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ACTION REQUEST
Nizkor Int. Human Rights Team Derechos Human Rights Serpaj Europe Urgent Solidarity 08may00 THE ATTORNEY GENERAL OF THE REPUBLIC OF EL SALVADOR MUST REOPEN THE CASE OF THE JESUITS' ASSASSINATION AND MUST COMPLY WITH THE IACHR RECOMMENDATIONS. Equipo Nizkor, Serpaj Europe and Derechos Human Rights request your urgent intervention before the Attorney General of the Salvadoran Republic and the highest authorities of El Salvador, either directly or through its embassies in your respective countries, in relation to the the lawsuit filed by the Universidad Centroamericana "Jose Simeon Canhas" (hereafter "the UCA") regarding the case of the Jesuits assassinated on 16nov89 and the situation that has emerged in El Salvador following a 22dec99 report of the Inter-American Commission on Human Rights (IACHR) on the same case. FACTS 1) On the morning on November 16, 1989, six Jesuit priests were assassinated, as well as a woman who was employed for domestic duties, and her 15 year-old daughter, by agents of the Salvadoran Armed Forces in the Centro Pastoral of UCA. The victims were the Jesuit priests Ignacio Ellacuria, Ignacio Martin-Baro, Segundo Montes, Armando Lopez, Joaquin Lopez y Lopez and Juan Ramon Moreno, Mrs. Julia Elba Ramos and her daughter Celina Mariceth Ramos, 15 years of age. [Paragraph 62 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 2) Judge Zamora instituted public proceedings against the accused on September 25, 1991. [Paragraph 66 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 3) Colonel Guillermo Alfredo Benavides, Director of the Military Academy, was accused of ordering the assassination of the priests. Lieutenant Yusshy Rene Mendoza Vallecillos, an officer of the Military Academy, and Lieutenants Jose Ricardo Espinoza Guerra and Gonzalo Guevara Cerritos, officers of the Atlacatl Battalion, were accused of participating in the operation. Sgt. Antonio Ramirez Avalos Vargas, Sgt. Tomas Zarpate Castillo, Corporal Angel Perez Vazquez and soldiers of the Atlacatl Battalion, Oscar Mariano Amaya Grimaldi and Jorge Alberto Sierra Ascencio, were accused of being the material authors of the assassinations. [Paragraph 67 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 4) Two days later, on September 27 1991, the court rendered guilty verdicts solely against Colonel Benavides (who was found responsible for all the summary executions) and Lieutenant Mendoza (found responsible for murdering the child Celina Mariceth Ramos). The other defendants were acquitted of all charges of homicide. [Paragraph 68 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 5) In its report, the Truth Commission identified agents of the State as the persons who had decided, planned and carried out the assassinations. With respect to the intellectual authors, the Commission noted that on November 15, 1989, in the presence and with the connivance of General Juan Rafael Bustillo and Colonels Juan Orlando Zepeda, Inocente Orlando Montano and Francisco Elena Fuentes, Col. Rene Emilio Ponce ordered Colonel Benavides to kill Father Ellacuria, and to leave no witnesses. None of the military officers identified in the report as the intellectual authors of the crime were tried before the Fourth Criminal Court. Moreover, the report determined that the execution operation was organized by the then Major Carlos Camilo Hernandez Barahona and carried out by a group of soldiers from the Atlacatl Battalion, under the command of Lt. Ricardo Espinoza Guerra and Sub-Lt. Gonzalo Guevara Cerritos, accompanied by Lt. Yusshy Rene Mendoza Vallecillos. [Paragraph 71 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 6) Both Lt. Mendoza, who was convicted of murder and the members of the Atlacatl Battalion displayed in their behavior a singular and dangerous lack of regard for human life. Moreover, the order to kill did not come suddenly in the heat of combat, but was given after cold-blooded premeditation. Those who received it had several hours to think it over, to appreciate its manifestly illegal nature, and to contemplate the consequences of their actions. [Paragraph 139 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 7) In light of the foregoing, the IACHR concludes that the investigation undertaken by the Salvadoran State with respect to the extra-judicial execution of the victims in this case was not conducted seriously or in good faith, but was rather intended to protect some of the material authors and all of the intellectual authors of the crime. [Paragraph 141 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 8) The IACHR considers that the international responsibility of the State also arises from international humanitarian law, since the Jesuit priests who were killed were not