The Jesuit Case: Still Plagued by Questions
November 16 marked two years since the massacre at the Central American University (UCA) in San Salvador. The legal phase, including a three-day public trial, produced results that left nearly everyone perplexed. Those who want peace with justice do not consider the case to have reached the end of the road.
The trial of those accused of slaying the six Jesuits, an employee and her daughter was held September 26-28 in the Supreme Court of Justice in San Salvador. With this, a case that has drawn international attention came to a formal close.
Nine members of the armed forces—four officers and five soldiers—were tried for the crime. Only eight were in the courtroom, as one had fled at the onset of the investigations. The highest-ranking officer, Colonel Guillermo Alfredo Benavides, denied during all earlier questioning having taken part in the crime of November 16, 1989. The other seven had admitted their participation in extra-judicial confessions to the police, in which they related extensive details of the operation that concluded with the massacre. Later, they denied to the judge everything that they had earlier declared.
These confessions established exactly which of the nine defendants had perpetrated each of the eight assassinations. For example, Private Oscar Amaya Grimaldi, alias "Pilijay" (a Nahuatl word meaning "hangman"), declared that he had shot Ignacio Ellacuría, Ignacio Martín Baró and Segundo Montes in the head with a Soviet-made AK-47 given to him for the operation so it would look as if it had been carried out by "subversives."
After two months of silence, omissions and blaming the FMLN, the Salvadoran armed forces had brought forth these defendants in January 1990. Colonel Benavides was implicitly presented as the lone intellectual author behind the crime, acting individually and unilaterally. Clear contradictions in declarations by other high-level officers, destruction of evidence, lack of collaboration from the armed forces and other equally obvious clues rapidly put all observers of the case on the right track: there were many other intellectual authors quite high up in the officer ranks who were unwilling to be revealed, much less brought to justice, and they were confident of US complicity.
Within this context, the verdict given by the five civilians comprising the jury of conscience in the trial came as a surprise. Colonel Benavides and Lieutenant Yusshy René Mendoza, Benavides' former assistant at the Military Academy, were found guilty. Mendoza was only convicted of the death of Celina, the cook's daughter, even though both women died together and from the same bullets. The other defendants, all of whom had confessed to carrying out the operation, were absolved of all responsibility.
To interpret this surprising verdict, we turn, first, to the critical reflections contained in a report issued by the UCA's Institute for Human Rights (IDHUCA), formerly directed by Father Segundo Montes, one of the slain Jesuits.
IDHUCA Analysis After the public trial in the Jesuit case, three long days that at times seemed to be an endurance test for all directly involved, the verdict perplexed more than one observer. A colonel is sentenced as the intellectual author of the eight murders; a lieutenant who headed up the operation is found guilty of one killing; the confessed perpetrators are absolved, and, of course, those higher up who presumably planned and ordered the massacre are untouched. Although we warned ahead of time that a public trial was not an appropriate forum from which the whole truth would emerge, we perhaps expected a bit more from it. In the end, we got a bit of truth, within a deficient process from any point of view, while hopes for justice were left largely unsatisfied.
At the moment, without attempting to have the last word, but expressing some reflections about what took place and the lessons it leaves for us, we want to review the current status of the case, so as to underline two aspects: the illustrative aspect of the trial and the verdict's lack of legal logic.
The Current Situation Of the Accused Colonel Guillermo Alfredo Benavides Moreno was sentenced for the murder of the eight victims, while Lt. Yusshy René Mendoza was only found guilty of killing Celina Ramos. The other seven on trial, all members of the Atlacatl Battalion, were absolved of both the actual killings and acts of terrorism or acts preliminary to terrorism.
The two guilty officers were discharged and, according to reports, will be held in special cells at the Santa Ana prison. The absolved soldiers are already free and, according to the defense team, will continue to serve in the armed forces. The judge has 30 days from the time of the verdict to sentence the two men found guilty, which could be for as long as 30 years.
