Spain Requests Extradition of Suspects in Jesuits Case

The National Court of Spain is processing a criminal case against 20 former Salvador military officers for the November 1989 murders of six Jesuit priests and their cook and her daughter.[1]

On December 2nd the Spanish Government approved the request of Spanish Judge Eloy Velasco to issue requests for extradition of 15 of the men charged in this case.[2]

The government of El Salvador will receive 13 of the requests. Whether or not to grant the request will be a matter for the country’s Supreme Court. A Salvadoran defense attorney says that there will be no extradition because El Salvador already tried a criminal case involving this crime.[3]

The government of the U.S. will receive the other two requests. One will be for extradition of Inocente Orlando Montano, who  is living in Massachusetts, has denied the Spanish charges. In the federal court in Boston he is now facing criminal charges of perjury and making false statements on U.S. immigration forms. The other will be for Hector Ulises Cuenca Ocampo, who is believed to be living in California.[4]

Five other former Salvadoran military officers are facing criminal charges in the Spanish case. One is reported to be cooperating with the Spanish court; another is said to be willing to do so; two have not been located; and the last is deceased (General Rene Emilio Ponce).[5]

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

[2]  Assoc. Press, Spain Asks U.S. and El Salvador to Extradite Murder Suspects, N.Y. Times (Dec. 3, 2011).

[3] Guzman, Court awaiting extradition request, lapagina.com.sv (Dec. 2, 2011(Google English translation);Guzman, The extradition of former soldiers to Spain will never give, according to defense, lapagina.com.sv (Dec. 2, 2011(Google English translation).

[4] EUA also asked to send, laprensagrifica.com (Dec. 3, 2011)( Google English translation); Immigration fraud, a former soldier Montano faces 5 years in prison, lapagina.com.sv (Nov. 30, 2011)( Google English translation); Salvadoran ex-officer faces Mass. Perjury charge, www.boston.com (Nov. 29, 2011); Criminal Complaint, U.S. v. Montano, Case No. 11m-5193-I6D (D. Mass. Aug. 22, 2011).

[5] Lemus, Spain calls on El Salvador extradition of military slaughter processed by Jesuit, www.elfaro.net/es (Dec. 2, 2011)( Google English translation);The judge asked the government to claim 13 soldiers for the killing of Jesuit, www.elmundo.es (Nov. 8, 2011) (Google English translation).

 

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).

International Criminal Court: INTERPOL Issues Red Notice for Gaddafi

 On September 8th the ICC Prosecutor announced that he is requesting INTERPOL to issue a “Red Notice” to arrest Muammar Gaddafi for the alleged crimes against humanity of murder and persecution that have been charged by the ICC. The Prosecutor also is seeking such Red Notices for the other two Libyans facing ICC charges.[1] On September 9th INTERPOL isssued these Red Notices. (Nordland, INTERPOL Issues Qaddafi Arrest Warrant as More Libyan Officials Flee, N.Y. Times (Sept. 9, 2001).)

The ICC Press Release says that an “INTERPOL Red Notice seeks the provisional arrest of a wanted person with a view to extradition or surrender to an international court based on an arrest warrant or court decision.” Such notices go to all 188 countries that are members of INTERPOL.

This statement also stands as an implicit rebuke to the recent erroneous decision of El Salvador’s Supreme Court that a Red Notice only called for information about the location of individuals named in such notices, not their arrests.[2]

In another ICC development, on August 30, 2011, the Philippines deposited its instrument of ratification of the Rome Statute with the U.N. Secretary General. It will become the 117th State Party to the Statute.[3]

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[1] ICC Press Release, ICC Prosecutor Requesting INTERPOL Red Notice for Gaddafi (Sept. 8, 2011). See Post: International Criminal Court and the Obama Administration (May 13, 2011); Post: International Criminal Court: Libya Investigation Status (May 8, 2011); Post: International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: International Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011); Post: International Criminal Court: Possible Arrests of Three Libyan Suspects (Aug. 22, 2011).