legitimate military targets, but members of the civilian population who should not have been the object of attack. [Paragraph 158 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 9) In interpreting and applying the rules of international humanitarian law, the IACHR has been guided by the decisions of the International Criminal Court in judging persons responsible for serious violations of international humanitarian law that were committed in the territory of the former Yugoslavia since 1991. Specifically, in its decision on the Tadic case, the Appeals Chamber of that Court ruled that United Nations resolutions 2444 (respect of human rights in armed conflicts) and 2675 (basic principles for the protection of civilians in armed conflicts) were "declaratory of the principles of customary international law with respect to the protection of civilian populations and property in armed conflicts of any kind." [Paragraph 159 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 10) In this respect, the IACHR considers it proven that neither the Investigation Commission nor the Honor Commission undertook an effective investigation of all the persons, military or civilian, involved in the events of November 16 1989, especially the high-ranking military officers who gave the orders or planned the extra-judicial executions. Both of those organs, moreover, conspired to put together a "package of charges" and, without any grounds for this decision, to limit it to the eight soldiers who participated in the operation, and the one higher-ranking officer who gave the order to kill the Jesuit priests. Col. Benavides gave the order to execute the priests as part of a pre-conceived plan that involved officers of the High Command of the Salvadoran Armed Forces, whose role was concealed both by the Investigation Commission and by the Honor Commission. [Paragraph 182 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 11) The cover-up continued throughout the criminal proceedings, in which military witnesses uttered contradictions and failed to tell the truth, in order to cloak their superiors with a mantle of impunity. As the Truth Commission has determined, this behavior reflected the fact that senior officers brought pressure on lower-ranking soldiers to make no mention during their judicial testimony of any orders they had received from above. [Paragraph 184 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 12) As a consequence of the foregoing, the State also failed to fulfill its obligation to take the necessary steps to impose the penalties provided by law on all those responsible for the extra-judicial executions. In effect, the investigation, which was conducted with a view to protecting certain authors of the violation of human rights, prevented all those authors from being judicially identified and, in consequence, prevented the corresponding penalties from being applied. [Paragraph 186 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 13) In light of the Truth Commission's report and the other evidence in hand, the IACHR concludes that the investigation of the extra-judicial executions that was carried out by the Salvadoran State through the Investigation Commission and the Honor Commission was not undertaken seriously or in good faith, and was designed to protect some of the material authors and those who took the decision to execute the victims. Moreover, while the judicial investigation conducted by the Fourth Criminal Court was credible and attempted to discover the truth, the policy of cover-up and pressure adopted by higher ranking officers against those of lower rank to protect the intellectual authors and some of the material authors meant that the judicial investigation was completely ineffective. In fact, and especially as a result of this cover-up campaign, the results were limited to the "package of charges" agreed between the Investigation Commission and the Honor Commission. By reason of the foregoing, and on the basis of the evidence examined and the conclusions indicated, the IACHR finds that the State has failed to fulfill its obligation to investigate seriously and in good faith the violation of the human rights recognized by the American Convention, to identify those responsible for the violation, and to punish them according to law, as stipulated in Article 1.1 of the Convention. [Paragraphs 187 and 188 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. 