The case of the murdered Jesuits: An un-extraditable crime

Military assassins won the most recent round in the case of the Jesuit priests murdered in November 1989, aided by the Salvadoran Supreme Court’s unwillingness to comply with INTERPOL’s “red notice.” But the case isn’t closed. There will be new rounds to test a country that must fight against impunity.

Elaine Freedman

Dictators use selective repressionas an instrument not so so much to eliminate someone deemed particularly dangerous, but rather for the psychological impact of terror it causes among people in general. This was the case with the assassination of six Jesuit priests and two of their domestic workers in 1989, in the context of what the Farabundo Martí National Liberation Front (FMLN) was optimistically heralding as its “final” guerrilla offensive.

“They will be brought to light”

Murdering the Jesuit priests sent a strong dissuasive message to the whole population: don’t get involved in social protests, let alone in the political-military revolutionary organization: “If we could kill them, people of great national renown with important international backing, we can kill any of you.” Beyond the loss of human life any homicide represents, the importance of assassinations of this kind is the symbolic value they have for all people.

For this reason, justice in such cases becomes a vindication felt by everyone. Months before his own assassination, Monsignor Romero said, “I have faith, brothers, that one day all of that darkness will come to light and so many murdered people, so many unidentified corpses and so many kidnappings it was never known who was responsible for will have to come to light. And then, perhaps, we’ll be amazed knowing who was responsible.” If the truth about who’s guilty of such internationally famous cases as the Jesuits in El Salvador isn’t revealed, it’s hard to keep faith that it will be in the thousands of cases of “ordinary” Salvadorans who gave their lives to change the fate of their people.

Hope reborn

People’s expectations were raised again in November 2008, when the Spanish Pro-Human Rights Association and the US Center for Justice and Responsibility filed accusations of “war crimes,” ”covering up war crimes” and “state terrorism” against 14 members of the Salvadoran military and also against Alfredo Cristiani, President of El Salvador at the time of the murders and now president of the National Republican Alliance party (ARENA), the then-governing party. Alicia Martín Baró, sister of Ignacio Martín Baró, one of the assassinated Jesuit priests, filed the suit with central court of investigation No. 6 of Spain’s National High Court, presided over by Judge Eloy Velasco. Her justification for filing it there was that five of the eight victims were Spanish nationals. The Spanish NGOs accompanying her used the legal mechanism of “people’s accusation,” which in Spain “provides the chance for legitimate institutions with public interest and responsibility to initiate legal action,” in the words of lawyer Almudena Bernabeu, who is conducting the case in Spain.

Eight deaths foretold

From the beginning of the FMLN offensive In November 1989, troops of the elite Atlacatl battalion had the Central American University (UCA) campus surrounded. The whole area was militarized and under close surveillance due to its proximity to the Salvadoran Chiefs of Staff and to the abundant overgrown land around it, where there had been armed clashes. A few hours after the offensive began, the government established that all radio stations had to hook up to Radio Cuscatlán, the Armed Forces station. Supposed “ordinary citizens” continually phoned the station, encouraging the army to finish off those “guilty” for such “disorder.” Among those singled out for such treatment were the leaders of the National Union of Salvadoran Workers (UNTS), Archbishop Arturo Rivera y Damas, Bishop Gregorio Rosa Chávez, and political leaders Guillermo Ungo and Rubén Zamora from the opposition Democratic Convergence. Also accused again and again were “Ignacio Ellacuría and the Jesuit priests from the UCA.”

Such threats were nothing new. Peter-Hans Kolvenbach, the Superior General of the Society of Jesus, said in his letter to the Superiors of the Society of Jesus on the international level, published two days after the crime was committed, that “in recent months our Curia received increasingly precise information that demonstrated an intensification of the violent threats. They were aimed at members of the hierarchy and the Jesuits and, nominally, the rector of the UCA. It was not just a case of humiliating measures against the personnel, Jesuit or not, devoting themselves to the numerous refugees. Nor was it a question of just intimidating bombs placed in the immediate vicinity of the university residence, but rather a deliberate and violent press campaign that called for the expulsion of certain Jesuits.”

