EQUIPO NIZKOR |
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IACHR REPORT ON THE MASSACRE OF THE JESUITS IN EL SALVADOR
REPORT Nº 136/99
CASE 10.488
IGNACIO ELLACURIA, S.J.; SEGUNDO MONTES, S.J.; ARMANDO LOPEZ, S.J.;
IGNACIO MARTIN-BARÓ, S.J.; JOAQUIN LOPEZ Y LOPEZ, S.J.;
JUAN RAMON MORENO, S.J.; JULIA ELBA RAMOS;
AND CELINA MARICETH RAMOS
EL SALVADOR
December 22, 1999I. SUMMARY
1. On November 16, 1989, the Inter-American Commission on Human Rights (hereafter "the Commission") received a petition from the non-governmental organization Americas Watch (hereafter "Americas Watch" or "the petitioners"), to the effect that the Republic of El Salvador (hereafter the "Salvadoran State", the "State" or "El Salvador") had violated the American Convention on Human Rights (hereafter the "American Convention") to the prejudice of six Jesuit priests and two women, who were executed extra-judicially by agents of the State. According to the complaint, these deeds occurred in the morning of that same day, at the residence of the Jesuit Order located within the premises of the Universidad Centroamericana "José Simeón Cañas" (hereafter "the UCA") in San Salvador. The Jesuit priests concerned were the Director of the UCA, Father Ignacio Ellacuría, 59 years old; the Vice Director Father Ignacio Martín-Baró, 47 years old; and the Rector of the Institute of Human Rights of the UCA, Father Segundo Montes, 53 years old, founder of Socorro Jurídico Cristiano [Christian Legal Aid] "Oscar Arnulfo Romero" and president of the Institute of Human Rights of that University, and Professors Armando López, Joaquín López y López and Juan Ramón Moreno. The women were Mrs. Julia Elba Ramos, who was employed as a cook in the residence, and her 15 year-old daughter, Celina Mariceth Ramos.
2. In additional submissions, the petitioners alleged that the crime was planned and carried out by agents of the State, belonging to the Armed Forces of El Salvador. They claimed that the investigation conducted by the Salvadoran authorities was ineffective, that the intellectual authors of the murders were never investigated despite serious evidence and witness testimony that implicated high-ranking officers, and that efforts were made to cover up the crime. Furthermore, the only two military personnel convicted of the murders were granted amnesty under the General Amnesty Law of 1993, with the result that they enjoyed absolute impunity for the crime.
3. For its part, the State requested that the case be set aside, because it considered it to have been "duly processed". The State also provided information concerning proceedings under domestic jurisdiction against the soldiers who were charged with the crime.
4. After examining the case, the Commission concludes in this report that the State violated the following human rights enshrined in the American Convention: the right to life (Article 4), the right to judicial guarantees and effective judicial protection for the relatives of the victims and the members of the religious and academic community to which the victims belonged (arts. 8.1 and 25), and the right to know the truth (arts. 1.1, 8.1, 25 and 13). It concludes moreover that the State has failed in its obligation to respect the rights recognized in the American Convention and to guarantee the full and free exercise of those rights (Article 1.1), and in its obligation to refrain from adopting domestic legal provisions that impede the enjoyment of the rights enshrined in the Convention (Article 2).
II. PROCEEDINGS BEFORE THE COMMISSION
5. On November 16, 1989, Americas Watch submitted a petition to the Commission alleging that military personnel of El Salvador had on that day executed six Jesuit priests, a woman working with them as a cook, and her 15 year-old daughter. The petitioners requested the Commission to seek the consent of El Salvador for an in loco visit, in order to investigate the murders and to demand proper protection for members of human rights and social service agencies. On the same day, the Commission transmitted the pertinent parts of the complaint to the Salvadoran State, and requested that it provide such information as it deemed appropriate within ninety days.
6. On November 29, 1989, the petitioners submitted a copy of the testimony presented by an eyewitness to the events. On December 5, 1989, the Commission transmitted this additional information to the State and again asked for the pertinent information.
7. On December 13, 1989, the petitioners presented a report prepared by the organization Christian Legal Aid "Archbishop Oscar Romero" on the summary executions that occurred in El Salvador on November 16, 1989. On February 21, 1990, the Commission received a note from the State referring to the report of the Archbishop's Legal Protection Office [Oficina de Tutela Legal del Arzobispado] concerning the investigations conducted by that office, but limited itself to noting that the report had been submitted to the Criminal Investigation Commission. On March 12, 1990, for the third time, the Commission requested the State to provide information within thirty days.
8. On August 22, 1990, Americas Watch submitted additional documentation in which it reported, among other things, on the inadequacy of the official investigations conducted to date, and charged that there was an ongoing campaign to cover up the crime. On August 28, 1990, the Commission transmitted the relevant portions of this communication to the Salvadoran State and requested a response within a period of 60 days. On November 9, 1990, the Commission reiterated to the State its request for information on the case. On March 20, 1992, a non-governmental organization, the Lawyers' Committee for Human Rights, (hereafter "the petitioners") replaced Americas Watch as the petitioner in the case, and presented additional information.
9. On October 19, 1992, the State requested that the case be set aside. On October 8, 1993, that request was reiterated. On November 3, 1994, the Commission transmitted the State's submission to the petitioners and requested that they present their observations on it within thirty days. That request was repeated on January 9, 1995, and on April 25, 1995. On June 14, 1995, at the request of the petitioners, the Commission granted them an additional period of 45 days to respond.
10. On May 3, 1996, the Commission placed itself at the disposal of the parties in order to arrive at a friendly settlement of the affair. On April 22, 1998, the petitioners declared that "they remained open to the possibility of participating in discussions to arrive at a friendly settlement, provided that the government accepted, as a starting point, the need to clarify the truth and establish the responsibility of the parties responsible for the violations committed in this case". The State, for its part, did not respond to the proposal of the Commission within the time limit set, and the Commission consequently proceeded as provided in the American Convention and the Regulations of the IACHR.
11. On February 8, 1999, the petitioners submitted additional information and requested that the UCA be considered a co-petitioner in the case. On March 16, 1999, the Commission transmitted this communication to the State, giving it a period of 30 days to present its final observations. The Commission expressly requested that it indicate "the points separating the parties with respect to the questions raised, and those points that were accepted, and that it refrain from repeating arguments" pursuant to Article 34.8 of the Regulations. At the date this report was approved, the State had not responded to the Commission's request.
III. POSITIONS OF THE PARTIES
A. The petitioners
12. The Commission will summarize the allegations of the petitioners under the following main headings: the murders and those responsible for them, materially and intellectually; the subsequent cover-up of the crimes; irregularities in the investigation; and the approval and application of the amnesty law.