14) The Salvadoran State, through agents of the Armed Forces who perpetrated the extra-judicial executions described herein, has violated the right to life enshrined in Article 4 of the American Convention, together with the principles recognized in common Article 3 of the Geneva Conventions of 1949, to the prejudice of the Jesuit priests Ignacio Ellacuria, Ignacio Martin-Baro, Segundo Montes, Armando Lopez, Joaquin Lopez y Lopez and Juan Ramon Moreno; and of Mrs. Julia Elba Ramos and her daughter Celina Mariceth Ramos, a minor. The Salvadoran State, by virtue of the improper actions of its organs responsible for investigation (including an ad hoc body composed of military officers), prosecution and the administration of justice, has failed in its obligation to conduct a diligent and effective investigation into the violations that occurred, and in its obligation to prosecute and punish those responsible by means of impartial and effective procedures such as the American Convention demands. All of these factors affected the integrity of the process and implied a manipulation of justice, with the evident abuse and misuse of power. The result is that these crimes have gone unpunished to this day, and justice has been denied. The State has also violated, to the prejudice of the victims, the right to judicial guarantees and to effective judicial protection established in arts. 1.1, 8.1 and 25 of the American Convention. The only persons found guilty by the Salvadoran courts were granted amnesty shortly thereafter by means of the General Amnesty Law. The intellectual authors who have been identified to date, i.e. those who gave the order to kill the Jesuit priests, Mrs. Ramos and her daughter, belonging to the High Command of the Salvadoran Armed Forces, were never investigated, prosecuted or punished. As a consequence of its approval of the amnesty law, the Salvadoran State has violated Article 2 the American Convention. Moreover, by applying it to the present case, the State has violated the right to justice and has failed in its obligation to investigate, prosecute and make reparations, as established in Articles 1.1, 8 and 25 of the American Convention, to the prejudice of the victims' relatives and of members of the religious and academic community to which the victims belonged. The Salvadoran State has violated the right to know the truth to the prejudice of the victims' relatives, the members of the religious and academic community to which the victims belonged, and Salvadoran society as a whole. [Paragraphs 237, 238, 239 and 240 - REPORT Nş 136/99 - CASE 10.488 - Inter-American Commission on Human Rights, 22dec99]. On 27mar00 Jose Maria Tojeira Pelayo, Rector of the UCA, filed a complaint before the Attorney General's Office requesting the carrying out of the investigation into the alleged crimes in order to prosecute and punish all those responsible for these acts. On 12apr00 the Attorney General Belisario Artiga rejected the opening of such investigation by invoking the existence of the 1993 Amnesty Law. This decision has been appealed by the petitioners and we are awaiting for a fair resolution to be adopted so that these proceedings are activated. EQUIPO NIZKOR ARGUMENTATION The assassinations of the six Jesuit priests, the domestic employee, and her 15 year-old daughter fall under the figure of crimes against humanity and war crimes according to international human rights law and international humanitarian law in force, both conventional and customary. None of the accused persons who were found guilty and who were granted amnesty shortly thereafter has ever been tried for crimes against humanity and war crimes, so that the principle of non bis in idem' may not be invoked in this case. The General Amnesty Law of 1993 is irrelevant to this end, in addition this law is contrary to international law and the obligations of the Salvadoran State at a domestic level, which emerge from the ratification by this State of the different international treaties aimed at protecting the life of the individuals and the civil population. Therefore, if no crimes against humanity and no war crimes are covered by the said Amnesty Law, every single author of these extrajudicial executions must be investigated, prosecuted and punished. In addition, such a Law is null and void as a matter of law, as it has been declared by the IACHR, and must be revoked. A) No internal provisions may be invoked in order to elude international obligations and thus violate international human rights law and humanitarian law. The Vienna Convention on the Law of Treaties, signed at Vienna on 23may69, entry into force on 27jan80, states in its article 26 "Pacta sunt servanda. Every treaty in force is binding upon the parties to it and must be performed by them in good faith." Article 27 "Internal law and observance of treaties A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46."Article 46 "Provisions of internal law regarding competence to conclude treaties 1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith." B) Regarding the question of crimes against humanity, it was shortly after WWII, just when the Nuremberg Tribunal was established, that