved by the victors, those in power to cover up their crimes.” It was an instrument of reconciliation, not a law of amnesty like those enacted by some of the South American dictatorships. As a result, the Spanish amnesty law is valid and can only be repealed by Parliament, not by judges.

One of the Supreme Court judges, Judge Sánchez Melgar, filed a concurring opinion. He agreed that the charges should be dismissed, but on the ground that Garzón lacked the necessary intent to abuse the judicial function.

The sole dissentingjudge, Judge Jose Manuel Maza, stated that Garzón should have been convicted of willful trespass for instigating a procedure to serve the subjective intentions of the complainants against people already dead and for crimes that had been amnestied or at least, were clearly prescribed by the statute of limitations. The good intentions of Garzón were irrelevant, the dissenter stated.

The full text of the decision (en espanol) is available online.

Reactions to the Dismissal Decision

Human rights organizations although pleased with the dismissal had negative comments about the entire criminal cases against Judge Garzón.

Human Rights Watch said, “The real losers are the reputation of the Spanish judiciary and those — in Spain, in detention at Guantánamo or in countries around the world where there is no justice — who knew they could count on at least one independent judge to apply human rights laws without fear of the political consequences.” This organization also called for Spain to “repeal the 1977 amnesty law” and  “assist the families of Franco’s victims in their long quest for truth and justice.”

Amnesty International urged the Spanish authorities to “do justice” in Spain and investigate the crimes of the Civil War and Francoism. AI added, “There should be no impunity in Spain for such heinous crimes.”

Spain’s Association for the Recovery of Historical Memory urged its Supreme Court to “act urgently, and rule on how these atrocities [of the Franco era] are to be legally pursued.”

Spain’s Justice Minister, on the other hand, said that Spain had “a strong and independent judiciary” and that “[n]one of the [unjustified] criticism against the Supreme Court . . . has made it lose its prestige in the eyes of Spanish citizens.” The decision, not surprisingly, was also defended by Spain’s Supreme Judicial Council.

The Wall Street Journal’s editorial opined that the decision was “a troubling blow to the 1977 amnesty covering the bloody misdeeds of Spain’s authoritarian period—the deliberate “forgetting” of the past to which contemporary Spain owes so much.The purpose of [Spain’s] amnesty is not to dishonor the victims of atrocities or to vindicate the perpetrators. It is to ensure that the sins of the guilty do not engender new strife among the innocents, and that those sins are not exploited for political gain. It was never the place of a crusading judge to substitute his politics for the will of a country seeking to move forward.”

Conclusion

As a U.S. lawyer, I reiterate my plea for comments by those more knowledgeable about Spanish law and procedure to clarify or correct my accounts of this and the other two  cases against Judge Garzón.

Developments in El Salvador Cases before the Inter-American Commission on Human Rights

The Inter-American Commission on Human Rights (IACHR) in 1999 determined that El Salvador had violated the American Convention on Human Rights with respect to the 1989 murders of six Jesuit priests along with their housekeeper and her daughter. As a result, the Commission recommended that El Salvador undertake a complete and impartial investigation to identify, try and punish the perpetrators of that crime, make reparations for the violations and repeal its General Amnesty Law.[1]

In 2000 the IACHR determined that El Salvador had violated the American Convention on Human Rights with respect to the 1980 assassination of Archbishop Oscar Romero and made similar recommendations with respect to this crime.[2]

As we have seen, El Salvador has not implemented these recommendations other than making  important symbolic public confessions of state responsibility and pleas for forgiveness along with praise for the victims of these crimes.[3]

In October 2011, the IACHR held a working session on the status of El Salvador’s implementation of the Commission’s recommendations in these cases. Two non-governmental human rights organizations (Human Rights Institute at the University of Central America and the Center for Justice and International Law) expressed frustration over the failure of the state to implement these recommendations. They also complained about the failure of El Salvador to cooperate with the Jesuits case in the courts of Spain by failing to enforce the INTERPOL Red Notice for the arrests of some of the defendants in that case.[4]

Unfortunately there is not much that the IACHR can do to change these circumstances. Nor can President Funes do much more because his political party (the FMLN) does not control the country’s legislature or office of the prosecutor.

[1] Post: International Criminal Justice: The Jesuits Case Before the Inter-American Commission on Human Rights (June 13, 2011).

[2] Post: Oscar Romero’s Assassination Case in the Inter-American Commission on Human Rights (Oct. 13, 2011).

[3] See nn. 1, 2 supra.