1. The killings
a. Background
13. The petitioners point out that the facts of the case occurred during the final stages of the armed conflict that raged in El Salvador between 1980 and 1992. During those years, a Catholic religious order, the Company of Jesus (hereafter "the Company of Jesus") was in the forefront among those calling for a peaceful settlement of the conflict.(1) The petitioners maintain that in the years leading up to November 16, 1989, the date of the murders, Jesuit priests were the victim of various attacks by government officials and members of the Armed Forces, which culminated in the extra-judicial execution of the victims.(2)
14. With respect to this point, the petitioners point to statements and incidents that occurred during the three years before the extra-judicial executions. For example, the petitioners indicate that in 1986 legislators of the Alianza Republicana Nacionalista political party (hereafter "ARENA") launched a campaign to strip Father Ellacuría of his Salvadoran citizenship, and that subsequently they made common cause with other political figures such as the then President, Napoleon Duarte, who publicly accused the priest of being the "creator of the theory and concept of guerrilla rebellion."(3) The petitioners also indicate that the Salvadoran Armed Forces published a statement in which they accused Father Ellacuría of supporting the use of car bombs during the guerrilla campaign in the last months of 1988. The petitioners declare that a similar campaign was conducted against Father Segundo Montes.
15. In the same vein, the petitioners note that in 1989 Colonel Juan Orlando Zepeda, of the First Infantry Brigade, declared that the assassination of a public prosecutor had been planned within the UCA and he referred to that academic center as "a haven of terrorist leaders from which a strategy of attacks against Salvadoran citizens is planned and conducted."(4) The petitioners also maintain that the Vice-Minister of Public Safety, Colonel Inocente Montano, declared publicly that the Jesuits were totally dedicated to subversion.(5)
16. Moreover, the petitioners indicate that in March 1989 a grenade exploded in the electrical plant of the UCA. One week after the accusations made by Colonel Zepeda, the University press facilities were attacked with bombs. Subsequently, several explosive devices were thrown at the complex housing the press. In July, the press facilities were again bombed.
17. The petitioners relate that on November 11, 1989, the date of launching of the military offensive by the dissident armed group "Frente Farabundo Martí para la Liberación Nacional" (hereafter the "FMLN"), all radio broadcasters were given the order to connect with Radio Cuscatlán, the official station of the Salvadoran Armed Forces, over the national network. From that moment there was no further broadcasting of news on the struggle, and in its place government and military propaganda was carried. Some people called in, in search of their relatives; supposed citizens called in to advocate violence against members of the political oppositions, the labor unions, the church and non-governmental organizations. Some callers voiced support for killing Jesuits, and Father Ellacuría in particular. In one call, the Vice President of El Salvador, Francisco Merino accused Father Ellacuría of "having poisoned the minds of El Salvador's youth".
b. Material responsibility of State agents
18. The petitioners allege that the material authors of the extra-judicial executions were agents of the State, members of the Commando Unit of the Atlacatl Counterinsurgency Battalion (hereafter the "Atlacatl Battalion"), which operated under the orders of Col. Guillermo Alfredo Benavides. Company Commander Lt. Espinoza Guerra, Sub-Lt. Gonzalo Guevara Cerritos, and Lt. Yusshy Mendoza Vallecillos, who were accompanied by thirty-six soldiers, led the unit.
19. The petitioners relate the facts involved in the extra-judicial execution in the following manner:
The three lieutenants and the troops under their command proceeded towards the priests' dormitory where they awakened the priests and ordered them outside. The five priests who came out of the dormitory were ordered to lie face down on the ground while soldiers went inside to search for others. The lieutenant in charge, Espinoza, then gave the order to murder the priests. Oscar Mariano Amaya Grimaldi shot to death Father Ellacuría, Father Martín-Baró and Father Montes with an AK-47 specially-assigned to him for this mission. Sub-Sgt. Antonio Ramiro Avalos Vargas shot to death the other two priests, Fathers López Quintana and Ramón Moreno, with a standard military issue M-16 rifle. Immediately thereafter, although another soldier had shot Father López y López, when Cpl. Angel Pérez Vásquez went into the room where the priest had fallen, the dying man grabbed at his leg and Pérez Vásquez shot him to death. Sub-Sgt. Tomás Zarpate Castillo shot Mrs. Julia Elba Ramos, who worked as a cook in a nearby Jesuit household, and her 15 year-old daughter, Celina Mariceth Ramos. The soldier José Alberto Sierra Ascencio shot them again, this time killing them.
20. The petitioners relate that, subsequently, the soldiers simulated a confrontation in front of the priests' residence, in an effort to shift the blame for the deeds to the FMLN, and private Cerritos wrote up a sign reading: "We have executed the dirty informers. Victory or death…FLMN". Another soldier posted this sign on a door of the UCA.
c. Intellectual responsibility of State agents
21. The petitioners allege that Col. Benavides and the temporary platoon of soldiers from Atlacatl, identified as the material authors of the extra-judicial execution, were acting under the orders of high-ranking officers. In this respect, they point to two facts that prove the existence of orders from higher ups: first, the "scouting" or reconnaissance search of the premises that was done on November 13, 1989, with the unstated objective of studying the place where the murders would subsequently be carried out; and second, the lack of any immediate response form the military following the murders. The petitioners interpret these facts as showing that there was an order from above not to intervene.
22. The petitioners allege that the reconnaissance search conducted on November 13 was ordered by Col. Joaquín Arnoldo Cerna Flores, Chief of the C-3 of the Joint High Command of the Salvadoran Armed Forces(6), who in turn received the order from Col. René Emilio Ponce, Chief of Personnel of the Salvadoran Armed Forces. Col. Cerna Flores ordered Lt. Espinoza of the Atlacatl Battalion to conduct the search, and it was Espinoza who also led the murder mission three days later. According to the petitioners, about thirty-five members of the Atlacatl Battalion took part in the reconnaissance exercise, many of whom would also be involved in the murders. As well, Lt. Héctor Ulises Cuenca Ocampo, an officer of the Intelligence Service, was added to the group although he had no formal connection with the exercise(7). According to the petitioners, the soldiers made only a cursory inspection of the University premises, which as they maintain shows their lack of interest. The petitioners also cite the testimony of several witnesses to show, in contrast to earlier records, that more attention was devoted to the location of rooms and the features of the building itself than to the books and papers found in it.(8)
23. The petitioners also claim that the excuse offered by the Army for the reconnaissance mission is unsustainable. In fact, there were at that time already three security rings in place around the UCA, and the area was under military control. According to the petitioners Col. Ponce "claimed that he ordered the search in response to counter-intelligence reports of an FMLN attack and infiltration of the UCA campus. However, no evidence has been produced to corroborate that any counter-intelligence report was ever made, and the search turned up no evidence of guerrillas or weapons".
24. The petitioners claim, moreover, that the events immediately following the murders also point to senior officers as bearing intellectual responsibility for the crime. Despite the fact that the incident at the UCA "involved machine-gun fire, grenade explosions and the launching of a flare in the midst of the most highly guarded military zone in the city", the petitioners maintain that there was no immediate military reaction, nor is there even a record that the shooting was investigated, whereas such procedure is called for under standard military rules of conduct.(9) According to the petitioners, the only explanation for this lack of response is that "the High Command was well aware of what was happening at the UCA".(10) They point out that on the night of November 15, at 7.30 p.m., some 20 members of the High Command had met and had agreed that stronger measures were needed to defeat the FMLN. According to Lt. Ricardo Espinoza Guerra, who headed the operation, Col. Benavides gave the order at 11.15 p.m. that very night that the Jesuits should be killed.(11)
25. The petitioners consider that these conclusions are reinforced by those of the United Nations Commission on the Truth for El Salvador (hereafter the "Truth Commission"), in the sense that officers of the High Command decided to assassinate Father Ellacuría, and ordered that no witnesses be left alive.