[2] Post: International Criminal Justice: Developments in Spanish Court’s Case Regarding the Salvadoran Murders of the Jesuit Priests (Aug. 26, 2011); Comment [to that Post]: Salvadoran Supreme Court’s Decision on INTERPOL RED NOTICE Was Erroneous (Aug. 28, 2011).

[3] ICC Press Release, The Philippines becomes the 117th State to join the Rome Statute system (Aug. 30, 2011).

Memory and Human Rights: Latin America and the Iberian Peninsula

On September 29-October 1, 2011, the University of Minnesota Department of Spanish and Portuguese Studies will host an “International Symposium: Ongoing Dialogues about Memory and Human Rights: Latin America and the Iberian Peninsula.”[1]

The  symposium will address the role that literature, art and film have in the struggles against enforced disappearance, torture, degrading treatment, forced prostitution, human trafficking, violence against immigrants, gender violence, and feminicide. We seek to address the relations between artistic practices and struggles against impunity and between aesthetics and ethics, and to give visibility to current human rights concerns and to the design of practices of memory.

I will be presenting a paper, “The Interactive Global Struggle Against Impunity for Salvadoran Human Rights Violators.”[2]  Other participants and their topics are the following:

• Jean Franco (Emeritus Professor, Columbia University),“The Ghostly Arts.”
• David William Foster (Regents’ Professor of Spanish and Women and Gender Studies, Arizona State University), “Helen Zout’s Desapariciones: Shooting Death.”
• Ileana Rodriguez (Humanities Distinguished Professor, Ohio State University),“ Operación Pájaro: Expediente 27, 1998. Obispo Gerardi: Enemigo del Estado.”
• Horacio Castellanos Moya (Escritor, periodista), READING from “Insensatez (Senselessness) y Tirana memoria (Tyrant memory).”
• Guillermina Wallas (Independent Scholar),“Ciudad y memoria: reclamos de justicia a través de las marcas testimoniales de La Plata (Argentina).”
• Margarita Saona (Associate Professor, Department of Spanish, University of Illinois at Chicago), “Memory Sites: From Auratic Spaces to Cyberspace in Peruvian Embattled Memories.”
• Amy Kaminsky (Professor, Department of Gender, Women and Sexuality Studies, University of Minnesota), “Memory, Postmemory, Prosthetic Memory: Reflections on the Holocaust and Argentina’s Dirty War.”
• Hernán Vidal (Emeritus Professor, Department of Spanish and Portuguese Studies, University of Minnesota),“Verdad universal: notas jurídicas para una hermenéutica cultural basada en los derechos humanos.”
• Alicia Kozameh (writer), READING from “Pasos bajo el agua, 259 saltos, uno inmortal, Mano en vuelo,y “Bosquejo de alturas.” Barbara Frey (Program director, Human Rights Program. University of Minnesota),”Forms and Practices of Human Rights Advocacy.”
• Felix de la Concha (Artist),“Facing Memories: Portraits with Testimonies.”
• Patrick J. McNamara, (Associate Professor, Department of History, University of Minnesota,“Memory Without Metaphor: Cognition and the Art of Human Rights in Mexico.”
• Raul Marrero Fente, (Associate Professor, Department of Spanish and Portuguese Studies, University of Minnesota),”Ethics and Law in the Inter-American Human Rights System.”
• Luis Martín Estudillo (Associate Professor, University of Iowa),“The Banality of Torture? Earning Democratic Credentials Under Franco.”
• Miguel Rep (Artist, cartoonist),“Del derecho humano al humor.”
• Regina Marques (Professor of Communication Science at the Polytechnic Institute of Setúbal (Portugal), Member MDM (Movimento Democrático de Mulheres) , CES (Conselho Económico e Social) and WIDF’s (Women’s International Democratic Federation) bureau), “ Women’s Rights as Human Rights. Vulnerabilities in Portugal and in Europe. The Gap Between the Law and Life.”
• Javier Sanjinés (Professor, Department of Romance Languages and Literatures, University of Michigan),”Estética y Derechos Humanos bajo la Dictadura en Bolivia: el monumentalismo de Fernando Díez de Medina.”
• Alicia Gaspar de Alba (Writer, Professor of Chicana and Chicano Studies, English, and Women’s Studies at UCLA), READING from “Desert Blood: The Juarez Murders.”
• Leigh Payne, (Professor of Sociology and Latin American Studies, University of Oxford, Visiting Professor, Department of Political Sciences, University of Minnesota), “The Struggle Against Silence and Forgetting in Brazil.”
• Alexis Howe, (Assistant Professor, Dominican University), “Madness and Disappearance: El infarto del alma” by Diamela Eltit and Paz Errázuriz.
• Ofelia Ferrán, (Associate Professor, Department of Spanish and Portuguese, University of Minnesota), “Mala gente que camina, by Benjamín Prado: Uncovering the Plot of Franco’s ‘Stolen Children’ in Contemporary Spain.”