[4] Center for Justice & Int’l Law, El Salvador is still in breach of the IACHR recommendations in the case of Monsignor Romero and the slaughter at the UCA (Oct. 27, 2011); Impunity continues for the crimes of the 1980s, Tim’s El Salvador Blog (Nov. 5, 2011); Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011); Post: The Current Controversy Over El Salvador’s General Amnesty Law and Supreme Court (June 16, 2011); Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011).

Litigation Against Conspirators in the Assassination of Oscar Romero

 

Alvaro Saravia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[5]  Id. at 1133-34, 1151-53.

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

[7]  348 F. Supp.2d at 1143-44.

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

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

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

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

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

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

Over the last several weeks there have been significant developments in El Salvador, the U.S. and Spain regarding the Spanish court’s criminal case against 20 Salvadoran military officers for their alleged involvement in the November 1989 murders of six Jesuit priests. These developments arise out of the May 30, 2011, Spanish court’s issuance of arrest warrants for the 20 defendants on charges of crimes against humanity and state terrorism in planning and carrying out the murders.[1]

After May 30th Spain enlisted the assistance of the International Police Organization or INTERPOL, the world’s largest international police organization, with 188 member countries, to facilitate cross-border police co-operation and to prevent or combat international crime. INTERPOL in turn issued RED NOTICES identifying the 9 of the 20 defendants believed to be living in El Salvador (the Salvadoran Nine) and their indictment by the Spanish court. (Another RED NOTICE is believed to have been issued for a defendant believed to be living in the U.S.) Such RED NOTICES typically are treated as requests for provisional arrests of the subjects of the notices so that the formal process of requests for their extradition to Spain, in this case, can be made.[2]

El Salvador Developments

In El Salvador, in late July a lawyer for the Nine requested the National Civilian Police (PNC) to not execute the Red Notices on the ground that the crime already had been prosecuted by Salvadoran courts.[3] In addition, on August 7th the Nine turned themselves in to a military base near San Salvador, presumably because of a belief that as former military officers they would have some protection there. That same day, however, the country’s Minister of Defense turned them over to civilian authorities who kept the Nine in custody at one of the country’s military facilities.[4]

Thereafter, the Nine filed habeas corpus petitions with the Constitutional Chamber of El Salvador’s Supreme Court. On August 24th the Chamber rejected the petitions on the ground that there was a request for their extradition to Spain.[5]

Minutes later on August 24th, however, the 15-member Salvadoran Supreme Court decided, 10 to 2, that the RED NOTICES for the Nine only served to locate people accused of crimes by another country. The Notices did not authorize arrests. That could happen only if there were a formal extradition request, and no such request had been received by El Salvador. If Spain in fact made an extradition request, the court would consider it.[6]

The reaction to the decision within El Salvador was predictable; those who supported the military were happy; those who wanted to see justice for the Jesuits were disappointed.[7]

In response to the Salvadoran Supreme Court ruling, a Spanish court official has said that Spain cannot issue a formal extradition request to El Salvador for the Nine because Spain has not been notified that they are under arrest. The Spanish court, therefore, has asked El Salvador to clarify the legal status of the Nine after the Salvadoran court’s August 24th ruling. [8]

Does this leave the issue at an impasse? El Salvador will not authorize an arrest because there is no extradition request, and Spain will not or cannot issue extradition requests because there are no arrests?

Meanwhile in El Salvador, the controversial Decree 743 that required the Constitutional Chamber of its Supreme Court to act unanimously has been repealed.[9]

U.S. Developments

On or about August 19th defendant Montano was arrested in Virginia on charges of lying to U.S. immigration officials in applying for Temporary Protected Status in the U.S.  On August 23rd he made an appearance at a federal court in Massachusetts, where he had been residing. The next day he was released on a $50,000 bond and confinement to his sister’s house with electronic monitoring. Apparently there has not yet been a RED NOTICE for him.[10]

Earlier (in July) Senators John Kerry, Tom Harkin, Patrick Leahy and Barbara Boxer jointly signed a letter to Secretary of State Hillary Clinton requesting the U.S. to cooperate fully with the Spanish court in this case. The response from an Assistant Secretary of State said the U.S. was monitoring the case and would give any Spanish request for assistance the appropriate consideration.[11]

Spain Developments

In Spain, lawyers for the Nine apparently have decided that offense is the best defense. They have filed charges in the Spanish court alleging that the Spanish judge, Valasco Nunez, acted illegally in the May 31st arrest orders for the 20 Salvadoran former military officers. The basis for the charge is the prior Salvadoran criminal case regarding the murders of the Jesuits, the Salvadoran amnesty law and its statute of limitations barring any such charges at this time. The attorneys also are considering a charge of defamation against the Spanish judge.[12]

Conclusion

As this discussion indicates, the story is far from over. Further developments in this case are expected in all three countries.