The jury's verdict is not subject to appeal. Its annulment can only be argued for according to cases contained in Article 390 of the Penal Code. In practical terms, it would be very difficult to contest the verdict, particularly in this case, which has already gone through every level of the Salvadoran justice system. Establishing the verdict's invalidity would mean having to prove that one or more of the jury's votes had been obtained through bribes, violence or intimidation, or that there were proper grounds to suspend the proceedings.
While the Society of Jesus has declared that it respects the jury's verdict, the defense has warned that it will show cause for nullity.
Will Trial and Verdict Serve as an Example?For the first time in Salvadoran history, a high-ranking officer has been found guilty of ordering the killing of civilians. There is no denying that this is an important fact. The symbolic value of the image, televised throughout the country, of eight military men sitting on the accused bench, cannot be underestimated. And the jury's message, through its verdict, appears to strengthen the conviction that responsibility must be sought at the highest levels, establishing a new frame of reference and promoting the search for those who conceived of and planned the crime.
The Society of Jesus understands the jury's decision as "a guilty verdict for those who gave the order to kill the Jesuits of the UCA and leave no witnesses. In finding Col. Benavides and his assistant, Lt. Mendoza, guilty, the jury wishes to point out that responsibility for this assassination must be sought at the very heart of the armed forces. The task remains to find the intellectual authors who planned the UCA massacre."
For many reasons, including unprecedented international pressure, the Jesuit killings became a test case and its development and results can be interpreted as the exception that proves the rule.
While it is true that the sentencing of two officers represents a small and important fissure in the wall of impunity, it would be very difficult to repeat the steps that led to it. The trial, held on the specially remodeled fourth floor of the Supreme Court of Justice; the presence of the diplomatic corps, international observers and both national and international journalists; the broadcasting of the entire trial on television; the hidden and anonymous jurors, who read out the verdict unseen by anyone in the courtroom—all underscores the extraordinary nature of this case. Such uncommon treatment means that neither the investigations, nor the legal process, nor the trial itself could set a precedent for future cases. Clearly, not all this will be done for the next case, in which the victims will be less known and US military assistance will not be at stake.
What stands out then, is the difference between this case and those of thousands of Salvadorans murdered in recent years. This brings doubts as to the dissuasive effect of the guilty verdict in this case. Will it be easier to condemn military officers in other cases? And, on the other hand, what effect will the case have on the future behavior of the armed forces?
Without denying the importance of the efforts carried out by some representatives of the legal system and the courage of the jurors in taking part in the trial and issuing the verdict that they did, it is difficult to state that the functioning of the Salvadoran legal system was what produced the results. As one observer said, "This cannot be considered a triumph of the Salvadoran legal system. The system facilitated a political decision." The case, which represented an opportunity to demonstrate political willingness to prosecute military men, instead served to underscore the lack of an impartial, independent and functional legal system. In other words, from the outset, the decision to undertake an investigation, albeit limited and with many defects, to admit military responsibility and to bring a limited number of military men to trial, was a political decision. Political pressures external to the legal system have determined the achievements and limitations in the case more than anything else.
In fact, the Salvadoran justice system has lost significant prestige both at home and abroad. An observer from the International Lawyers' Commission commented that "the key defect of the trial lies in the system of administering justice itself, in the laws regulating it and in judicial practice."
Role of the Armed Forces Any evaluation of the trial must take into account the defects of the police investigations, mainly due to lack of collaboration by the armed forces. Although the armed forces initially identified the nine defendants through the Special Commission of Honor's mysterious work, thus breathing life into the legal process, the lack of subsequent collaboration severely limited the available evidence. The problems in the police investigation precluded the possibility of a just process and may have influenced the end results.
After the defendants' extra-judicial statements were presented to the Investigative Commission for Criminal Acts (CIHD), on January 13-14, 1990, the armed forces avoided revealing any other evidence that would confirm the participation of the accused in the events, much less offer evidence against any other responsible parties. The CIHD has been the object of much criticism for its lack of autonomy from the armed forces, since the head of its Executive Unit is a top-ranking officer in the armed forces and his detectives are members of the security forces.