The written testimony of then-US military adviser in El Salvador Eric Buckland backed up Kolvenbach’s argument, although he later retracted it. According to Buckland, Lieutenant Colonel Avilés told him ten days before the launching of the guerrilla offensive: “I’m going to have to say something. Colonel Ponce and I are very concerned about [Colonel Guillermo] Benavides. He keeps talking about killing the Jesuits.”

The day of the crime

The death of the six Jesuits and their two domestic workers in the early hours of November 16 was thus a case of a death foretold. A 30-member unit of the Atlacatl battalion went on to the UCA campus two days after an exhaustive search of the priests’ house that had all the earmarks of an exploratory operation.

The hundreds of testimonies on the case collected over the years have revealed the details of how the crime was committed. On entering the Monsignor Romero Pastoral Center, the perpetrators symbolically shot up a photograph of the martyred Archbishop. At a certain moment, Father Martín Baró, who opened the door to them, told them: “This is an injustice. You are carrion.” Antonio Ávalos killed Fathers Juan Ramón Moreno and Amando López, while Oscar Amaya Grimaldi, “Pilijay” [“executioner” in Nahuatl] shot Ignacio Ellacuría, Ignacio Martín-Baró and Segundo Montes in the yard. Father Joaquín López y López came out of his hiding place when he heard the shots, saw the bodies and immediately went inside. When the soldiers outside said “Come here, comrade,” the father ignored them and Corporal Ángel Pérez Vásquez shot him. And finally, Tomás Zarpate, who was guarding Elba Julia Ramos and her 16-year-old daughter Celina, shot them both repeatedly; they died in each other’s arms. As the group left the university premises, they left painted messages daubed on the walls to make it seem the FMLN was responsible: “The FMLN settled scores against the opposition spies. Vanquish or Die.” They then launched two flares as a sign to withdraw.

A rigged trial

In September 1991, less than two years after the massacre, following tremendous national and international pressure, an orchestrated trial was conducted in which only two were found guilty: Colonel Guillermo Benavides, director of the Military School and coordinator of the operation, and Lieutenant Yussy Mendoza, field operations commander. Another 12 indicted were acquitted because they were just “obeying orders,” which contradicts the whole history of international law in the area of war crimes and crimes against humanity based on the 1945 Nuremberg trials. Nor were any of Benavides’ superiors even charged, despite testimonial evidence for trying several of them. In March 1993, by a simple majority with the combined votes of the ARENA, National Conciliation Party and Authentic Christian Movement representatives, the Legislative Assembly passed the General Amnesty Law for the “Consolidation of Peace.” As a result, the only two people sentenced for the crime were released.

Six years on, the Inter-American Commission on Human Rights ruled that during the war the State of El Salvador had violated victims’ rights to life and judicial guarantees. The IACHR recommended that a “complete, impartial and effective” investigation be conducted in accordance with international criteria to identify, prosecute and sentence all groups responsible for the crimes. It also ruled that El Salvador should compensate the groups affected and adjust its internal laws to comply with the American Convention on Human Rights, including revocation of the Amnesty Law.

A list of fifteen

This regrettable history meant having to resort to international law in 2008. At that time, the suit for state terrorism, crimes against humanity and covering up such crimes filed in Spain covered 15 men. First on the list was then-President Alfredo Cristiani, followed by Generals Rafael Humberto Larios, Rene Emilio Ponce, Juan Rafael Bustillo and Juan Orlando Zepeda; Colonels Inocente Orlando Montano, a US resident, and Francisco Helena Fuentes; Lieutenant Colonel Carlos Camilo Hernández Barahona; Lieutenants José Ricardo Espinoza Guerra and Segundo Gonzalo Guevara Cerritos; Sargent Antonio Ramiro Ávalos Vargas; Second Sargent Tomás Zarpate Castillo: Corporal Ángel Pérez Vásquez and Privates Oscar Mariano Amaya Grimaldi, whose whereabouts are unknown, and José Alberto Sierra Ascencio.