2. The cover-up of the role of State agents
26. The petitioners claim that, according to the Truth Commission, high-ranking Salvadoran officers brought pressure during the investigation to ensure that soldiers made no reference in their legal testimony to the orders that they had received from above. Moreover, the petitioners allege that the daily logbooks of the Military Academy recording troop movements on the day had disappeared and were subsequently burned. Further, the barrels of the rifles used to commit the murders were destroyed and replaced, and consequently any ballistic tests conducted were meaningless.
3. Irregularities in criminal investigations and proceedings
27. The petitioners point out that the investigation of the crime was placed in the hands of the Investigations Unit of the Investigation Commission (hereafter the "Investigation Commission")(12) and the Special Commission of Military Honor of the Salvadoran Armed Forces (hereafter the "Honor Commission"). In the view of the petitioners, both of these agencies did everything possible to cover up the intellectual authors or responsibility of those who planned and ordered the crime, and they acted with incompetence and in bad faith. In fact, according to the petitioners, although there was serious evidence that senior officers had been involved in planning and covering up the crime, no official investigation was undertaken along these lines.
a. The Investigation Commission
28. In the opinion of the petitioners, the investigation for which the Investigation Commission was responsible suffered from the following shortcomings:
Delay in sealing off the scene of the crime, with the result that evidence was removed. After having sealed off the scene, the investigators overlooked some important pieces of evidence and destroyed others.
They failed to investigate the calls to the radio station of the Armed Forces, which in the days leading up to the murders had advocated that the Jesuits should be killed.
No military personnel were interrogated until more than a month after the murders.
Col. Benavides was not interrogated before he was charged, although he was the officer in charge of the area where the murders took place.
The logbooks of the Military Academy were not examined for evidence relating to movements, entries and exits of troops.
Prosecutors were not kept informed of the progress of the investigations.
There was no investigation into the destruction and cover-up of essential evidence by military personnel.
b. The Honor Commission
29. The petitioners indicate that on January 27, 1990, the president of El Salvador, Alfredo Cristiani, appointed a Special Commission of Military Honor to determine responsibility for the murders. The President took this step on the basis of information supplied by the United States Embassy, to the effect that Col. Benavides had supposedly confessed his involvement in the crime to the Director of the Investigations Unit.(13)
30. In less than one week, the Honor Commission announced the names of nine soldiers and officers presumably responsible for the murders. According to the petitioners, the report did not specify the method used for reaching such a conclusion.
31. The petitioners indicate, moreover, that there was no attempt to investigate any senior officers. On the contrary, the Truth Commission found that Rodolfo Antonio Parker Soto, legal adviser to the Honor Commission, had altered the testimony of witnesses implicating officers of the military High Command in the crime.
c. The Public Prosecutor's Office
32. The petitioners claim that on January 8, 1991, Henry Campos and Sidney Blanco, officials of the Public Prosecutor's Office who were working with the Fourth Criminal Court in charge of the case, resigned their positions because the Public Prosecutor was attempting to interfere in their investigation of the intellectual authors of the murders.
d. Criminal trial and procedural maneuvering following the judgment
33. According to the petitioners, only Col. Benavides, who was held to be responsible for the eight killings, and Lt. Mendoza, who was found guilty of the execution of the 15 year-old girl who died in her mother's arms, were convicted for the crimes. Espinoza, the commander of the company who led the soldiers on their murderous mission and gave the final order, was absolved of charges of homicide, as were all the other defendants.
34. The petitioners point out that the report of the Truth Commission, released in March 1993, concluded that officials of the High Command were involved in the murder. Moreover, that report revealed an extensive cover-up undertaken by the Investigation Unit and the Commission of Military Honor. Despite this, the State brought no charges against the officers named in that report.
35. The petitioners note that, despite the conclusions contained in the Truth Commission Report, El Salvador proceeded to issue an amnesty law that absolved from all liability, both civil and criminal, persons who participated in any way in political crimes, common crimes related to political crimes, and common crimes committed by at least 20 persons, prior to January 1, 1992.
36. The petitioners note that, by virtue of this amnesty law, the constitutionality of which was confirmed by the Supreme Court of Justice of El Salvador, Benavides, Mendoza and the various soldiers who were accused with them were set free, and all further investigations into the facts revealed in the Truth Commission's Report were suspended.
37. The petitioners ask that the Salvadoran State be found responsible for having violated articles 1, 4, 8 and 25 of the American Convention. They also seek condemnation of the State for violating articles 2 and 6 of the International Covenant on Civil and Political Rights. Finally, they seek a declaration that the State has violated the precepts of humanitarian law and has committed crimes against humanity.
B. The State
38. The State did not present its first submission to the IACHR with respect to this case until October 22, 1992. It limited itself therein to declaring that "the Government of the Republic reiterates that it will not shrink from its policy of promoting and defending human rights, and it requests the IACHR to set aside this case, because it has been duly processed, the persons guilty of the crime have been tried, and for the first time in the history of our country a high-ranking military officer has been convicted".
39. In this respect, the State declared that:
On November 16, 1989, the Jesuit priests Ignacio Ellacuría, Ignacio Martín-Baró, Segundo Montes, Armando López, Joaquín López y López and Juan Ramón Moreno, Mrs. Julia Elba Ramos and her daughter Celina Mariceth Ramos were assassinated in their residence located next to the Universidad Centroamericana José Simeón Cañas. For those crimes, proceedings were conducted in the Fourth Criminal Court against Col. Guillermo Alfredo Benavides, Lts. Yusshy René Mendoza Vallecillos and José Ricardo Espinoza Guerra, Sub-Lt. Gonzalo Guevara Cerritos, Sub-Sergeants Antonio Ramón Avalos Vargas and Tomás Zarpate Castillo and Privates Angel Pérez Vásquez, Oscar Amaya Grimaldi and Alberto Sierra Ascencio, all members of the Army.
After hearing evidence against the accused, the judge referred the case to the plenary Court. The Fourth Criminal Court set a public hearing for 9 a.m. on September 26, 1991, and proceedings continued until January 28, when the Tribunal of Conscience issued an acquittal for José Ricardo Espinoza Guerra, Gonzalo Guevara Cerritos, Antonio Ramiro Avalos Vargas, Tomás Zarpate Castillo, Angel Pérez Vázquez, Oscar Mariano Amaya Grimaldi and Jorge Alberto Sierra Ascencio, for the crime of murdering the victims referred to, while Guillermo Alfredo Benavides Moreno and Yusshy René Mendoza Vallecillos were convicted of the crimes of murder, the first for the killing of the victims Ignacio Ellacuría Beascochea, Ignacio Martín-Baró, Segundo Montes Mozo, Armando López Quintana, José Joaquín López y López and Juan Ramón Moreno Pardo, Elba Julia Ramos and Celina Mariceth Ramos, and the second for the murder of the child Celina Mariceth Ramos.