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[1]  See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: The Spanish Court’s Criminal Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011).

[2]  INTERPOL, http://www.interpol.int/default.asp; Arauz, Dada & Lemus, Interpol arrest warrants processed 10 Jesuit Salvadoran military case, el Faro (July 29, 2011), www.elfaro.net (Google English translation). In addition to the RED NOTICES for the nine officers believed to be living in El Salvador, another was issued for Rene Emilio Ponce, who died in May 2011. (Id.)

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

[4] Center for Justice & Accountability, Press Release: Salvadoran High Commanders Responsible for Jesuit Massacre in 1989 Under Custody in El Salvador (Aug. 10, 2011); Tim’s El Salvador Blog, Officers indicted for Jesuit murders surrender (Aug. 8, 2011),______     ;

[5] Gonzalez & Perez, Supreme Court in the event benefited the Jesuit military, diario colatino (Aug. 25, 2011) (Google English translation).

[6] Id.; Assoc. Press, Salvadoran Supreme Court refuses to detain men charged in 1989 killings of Jesuit priests, Wash. Post (Aug. 24, 2011); Released in the Salvador to military courts in Spain by death of Jesuits, lapagina.com (Aug. 25, 2011) (Google English translation).

[7]  General Zapeda,”national sovereignty has prevailed and has restored peace to the country, lapagina (Aug. 25, 2011) (Zapeda is one of the defendants) (Google English translation); Perez, Munguia Payes, “an episode closes, whatever comes later, lapagina (Aug. 25, 2011)(Payes is Defense Minister) (Google English translation); Calderon, Rodolfo Cardenal, “The decision was somewhat expected, because,” lapagina (Aug. 25, 2011)(Cardenal is former UCA vice chancellor) (Google English translation); Guzman, Siegfried Reyes: “El Salvador has a large debt tp truth and justice, lapagina (Aug. 25, 2011)(Reyes is President of the Legislative Assembly) (Google English translation).

[8] Sainz, Spain seeks El Salvador clarification on suspects, Miami Herald (Aug. 25, 2011); Assoc. Press, Spain Seeks El Salvador Clarification on Suspects, N.Y. Times (Aug. 25, 2011).

[9] Tomorrow Decree 743 will be history, diariocolatino (July 28, 2011). See Post: El Salvador’s Current Controversy over Its General Amnesty Law and Supreme Court (June 16, 2011).

[10] Arsenault, War crime suspect found in Everett [Massachusetts], Boston Globe (Aug. 17, 2011); Assoc. Press, Salvadoran accused in Jesuit deaths held in Mass., Boston Globe (Aug. 23, 2011); Assoc. Press, Suspect in Jesuit deaths out on immigration charge (Aug. 24, 2011); Arsenault, War crimes suspect in house arrest in Saugus [Massachusetts], Boston Globe (Aug. 25, 2011); Aragon, Military accused of slaughter in the U.S. Jesuit was arrested while fleeing to Mexico, elfaro (Aug. 25, 2011) (Google English translation).

[11] Arsenault, War crime suspect found in Everett [Massachusetts], Boston Globe (Aug. 17, 2011);

[12]  Lemus, Military sue Spanish judge to reverse the Jesuit case, elfaro (July 31, 2011) (Google English translation); Aguilar, Military accused of slaughter in Spain by Jesuits are delivered to the army, elfaronet (Aug. 8, 2011). See Post: International Criminal Justice: Salvadoran Criminal Case Regarding the Murders of the Jesuit Priests (June 8, 2011); Post: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case (June 11, 2011).

 

 

El Salvador’s Current Controversy over Its General Amnesty Law and Supreme Court

As indicated in a prior post, the issue of the constitutionality under Salvadoran law of the General Amnesty Law has not gone away. Indeed, that issue and a new law regarding its Supreme Court (Decree 743) have precipitated a major, still-unresolved controversy in the country.[1]

As an outsider, I have found it difficult to understand and analyze this controversy. I, therefore, will try to summarize what has been happening. I cannot predict how this will turn out, but will conclude with my observations and questions.