Negotiations to save Cristiani

Less than a month later, according to a US Embassy cable later published by Wikileaks, Oscar Santamaría and Salvador Samayoa—the first a former foreign minister and government signatory of the Peace Accords and now responsible for international affairs in ARENA’s national executive committee, and the second a former FMLN leader and also Peace Accords signatory, who later became an official in the government of Antonio Saca—travelled to Spain where they met twice with Fernando Burgos Pavón, deputy prosecutor for the National High Court, and Trinidad Jiménez, the Spanish Foreign Relations Ministry’s Secretary of State for Latin America. According to Santamaría, the journey was made at Alfredo Cristiani’s request with a single purpose: to get his name off the list of accused. In the same period, Enrique Borgo Bustamante, Vice President during Armando Calderón Sol’s administration (1994-1999), also met with the Spanish National Court prosecutor for the same reason. The cable claims his requests and argument that this would affect his country’s reconciliation process were met with understanding and words of support.

Although nothing else is known about this trip, the efforts appear to have been fruitful because when it accepted the case in 2009, the National Court of Spain indicted the 14 former Salvadoran officers and enlisted men of crimes against humanity and state terrorism, but excluded Cristiani from any charges. Apparently what was discussed during those visits weighed more heavily than the testimony of then-Minister of Defense Rafael Humberto Larios, who said that in a meeting of November 15, 1989, considered a key moment in formulating the order to kill the Jesuits and other public figures, such decisions would be discussed with Cristiani and “if there is a counter-order after consulting with the President, it will be communicated to them.” Although the military chief who took the minutes for that meeting recorded that “there was no counter-order” from the President, Cristiani was exempted under the argument that there wasn’t enough evidence in his case and that the crime he was accused of—cover-up—isn’t covered by the legislation related to international prosecution.

20 soldiers convicted

Between 2009 and May 2011, the trial continued with few incidents of public interest. The death of General René Emilio Ponce weeks before the National Court verdict saved him from having to assume any consequences for at least one of the many crimes he committed as head of the Chiefs of Staff and subsequently as defense minister.

On May 30, Judge Eloy Velasco convicted not only the 14 military men identified in the lawsuit, but added Yushy Mendoza and Guillermo Benavides, the two amnestied in 1993; Joaquín Arnoldo Cerna Flores, then-head of the Joint Chiefs of Staff; León Linares, the colonel in charge of the Atlacatl Battalion in November 1989; and two members of the National Intelligence Office at the time, Carlos Mauricio Guzmán Aguilar and Héctor Ulises Cuenca Ocampo. Even if justice was limited to this case, the conviction raised new hopes among Salvadorans, as Jesuit Jon Cortina had reflected in 1992: “If the fact that my colleagues were Jesuits forces a reopening of the case and an exemplary punishment, it would at least show a desire for a little bit of justice to be done. So I think many people would feel that the cases of their relatives, who died in very similar ways, had also been judged in some way.”

INTERPOL’s red notice

On August 4, INTERPOL issued what it calls an “international red notice” against 9 of the 20 people found guilty in the Spanish court’s May 30 verdict. According to a communiqué from the Salvadoran President’s office, the National Civil Police initiated proceedings to apply the red notice immediately upon receiving it.

What does applying this INTERPOL measure involve? INTERPOL guidelines explain that red notices are issued “to seek the provisional arrest of a wanted person with a view to extradition based on an arrest warrant or court decision.”

This was the second red notice to arrive in El Salvador in 2011. Back in mid-May, former Guatemalan lieutenants Juan José Pineda Vásquez and Genaro Pineda Rojas were arrested in El Salvador and released several times in a messy process in which there was confusion first over the role of a Salvadoran court, which on May 13 simply sentenced them to public service for drug possession, and the second time over the existence or not of the red notice and its purpose. In that case it had been issued on behalf of the United States, which wanted the men extradited to face charges on trying to enter the US with 1.6 kilos of heroine.

In the end El Salvador’s Supreme Court determined that they should be arrested and extradited. The Court argued that the issuing of the red notice against the two men was “done in the framework of international juridical cooperation, in the specific case of the extradition treaty between the Republic of El Salvador and the United States of America.” The decision was consistent with Article 327 of the Penal Procedures Code (CPP) in force in El Salvador, which establishes that “the police shall proceed to arrest a person, even without a judicial order” when “there is a red notice or circular from international police institutions with respect to that person.” But by that time the two men had been turned over to the Guatemalan Embassy.

A backward step?

In the case of the August 4 red notice related to the Jesuits, other interests were at play. El Salvador’s National Association of Private Enterprise (ANEP) stated in a communiqué that “the business sector views it as a backward step for our democracy and the reconciliation achieved following the signing of the peace accords that an attempt be made to prosecute already tried events from the war, even violating our very Constitution of the Republic by not respecting the agreed-to amnesty.” In following lines it went so far as to threaten the governing party: “Opening this page of history will have consequences for the FMLN as well.”

