IJCentral: International Justice Central

Justice and accountability can be a slow process, but it this case a dauntless lawyer is helping to make it happen.

November 1989. The cold war was in its last throws.  The Berlin wall had just fallen.  It was the first year of Bush Sr.‘s presidency.  To the south In San Salvador, the capital of El Salvador, the guerillas of the FMLN were making what would be their final assault against the Salvadorian Army, and the military struck back, but not at the armed enemy.  The Salvadoran military thought they could use the chaotic moment to rid themselves of a thorn in their side; a group of intellectuals and educators who were teaching democracy.  On the night of November 16th, 1989 uniformed troops armed with high power rifles murdered six Jesuit priests, their housekeeper and her daughter.  This same Salvadorian military had received a billion dollars in US aid, much of it military, and Dick Cheney, then Sec. of Defense, denied that any Salvadoran military personnel were involved in the killings.  Flash forward 20 years.

Last night Jim Goldston, Open Society Justice Initiative, recounted those days.  He was just out of law school and heading up the Americas Watch Office in San Salvador. Joining him on a panel at Open Society Institute were Robert Varenik, and Aryeh Neier, both of OSI, and Almudena Bernabeu, a brilliant young lawyer, working with The Center for Justice and Accountability,  who is spearheading an international case against the murderers. 

At the end of the civil war there was a UN sponsored Truth Commission. This Commission found that the vast majority of many hundreds of assassinations and disappearances were carried out by the Military, yet over all these years there have been only 7 convictions, the highest ranking a Colonel.  Following the revelations of the Truth Commission the government declared a general amnesty, effectively deflecting all future prosecutions.  When international pressure demanded some action, as in the case of the murdered priests, then a commission of inquiry coached witnesses to never mention higher ups, and even tampered with physical evidence, changing the barrels of guns that had been used in the crime. But family members, victims, and civil society continued to collect evidence in the case, and over the years the preponderance of evidence demanded action.  In El salvador a case against the highest ranking officials involved in the Jesuit murders went all the way to the Supreme Court.  The Court ruled that certain crimes against humanity were exempt from the amnesty and could be tried, but that a lower judge would have to declare them as “crimes against humanity.”  The lower judge refused, calling the murders a “common crime.”  So with all national remedies exhausted Almudena Bernabeu went international.

In 2006, working with the families of the Jesuit Priests, and the San Francisco based Center for Justice and Accountability (www.cja.org), Bernabeu took the case to the Audiencia Nacional, the Spanish High Court.  This is the same Court that brought Pinochet to bay, and is hearing the case of Guatemalan genocide.  And just last month, on January 13, 2009 the Spanish High Court agreed to hear the case against 14 Salvadoran defendants including General Ponce, former chief of the Joint General Staff of the Salvadoran Armed Forces and General Rafael Humberto Larios, Minister of Defense at the time, for crimes against humanity and terrorism. The judge may also indict former President Cristiani if the evidence warrants.

After 20 years, impunity in El Salvador may be coming to an end.

An excellent blog post by Raj Purohit and Amjad Atallah in the PSA blog, titled “International Justice Systems and the Muslim World: Why Bashir is Wrong” points out the absurdity of the argument saying that Sudanese President Omar al-Bashir should not be indicted by the ICC because it is acting as a tool of the west in its fight against the Muslim world.  Let’s not overlook the fact that the people targeted in Darfur by the al-Bashir regime are Muslims, so this argument doesn’t hold much water.  To the argument that if Israel is not charged with war crimes because they are protected by major powers, then Sudan shouldn’t be charged either, the authors say,“There is an obvious absurdity to the argument that as long as anyone can commit a war-crime, everyone should be allowed to commit a war-crime.” 

The problem of Israel’s conduct raises the issue of UN Security Council reform, because as long as the major powers can exercise veto power over resolutions, it is highly unlikely that a resolution will be passed asking the ICC to investigate Israel for committing war crimes.  And Middle Eastern countries should follow Jordan’s lead and join the ICC, because if Lebanon were a member state of the ICC in 2006, for example, it would have allowed the ICC to open a case against Israel.  As pointed out by the Costa Rican representative at a recent meeting of the UN Security Council regarding the Sudan/al-Bashir case, Costa Rica joined the ICC to gain some measure of protection from aggression by larger states with firepower, reasoning that the rule of law could be their shield.

If the evidence gathered by the ICC holds up, then al-Bashir, as well as Sudanese Minister for Humanitarian Affairs Ahmad Haroun and Janjaweed militia leader Ali Kushayb, both indicted by the ICC, they will someday be convicted of orchestrating a genocidal campaign to drive the people of Darfur from their land and into extinction.  Unlike the temporary ad-hoc tribunals for the former Yugoslavia and Rwanda, the ICC is a permanent court and will still be here after leaders like al-Bashir fall from power.  I’m convinced they will face their day at the Court.