The first step in this still unfolding drama was the May 30, 2011, decision by a Spanish court to issue criminal arrest warrants for 20 Salvadoran military officers and soldiers for their alleged participation in the November 1989 murder of the six Jesuit priests.[2]

The next step was the adoption without debate three days later (June 2, 2011) of Decree 743 by the votes of the conservative political party legislators of the Salvadoran legislature (the National Assembly) with abstentions from all but two of the FMLN legislators and by the signing of the law the next day (June 3, 2011) by  President Funes of the FMLN party. Decree 743 requires through July 2012 the five-member Constitutional Chamber of the Salvadoran Supreme Court to act unanimously in order to declare a law unconstitutional.[3]

Decree 743 and the highly unusual and hasty manner in which it was adopted have caused major citizen protests in the capitol city and debate in the media and various organs of the State.[4]

Much debate and speculation has centered on why the Decree was proposed and adopted by the legislators from the conservative political parties. Foremost, as former President Cristiani, who is now the President of the ARENA political party, has admitted, was concern that the Constitutional Chamber would invalidate the General Amnesty Law. Was there worry that a decision invalidating that amnesty law would facilitate a Salvadoran court’s enforcing the Spanish arrest warrants? The conservative political parties, it is true, also disliked some of the recent decisions by the four moderate or progressive members of the Chamber that have invalidated various laws. Was that the main reason? If so, why did the Decree have to be adopted so quickly without debate? The “sunset” provision of Decree 743 is also seen as an implicit recognition that it is aimed at the four progressive members of the Chamber in that their current three-year terms expire in July 2012.

So too there is debate and speculation as to why President Funes from the FMLN political party quickly supported the Decree when the FMLN itself did not. Was there pressure by the U.S., which does not want El Salvador to withdraw from the Central American Free Trade Agreement (CAFTA) and to stop using the U.S. Dollar as the country’s currency and, therefore, feared the Constitutional Chamber’s invalidating those laws? Was something not yet known promised Funes by the conservative political parties in exchange for his supporting the Decree? Some speculate that Funes did so to gain support in the National Assembly for a moderate legislative agenda. True?

The third step in this drama was the Constitutional Chamber’s decision in a case on June 6th (only three days after the adoption of Decree 743) that decided, by four of the five magistrates, that the country’s Budget Act 2011 was unconstitutional in two respects and that the just-adopted Decree 743 itself was unconstitutional. Decree 743 was held to violate the principle of separation of powers and to interfere with the constitutional powers of the Chamber; the decree, according to the court, was also adopted by the legislature in an unconstitutional manner.[5]

Yet another wrinkle was added to this controversy by the announcement on June 8th by Cristiani, as President of the ARENA political party. He said that ARENA had supported Decree 743 on June 2nd because of rumors that the Chamber was about to declare the General Amnesty Law unconstitutional.  On June 8th (only six days after the legislature’s adoption of the Decree), however, Cristiani said that the information about the Chamber’s impending invalidation of the General Amnesty Law was erroneous and that instead the Chamber had made a “clear demonstration” that it did not intend to invalidate the amnesty. Therefore, Cristiani said, ARENA would be introducing a bill to repeal that Decree. This about-face, he said, was to end the conflict over the Decree and to promote dialogue among the three branches of government.[6]

This ARENA reversal itself has created more controversy and speculation. Why did it change its mind in only six days? Did it really want to end the conflict over the Decree and promote dialogue? Did it receive secret and improper leaks from the Chamber that it would not invalidate the General Amnesty Law? Was there in fact no pending case regarding the Amnesty Law? Was it discovery that the Chamber seven years ago had ruled that the Amnesty Law did not apply to the murders of the Jesuits because no administration may grant amnesty to itself?[7] Was it due to the Chamber’s June 6th decision holding that the Decree was unconstitutional and by respected attorneys publicly taking the same position?[8]

However, later on the very same day as the ARENA announcement of changing its position (June 8th), an attorney filed two cases with the Chamber challenging the constitutionality of the General Amnesty Law and El Salvador’s being a party to CAFTA. Will this cause ARENA to change its mind again?

The FMLN positions in this controversy are even more baffling. On June 2nd all but two of the FMLN legislators abstained on voting on Decree 743, saying it was a blow to democracy. The June 8th ARENA reversal of position on the Decree, therefore, presumably would be welcomed by the FMLN. The FMLN, however, also reversed its position. Its spokesman now said that the Decree had “no reverse gear” and that the Chamber’s June 6th invalidation of the Decree was a danger for the other institutions of the government. Why was the FMLN party taking these positions?[9]

President Funes from the FMLN appears to be the only participant who has had a consistent position. When he signed the Decree, he has said he did so because it was constitutional, it would prevent a looming conflict between the legislature and the judiciary and it would not obstruct the operations of the Chamber. Was this the real reason? After the ARENA reversal of position, he still supported the Decree and said that ARENA’s change appeared to reflect an improper agreement with the Chamber not to declare the amnesty unconstitutional and an improper attempt to influence the Chamber and cast doubt on the independence of some judges.[10] (The next day both ARENA and the President of the Supreme Court denied the existence of any agreement regarding the amnesty law between the Constitutional Chamber and ARENA or Cristiani.)[11]

As an outsider without full knowledge of all the facts, all I can do is speculate and raise questions.