General Vargas warns that
“a tsunami is coming”

General Mauricio Vargas became the main spokesperson for the accused. Vargas is a member of “La Tandona”—the Military School’s 1966 graduating class, whose colonels headed up most of the operations against the insurgents during the war and have vigorously opposed most investigations into the crimes committed by the army at that time. He was personally highlighted in the Truth Commission Report for his privileged role in war crimes and crimes against humanity.

He paraded on all morning television interview programs, insisting repeating that the trial in Spain against the former officers was illegal, violated national sovereignty and could even lead to a rupture of El Salvador’s peace process. In his crusade to sow panic among the population, he compared the possible consequences of extradition to a “tsunami that’s allowed to come, and then it’s every man for himself…!” At the same time he made a surely subconscious allusion to a separation between the Armed Forces and the State, delimiting with the utmost naturalness the differences in their obligations and positions, not acknowledging that the Armed Forces are part of the State and their Commander in Chief is the President of the Republic. Hardly ignorant of our political system’s basic reality, he appeared intent on making sure his idea of how “things must work” prevailed.

“It’s a terrorist offensive”

The Association of Military Veterans of El Salvador (ASVEM) remained silent for several days. Vargas addressed the public in a personal capacity and not as an ASVEM director. But finally the veterans asked the Salvadoran judicial authority to stop “the continuation of the National Court of Spain’s political-juridical aggression, represented by Judge Eloy Velasco” and warned ASVEM’s members to “be prepared to reject this persecution, which is nothing more than a new terrorist offensive supported from abroad against the FAES [Armed Forces of El Salvador] and the Salvadoran State.”

On August 12, retired officers marched to the Spanish Embassy. According to La Prensa Gráfica, the participants included important members of ARENA, such as parliamentary representatives Roberto D’Aubuisson Jr.; Ernesto Angulo; Roberto Ávila, the brother of former presidential candidate Rodrigo Ávila; and Mario Acosta Ortel, an ARENA leader who gave up his party post early this year after a scandalous domestic violence case.

ARENA’s official party declarations were made by Oscar Santamaría, who rejected the extradition request as inadmissible: “What should be applied is a general pardon. And that pardon is what the Amnesty Law is about; it was precisely for that reason that we passed it.”

FMLN secretary general Medardo González remarked that it was important to the country “for justice to be done, so that impunity doesn’t end up prevailing.” Without committing himself any further, he expressed his confidence that the Supreme Court would resolve the case.

Detained or safeguarded?

On the afternoon of Sunday, August 7, three days after INTERPOL issued its red notice but before the National Civil Police arrived to arrest them, the nine on the INTERPOL list turned themselves in to the Special Military Security Battalion (BESM). The next morning, Defense Minister David Munguía Payés assigned them to 12th Justice of the Peace Roberto Calderón “for the corresponding legal processing.”

The nine explained that while they did not recognize the legality or legitimacy of the international arrest warrant, they were turning themselves in as an act of “voluntary preventive detention.” According to Justice Mirna Perla, of the Supreme Court’s Civil Bench, “No subject can detain himself. According to the basic concept of detention, this is defined as the provisional depriving of freedom ordered by the competent authority.” Nonetheless, the fact that it was done was enough to stop the police application of the red notice. Seventeen days after its issuance, the nine were able to meet on their own ground with their own rules and Justice of the Peace Calderón sent the case to the Plenary Court, which in El Salvador is the Supreme Court’s highest authority, made up of its 15 full members.

Funes argues that
“we can’t get them out”

President Funes told the press that “we can’t just go and get them out and take them prisoner to any place that occurs to us.” He explained that it was the judge who had to decide “and the judge has decided to leave them there.” While he also made it clear that “in any case they are under arrest; at no moment have they been refugees, as has been claimed,” they continued to be called both refugees and “protected.” Some nongovernmental human rights organizations supported a group of relatives in two sit-ins, one in front of the place where the former soldiers were held. They demanded justice, explaining that it had to start with the proper arrest of the accused. Their communiqué was signed by the Concertation for Peace, Dignity and Social Justice, the National Movement in Defense of the Lands of Indigenous, Peasant and Urban Communities of El Salvador, the Patria Exacta Movement, the Passionist Social Service, the Permanent Roundtable for Labor Justice, the Monsignor Romero Concertation and the Foundation for the Application of Law. Different leftwing political analysts made the same proposal on numerous television programs dedicated to the issue at the time.

