August 2002
[F]or purposes of civil liability, the torturer has become like
the pirate and slave trader before him hostis humani generis, an enemy
of all mankind.
Irving R. Kaufman, United States District Judge in Filartiga v. Pena-Irala
(2d Cir. 1980)
In light of the debate that has followed the trial of ex-ministers of defense Garcia and Vides Casanova, the Center for Justice & Accountability, which initiated the lawsuit, offers an explanation of the case and its results.
The lawsuit was based on United States laws that allow victims of torture or other serious human rights abuses to seek redress against the persons responsible, if those persons live in or visit the United States. In adopting these laws, the United States Congress has given effect to the principle that courts have "universal jurisdiction" to impose penalties against persons responsible for conduct universally condemned by the world community, such as torture and crimes against humanity. The same principle was the basis of the laws used to charge General Augusto Pinochet for crimes against humanity and torture in London, leading to his arrest in 1998.
The generals have lived since 1989 under the protection of the laws of the United States and the state of Florida. In so doing, they also subjected themselves to these laws, irrespective of any amnesties that may be applicable in the courts of El Salvador. The Amnesty law, passed by El Salvador's unelected Assembly immediately following the signing of the Peace Accords, has been strongly criticized by the Inter American Commission on Human Rights. The Commission declared that the amnesty law cannot relieve the State of its responsibility to investigate serious violations of human rights, identify those responsible, impose sanctions, and assure the victims adequate reparations, as required by the American Convention on Human Rights. Accordingly, the Commission concluded that the Amnesty law violates international law and should be invalidated.
The evidence presented against the generals at the trial in Florida was compelling. A jury of 10 persons found, unanimously, that the plaintiffs were tortured by members of the Salvadoran National Guard and Police, or others acting together with such forces. The plaintiffs' veracity was never questioned by the defense.
The jury also found unanimously that the generals were responsible under the doctrine of "command responsibility" for the horrific acts of torture perpetrated against the plaintiffs. This principle, well-established under international law, does not hold commanders responsible for isolated abuses committed by a soldier. Rather, it holds commanders responsible for the actions of subordinates under their effective control if they knew or should have known about a pattern of abuses being committed by their subordinates, and failed to take measures to prevent the abuses or to investigate and punish those responsible. The jury, after hearing testimony and evidence from both sides, concluded that the generals knew or should have known about widespread torture and extrajudicial killings against civilians being committed by their troops during the 1979-83 period, and failed to take reasonable action to prevent those abuses.
Witnesses for the plaintiffs included Robert White, U.S. Ambassador to El Salvador during 1980-81, a leading Latin America scholar who worked as an investigator in El Salvador for the United States Congress, an expert on Salvadoran law, an Argentine expert on the Salvadoran military, individuals who worked in El Salvador with the United Nations Truth Commission for El Salvador and with Amnesty International, and a priest who witnessed some of the horrors of that period. The generals testified on their own behalf. Their only witness was Edwin Corr, who served as U.S. Ambassador to El Salvador starting in 1985, after the events at issue in the case, and after General Garcia had retired.
Victims of torture have an important right to decide whether it is appropriate to seek justice and redress. El Salvador and the United States both committed themselves to this principle when they became parties to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment. That treaty provides that each party must prohibit torture, and "ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation." Cases against those responsible for torture are important not only for helping victims heal the wounds of the past, but also for helping to deter others from committing similar abuses in the future.
CJA is a small organization. We have resources to bring only a few cases each year. Accordingly, we choose our cases based on a variety of factors: the seriousness and widespread nature of the crimes, the presence of the defendant in the United States, the degree of evidence linking the defendant to the crimes, the degree of the defendant's culpability for the crimes, the extent of support for the case among the communities that were victimized, and the likelihood that the case will serve as a deterrent to others and thereby contribute to the world-wide movement against impunity. All of these factors were relevant to our decision to bring a case against the two generals.
Although the jury ordered the generals to pay millions of dollars, the
generals have stated that they do not have the money to pay. CJA intends
to take steps to try to enforce the judgment against the generals in order
to implement the penalty ordered by the jury. However, we believe that
it will be difficult to locate their assets and there is a possibility
that we will not be able to recover anything. If we do recover assets,
the first amount of money collected will go to the lawyers and others
who paid for the costs of investigating and bringing the case to trial,
and who donated, collectively, thousands of hours of their time. If any
money remains thereafter, the plaintiffs will consult with the people
and organizations who represent communities that were victims of the generals
to determine how the money should best be spent. The plaintiffs and their
families will not enrich themselves through this case. They have, however,
enriched all of us by seeking justice and bringing truth to light.