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[1] Univ. Minnesota, Dep’t of Spanish & Portuguese Studies, International Symposium: Ongoing Dialogues about Memory and Human Rights: Latin America and the Iberian Peninsula, http://spanport.umn.edu/news/index.php?entry=297980. The Symposium will be held at the Maroon, Gold and the Gateway Rooms of the McNamara Alumni Center, 200 Oak St. SE, Minneapolis, MN 55455. For further information contact Professor Ana Forcinito (aforcini@umn.edu) or Jaime Hanneken (hanne045@umn.edu).

[2] An earlier version of this paper was presented at an October 2009 conference in Rio de Janeiro, Brazil and has been published (in Portuguese translation) in Memorie e Justica by Brazil’s Museau da Republica (Museum of the Republic).

 

 

 

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).

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

As previously noted, a Spanish court on May 30, 2011, issued an indictment and arrest warrants for 20 of El Salvador’s former top military leaders and soldiers, accusing them of crimes against humanity and state terrorism in meticulously planning and carrying out the killings of six Jesuit priests in November 1989.[1]

The Spanish indictment essentially follows the factual findings regarding the murders and the cover-up that was set forth in the Report of the Truth Commission for El Salvador.[2] The indictment, however, offers greater factual details.[3]

The indictment also emphasizes the military’s formal chain of command as well as the informal power of the military’s “Tandona of 1966,” i.e., the military officers who had graduated from the Salvadoran military college in 1966 and who in 1989 held the major positions of official power. In 1989 these officers, the indictment says, feared the proposed reform and restructuring of the military that was being discussed as a condition for a peace agreement to end the civil war. Such reforms would result in reduction in the Tandona’s power and ability to embezzle from U.S. military aid. They, therefore, were bitter opponents of the Jesuits, and especially Father Ellacuria, who were major public advocates for such negotiations. [4]

The criminal case was filed in November 2008 by a U.S. NGO (Center for Justice & Accountability) and a Spanish NGO against 14 Salvadoran military officers plus former Salvadoran President Cristiani.[5]

In January 2009, the Spanish National Court accepted the case and formally charged the 14 fourteen former officers and soldiers named in the complaint with crimes against humanity and state terrorism for their role in the massacre.  Additionally the court reserved the right, during the course of the investigation, to indict Cristiani for his alleged role in covering up the crime.[6]

The May 2011 indictment discusses Crisitani’s attending meetings at the military’s headquarters for several hours immediately before the murders were committed and his providing false information months later about a military search of the UCA campus that preceded the murders. But the Spanish court did not indict Cristiani and did not provide reasons for that decision not to charge Cristiani.[7]

The indictment also mentions that the U.S. Central Intelligence Agency (CIA) had an office in the Salvadoran military headquarters in November 1989 and that some U.S. military advisors attended meetings at that headquarters with El Salvador’s top military leaders in the 24 hours preceding the murders. But there is no discussion in the indictment as to whether this involvement carries criminal implications for U.S. personnel.[8]

In addition, the indictment states that in January 1990 one of the U.S. officers (Maj. Eric Buckland) told his U.S. superiors that Colonel Benavides had given the order to kill Father Ellacuria. Until January 2010, the indictment reports, public information about the Salvadoran investigation of this crime had not mentioned possible involvement of the country’s top military officers. Thus, the revelation by Maj. Buckland was explosive in El Salvador because Benavides was a member of the “Tandona of 1966.”[9]

The Center for Justice & Accountabilty of San Francisco, California is a human rights organization dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress. CJA uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law and advance the rule of law.[10]

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

[2] See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011); Post: International Criminal Justice: The Salvadoran Military’s Attempted Cover-Up of Its Committing the Murders of the Jesuit Priests (June 7, 2011); Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011).