The timing and manner of the adoption of Decree 743 and the comments by Cristiani suggest to me that the Decree is most directly connected with the Spanish court’s issuance of the indictment and warrants.

First, I had thought that the validity or invalidity of the General Amnesty Law had become a theoretical issue. That Law grants amnesty for certain crimes committed before January 1, 1992 (the end of the Civil War) or over 19 years ago. But for that time period, El Salvador had a 10-year statute of limitations for such crimes that in December 2000 was held to bar a new Salvadoran criminal case over the murders of the Jesuits without regard to the General Amnesty Law.[12] Although there is a basis under international law for challenging the validity of such a short statute of limitations for such horrendous crimes,[13] that appeared to me to be unlikely to succeed in El Salvador.

Second, the Spanish indictment was issued on May 30th and gave the defendants, the majority of whom are still Salvadoran residents, only 10 days (until June 9th) to surrender themselves to the Spanish court before additional steps would be taken to secure their arrests.[14] On June 2d (only three days after the issuance of the indictment) the National Assembly without debate adopted Decree 743, and the next day (June 3) it was signed by President Funes and enacted into law. This suggests to me a desire by the conservative political parties (and the President) to have Decree 743 in place before the Spanish court would take steps to have the Salvadoran courts issue arrest warrants for the defendants and thereby give those defendants a possible legal basis (the General Amnesty Law) to resist the arrest warrants. Is this what happened?

Third, Cristiani was a subject of the original criminal complaint in Spain and a potential additional indicted defendant in the Spanish case.[15] Thus, he has a profound personal interest in having Salvadoran legal defenses to any future attempt by the Spanish court to have him arrested in his home country. Just this month he has been the principal spokesman for ARENA regarding its original support of Decree 743 and tying it to trying to ensure that the General Amnesty Law is not invalidated. Was this at least part of Cristiani and ARENA’s motivation for their original support of Decree 743?

Fourth, it is much more difficult to understand the reasons why President Funes immediately signed the Decree when his political party (the FMLN) was opposed. His rationale as stated on June 10th is not persuasive to me as an outsider. I, therefore, wonder if President Funes had received threats that the Salvadoran military (or a paramilitary organization) would intervene to prevent the removal of these officers from the country? Was the perceived elimination of a threatened invalidation of the General Amnesty Law by requiring unanimity in the Constitutional Chamber seen as a way to prevent the extradition of the military men through the courts and thus avoid a military intervention or coup?

Finally, is it possible that all of this controversy is unnecessary? Could the Constitutional Chamber hold the General Amnesty Law constitutional, but like the U.S. federal courts conclude it is not applicable to proceedings in other countries?[16]

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

[2]  See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011); Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011).

[3] Marinero, Funes sanciona reformas para que fallos de amparos e inconstitucionalides sean por decision unanime, (June 3, 2011), www.lapagina.com; ?Donde se gesto el decreto que le puso el freno legal a la Sala de lo Constitucional?, (June 4, 2011),www.lapagina.com.sv; Voices from El Salvador, Institutional Coup in El Salvador (June 4, 2011), http://voiceselsalvador.wordpress.com/2011/06/04/institutional-coup-in-el-salvador; Voices from El Salvador, Salvadorans Protest the Government’s Actions Against Constitutional Court (June 6,2011), http://voiceselsalvador.wordpress.com/2011/06/06/salvadorans-protest-the-governments-actions-against-constitutional-court; Tim’s El Salvador Blog, Broad opposition to Decree 743 (June 8, 2011),   http://luterano.blogspot.com/2011/06/broad-opposition-to-decree-743.html.

[4] Id.; Ortiz, Attorney Oscar Luna condemns the decree 743 (June 13, 2011), www.lapagina.com.sv (English translation; Luna is El Salvador’s human rights ombudsman); Discussions in the Constitutional Court in El Salvador (June 13, 2011), www.centralamericadata.com (Salvadoran Chamber of Commerce and Industry calls for repeal of Decree 743); Voices on the Border, The Debate Over Decree 743 Continues (June 14, 2011).