On January 23 of this year, a final verdict was handed down against Col. Guillermo Alfredo Benavides Moreno, sentencing him to 30 years in prison for the crime of murder against the persons referred to above. He was also convicted of the crime of proposing and conspiring to commit acts of terrorism. Lt. Yusshy René Mendoza Vallecillos was sentenced to 30 years in prison for the crime of murdering the child Celina Mariceth Ramos, and was also convicted of the crimes of proposing and conspiring to commit acts of terrorism, and got concealing a crime.
The Fourth Criminal Court also sentenced Lieutenant Colonel Camilo Hernández to three years in prison for the crime of cover-up.
Sub-Lt. Gonzalo Guevara Cerritos was also sentenced to three years in prison for the crime of proposing and conspiring to commit acts of terrorism.
40. On October 14, 1993, the State supplied supplementary information and reiterated its request to have the case set aside. That information consisted of two documents. The Assistant Judge of the Fourth Criminal Court, Luis Antonio Villeda Figueroa, had sent the first on September 24, 1993, to the Coordinator of Human Rights in the Office of the Public Prosecutor. It reviewed the facts of the case and its legal processing, and referred to the public hearing; the verdict of the jury; the sentences handed down, and the subsequent application of the amnesty law to those convicted. The second document was a report that was sent to the Public Prosecutor of the Republic by the Prosecutors Carlos Figeac Cisneros and Ricardo Marcial Zelaya Larreynaga, containing a similar summary and reporting that on December 19, 1990, the defense had brought an appeal against the decision to convict the nine soldiers, and that on April 8, 1991, the First Criminal Chamber of the First Section had confirmed, in all aspects, the ruling that had been appealed. The State reported as well that the sentence was handed down on January 23, 1992, and was appealed by the defense on January 30 of the year. The State also confirmed that the convicted persons were granted amnesty on March 24, 1993. Both of these submissions merely add that, pursuant Articles 1, 2 and 4 of the General Amnesty Law for Consolidation of the Peace, the convicted persons were granted amnesty and were subsequently released on April 1, 1993.
41. It remains to be noted that, although the IACHR transmitted to the State on May 3, 1996, the offer of its good offices to assist in arriving at a friendly settlement of the case, the State did not respond to that offer. Moreover, on March 16, 1999, the IACHR transmitted to the State additional information submitted by the petitioners, but to date El Salvador has not responded to that communication.
42. In light of the foregoing, and pursuant to the American Convention and the Statute and Regulations of the IACHR, the Commission will now proceed to decide the case on the basis of the considerations of fact and law set forth below.
IV. ADMISSIBILITY
A. Competence
43. The Commission is competent to examine the petition in question because it alleges violations of human rights protected by the American Convention, to which El Salvador is a State party. IACHR also has competence because the deeds alleged in the petition took place when the obligation to respect and guarantee the rights established in the American Convention was already in effect for the Salvadoran State.(14) The petitioners have standing to appear because they allege violation by a State party of the norms established in the American Convention. The Commission will now examine whether the case is admissible in light of the requirements established in Articles 46 and 47 of the American Convention.
B. Exhaustion of domestic remedies and timeliness
44. In the present case, the State has not expressly claimed an exception on the basis that domestic remedies were not exhausted. Consequently, the Commission considers that the State has tacitly waived this exception.
45. Indeed, as the Inter-American Court has declared, the exception of prior exhaustion of domestic remedies must be claimed expressly in the first stages of the proceeding.(15) If this is not done, the exception may be deemed to have been tacitly waived.
46. Nor has the State sought an exception on the grounds that the six-month time limit established in Article 46.1 of the Convention was not observed, for which reason the IACHR considers that the State has also tacitly waived this exception.(16)
47. Notwithstanding the foregoing, the Commission notes that, as both the State and the petitioners have indicated, the court of first instance issued a judgment on January 23, 1992, in the criminal proceedings held with respect to the extra-judicial executions and that that sentence was duly confirmed. On the other hand, the amnesty law was challenged on the grounds that it was unconstitutional, and the Supreme Court of Justice of El Salvador declared that appeal to be inadmissible.(17)
C. Duplication of proceedings
48. The IACHR considers that, on the basis of the information contained in the files, it is clear that the issues raised in the present case are not pending resolution in any other international forum. For this reason, the requirement established in Article 46.1 of the American Convention may be considered satisfied.
D. Characterization of the alleged facts
49. In the case under examination, the petitioners have presented evidence that, in principle, tends to characterize possible violations of arts. 1.1, 2, 4, 8 and 25 of the American Convention. The Commission therefore considers that the conditions established in Article 47 of the Convention are satisfied.
E. Conclusion on admissibility
50. On the basis of the considerations of fact and law set out above, the IACHR concludes that it is competent to examine the present case and that the requirements of admissibility set forth in arts. 46 and 47 of the American Convention have been satisfied.
V. ANALYSIS OF THE MERITS
51. Having determined its competence to hear the present case, and having established the admissibility of the petition, the Commission will now declare its position on the merits of the case, taking due account of the fact that the parties declined to subscribe to a process of friendly settlement, and that the Commission has sufficient elements to pronounce itself on the substance of the case.
A. Considerations on the facts of the case
52. In order to ensure a full understanding of the factual circumstances of the case in question, the Commission considers it useful to provide some details on the violent situation that was afflicting El Salvador at the time of the alleged violations and the circumstances surrounding the creation of the Truth Commission.
53. In this respect, it will be recalled that during the period in which the extra-judicial executions took place, an internal armed conflict, that had begun about 1980, had submerged the country in almost 12 years of violence, giving rise to many regrettable acts and thousands of deaths.(18)
54. The parties to the conflict were, on one hand, the government, and on the other hand the FMLN, which was created in 1980 through the merger of five armed dissident groups.(19)
55. The events in question occurred in the midst of the most important military offensive launched by the FMLN during the entire civil war. The FMLN military offensive began on November 11, 1989, following a severe attack committed on October 31, 1989, in the city of San Salvador, in which unidentified groups of the extreme right exploded a bomb in the headquarters of the National Federation of Salvadoran Workers' Unions (FENASTAS). This attack resulted in the deaths of 10 labor union leaders, and wounded 30 other people.
56. In the face of this offensive, the government declared a state of siege on November 12, 1989, and imposed a curfew from 6 p.m. to 6 a.m. On November 13, the senior military command decided to create a special security zone (Security Command) embracing the vicinity of the UCA. Also included in the security zone, and only a few blocks away, were the headquarters of the Estado Mayor (High Command), the Ministry of Defense, the Military Academy, the National Intelligence Directorate (DNI), the San Benito Battalion of the National Police, and two military residential compounds, Colonia Arce and Colonia Palermo. The command headquarters for the security zone was located in the Military Academy, and the Director of that academy, Col. Guillermo Alfredo Benavides, was appointed its commander.