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

[4] Id.

[5] CJA, Criminal Charges Filed before the Spanish National Court for 1989 Massacre of Jesuit Priests in El Salvador (November 13, 2008); CJA, Summary of Complaint in English (Nov. 18, 2009), www.cja.org/downloads/Jesuits_Summary_of_Complaint_in_English.pdf. Under Spanish law, citizens and NGOs may initiate criminal proceedings by filing criminal complaints as popular prosecutors.

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

[7] CJA, Spanish National Court Indictments and Arrest Warrants (May 30, 2011)(in Spanish), http://www.cja.org/downloads/JesuitsArrestWarrants.pdf. There was a report that a former Salvadoran military officer testified to the Spanish court that Cristiani had advance knowledge of the planned assassinations and approved them. (Tim’s El Salvador Blog, More developments in Jesuits Case in Spain (July 7, 2010).)

[8] In November 2009 the Spanish court was provided with many declassified U.S. documents relating to the crime from the National Security Archive of George Washington University through the testimony of an analyst from the Archive and the expert testimony of Professor Terry Karl of Stanford University. At the same time, there were newspaper reports that the U.S. military attaché at the U.S. Embassy and a senior State Department official knew in advance that the Salvadoran military was planning to kill Ellacuria. (Id.; The CIA knew that the military of El Salvador would kill Ellacuria, El Mundo (Nov. 15, 2009)(English translation); Doyle, The Right to Information is the Right to Justice: Declassified Documents and the Assassination of the Jesuits in El Salvador (Nov. 16, 2009), http://nsarchive.wordpress.com; Sainz, CIA documents shed light on Jesuit massacre in El Salvador, (Nov.20, 2009), www.lapresnsagrafica.com/el-sa…-salvador.html (English translation); CJA, First International Witnesses To Testify in Madrid in the El Salvador Jesuits Massacre Case (Nov. 23, 2009); Ayala, El Salvador: Declassified Docs Shed Light on Jesuits Massacre Case (Nov. 27, 2009), http://ipsnews.net.); Tim’s El Salvador Blog, Spanish Paper–US know of attack on Jesuits in advance, (Nov. 28, 2009), http://luterano.blogspot.com.)

[9] Id.

[10] CJA, Mission, http://www.cja.org/article.php?list=type&type=86.

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]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

Adoption of the General Amnesty Law

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

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

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

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

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

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

 Salvadoran Litigation over the General Amnesty Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[9]   Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• It would investigate individual cases or acts that outraged Salvadoran society and/or international opinion as well as a series of individual cases with similar characteristics revealing a pattern of violence or ill treatment that also outraged Salvadoran society.

• Its sources would be confidential.

• It would interview people and receive reports from governments and international bodies.

• It would take all possible steps to ensure the reliability of the evidence used to arrive at a finding; to verify, substantiate and review all statements of facts by checking them against a large number of sources whose veracity had been established and by not basing any finding on a single source or witness or only on a secondary source.

• It would name perpetrators of human rights violations.

• Its report would specify the degree of certainty for each finding.  “Overwhelming evidence” would indicate “conclusive or highly convincing evidence.”  “Substantial evidence” would indicate “very solid evidence.”  “Sufficient evidence” would indicate “more evidence to support the . . . finding than to contradict it.”[18]

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

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

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

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

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

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

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

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

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

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

[8]  Id.

[9]  Popkin at 87-94.

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

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

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

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

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

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

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

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

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

[19]  Commission Report at 43-171.

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

[21]  Commission Report at 13.

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

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