[5] Arauz, Constitutional Chamber hereby declared the decree that would tie the hands, elfaro (June 6, 2011), www.elfaro.com.sv; Merinero, Guerra de poderes en El Salvador: La Corte Suprema declara inapplicable el articulo que exige unanimidad en fallos de la Sala de lo Constitucional, (June 6, 2011), www.lapagina.com.sv.

[6] Huete, Henriquez & Cabrera, ARENA perida derogatoria de decreto 743, La Prensa Grafica (June 8, 2011), www.laprensagrafica.com; Arauz, ARENA retract the decree against FMLN urges Chamber and fulfill, elfaro (June 8, 2011).; Perez, ARENA se retracta y promote pedir la derogacion del decreto 743, (June 8, 2011), www.lapagina.com.sv; Otto & Marinero, ARENA contra la pared: ya hay dos recursos de inconstitucionalidad contra la Ley de Amnistia y el TLC (June 8, 2011), www.lapagina.com.sv.

[7]  I have not seen this case myself, but it is referenced in one of the articles about the current controversy. I solicit information about this case.

[8] See n.6.

[9] E.g., FMLN reiterated it would not support repeal of Decree 743 (June 14, 2011), www.lapagina.com.sv.

[10] Guzman, Funes: “Aqui no ha habido ningun compadre hablado entre el presidente y la derecha, (June 6, 2011), www.lapagina.com.sv; Guzman, Funes: La confesion publica de ARENA es una injerencia inacceptable en el Organo Judicial, (June 10, 2011), www.lapagina.com.sv.

[11] Voices on the Border, The Debate Over Decree 743 Continues (June 11, 2011).

[12]  No New Trial Set in Deaths of 6 Jesuits, Miami Herald, Dec. 14, 2000.

[13]   E.g., Barrios Altos v. Peru, 2001 Inter-Am. Ct. H.R. (Ser. C) No. 75, ¶ 41 (Mar. 14, 2001); Convention on the Non-Applicabilty of Statutory Limitations to War Crimes and Crimes Against Humanity, Art. I (war crimes, crimes against humanity and genocide); European Convention on the Non-Applicability of Statutory Limitation to Crimes Against Humanity and War Crimes, Art. 1 (crimes against humanity, genocide, war crimes and “any other violation of a rule or custom of international law which may hereafter be established and which the Contracting Party concerned considers . . . as being of a comparable nature to [the previous crimes]“); Inter-American Convention on Forced Disappearance of Persons, Art. VII; Rome Statute of the International Criminal Court, Art. 29 (genocide, war crimes and crimes against humanity). Moreover, El Salvador apparently has a new statute that has no time limit for criminal prosecutions for torture, genocide, war crimes and certain other crimes occurring after sometime in 1996. (Ruth A. Kok, Statutory Limitations in International Criminal Law at 45 (Cambridge, U.K.: Cambridge Univ. Press 2007).)

[14] 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.

[15]  See Post: International Criminal Justice: Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (June 15, 2011).

[16] See Post: El Salvador’s General Amnesty Law in U.S. Federal Court Cases (June 14, 2011).

El Salvador’s General Amnesty Law in U.S. Federal Court Cases

We have examined El Salvador’s adoption of its General Amnesty Law, litigation in its courts regarding the validity of that Law under its own legal system and its impact on the defendants who had been convicted for involvement in the murders of the Jesuit priests.[1]

The General Amnesty Law also has been invoked by Salvadoran defendants as a defense to civil lawsuits for money damages in U.S. federal courts. But the U.S. courts have determined that the amnesty is limited to Salvadoran judicial proceedings and thus does not bar the U.S. lawsuits.[2]

In the U.S. lawsuit against Alvarao Saravia for complicity in the 1980 assassination of Archbishop Oscar Romero, the U.S. court held him liable for $10 million compensatory and punitive damages for crimes against humanity. The court saw the General Amnesty Law and the dismissal of the Salvadoran criminal case against him as evidence of the plaintiff’s inability to obtain any judicial relief in that country. It thereby eliminated any U.S. requirement for the plaintiff to have exhausted his Salvadoran remedies. The U.S. court apparently assumed that the Salvadoran amnesty law had no application to the U.S. case as that issue was not discussed by the court.[3] However, the court did receive testimony that the Law was “directed to what the Salvadoran courts should do. It tells the Salvadoran courts how to deal with these cases” and that courts in other countries need not, and should not, take that Law into account.[4]