The Salvadoran Court
vs. the Spanish court

For the accused, the Plenary Court was the safest place to have their case resolved, based on two favorable precedents. First, in 2010, when the National Court of Spain asked El Salvador’s Supreme Court for a report on the case of the murdered Jesuits, the latter refused on the grounds that the country is forbidden from trying people for the same crime twice. It argued that the accused had already been tried in El Salvador; that such cases were covered by “res judicata”; and that the case of some of those tried had been dismissed, others had been pardoned by amnesty, and yet others were protected by the statute of limitations, thus extinguishing any kind of penal responsibility. Second, it determined that agreeing to the requested cooperation would run against the Salvadoran State’s “essential interest” of preserving national peace and reconciliation following the conflict of the 1980s.

These arguments carried little weight with the Spanish National Court, which had considered the trials conducted in El Salvador to be “fraudulent,” basing its case on the 1999 ruling by the Inter-American Commission on Human Rights. It further reminded the Supreme Court that amnesty isn’t applicable to crimes against humanity and that, according to Article 244 of El Salvador ‘s Constitution, “the violation, contravention or alteration of constitutional dispositions will be particularly punished by the law, and the civil or penal responsibilities incurred by public, civil or military officials to that end will not allow amnesty, commutation or pardon during the presidential period during which they were committed.” The massacre of the Jesuits and the two women took place in the same presidential period during which the Amnesty was decreed.

A court allied with the accused?

With these precedents, the “safeguarded” former armed forces members could be relatively sure the Supreme Court’s refusal to collaborate with the Spanish National Court presaged political support from the Plenary Court rather than legal deliberation.

It was enough for them to remember Alfredo Cristiani’s recent words regarding the situation generated by Decree 743, quickly pushed through the Legislative Assembly by the rightwing parties to tie the hands of the Supreme Court’s Constitutional Bench. Cristiani explained at the time that the legislators’ haste was motivated by fear that the Bench might revoke the Amnesty Law, which he described as the “cornerstone of our democracy.” A week later, arguing that ARENA was looking to revoke Decree 743, which they themselves had pushed through, he had stated that he no longer harbored that fear because “it was certain that the Bench would not declare the Amnesty Law unconstitutional” and that, quite to the contrary, its members “would defend it.” The accused obviously were certain the Supreme Court would be their best ally in escaping the red notice.

The Court “hears” the report

And that’s exactly how it turned out. On August 9, less than 48 hours after the accused had shut themselves in at the BESM, the Plenary Court announced that it had heard “the report of the 12th Justice of the Peace, related to the accused soldiers’ voluntary presentation in the case of the assassination of six Jesuit priests in 1989.” At the same time, the Constitutional Bench heard writs of habeas corpus filed by the the defense attorneys for the accused against INTERPOL’s El Salvador division and against National Civil Police Director Carlos Ascencio.

Four of the five Constitutional Chamber justices—precisely the controversial “fantastic four” at the center of national attention earlier due to Decree 743—asked to be excused for different reasons, thus prolonging the agony. In the end, only Sidney Blanco was excused, as he had been an auxiliary agent of the attorney general during the 1991 trial and a witness for the National Court of Spain. The other three, including the Supreme Court President, abstained from participating in the sessions, despite the lack of permission. Mirna Perla and Marcel Orestes Posada participated, but, unhappy with the process and resolution, abstained from voting and from signing the resolution.

The Court reaches a decision

On August 25, the Court finally handed down its decision, signed by only 10 of the 15 justices. Contradicting INTERPOL’s own language, quoted above, they argued that a red notice only requires those liable for extradition to be sought and located, not arrested, and that the procedure used with the Guatemalan drug traffickers was mistaken. Under this logic, the Salvadoran State had already fulfilled its task. They further reaffirmed what was already known: that no extradition request had yet been received from the Kingdom of Spain and that when it arrived, if any doubts remained, “this Supreme Court of Justice is the only court competent to hear and rule on extraditions, and is therefore the single, supreme and unavoidable legal-political filter in this matter.” And finally, they clarified that the “gentlemen in question” had never been in preventive detention because the Court “is forbidden to decree or deny it.” Twenty-four hours later the BESM returned to normal as its visitors left the premises. The case was “closed.”