the definition of crimes against humanity' started to be shaped. François de Menthon, Attorney General for France before the Nuremberg Tribunal, defined this crime as a capital crime against the consciousness that the human being currently has of his own condition. [Dobkine, Michel, Crimes et humanite - extraits des actes du procès de Nuremberg - 18 octobre 1945/1er octobre 1946, Ediciones Romillat, Paris 1992, pp. 49-50.] Article 6 (c) of the Nuremberg Charter defined these crimes, considering as such the following acts "(c)CRIMES AGAINST HUMANITYnamely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated." The definition of crimes against humanity appears in several international instruments and it has gone through a series of modifications for explanatory purposes. Common article 3 to the four Geneva Conventions of 12aug49 contains a series of basic provisions that may be applied to any type of armed conflict, including those not of an international character or internal armed conflicts; such provisions prohibit in all circumstances (anywhere and at any time) "a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular humiliating and degrading treatment;" The list of prohibited acts of each Convention includeswilful killing, torture, inhuman treatment, including biological experiments, wilfully causing great suffering, or serious injury to body or health. The fourth Convention prohibits collective penalties, measures of intimidation, pillage and reprisals (article 33). Article 6(c) of the Nuremberg Charter has been directly applied not only by the Allied courts after WWII, but also recently - in 1961, by the Jerusalem District Court and the Supreme Court of Israel (Eichmann. I.L.R., 36, pp. 39-42, 45-48,288, 295), - in 1971, by the courts of Bangladesh regarding an extradition request to India involving Pakistani Officials whom Bangladesh wanted to try for acts of genocide and crimes against humanity (C.I.J. Annuaire 1973-1974, p. 125), in 1981, by the Supreme Court of the Netherlands, in the case Public Prosecutor v. Menten (N.Y.I.L., 1982, pp. 401 y ss.), in 1983, by the French Supreme Court in the Barbie Affair. - in 1989, by the High Court of Ontario (Canada), in the case of Finta (10.5.1989, I.L.R., 82, 438 ss.). The International Law Commission, in its comments to the Draft Code of Crimes Against the Peace and Security of Mankind, has said that these crimes are of such a magnitude that they usually entail the participation of government officials and the military superiors and their subordinates. [Report of the International Law Commission on the work of its forty-eighth session, 6 May to 26 July 1996 (A/51/10), These crimes do not prescribe, can not be subjected to any sort of amnesty and they may be prosecuted every where at any time. Article 5 of the International Criminal Tribunal for the Former Yugoslavia states "Crimes against humanity The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population(a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts." (Article 3 of the International Criminal Tribunal for Rwanda contains a similar provision. More recently, these crimes have been included in article 7 of the International Criminal Court Statute.) C) The individual criminal responsability for the crimes against humanity and the war crimes that have been perpetrated in this case, arises basically from the application of the principle of command responsibility, because they have been planified and executed using the military hierarchy; therefore, the military superiors are responsible for the illegal acts committed by their subordinates, and even more when such illegal orders were issued by the superiors themselves. Subordinates may not invoke due obedience and regarding their superiors, the International Criminal Tribunal for the Former Yugoslavia has established through its judgments that the individual criminal responsibility of a superior is well established not only in the cases in which he should have known, but also because of the fact that he is in a duty to know [Blaskic Judgment 03mar00Nations Unies - Affaire nşIT-95-14-T - Date 3 mars 2000 - Tribunal international charge de poursuivre les personnes presumees responsable de violations graves du droit international humanitaire commises sur le territoire de l'ex-Yougoslavie depuis 1991 OriginalFrançais] The Yamashita case [In re Yamashita, 327 U.S. 1 (1946)], commander of the Japanese occupying forces and acting Governor during World War II in the Philippines, served to set two requirements in order for the subordinate's criminal act to be charged to the superiora) actual knowledge about the commission of the crime, or knowledge of enough facts to conclude the crime; and b) there is an affirmative duty; superiors, once aware of the commission of such crimes, must