57. Since the Military Academy does not normally have combat-ready troops at its disposal, sections of other units were stationed at the school, including 47 men of the Atlacatl Battalion.(20) Thus, the scene of the events was totally militarized and under the control of the National Army, which maintained a series of military surveillance posts in the Torre Democracia ["Democracy Tower"], in Colonia Arce, at the northern gateway to the UCA, on the periphery of the university campus, in the Ceiba de Guadalupe, and in the zone known as Colonia Jardines de Guadalupe.(21)
58. On November 15, after a meeting at which about 20 of the country's highest-ranking military officers was present, it was decided to escalate the military offensive against the FMLN. It was on that same night that the extra-judicial executions took place.
59. The armed conflict that provided the background to these extra-judicial executions came to an end on February 16, 1992, with signature of the El Salvador Peace Accord, in Chapultepec, Mexico City, between the Government and the FMLN.(22) The signing of this accord represented the culmination of peace negotiations, conducted under United Nations auspices, which had dragged on for more than three years (1989-1992). During that time, a series of peace agreements were signed: the Mexico City Agreements of April 27, 1991, created the Truth Commission, whose mandate was to investigate "serious acts of violence that have occurred since 1980, the social scars from which urgently demand that the public should know the truth".(23)
60. The accord provided that the Truth Commission should consist of "three persons appointed by the Secretary General of the United Nations, with the advice of the parties" to the accord.(24) The United Nations Secretary-General appointed Belisario Betancur (former President of Colombia), Reinaldo Figueredo Planchart (former Minister of Foreign Affairs of Venezuela) and Thomas Buergenthal (former President of the Inter-American Court of Human Rights). According to its mandate, the Truth Commission was to present a final report with its conclusions and recommendations, which was to be transmitted to the parties and to the United Nations Secretary General.(25) The Report of the Truth Commission, titled "From Madness to Hope: The 12-year war in El Salvador" (hereafter "the Truth Commission Report" was published on March 15, 1993.
1. Uncontroverted facts
61. The IACHR notes that several facts alleged by the petitioners have not been disputed by the State. Some of these facts are related below.
62. On the morning on November 16, 1989, six Jesuit priests were assassinated, as well as a woman who was employed for domestic duties, and her 15 year-old daughter, by agents of the Salvadoran Armed Forces in the Centro Pastoral of UCA. The victims were the Jesuit priests Ignacio Ellacuría, Ignacio Martín-Baró, Segundo Montes, Armando López, Joaquín López y López and Juan Ramón Moreno, Mrs. Julia Elba Ramos and her daughter Celina Mariceth Ramos, 15 years of age.
63. President Cristiani assigned responsibility for investigating these extra-judicial executions to the Investigation Commission, headed by Lieutenant Colonel Manuel Antonio Rivas Mejía.
64. Subsequently, the Minister of Defense of El Salvador established another investigative body, the Honor Commission, consisting of five officers and two civilians. On January 12, 1990, the Honor Commission presented its report to President Cristiani, implicating nine military personnel as responsible for the extra-judicial executions.
65. These nine soldiers were arrested and tried before the Fourth Criminal Court, presided over by Judge Ricardo Alberto Zamora (hereafter "Judge Zamora").
66. Judge Zamora instituted public proceedings against the accused on September 25, 1991.
67. Colonel Guillermo Alfredo Benavides, Director of the Military Academy, was accused of ordering the assassination of the priests. Lieutenant Yusshy René Mendoza Vallecillos, an officer of the Military Academy, and Lieutenants José Ricardo Espinoza Guerra and Gonzalo Guevara Cerritos, officers of the Atlacatl Battalion, were accused of participating in the operation. Sgt. Antonio Ramírez Avalos Vargas, Sgt. Tomás Zarpate Castillo, Corporal Angel Pérez Vázquez and soldiers of the Atlacatl Battalion, Oscar Mariano Amaya Grimaldi and Jorge Alberto Sierra Ascencio, were accused of being the material authors of the assassinations.
68. Two days later, on September 27 1991, the court rendered guilty verdicts solely against Colonel Benavides (who was found responsible for all the summary executions) and Lieutenant Mendoza (found responsible for murdering the child Celina Mariceth Ramos). The other defendants were acquitted of all charges of homicide.
69. In 1991, the State and the FMLN signed a set of historic accords in Mexico, calling among other things for creation of a Truth Commission with a mandate to investigate "the serious acts of violence that have occurred since 1980, whose impact on society urgently requires that the truth about them be made known to the public". On January 23, 1992, the final ruling in the case of the Jesuit murders was handed down.
70. Almost a month after this ruling was issued, on February 16, 1992, the El Salvador Peace Accord was signed in Chapultepec, Mexico, in which the work of the Truth Commission was linked to clarifying the record and preventing impunity. On March 15, 1993, the Truth Commission presented its report, which included the results of its investigation into the executions of the Jesuit priests and the two women. Colonel Benavides and Lieutenant Mendoza, who had been found guilty of the murders, were sentenced to prison terms of 30 years. In addition, the court convicted them of proposing and conspiring to commit acts of terrorism. The court also sentenced Lieutenants Espinoza and Guevara Cerritos to three years in prison for proposing and conspiring to commit acts of terrorism. Finally, the court convicted Lieutenant Colonel Hernández and Lieutenant Mendoza of cover-up. Their sentence was appealed by the defense on January 30, 1992, and was upheld by the Court of Appeals.
71. In its report, the Truth Commission identified agents of the State as the persons who had decided, planned and carried out the assassinations. With respect to the intellectual authors, the Commission noted that on November 15, 1989, in the presence and with the connivance of General Juan Rafael Bustillo and Colonels Juan Orlando Zepeda, Inocente Orlando Montano and Francisco Elena Fuentes, Col. René Emilio Ponce ordered Colonel Benavides to kill Father Ellacuría, and to leave no witnesses. None of the military officers identified in the report as the intellectual authors of the crime were tried before the Fourth Criminal Court. Moreover, the report determined that the execution operation was organized by the then Major Carlos Camilo Hernández Barahona and carried out by a group of soldiers from the Atlacatl Battalion, under the command of Lt. Ricardo Espinoza Guerra and Sub-Lt. Gonzalo Guevara Cerritos, accompanied by Lt. Yusshy René Mendoza Vallecillos.
72. The report also revealed the cover-up operation that was carried out by other agents of the State, in an effort to conceal the identity of both the direct and indirect authors of the murders. In fact, the report noted that the Chief of the Criminal Acts Commission, Colonel Antonio Rivas Mejía and Colonel Iván López y López were aware of the facts surrounding the events, and took steps to conceal them. In addition, the Truth Commission found that a member of the Honor Commission, the lawyer Rodolfo Antonio Parker Soto, had altered the statements of witnesses in order to protect high-ranking officers.
73. On March 20, 1993, only five days after the Truth Commission Report was released, the Legislative Assembly of El Salvador issued its Amnesty Decree No. 486.(26) That decree was challenged as unconstitutional before the Supreme Court of Justice of El Salvador, which declared itself incompetent to review the constitutionality of the decree, on the grounds that the amnesty constituted an "eminently political" act.(27) The persons convicted of the crime of murder, Colonel Guillermo Alfredo Benavides and Lieutenant Yusshy René Mendoza Vallecillos, were granted amnesty and were subsequently released on April 1, 1993.
