WOLA: Advocacy for Human Rights in the Americas
1 Apr 2016 | Commentary

Historic breakthrough in the case of Jesuits murdered in El Salvador in 1989

What a U.S court’s decision to extradite a high-ranking military officer could mean for justice and human rights in El Salvador

After almost thirty years of impunity, there may finally be some measure of justice for the six Jesuit priests and two women murdered by the Salvadoran military in San Salvador in 1989.

A U.S. judge’s February 5 decision to extradite a high-level military officer to Spain means that a Spanish court of law will likely hear evidence and pass judgment on a group of Salvadoran military officers for their role in one of the most emblematic cases in the country’s civil war. Although the trial will take place in Spain, it will have repercussions in El Salvador—for domestic politics, for the rule of law, and for human rights.

When finally extradited, Salvadoran colonel Orlando Montano will face charges in Spain, where he and sixteen other Salvadoran military officers have been indicted for their role in planning and carrying out the murders of the Jesuits, five of whom were Spanish citizens. Because Spanish criminal procedure dictates that a trial may only proceed when one defendant is physically present in court, the case has been stalled. So, while it may be some time before Colonel Montano exhausts his last appeal and is actually sent to Spain, the decision means that the case against him and the remaining officers will go to trial.

We are already beginning to see the impact of the February 5 ruling: just after the decision, in response to a Spanish extradition request that had been pending for more than a month, El Salvador’s National Civilian Police (Policía Nacional Civil, PNC) suddenly acted to arrest four of the remaining sixteen implicated military officers, who are currently in El Salvador.

Spain first requested the extradition of the military officers in 2011. But the Salvadoran Supreme Court had refused the request, citing a 1993 amnesty proposal that was rushed into law five days after a United Nations-sponsored truth commission released a report naming officials thought to be responsible for human rights abuses. This law brought any investigation into who had ordered the killings to a halt.

Colonel Montano however, who was a Vice Minister of Defense in El Salvador at the time of the killings, had been living in the Boston area when he was convicted in a U.S. court on immigration fraud and perjury charges. While serving his sentence in a prison in North Carolina, Spain requested his extradition.

The murders in the early hours of November 16, 1989, at the priests’ residence on the Central American University (Universidad Centroamericana, UCA) campus, took place as the Salvadoran government unleashed a no-holds-barred campaign to fight off a rebel offensive. The university rector, Fr. Ignacio Ellacuría, was known for his efforts to broker a negotiated end to the war. Hardliners in the military and on the political right saw him and the other Jesuits as part of the enemy; in the context of the rebel offensive, they decided to silence them. An elite, U.S.-trained military unit was ordered to kill Father Ellacuría, along with all witnesses, and then cover-up the assassination to make it look like guerillas from the Farabundo Martí National Liberation Front (Frente Farabundo Martí para la Liberación Nacional, FMLN) had carried out the executions.

The killing of the priests shocked the world. Ellacuría and several of the priests had traveled widely to advance a negotiated end to the war and were well known in the United States and in Europe for their work. One of the priests, Fr. Segundo Montes, had been in Washington for meetings just two weeks before his death. The murders sparked outrage in the U.S. Congress, where a special panel led by Rep. Joe Moakley (D-MA) was set up to investigate the case. A year later, Congress voted to suspend half of U.S. military aid to El Salvador and to tie assistance to peace talks.

It has been a decades-long wait for justice in this case. In 1991, under intense international pressure, the Salvadoran government tried a colonel, two lieutenants, and the five soldiers who pulled the trigger.. No higher-level official was charged with a crime. Only the colonel and one of the lieutenants were convicted; they were released two years later.

This recent breakthrough in the case came about largely due to the efforts of San Francisco-based Center for Justice and Accountability (CJA) and their colleagues in Spain. In 2009, a Spanish court opened an investigation into the killings at the request of CJA and its partner, the Spanish Association for Human Rights. In 2011, based on witness testimony and extensive written evidence, the court ordered the indictment of 20 military men, and requested the detention and extradition of the defendants.

Now, in El Salvador, Colonel Montano’s imminent extradition is sparking new developments.

In January of this year, the Spanish court renewed its request that the Salvadoran government detain sixteen retired officers while a formal extradition request was filed. But, until the Montano decision, the PNC had taken no action. Then, on February 9, three days after the Montano decision, they made the four arrests. Since then, the PNC has announced they are searching for the other twelve defendants, including the then-commander of the top military academy and several former senior commanders in the armed forces. El Salvador’s president, Salvador Sánchez Cerén, has urged the defendants to turn themselves in.

While this is a positive step towards justice, it is just an initial one. The four arrested military men were among the group that had been tried in 1991. While it is encouraging that any arrests have been made, it is quite telling about the political sensitivity of the issue that no senior officials have been captured. It remains to be seen if other arrests are made. The arrests also mean that El Salvador’s Supreme Court will have to revisit its previous decision that the amnesty law prevents the extradition of the military officers; it is not yet clear how they will rule.

The recent arrests have already struck a nerve in El Salvador, where there has been pushback against the arrests and the possibility of extradition. The detained soldiers’ families held a press conference denouncing the arrests and calling them politicized. The conservative ARENA party and two of its small allied parties held a meeting with President Sánchez Cerén to express their opposition.

On the other hand, while developments in this case continue to unfold, the constitutional chamber of El Salvador’s Supreme Court is currently considering a challenge to the 1993 amnesty law’s constitutionality. A decision to overturn or modify this law would open the door to other trials, or at least, the demand for trials, of human rights abusers in El Salvador. And it is possible that the constitutional chamber could overturn the law—the makeup of the Supreme Court has changed in the last few years. The constitutional chamber in particular has turned over dramatically, and has shown little hesitation to make major and often controversial rulings it sees as defending the constitution and the rule of law. That could put a number of political and military leaders, mostly from the right although there would be a few from the left, at risk for criminal prosecution.

In the end, if military officers are extradited and/or if the court rules to change the application of the amnesty law, hardliners among the political elite and the military will feel threatened and are unlikely to accept the decision quietly. Political divisions will likely deepen in an already highly-polarized system.

In the coming weeks, we will see if the arrests truly bring an end to impunity in this emblematic case and what implications, if any, this will have for human rights cases in the country. The decision to extradite Colonel Montano could lead to a significant change in how El Salvador approaches historic human rights cases, and an even broader impact on the rule of law. At the very least, Colonel Montano’s extradition will likely lead to a public trial in Spain, where he and other military officers, whether present or not, are finally held accountable for their actions in the Jesuit case.

Colonel Montano can still file a last minute writ of habeas corpus seeking to prevent his transfer to Spanish custody, and U.S. government procedure requires the State Department to approve the extradition. While these could cause additional delays in the case, in all likelihood, the extradition will go through.

Despite the complicated political uncertainties surrounding this case, it is important to note that the ruling for Colonels Montano’s extradition is an extremely important step for human rights and the rule of law. While it would be best if this trial were taking place in El Salvador, holding the trial in Spain may bring a measure of justice and open the way for future domestic prosecutions.