Sometimes Justice Needs a Good Memory– And a Long Arm

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lawyers without borders / Repairing the System

The Central American University (UCA) campus is an oasis of calm in the bustle of San Salvador. One night in 1989 that calm was shattered when six members of its faculty, all Jesuit priests, and their housekeeper and her daughter became the victims of a political assassination. The priests were all involved in human rights work. One of them, the Rev. Ignacio Ellacuria (pictured above) was attempting to broker a truce between leftist rebels and the Salvadoran government. Reports soon surfaced indicating that the murders were the work of a Salvadoran military “death squad.” Prosecutions were begun in El Salvador but due to a combination of corruption and ineptitude never yielded convictions.

But the families of the victims and their lawyers eventually found an alternative path to justice. In 2009 they filed suit in Spain under a law that allowed Spanish courts to prosecute serious crimes even if they did not take place on Spanish soil. This law incorporated the concept of “universal jurisdiction” that holds that some crimes, like genocide and war crimes, are so serious that their punishment cannot be left to the discretion of the nations where they occur.

The Spanish prosecution proceeded slowly. But eventually a hearing took place at which eye witnesses testified that the accused were indeed guilty of either planning or carrying out the executions. The judge then issued an order that the defendants be brought to Spain to face trial. Requests for extradition were sent to the governments of El Salvador and also the United States where one of the accused, former Colonel Innocente Orlando Montano Morales now resided. The El Salvadoran government took no action, but the American government asked federal magistrate Hilary Swank to grant an extradition order against Colonel Montano which she did earlier this month.

So it now appears that twenty-five years after the crime, some justice will be done because the law showed itself to have both a good memory and a long arm. We should be grateful to the families who never forgot their loved ones as well as the lawyers and judges who produced this victory.

But I don’t think that law should stop there. The principle of of universal jurisdiction should be used in other contexts. Human rights activists complain of an “impunity gap” since small countries like El Salvador are called on their misdeeds, but rights abusers in powerful countries like China and the United Sates are left free to repeat their crimes

Some crimes are just too “hot” for the home country’s legal system to handle. Just as as the Salvadoran legal system was not capable of fairly adjudicating accusations that its military had murdered the Spanish priests at the Central American University, the U.S. justice system does not seem capable of facing up to the credible accusations that after 9/11 our military and security agencies routinely tortured persons suspected of connections with terrorism.

In El Salvador, they at least had a trial of sorts. Not only has no one been charged with a crime committed at Guantanamo or Abu Ghraib, but our elected officials are still striving mightily to see that American voters never know the true facts. That’s why The Center for Constitutional Rights(CCR) is trying to use universal jurisdiction statutes in countries like Spain to see whether Americans guilty of torturing detainees during the Bush administration can be held legally responsible for their actions.

The question immediately arises whether Americans can get a fair trial in a foreign country? But if we trust Spain to fairly adjudicate the guilt of Salvadorans, why not Americans? The real question at issue is not between true and false justice, but between justice and impunity. And let’s not forget that impunity encourages repetition.

We have created a global economy, Now we need to build a global legal culture to protect human rights. I think that new concepts like universal jurisdiction can play a valuable part in that culture. Whatever the final result in the CCR case American lawyers should be on the side of the victims of human rights crimes, not their perpetrators.

What do you think?

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1 Comment

  1. David Fielding says

    Universal jurisdiction is a breathtaking concept. Another example of its possible use would be on behalf of women suffering all forms of religious based violence and subjugation in Islamic fundamentalist areas of the world.


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