Given the military cover-up and uncompleted evidence against the accused, Judge Zamora elevated the case to plenary status in December of last year. Attempts to find new clues during the evidence-gathering period of the plenary phase were not very successful.
Because of the lack of military collaboration, the trial, as is common, had to rely almost exclusively on extra-judicial declarations for its evidence.
The armed forces' attitude in identifying the accused by extra-judicial and still obscure means, while doing everything possible to ensure that there would be no evidence of their participation in the crime, made it virtually impossible to carry out an authentic trial with guarantees of due process, even assuming that the justice system was capable of doing so. Sometime during January 1990, it was deemed politically necessary to turn some members of the armed forces over to the courts, but no decision was ever made either to submit the armed forces as such to civilian power, or to truly collaborate in the case.
The Trial The public trial opened with a 15-hour reading of the testimony compiled in the investigation, which was so repetitious that it became quite tedious. Following the reading of the extra-judicial declarations of an accused, two legal declarations of witnesses were read—which effectively implied three readings of each statement. With no accompanying explanations, the significance of each reading was very difficult to understand. Moreover, the draft did not include the legal declarations of the accused in which they denied their extra-judicial statements and took no responsibility for the crimes. The proceedings became, in the words of one international observer, "a marathon series of readings with an impact that one can assume both wore down and confused the jurors."
After the readings came the debates between the prosecution and defense—neither the accused nor any witnesses spoke. One observer complained of "indigestion from swallowing too much paper." It was not made clear to the jurors what should and should not be taken into account, a situation exacerbated by the fact that the jurors were left to decide based on their "innermost convictions."
The "promiscuity" of the debates, without visible limits, permitted the defense to insult the public present, the Society of Jesus, director of the Bishop's Office of Legal Protection María Julia Hernández, the Spanish government and even Obdulio Lozano, husband and father of the two women killed. The defense attorney also made veiled threats to the jurors and international observers, and generally used chauvinistic, xenophobic and offensive language, recalling the same mentality and slander that led up to the assassination of the Jesuits.
The "Illogical" Verdict At this stage of the game, it is not clear if the lack of clear evidence affected the results. For unknown reasons, or out of conviction, or just because that was how it was meant to be, the jury decided to hold the higher-ups responsible. Although there was evidence against Col. Benavides, it was the most difficult to assess, except for a strict military mind that always assigns responsibility to the command level. Moreover, condemning a colonel, a member of the powerful "Tandona" military graduating class, seemed the least likely possibility in El Salvador. According to an observer, "The result was the most unexpected one—the observers' speculations didn't even consider this possibility." Far more likely was that the others would be found guilty and Benavides, who had never confessed to anything, would be absolved.
In order to place the blame on Benavides and Mendoza, the jury had to consider not only the military hierarchy's responsibility, but also the controversial extra-judicial statements. The questions remain. Why were those statements by members of the Atlacatl Battalion not taken into account? Is it possible that the jury had an "innermost conviction" that, although they committed the crime, they should not pay because they were simply carrying out orders? Another possibility is that the jurors were frightened to touch the elite battalion, notorious for its human rights violations and certainly considered more dangerous than the Military Academy directed by Col. Benavides. Although the jury could not see him, Col. León Linares, chief of the Atlacatl Battalion at the time of the massacre, was in the courtroom, listening intently to the proceedings.
If the jury applied the concept of "due obedience" to members of the Atlacatl Battalion, it ignored a principle clearly established internationally in the Nuremberg Trials and incorporated into Salvadoran legislation, which states that following orders does not establish blamelessness when what is ordered "has the express character of a punishable act." If the jury had understood this principle, it would not have arrived at its verdict without doing as Salvadoran law invites: deciding based on "innermost conviction" without considering legal stipulation.