This case is obviously not closed. Fulfillment of the red notice was only a mechanism to prepare the ground for the extradition request Spain’s government will have to send the Salvadoran government at some point. But this round has come to an end and the murderers won. In this test of strength, it was clear that, despite being actors with little weight in the current national political scenario, the accused still have fierce and tenacious backing.

Questions still up in the air

The murderers, responsible not only for the eight deaths scrutinized in this case, but also for thousands of others throughout the war, will obviously enter the next round with a favorable correlation of forces. But many questions still remain in the background.

What kept the National Civil Police from making the arrest before the former soldiers sought refuge in the BESM? General Orlando Zepeda, one of the accused, explained on television that it was the group’s own decision to shelter in the BESM and was done without the prior knowledge of either the Defense Minister or the BESM commander, much less the President and Commander in Chief of the Armed Forces, Mauricio Funes.

This is hard to believe. Although La Tandona feels far superior to the current leadership of the Armed Forces, the accused aren’t as autonomous as they would like to appear, or as General Vargas alludes to when referring to the State and the Armed Forces as two different actors. It’s not very credible, particularly in a military institution, for the BESM doorman to have let them enter without orders from above. There has to have been some kind of prior negotiation in which the President must have had a role, as he’s the only person with command over both the Armed Forces and Police. It was probably a necessary negotiation, due to the broad support for the accused and the belligerence displayed in their extremely well-known stance of self-defense at any cost.

And the United States?

It’s no secret that the US government played an important role in the murder of the Jesuits. In addition to its having financed and trained the Atlacatl battalion that carried it out, two US military advisers spent the night of November 15 and the early hours of November 16 in the command center of El Salvador’s Joint Chiefs of Staff. In his testimony, Alfredo Cristiani mentions the support provided by two or three US advisers to the Joint Chiefs.

Furthermore the US Defense Department’s Defense Intelligence Agency (DIA) admitted at one point having had 85 documents containing information on the case, which it refused to hand over on the grounds that it would endanger US national security. Finally, over the course of 1990, it did give certain documents to the Society of Jesus, including a page of 25 or 30 lines, of which at least half are blacked out. All of this, plus information published by the Spanish daily El Mundo in 2009, which attributes to Colonel Milton Menjívar, then head of the military protection at the US Embassy in El Salvador, prior knowledge of the preparation to murder the Jesuits, indicates that US government officials could also be indicted at least of cover-up and possible even of a greater degree of participation.

That’s why it is essential to investigate the US government’s interest in the unfolding of the case. According to prosecuting attorney Almudena Bernabeu, the declassification of certain US government documents and that same government’s willingness to collaborate in the investigation were important in supporting the case filed with the Spanish National Court. In addition, the spokesperson for the State Department’s Bureau of Western Hemisphere Affairs told the press in August that they were still monitoring the case very closely and while they couldn’t comment on details because the cases were still open, they were working with the Justice Department to ensure that any request for help would be given due consideration.

What’s behind this change in attitude, if it really does amount to a substantial change? Could it, as US government spokespeople insist, be sincere concern for the respect of human rights even in the midst of savage violation of those same rights in Afghanistan, Iraq and Libya? Or, as others claim, might they just want to sacrifice old pawns who no longer serve them any purpose, so they can later request the extradition of figures such as Justice and Security Minister Manuel Melgar, an FMLN militant, in connection with the execution of four US Marines by FMLN commandos in 1985? The US government has been harassing the Funes government about this matter ever since the President took office.

The most painful question

It also needs to be asked why, having been so affected by this and hundreds of other massacres, Salvadorans didn’t take to the streets by the thousands to provide a counterweight to the military, which continues to insult their dignity. Why didn’t more people participate in the protest activities against the “safekeeping” of the former soldiers and officers? That’s possibly the most painful question of all. Finding answers is needed if the fight against impunity is to be strengthened.

Elaine Freedman is a grassroots educator and the envío correspondent in El Salvador.

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