Another U.S. civil lawsuit for money damages was brought against Colonel Nicolas Carranza, a naturalized U.S. citizen living in Tennessee, who was Vice-Minister of Defense of El Salvador from late 1979 to early 1981. In late 2005, a civil jury after a three-week trial found Mr. Carranza liable to four of the five Salvadoran plaintiffs for $6 million in compensatory and punitive damages for crimes against humanity, extrajudicial killing and torture. The federal appeals court in early 2009 upheld that verdict.[5]

In the Carranza case, the trial court twice rejected the defendant’s argument that the Salvadoran amnesty law barred the U.S. lawsuit after the court concluded that the law did not purport to bar claims outside El Salvador.[6]  The appellate court affirmed this ruling.[7]

On October 5, 2009, Carranza’s petition for review by the U.S. Supreme Court was denied.[8] Carranza, therefore, unsuccessfully argued that the lower court’s refusal to bar the suit constituted “an unwarranted intrusion into the sovereign affairs” of El Salvador and undermined “the very vehicle of [its] transformation from a war torn charnel house to a robust democracy.” In addition, Carranza pointed out that the Truth Commission Report also provided findings on crimes perpetrated by the FMLN, including the assassination of four unarmed U.S. Marines. This was the predicate for Carranza’s unsuccessful argument that the U.S. Supreme Court should consider “the implications of adjudicating monetary claims on behalf of members of groups committed to killing American soldiers.”[9]

Carranza’s petition to the U.S. Supreme Court was supported by the Government of El Salvador (then under the control of the right-wing ARENA political party). It argued that the ruling of the lower courts “impugns El Salvador’s sovereignty, contradicts international authority, and undermines El Salvador’s democracy.” Ignoring  its own January 1992 Law of National Reconciliation that had banned amnesty for those found responsible by the Truth Commission until at least six months after its Report was released, the Government asserted that the amnesty law “was a principal, if not the pivotal, requirement of the [Peace Accords].”[10]

In addition, the Government of El Salvador asserted to the U.S. Supreme Court that plaintiffs had failed to exhaust their remedies in the Salvadoran courts as the Salvadoran Supreme Court had held in 2000, [11]that the country’s courts had discretion to waive the immunity of the amnesty law in particular cases involving “fundamental human rights.”[12]  In the Sixth Circuit Court of Appeals, however, the Government of El Salvador, again as amicus curiae, did not mention the possible discretionary waiver of the amnesty law by Salvadoran courts and instead asserted that the amnesty law “specifically precludes the [plaintiffs'] claims . . . by granting absolute civil and criminal immunity to . . . Carranza.”[13]

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

[2]   Doe v. Saravia, 348 F. Supp. 2d 1112 (E.D. Cal. 2004); Chavez v. Carranza, 2005 WL 2659186, at 3-5 (W.D. Tenn. 2005); Chavez v. Carranza, 2006 WL 2434934, at 5 (W.D. Tenn. 2006), aff’d, 559 F.3d 486 (6th cir. 2009), cert. denied, 2009 WL 1513107 (U.S. Sup. Ct. Oct. 5, 2009); Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002), cert. denied, 537 U.S. 1147 (2003)(jury verdict for two Salvadoran generals by relatives of the four American church women who were raped an murdered in El Salvador in 1980; appellate court affirmed); Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2005)(jury verdict of $54.6 million for three Salvadoran plaintiffs against two Salvadoran generals; appellate court affirmed).

[3]  Doe v. Saravia, 348 F. Supp. 2d at 1133-34, 1151-53.

[4]  Trial Transcript at 772-73, Doe v. Saravia (E.D. Cal. Sept. 3, 2004), http://www.cja.org/cases/RomeroTranscripts/9-3-04%20Trial%20Transcript.txt.

[5]  Chavez v. Carranza, 559 F.3d 486 (6th Cir. 2009); CJA, El Salvador: Col. Nicolas Carranza, http://www.cja.org/cases/carranza.shtml.

[6]  Chavez v. Carranza, 2005 WL 2659186, at 3-5 (W.D. Tenn. 2005); Chavez v. Carranza, 2006 WL 2434934, at 5 (W.D. Tenn. 2006).

[7]  Chavez v. Carranza, 559 F.3d at 494-96. The plaintiffs’ argument against the amnesty law was supported in the Sixth Circuit by a group of law professors.  (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).)

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

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

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

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

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

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

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: Salvadoran Criminal Case Regarding the 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] and the provisional facts of the murders themselves[2] and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3] Now we examine the Salvadoran criminal prosecution of some of the individuals involved in this crime.[4]

The murders of the Jesuit priests caused such a huge international uproar that El Salvador had to do something to make it appear as if it were pursuing justice in the case. As a result, in January 1990 it commenced criminal prosecution of five Salvadoran military officers and five soldiers of the Atlacatl Battalion. Colonel Guillermo Alfredo Benavides Moreno, the Director of the Military College, was accused of having given the order to murder the priests. Three Lieutenants were accused of commanding the operation. The five soldiers were accused of committing the murders.