Even worse, concrete circumstances in this case suggest that the perpetrators of the crime had time to reflect before following the orders, which they carried out with excessive brutality. It is sufficient to remember the extra-judicial confession of Amaya Grimaldi—"Pilijay"—who admitted having killed three of the priests, finishing off two others, stealing one of the victim's watches, drinking a beer and then hooking up with another patrol to shoot up the Monsignor Romero Center. "Pilijay" knew how to handle an AK-47 and, according to a US adviser, the Atlacatl Battalion tends to use this weapon precisely to pass themselves off as guerrillas. The Atlacatl members are not recently arrived recruits; they are professional soldiers who have made a decision to stay in the army.
In absolving the perpetrators of the crime, presumably for having followed higher orders, the verdict sent a dangerous message. It could be wrongly interpreted as security for other soldiers, who might now feel free to carry out any order without fearing possible consequences, as long as they are acting within the military structure. In other words, the verdict absolving seven perpetrators of the crime leaves intact a significant part of the structure of military impunity.
The very arbitrariness of the results makes them harder to accept; it is difficult to understand how it was possible to condemn Benavides and Mendoza and absolve the others. In particular, finding Mendoza guilty only of Celina's killing has no rational explanation: if he was responsible for Celina's death, he is also responsible for the death of her mother, killed at the same time. Then there is the issue of the other six deaths, given that Mendoza was the commanding officer on the scene.
The Difficult Struggle Against Military Impunity Never before in El Salvador's history have so many witnesses verified with such clarity the weaknesses of the legal system. The international observers saw perfectly that the problem is not only this case and its very unusual results, but rather that the available measures and procedures cannot guarantee due process for either the defense or the prosecution. This allows for an unexpected and arbitrary result (which can be either positive or negative, but in any case is arbitrary) and, thus, a dangerous one.
Without making the least reference to all these reservations, the US State Department immediately expressed its pleasure that Col. Benavides was found guilty. It was undoubtedly pleased by the verdict's positive impact on Congress at the crucial moment of considering more military assistance for the Salvadoran army.
For others, more interested in reality, this almost incomprehensible verdict makes clear that, unfortunately, it is either not understood or not accepted in El Salvador that expressly illegal orders should not be followed. Nonetheless, the trial and the verdict are a reminder that others higher up gave orders and were not among the accused.
From the moment the verdict was announced, the Central American Jesuit Provincial, Father José María Tojeira, has been very clear in showing the need to follow the jury's path and look for responsibility higher up—that is, to establish the complete truth and, based on that, seek real justice. There are clues both within and beyond the process that have not been followed up on, due largely to the lack of cooperation from the armed forces and the United States. Nevertheless, the possibility of another trial cannot be discarded.
The case should also be seen within the current context of negotiations between the government and the FMLN, which at this moment are tackling the delicate problem of purging the armed forces. What will the Commission to Purge the Armed Forces, agreed to by the government and the FMLN, do with the accused who were absolved in the Jesuit case, and, more importantly, with the intellectual authors inside the armed forces command structure and with the hundreds of officers and troops involved in covering up the case? What will the Truth Commission, similarly constituted, do after reviewing all the deficiencies in the process of investigation and considering all the evidence of a cover-up from the moment of the crime through the trial itself? Will either of these commissions have sufficient authority and power to touch off an irreversible transformation in all the structures of impunity?
In the hard-fought struggle against impunity, the Jesuit case has kept alive an important hope. But if the achievement of sentencing the two officers does not lead to a total elucidation of the truth in the search for the intellectual authors above Benavides, it will be a very limited gain. And if the deficiencies of the legal system demonstrated throughout the entire process are not overcome, the Jesuit case will continue to be an exception, an eminently political case which will be very difficult to repeat in the courts. If only "official" truth and partial justice were achieved in the Jesuit case, which received so much national and international attention, what will happen to the same hopes of justice for the thousands and thousands of other victims?
More Questions than Answers This has been IDHUCA's critical analysis. But the jury's verdict in the trial also provoked unanimous criticism among the international lawyers who had followed the case and were present at the trial. Even the international press, particularly the US press, questioned the results.