take all necessary measures within their power to prevent or repress the crime. The Yamashita holding, among others, makes any officer criminally liable, just by virtue of his status and geographic area of command, if those operating under the officer's command commit criminal acts. Should a commander issue orders which lead directly to lawless acts, the criminal responsibility is definite and has always been so understood. The decision of the Canadian Military Court which tried Brigadier-General Kurt Meyer (Abbaye Ardenne Case) throws further light on the issue of command responsibility. In order to find the accused guilty it is not necessary to be convinced that a particular formal order was given, it is enough with being satisfied that words were uttered or some clear indication given by the accused to his subordinates that unlawful acts were to be committed. Even further, the superior may be held responsible for not having prevented his officers from participating, as it was the case, in an extrajudicial execution, and also for not bringing them before a military tribunal. In the same line, Article 6 of the Draft Code of Crimes Against the Peace and Security of Mankind, drafted by the UN International Law Commission, provides that "The fact that a crime against the peace and security of mankind was committed by a subordinate does not relieve his superiors of criminal responsibility, if they knew or had information enabling them to conclude, in the circumstances at the time, that the subordinate was committing or was going to commit and if they did not take all feasible measures within their power to prevent or repress the crime." (Draft Articles on the Draft Code of Crimes Against the Peace and Security of Mankind corresponding to 48th. Session of International Law Commission, May 6 to July 26, 1996). In the matter of the extradition of retired General Carlos Guillermo Suarez-Mason, which was requested by the State of Argetina to the US, the US District Court for the Northern District of California argumented that Suarez Mason, as head of Zone One (In 1975 Argentine was broken down into five military zones), was personally responsible for the issuance of secret Operational Order 9/77, which set forth in detail the manner and means by which those in his command were to carry out the necessary operations in the fight against subversion. By most estimates, somewhere in the range of 5,000 people disappeared in Zone one during Suarez-Mason's tenure as Zone Commander. The court thinks it highly impossible that any commander could be unaware of such massive violations occurring under his nose. Suarez-Mason was not charged with personally committing either the homocides or the kidnappings. Intead, he was charged as a "principal who directed and controlled the acts of murder and kidnapping in that a) Suarez-Mason was the Commander of the First Army; b) the charged offenses were committed pursuant to a system of secret verbal orders controlling conduct of members of the First Army Command; and therefore, c) the inescapable inference is that these orders were given by Suarez-Mason. The court concluded that "where Argentina establishes that a particular offense was committed by persons under Suarez-Mason's command, and the circumstances of the offense support the conclusion that they were acting pursuant to the directions of the system put in place by Suarez-Mason, such a showing will generally be sufficient to satisfy" probable cause that he committed the charged offense. (N.D. Cal. Apr. 27, 1988). He was finally extradited to Argentina. PLEASE, CONTACT THE SALVADORAN ATTORNEY GENERAL AND OTHER AUTHORITIES URGING THEM TO 1) Conduct a full, impartial and effective investigation on the case in compliance with the international obligations that El Salvador has acquired as a State Party to the American Convention on Human Rights. 2) That such an investigation must be carried out regardless of the offenses covered by the General Amnesty Law and must contemplate the figures derived from the violations of international human rights law and international humanitarian law. 3) To adopt all necessary legislative and procedural measures in order to comply with all and every single one of the recommendations made by the IACHR in its Report No. 136/99, Case 10.488, dated 22dec99. PLEASE, SEND YOUR COMMUNICATIONS TO(Nizkor warns that sometimes the access to the fax tone may not be direct and it will be necessary to ask for it). Licenciado Francisco Flores Presidente de la Republica de El Salvador Fax+503.271.1042 Mailtopresidente@casapres.gob.sv Licenciado Belisario Artiga Fiscal General de la Republica Tel.+503. 225.5369 Fax+503.225.6171 Licenciado Armando Rodriguez Eguizabal Jefe del Departamento Juridico de la Fiscalia General de la Republica Fax+503.226.6676
