June 26, 2002
This report was written by Patty Blum, Clinical
Professor of Law and
Director, International Human Rights Law Clinic and Mary Beth Kaufman
and
Daniela Yanai, law students, Boalt Hall School of Law, University of
California, Berkeley.
Trial Update, Day Three - Today jurors in the case against two former Salvadoran generals were presented with a trail of three witnesses describing their knowledge of human rights abuses in El Salvador: Roberto Alvarez - a lawyer who investigated secret torture cells with the Organization of American States, Father Paul Schindler - an American Catholic priest who worked in El Salvador, and Lauren Gilbert - a former staff attorney with the United Nations Truth Commission in El Salvador. Witnesses drew diagrams and showed photographs to the jury, which detailed the gruesome abuses they had witnessed. The day ended as defense lawyer Kurt Klaus led a cross examination of the third witness, which lasted for another two hours the next day.
In January of 1978, Roberto Alvarez was one of three staff attorneys on an eleven member delegation of the Organization of American States (OAS) to El Salvador. The OAS is a regional organization whose mandate is to promote peace and security in the Western Hemisphere. It pursues this aim, in part, by seeking to protect human rights through its Inter-American Commission on Human Rights. The Inter-American Commission is empowered by Member States to receive complaints of human rights abuses. Any government, non-governmental organization or individual may file an OAS complaint, Alvarez explained to the jury. When complaints describe particularly egregious abuses, the Commission may send an investigative team with the consent of the host government.
After receiving some 75 complaints of human rights violations in El Salvador, the Commission sent an investigative team. The complaints included allegations of torture and what Alvarez termed a new and “unique” form of human rights violation – the kidnapping and incommunicado detention of citizens. The team had a special focus on these “disappearances.” Today, he noted, “disappearances” are a crime against humanity.
Most of the complaints received by the Commission focused on the security forces: the Treasury Police, the National Police, and the National Guard. Many of them referred to underground cells which the team tried to locate on their visits. After a visit to the National Guard in which team members were unable to locate the secret cells, they spoke with a witness who described their exact location. They memorized the floor plan of the National Guard Headquarters and returned for a surprise visit. At this point in his testimony, Alvarez drew a map of the building for the jury and showed them the location of the secret cells. The map was later entered into evidence.
At the National Guard Headquarters, their guide, then Director-General of the National Guard, General Alvarenga, scrupulously avoided the part of the building where Alvarez knew the secret cells were located. When they got to the second floor, Alvarez and his colleague understood it was a special unit – the soldiers were not in uniform and had submachine guns instead of rifles and telecommunications equipment. Finally, Alvarez and his colleague went up some stairs without asking. The general became furious, but Alvarez simply reminded him of their official permission to inspect the entire premises.
Upon entering the third floor, they tried to get their bearings. One of the rooms they passed, Alvarez said, had a one-way mirror that the General explained was used for photography. Another had electrical equipment in it. At first they could not see any other cells but then realized the metal beds blocking a door were the source of the clanging sound they heard earlier. He asked the General to remove the cots; the General reluctantly gave the orders. As Alvarez moved through the pitch black into a small, cramped area, he asked for a flashlight. He could smell fresh paint. He opened a large, heavy metal door and immediately closed it. Every inch was covered with cockroaches. One by one, he visited the other cells and discovered the initials of former detainees etched into the backs of the metal doors. The initials had been described to the team by former detainees.
After their visit, the OAS drafted a report and sent it to the Salvadoran government for response. The final version stated, among other things, that electric shock, beatings by round or flat wooden objects, and the “hood,” a heavy sack filled with lye placed over the head of prisoners, were some of the most common methods of torture used by the National Guard. Alvarez affirmed to the jury that had they not had independent information on the existence of the secret cells, they never would have discovered them.
Testimony of Father Paul Schindler
Beth Van Schaack, one of the plaintiffs’ lawyers, then called the next witness, Father Paul Schindler, a Catholic priest from Ohio who served in El Salvador for ten years. Father Schindler witnessed first hand the effects of the military crackdown. In detailed and sometimes gruesome testimony, he described searching for the disappeared and burying the dead and squarely laid the blame for the violence on the military. More often than not, Father Schindler described, the dead and mutilated were left with warning signs that anyone who tried to bury the bodies would also be killed. “If I awoke to pounding on the front door, I knew it was a bad morning,” said the priest. “Someone had been taken overnight.”
After Archbishop Romero’s most famous sermon, his last before his assassination, in which he beseeched the country’s young soldiers to disobey their orders and refuse to kill, many churches across the country put up signs. Projected on to a screen for the jury was a photograph Father Schindler had taken of the sign hung in front of his own parish church. “No Mataras,” it read, “Thou Shalt Not Kill.” When the power went off one night, the National Guard tore down the sign.
Van Schaack entered several more photographs into evidence over the course of Father Schindler’s testimony, all of which were taken by Father Schindler himself. His accompanying testimony described the tortured and mutilated bodies recovered from the side of the road or thrown over nearby cliffs. The military, Father Schindler testified, used this cliff edge to dispose of victims. When the tide was low, the bodies would not wash out to sea, and the smell would rise over the cliff edge. Father Schindler, with young boys from the parish, would recover the remains and give the dead a proper burial. On cross examination, when Kurt Klaus questioned the father about guerrilla activity in the area, he answered that there was none in Libertad.
]The final witness of the day was Lauren Gilbert, a law professor at St. Thomas University, who worked with the United Nations Truth Commission in El Salvador. The Truth Commission was established by the 1992 Peace Accords between the Salvadoran government and the FMLN. The mandate of the Commission, Gilbert explained, was to investigate serious acts of violence carried out during the armed conflict, and to make recommendations to prevent such abuses from happening again. The Commission had a six-month mandate during which investigators received 7,000 direct complaints as well as documentation from other organizations. The report, published by the United Nations in 1993, found the armed forces and security forces accountable for 85% of the human rights violations.
Gilbert then described the standards of proof used by the Commissioners to certify the responsibility in particular cases. Three standards were used: “overwhelming evidence,” “substantial evidence,” and “sufficient evidence.” No cases could be included in the final report without two corroborating sources, Gilbert told the jury, and no names could be named unless at least “substantial evidence” had been found. The Commission’s mandate provided it with broad powers to solicit information from the parties, but the armed forces rarely complied.
Gilbert described two cases she had investigated for the Commission, including the kidnapping of two law students, Ventura and Mejia, by uniformed members of the National Guard outside the United States Embassy in El Salvador. The students, who had participated in a political protest, were held behind the walls of the embassy for about an hour, then thrown into the trunk of an unmarked car and driven away. They were never seen again. According to Gilbert, the family members of the two students went immediately to the National Guard, but Vides Casanova denied knowledge of the act. The Truth Commission report later named Vides Casanova as a responsible party for his failure to investigate the case.
The cross-examination, which concluded the next day, was one of Klaus’ most aggressive. On redirect, plaintiffs’ lawyer Jim Green responded vigorously. Pointing at General Vides Casanova and General Garcia in turn, he asked Professor Gilbert if the Commission’s report held each one responsible for human rights violations. “Yes it did,” she answered. After the redirect, for the first time in the trial, jurors sent questions to Judge Hurley which were presented to the witness. The jurors asked for clarifications of actions taken to hold perpetrators of human rights abuses accountable for the massacre at Las Hojas, one of the cases investigated by Professor Gilbert. The jurors were concerned about the pursuit of investigations in El Salvador, whether they were conducted by military or civilian courts and if any one had been punished for the crime. Gilbert told them that no one had been held accountable.