"It raises more questions than it answers," declared Michael Posner, executive director of the New York-based Lawyer’s Committee for Human Rights. One of the things that most attracted his attention was an incident that occurred during the trial. "A demonstration by more than 200 Army supporters directly outside the courtroom, led by a senior officer, should not have been permitted to disrupt the proceedings," Posner criticized. "Clearly intended to intimidate the jury, loudspeakers blared El Salvador's national anthem and military taps into the courtroom itself, sending an unmistakable message into the room." Linda Drucker, a lawyer with the Heller, Ehrman, White & McAuliffe law firm, and Noami Roht-Arriaza, professor of international law in the University of California’s Boalt Law School, both representing the San Francisco Lawyers' Guild at the trial, saw the verdict as sending “a message to the lowest ranking soldiers that they will not be punished if they violate citizens' human rights, with the mere argument that they were acting under orders, even if those orders are illegal." They added that the verdict will "also help reduce tensions between the old guard and the young officers who had felt they were going to have to pay for the sins of their superiors." Both referred to the "highly provocative and tendentious rhetoric" employed by the defense attorney, who went so far as to argue to the jury that the military men involved should be absolved because Col. Benavides' son had been cured of an illness by a miracle of God and that therefore he could not be a bad man.
For assistant director of Americas Watch Cynthia Arnson, also present at the trial, "it is a stinging indictment of US policy that virtually all the soldiers who stood trial were products of US military training."
An UCA professor who was at the trial judged it this way: "It seemed like a scene out of a farce. Everyone played their roles, and they all knew beforehand what the results would be. The accused knew that not all of them would be found guilty, the judge had carried out his task as far as he could. We were not the audience; the audience to whom this farce was directed was the US Congress and international opinion."
Moakley's Tough Assessment Of special interest is the opinion of US Congressman Joe Moakley, who closely followed the case for two years as head of a special Congressional committee. He made this statement following the trial:
“It is a grave disappointment to me and I think to many others concerned about the development of an independent system of justice in that country.
“I cannot prove, but nor can I rule out, the possibility that the military interfered with the outcome of the trial. The verdict is too inconsistent to be rationally explained and fuels suspicions that the jury may have been manipulated. My suspicions are based on conversations that I had with senior Salvadoran officials prior to the trial, during which they predicted the jury would convict the senior officer involved, Col. Guillermo Benavides, while letting the other defendants go. In addition, no reading of the evidence explains the jury's decision to convict Lt. Yusshy Mendoza for the murder of the 15-year-old daughter of the Jesuits' cook while finding not guilty the man who admitted killing both her and her mother.
“I know some have expressed satisfaction that a colonel was, for the first time in the history of El Salvador, judged guilty of murder. I also believe that this is a breakthrough.
“But the military clearly understood that a verdict of not guilty with respect to Col. Benavides would have caused the United States to terminate aid immediately. Moreover, the military has done its best to assist the colonel by providing him comfortable quarters, continuing his salary and paying all his legal fees. There is also continuing speculation that the two offenders who have been convicted will be pardoned or included in an amnesty in the near future.
“In addition to my disappointment with the outcome of the trial, I am angered at the noisy demonstration conducted by military officers and their relatives outside the courthouse on the final day of the trial. Reportedly, among those leading the demonstrations were a powerful Army colonel and the wives of other senior military officers. Obviously, military officers and their relatives are entitled to voice their opinions. But I am entitled to mine, as well. And I am sickened by the sight of a military that has benefited from more than a billion dollars in US aid attempting to intimidate a jury in a case involving the cold-blooded murder by military officers of six priests and two defenseless women. I must ask myself, what kind of people are these? And what values, if any, do we have in common?
“I am also disappointed by the silence we have heard about this trial from the US Department of State and from Salvadoran President Alfredo Cristiani. It is not enough to say, ‘Well, a colonel has been convicted’ or ‘the legal process has worked its will.’ We all know better.