2. Controverted facts
74. The facts of the case that are disputed by the parties relate exclusively to the nature of its investigation by Salvadoran authorities. The petitioners maintain that the official investigation was designed to prevent the truth from being discovered, in order to protect high-ranking officers of the Armed Forces. For its part, the State, while it has not responded individually to each of the claims made by the petitioners, maintains in general that "this case has been duly processed, the guilty persons have been convicted, and for the first time in the country's history a high-ranking military officer has been sentenced". The State adds that "the government has always made it a policy to investigate such cases carefully and to take the pertinent legal action".
75. In order to clarify the points in dispute, the IACHR will first examine the investigation that was conducted by the Truth Commission into the case in question, and which resulted in the conclusions published in its March 15, 1993 report. As noted above, the Truth Commission was created as the result of a peace agreement between the State and the dissident armed group, FMLN. The members of that Commission were moreover selected by the Secretary General of United Nations, with the advice and consent of the State and the FMLN.(28) In view of the circumstances surrounding the creation of the Truth Commission, and the appointment of its members, as well as the rigorous methodology employed and strength of the evidence collected, the IACHR considers that the impartiality, soundness and good faith of the Truth Commission are not open to question.
76. With respect to the methodology employed in the investigation, it should be noted that the members of the Truth Commission "examined documents in El Salvador and other countries; interviewed numerous participants, witnesses, victims and relatives; requested information from Government bodies; consulted court dossiers; visited places where incidents had occurred; and requested copies of instructions and orders given."(29)
77. As well, "in order to guarantee the reliability of the evidence it gathered, the Commission insisted on verifying, substantiating and reviewing all statements as to facts, checking them against a large number of sources whose veracity had already been established. It was decided that no single source or witness would be considered sufficiently reliable to establish the truth on any issue of fact needed for the Commission to arrive at a finding. It was also decided that secondary sources, for instance, reports from national or international governmental or private bodies and assertions by people without first-hand knowledge of the facts they reported, did not on their own constitute a sufficient basis for arriving at findings. However, these secondary sources were used, along with circumstantial evidence, to verify findings based on primary sources."(30)
78. Given the rigorous methodology used by the Truth Commission and the guarantee of its impartiality and good faith resulting from the manner in which its members were appointed (and in which the State itself participated), the IACHR considers that its investigation into this case is credible and as such must be taken into account, together with the alleged facts and other evidence submitted. Moreover, it should be noted that the State has not presented any allegations or evidence that would cast doubt on the conclusions of the Truth Commission, which the State itself created.
a. The Truth Commission Report
79. For the Truth Commission, the extra-judicial execution of the Jesuit priests constitutes an illustrative case of "violence against opponents by agents of the State", which it sees as part of a pattern of violence that characterized the internal armed conflict in El Salvador.(31)
80. Given the pertinence of the Truth Commission's investigation, the IACHR considers it important to transcribe, verbatim, the chapter of the report referring to the extra-judicial execution of the Jesuit priests, and the conclusions reached by the Commission:(32)
DESCRIPTION OF THE FACTS
In the early hours of 16 November 1989, a group of soldiers from the Atlacatl Battalion entered the campus of José Simeón Cañas Central American University (UCA) in San Salvador. They made their way to the Pastoral Centre, which was the residence of Jesuit priests Ignacio Ellacuría, Rector of the University; Ignacio Martín-Baró, Vice-Rector; Segundo Montes, Director of the Human Rights Institute; and Armando López, Joaquín López y López and Juan Ramón Moreno, all teachers at UCA.
The soldiers tried to force their way into the Pastoral Centre. When the priests realized what was happening, they let the soldiers in voluntarily. The soldiers searched the building and ordered the priests to go out into the back garden and lie face down on the ground.
The lieutenant in command, José Ricardo Espinoza Guerra, gave the order to kill the priests. Fathers Ellacuría, Martín-Baró and Montes were shot and killed by Private Oscar Mariano Amaya Grimaldi, Fathers López and Moreno by Deputy Sergeant Antonio Ramiro Avalos Vargas. Shortly afterwards, the soldiers, including Corporal Angel Pérez Vásquez, found Father Joaquín López y López inside the residence and killed him. Deputy Sergeant Tomás Zarpate Castillo shot Julia Elba Ramos, who was working in the residence, and her 16-year-old daughter, Celina Mariceth Ramos. Private José Alberto Sierra Ascencio shot them again, finishing them off.
The soldiers took a small suitcase belonging to the priests, with photographs, documents and $5,000.
They fired a machine gun at the façade of the residence and launched rockets and grenades. Before leaving, they wrote on a piece of cardboard: "FMLN executed those who informed on it. Victory or death, FMLN."
Preceding events
A few hours earlier, on 15 November between 10 p.m. and 11 p.m., Colonel Guillermo Alfredo Benavides Moreno, Director of the Military College, met with the officers under his command. The officers present included Major Carlos Camilo Hernández Barahona, Captain José Fuentes Rodas, Lieutenants Mario Arévalo Meléndez, Nelson Alberto Barra Zamora, Francisco Mónico Gallardo Mata, José Vicente Hernández Ayala, Ramón Eduardo López Larios, René Roberto López Morales, Yusshy René Mendoza Vallecillos, Edgar Santiago Martínez Marroquín and Second Lieutenant Juan de Jesús Guzmán Morales.
Colonel Benavides told them that he had just come from a meeting at the General Staff at which special measures had been adopted to combat FMLN offensive, which had begun on 11 November. Those present at the meeting had been informed that the situation was critical and it had been decided that artillery and armoured vehicles should be used.
Those present at the meeting had also been informed that all known subversive elements must be eliminated. Colonel Benavides said that he had received orders to eliminate Father Ignacio Ellacuría and to leave no witnesses.
Colonel Benavides asked any officers who objected to the order to raise their hands. No one did.
Major Hernández Barahona organized the operation. Troops from the Atlacatl Battalion were used, under the command of Lieutenant José Ricardo Espinoza Guerra. In order to overcome any reluctance on his part, it was arranged that Lieutenant Yusshy René Mendoza Vallecillos, who had graduated from officer training school in the same class ("tanda") as him, would also participate.
After the meeting, Major Hernández Barahona met with Lieutenant Mendoza Vallecillos, Lieutenant Espinoza Guerra and Second Lieutenant Gonzalo Guevara Cerritos of the Atlacatl Battalion. In order to pin responsibility for the deaths on FMLN, they decided not to use regulation firearms and to leave no witnesses. After the murders, they would simulate an attack and leave a sign mentioning FMLN.
It was decided to use an AK-47 rifle belonging to Major Hernández Barahona, because the weapon had been captured from FMLN and was identifiable. The rifle was entrusted to Private Mariano Amaya Grimaldi, who knew how to use it.
In order to reach UCA, it was necessary to pass through the defence cordons of the military complex. Lieutenant Martínez Marroquín arranged for the Atlacatl soldiers to pass.