The pre-trial proceedings took nearly two years. During this time, Colonel (now General) René Emilio Ponce, Colonel (now General) Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel (now General) Gilberto Rubio Rubio pressured lower-ranking officers not to mention orders from above in their testimony to the court.

Finally, the trial by jury took place in September 1991 in the building of the Supreme Court of Justice and was broadcast live on television. Several ranking military officers attended the trial with the defendants’ families. On the last day of the trial, during the defendants’ closing arguments, a large crowd outside the courthouse shouted chants in favor of the defendants, interrupting the trial. In closing arguments, defense counsel barely mentioned the crime itself. Instead, they asked the jury to reject foreign intervention and pressure, emphasized that five of the six victims were Spanish born, and argued that the military generally and the defendants in particular were heroes protecting the nation against terrorism.

The five-person jury, whose identity was kept secret, was charged with deciding the charges of murder and acts of terrorism. The other charges were left to the judge to decide.

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

International observers of the trial thought the jury verdict defied logic and the weight of the evidence.

In March 2000 and soon after the Inter-American Commission on Human Rights had issued a report on the case that will be discussed in a subsequent post, the Central American University (UCA), where the Jesuit priests had taught, sought to open a new Salvadoran criminal case regarding their murders, ultimately to no avail. UCA asked the country’s Attorney General to do so on the basis of UCA’s charges against former President Cristiani and five members of the Armed Forces High Command, including former General and Defense Minister Emilio Ponce.  Then Salvadoran President Flores opposed the request, and the Attorney General refused to do so, but the Salvadoran Supreme Court ruled that only a court could decide to reopen such a case.[5]

Thereafter (October 2000), a lower court rejected the prosecutor’s request to reopen the old case because it was “without legal substance” while ordering the prosecutor to conduct a new investigation to determine whether there were legitimate grounds for reopening the case.[6]

The Attorney General then conducted a new investigation and reapplied to a court to reopen the case, this time against Cristiani and four military officers, including Ponce. Once again, however, the lower court refused to do so in December 2000 on the ground that any new charges were barred by the country’s 10-year statute of limitations. Immediately afterwards Ponce and the other three officers held a press conference where Ponce accused left-wing groups of trying to de-stabilize the country by making these charges and admitted that he and his fellow former officers were concerned about developments elsewhere in Latin America, especially the fate of Augusto Pinochet in Chile and former Argentine military officers.[7]

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[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May 31, 2011).

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

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

[4] This post’s summary of the Salvadoran criminal case is extracted from the Commission for the Truth for El Salvador’s Report: From Madness to Hope: The 12-year war in El Salvador  at 45-54 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html  ["Commission Report"]. See also Martha Doggett, Death Foretold: The Jesuit Murders in El Salvador at 121-208 (Washington, D.C.; Georgetown Univ. Press 1993). In future posts we will talk about the Truth Commission for El Salvador; the country’s general amnesty; the Jesuits case before the Inter-American Commission for Human Rights; the Spanish implementation of the principle of universal jurisdiction; and more details about the Spanish case regarding this crime.

[5]  UCA Press Release (Mar. 27, 2000, http://www.uca.edu.sv/neuvo/pressrelease.html; Lanchin, Salvador ex-president accused of killings, BBC News, Mar. 28, 2000; El Salvador Former Air Force Chief Denies Role in Killings, Miami Herald, Mar. 29, 2000; The Necessity and Importance of the Truth, Processo, April 5, 2000, http://www.uca.edu.sv/publica/proceso/proci897.html;UCA Impugns the Attorney General of the Republic’s Decision on the Jesuit Case, Processo, April 26, 2000,  http://www.uca.edu.sv/publica/proceso/proci899.html#doc;  New Charges Barred in Salvador Killings, N. Y. Times, Oct. 24, 2000; Editorial: The Impunity of Power, Processo, Oct. 25, 2000;  Darling, El Salvador to Reopen Murder Probe; Attorney general, under pressure, will investigate an ex-president and others in 1989 slayings of six Jesuit priests, Los Angeles Times, Oct. 26, 2000; No New Trial Set in Deaths of 6 Jesuits, Miami Herald, Dec. 14, 2000; Lanchin, Salvadorean ex-general issues warning, BBC News, Dec. 15, 2000.

[6]  Id.

[7]  Id.

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