“A terrible injustice has been done. The people who actually carried out the murders, who made these six respected and courageous men of God lie down in the dirt and shot them in the back of the head, the men who ordered that two women be riddled with bullets while they lay, moaning and wounded, in each other's arms, have escaped justice. Where is the outrage? Where is the leadership? It is an old but true saying that for evil to triumph, all that is required is that good men do nothing.
“It has been almost two years since House Speaker Tom Foley asked me to lead a special task force on El Salvador for the purpose of monitoring the investigation into the Jesuits' case. At this point, following the trial, I have these additional observations to make:
“First, I urge a full investigation of evidence that one of the defendants in the case threatened to talk, implicating other senior military officers in the case, if he was found guilty. Conveniently for the armed forces, that defendant was not convicted.
“Second, I urge President Cristiani to order the dismissal from the armed forces of the six defendants who were found not guilty. I also ask that the State Department institute measures that will deny those individuals permission to enter the United States.
“Third, I urge the Department of State to bar retired Air Force Gen. José Rafael Bustillo from entry into the United States until a full investigation has been conducted into his possible involvement in instigating the murders of the Jesuit priests.
“Fourth, I restate the request that I made more than a month ago to President Cristiani that he oppose consideration of an amnesty for the killers of the Jesuits as part of any peace negotiation.
“Fifth, I urge Judge Zamora to exercise his honest judgment in considering the lesser charges still pending against some officers in connection with this case, including perjury, destruction of evidence and planning to commit a terrorist act.
“Finally, I remind both US and Salvadoran authorities that US law requires the suspension of all military aid if President Bush determines that the government of El Salvador has failed to conduct a thorough and professional investigation into the murders that took place at the University of Central America on November 16,1989. Now that the trial has ended, I believe the President should undertake a fresh review of all facts pertaining to the investigation and trial for the purpose of making that determination."
What Is the Next Step?Although the trial signals a formal end to the Jesuit case, those interested in the truth and in full and authentic justice do not see it what way. After learning of the verdict, Jesuit Provincial José María Tojeira announced in an interview on Salvadoran television what the Society of Jesus, which does not consider the case closed, intends to do now.
"There is a group in power that has been trying to hide things. This is not legal evidence, but logically it is. We have been told that if we have proof regarding the intellectual authors, we should hand it over to the courts. We do not have legal evidence as to the intellectual authors, but we do have evidence that we consider logical and which to date has not been disproved. What we ask is that a deeper investigation be done now that there is logical evidence. And this is what we are going to do: organize this logical evidence and with legal advice from the UCA, draw up a document that, first, will demonstrate through this logical evidence that there were intellectual authors. In the second place, this document will enumerate all the deficiencies in the investigation that was done. And in the third place, we will note the clues we consider important for a new investigation. We cannot begin a new trial, because we don't have legal proof and we cannot undertake a new investigation because we are not detectives, but we can demand that a new investigation be opened, or that the investigation already done be deepened and corrected. This is the next step that we intend to take."
In taking this step, a large majority of Salvadoran society will accompany the Jesuits. This majority understands perfectly what happened: finding Benavides guilty was a political necessity facing the army, the minimum necessary to satisfy the US government and thus leave the "nightmare" of the Jesuit case behind. The Salvadoran military had to pay something for such an infamous crime, after enjoying 60 years of impunity to commit so many crimes that never had judges, lawyers or verdicts—only tears.
Salvadoran society will go beyond this, also convinced that "those who make the laws set the traps," and that on this occasion the military used the law to set the "trap" of a "perfect" trial that would leave the structure of military impunity intact. "Small steps—not great strides—forward" have been taken, in the words of Jesuit theologian Jon Sobrino, providential survivor of the 1989 massacre. "In this sense," Sobrino adds, "the step was not so much that a colonel was found guilty, but rather that the armed forces had to put forward, as accused men, nine of its members in January 1990." This and many other steps will continue to write El Salvador's very difficult history, to which the martyrs of the UCA have given their blood.