Lieutenants Espinoza Guerra and Mendoza Vallecillos and Second Lieutenant Guevara Cerritos left the Military College in two pick-up trucks with the soldiers from the Atlacatl Battalion. They went to some empty buildings which are close to the UCA campus, where other soldiers of the Atlacatl Battalion were waiting. There, Lieutenant Espinoza indicated who would keep watch and who would enter the Jesuits' residence.
Background
Members of the armed forces used to call UCA a "refuge of subversives". Colonel Juan Orlando Zepeda, Vice-Minister for Defence, publicly accused UCA of being the centre of operations where FMLN terrorist strategy was planned. Colonel Inocente Montano, Vice-Minister for Public Security, stated publicly that the Jesuits were fully identified with subversive movements.
Father Ellacuría had played an important role in the search for a negotiated, peaceful solution to the armed conflict. Sectors of the armed forces identified the Jesuit priests with FMLN because of the priests' special concern for those sectors of Salvadorian society who were poorest and most affected by the war.
On two earlier occasions that same year, 1989, bombs had gone off at the University printing house.
The offensive
The offensive launched by FMLN on 11 November reached proportions that the armed forces had not expected and which alarmed them. The guerrillas gained control of various areas in and around San Salvador. They attacked the official and private residences of the President of the Republic and the residence of the President of the Legislative Assembly. They also attacked the barracks of the First, Third and Sixth Infantry Brigades and those of the National Police. On 12 November, the Government declared a state of emergency and imposed a 6 p.m. to 6 a.m. curfew.
At a meeting of the General Staff on 13 November, security commands were created to deal with the offensive. Each command was headed by an officer under the operational control of Colonel René Emilio Ponce, Chief of the Armed Forces Joint Staff. Colonel Benavides Moreno was designated to head the military complex security command, a zone which included the Military College, the Ministry of Defence, the Joint Staff, the National Intelligence Department (DNI), the Arce and Palermo districts (most of whose residents were members of the armed forces), the residence of the United States Ambassador and the UCA campus.
A national radio channel was also established, the pilot station being Radio Cuscatlán of the armed forces. Telephone calls to the station were broadcast in a "phone-in" in which callers levelled accusations at Father Ellacuría and went so far as to call for his death.
On 11 November, guerrillas blew up one of the main gates of the University and crossed the University campus. The next day, a military detachment was stationed to watch who went in and out of the University. From 13 November onwards no one was permitted onto the campus.
On 13 November, Colonel Ponce ordered Colonel Joaquín Arnoldo Cerna Flores, head of unit III of the General Staff, to arrange for a search of UCA premises. According to Colonel Ponce, he ordered the search because he had been informed that there were over 200 guerrillas inside the University.
Colonel Cerna Flores entrusted the search to Lieutenant José Ricardo Espinoza Guerra, who took some 100 men from the Atlacatl Battalion. Lieutenant Héctor Ulises Cuenca Ocampo of the National Intelligence Department (DNI) joined the troops at the entrance to UCA to assist with the search. Lieutenant Espinoza Guerra personally directed the search of the Jesuits' residence. They found no signs of any guerrilla presence, war matériel or propaganda.
On completing the search, Lieutenant Espinoza Guerra reported to Major Hernández Barahona. He then went to the General Staff where he reported to Colonel Cerna Flores.
At 6.30 p.m. on 15 November there was a meeting of the General Staff with military heads and commanders to adopt new measures to deal with the offensive. Colonel Ponce authorized the elimination of ringleaders, trade unionists and known leaders of FMLN and a decision was taken to step up bombing by the Air Force and to use artillery and armoured vehicles to dislodge FMLN from the areas it controlled.
The Minister of Defence, General Rafael Humberto Larios López, asked whether anyone objected. No hand was raised. It was agreed that President Cristiani would be consulted about the measures.
After the meeting, the officers stayed in the room talking in groups. One of these groups consisted of Colonel René Emilio Ponce, General Juan Rafael Bustillo, Colonel Francisco Elena Fuentes, Colonel Juan Orlando Zepeda and Colonel Inocente Orlando Montano. Colonel Ponce called over Colonel Guillermo Alfredo Benavides and, in front of the four other officers, ordered him to eliminate Father Ellacuría and to leave no witnesses. He also ordered him to use the unit from the Atlacatl Battalion which had carried out the search two days earlier.
From 12 to 1.30 a.m. the next day, 16 November, President Cristiani met with the High Command. According to his statement, the President approved a new arrangement for using armoured units of the cavalry regiment and artillery pieces; at no time during this meeting was anything said about UCA.
The cover-up
During the early hours of the morning of 16 November, Major Carlos Camilo Hernández Barahona and Lieutenant José Vicente Hernández Ayala went in person to Colonel Ponce's office to report on everything that had happened at UCA. They reported that they had a small suitcase with photographs, documents and money which the soldiers had stolen from the Jesuits a few hours earlier. Colonel Ponce ordered it destroyed because it was evidence of the armed forces' responsibility. They destroyed the suitcase at the Military College.
On returning to his unit, Lieutenant Espinoza Guerra informed the Commander of the Atlacatl Battalion, Lieutenant Colonel Oscar Alberto León Linares, of what had happened.
President Cristiani entrusted the investigation of the crime to the Commission for the Investigation of Criminal Acts (CIHD).
Colonel Benavides told Lieutenant Colonel Manuel Antonio Rivas Mejía, Head of CIHD, what had happened and asked him for help. Mejía recommended that the barrels of the weapons which had been used be destroyed and replaced with others in order to prevent them from being identified during ballistic tests. This was later done with the assistance of Lieutenant Colonel Oscar Alberto León Linares.
Lieutenant Colonel Rivas Mejía also advised Colonel Benavides to make sure that no record remained of those entering and leaving the Military College that would make it possible to identify the culprits. Subsequently, Colonel Benavides and Major Hernández Barahona ordered that all Military College arrival and departure logs for that year and the previous year be burned.
Shortly after the investigation began, Colonel René Emilio Ponce arranged for Colonel Nelson Iván López y López, head of unit I of the General Staff, who had also been in charge of the General Staff Tactical Operations Centre during the entire night of 15 to 16 November, to join CIHD in order to assist in the investigation of the case.
In November, CIHD heard two witnesses, Deputy Sergeant Germán Orellana Vázquez and police officer Victor Manuel Orellana Hernández, who testified that they had seen soldiers of the Atlacatl Battalion near UCA that night; they later changed their statements.
Another witness also retracted her initial statement. Lucía Barrera de Cerna, an employee at the University, said that she had seen, from a building adjacent to the Jesuits' residence, soldiers in camouflage and berets. In the United States, where she went for protection, she was questioned by the Federal Bureau of Investigation (FBI) and retracted her earlier statement. Lieutenant Colonel Rivas Mejía, Head of CIHD, was present when she was questioned. Subsequently, she confirmed her original statement.
CIHD did not take a statement from Colonel Benavides, even though the incident had occurred within his command zone. According to the court dossier, the first statement Benavides made was on 11 January 1990 to the Special Honour Commission.
On 2 January 1990, a month and a half after the murders, Major Eric Warren Buckland, an officer of the United States Army and an adviser to the armed forces of El Salvador, reported to his superior, Lieutenant Colonel William Hunter, a conversation he had some days previously with Colonel Carlos Armando Avilés Buitrago. During that conversation, Avilés Buitrago had told him that he had learnt, through Colonel López y López, that Benavides had arranged the murders and that a unit from the Atlacatl Battalion had carried them out. He also said that Benavides had asked Lieutenant Colonel Rivas Mejía for help.
Lieutenant Colonel William Hunter informed the Chief of the United States Military Mission, Colonel Milton Menjívar, who arranged a meeting in Colonel Ponce's office where Buckland and Avilés were brought face to face. Avilés denied having given Buckland such information.
A few days after Buckland's statements were reported, the Minister of Defence established a Special Honour Commission, consisting of five officers and two civilians, to investigate the murders.
On learning what CIHD had found out, the Honour Commission questioned some 30 members of the Atlacatl Battalion, including Lieutenant Espinoza Guerra and Second Lieutenant Guevara Cerritos, and a number of officers of the Military College, including Colonel Benavides and Lieutenant Mendoza Vallecillos.
Lieutenants Espinoza and Mendoza and Second Lieutenant Guevara, as well as the soldiers who had participated in the murders, confessed their crime in extrajudicial statements to the Honour Commission.
A civilian member of the Commission, Rodolfo Antonio Parker Soto, legal adviser to the General Staff, altered their statements in order to delete any reference to the existence of orders from above. He also deleted the references to some officers, including the one to Major Carlos Camilo Hernández Barahona.
On 12 January, the Commission submitted its report to President Cristiani. The report identified nine people as being responsible for the murders, four officers and five soldiers; they were arrested and later brought to trial. Subsequently, newly promoted Lieutenant Colonel Carlos Camilo Hernández Barahona was included in the trial.
The pre-trial proceedings took nearly two years. During this time, Colonel (now General) René Emilio Ponce, Colonel (now General) Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel (now General) Gilberto Rubio Rubio pressured lower-ranking officers not to mention orders from above in their testimony to the court.
Finally, the trial by jury took place on 26, 27 and 28 September 1991 in the building of the Supreme Court of Justice. The identity of the five members of the jury was kept secret. The accused and the charges were as follows:
Colonel Guillermo Alfredo Benavides Moreno, Lieutenant José Ricardo Espinoza Guerra and Second Lieutenant Gonzalo Guevara Cerritos: accused of murder, acts of terrorism, acts preparatory to terrorism and instigation and conspiracy to commit acts of terrorism.
Lieutenant Yusshy René Mendoza Vallecillos: accused of murder, acts of terrorism, acts preparatory to terrorism, instigation and conspiracy to commit acts of terrorism and of being an accessory.
Deputy Sergeant Antonio Ramiro Avalos Vargas, Deputy Sergeant Tomás Zarpate Castillo, Corporal Angel Pérez Vásquez and Private Oscar Mariano Amaya Grimaldi: accused of murder, acts of terrorism and acts preparatory to terrorism.
Private Jorge Alberto Sierra Ascencio: tried in absentia for murder. Lieutenant Colonel Carlos Camilo Hernández Barahona: accused of being an accessory.
The jury had to decide only with respect to the charges of murder and acts of terrorism. The other charges were left to the judge to decide.
Only Colonel Guillermo Alfredo Benavides Moreno and Lieutenant Yusshy René Mendoza Vallecillos were found guilty of murder. The judge gave them the maximum sentence, 30 years in prison, which they are currently serving. The judge also found Colonel Benavides and Lieutenant Mendoza guilty of instigation and conspiracy to commit acts of terrorism. Lieutenants Espinoza and Guevara Cerritos were sentenced to three years for instigation and conspiracy to commit acts of terrorism. Lieutenant Colonel Hernández was also sentenced by the judge to three years for being an accessory and Mendoza Vallecillos was also convicted on that charge. Espinoza, Guevara and Hernández were released and continued in active service in the armed forces.
81. Having analyzed the facts, the Truth Commission stated its conclusions in the following terms:
There is substantial evidence that on the night of 15 November 1989, then Colonel René Emilio Ponce, in the presence of and in collusion with General Juan Rafael Bustillo, then Colonel Juan Orlando Zepeda, Colonel Inocente Orlando Montano and Colonel Francisco Elena Fuentes, gave Colonel Guillermo Alfredo Benavides the order to kill Father Ignacio Ellacuría and to leave no witnesses. For that purpose, Colonel Benavides was given the use of a unit from the Atlacatl Battalion, which two days previously had been sent to search the priest's residence.
There is evidence that, subsequently, all these officers and others, knowing what had happened, took steps to conceal the truth. There is sufficient evidence that General Gilberto Rubio Rubio, knowing what had happened, took steps to conceal the truth.
There is full evidence that:
That same night of 15 November, Colonel Guillermo Alfredo Benavides informed the officers at the Military College of the order he had been given for the murder. When he asked whether anyone had any objection, they all remained silent.
The operation was organized by then Major Carlos Camilo Hernández Barahona and carried out by a group of soldiers from the Atlacatl Battalion under the command of Lieutenant José Ricardo Espinoza Guerra and Second Lieutenant Gonzalo Guevara Cerritos, accompanied by Lieutenant Yusshy René Mendoza Vallecillos.
There is substantial evidence that:
Colonel Oscar Alberto León Linares, Commander of the Atlacatl Battalion, knew of the murder and concealed incriminating evidence.
Colonel Manual Antonio Rivas Mejía of the Commission for the Investigation of Criminal Acts (CIHD) learnt the facts and concealed the truth and also recommended to Colonel Benavides measures for the destruction of incriminating evidence.
Colonel Nelson Iván López y López, who was assigned to assist in the CIHD investigation, learnt what had happened and concealed the truth.
There is full evidence that Rodolfo Antonio Parker Soto, a member of the Special Honour Commission, altered statements in order to conceal the responsibility of senior officers for the murder.
82. The above extracts of the report show that senior officers of the official entities in charge of the investigation concealed the identity of the intellectual authors, as well as of most of the material authors, of the extra-judicial executions.
83. In effect, the report concludes that Colonel Antonio Rivas Mejía, Chief of the Investigation Commission, the agency that was initially in charge of the investigation, "knew the facts of the case and concealed the truth" and "recommended to Colonel Benavides that he take steps to destroy incriminating evidence"(33). As well, Col. Nelson Iván López y López, of the Investigation Commission, also concealed the truth of the events(34). With respect to this officer, it is important to note that he was assigned to the Investigation Commission by Colonel René Emilio Ponce, to whom the Truth Commission attributes the decision, together with other officers, to arrange the extra-judicial executions and to order Colonel Benavides to carry them out.(35) With respect to the Special Honor Commission, one of its members, the lawyer Rodolfo Antonio Parker Soto, " altered statements in order to conceal the involvement of high-ranking officers in the assassinations."(36)
84. With respect to the material authors of the crime, the report states: "The only persons found guilty of murder were Colonel Guillermo Alfredo Benavides Moreno and Lieutenant Yusshy René Mendoza Vallecillos", who were officers of the Military Academy. In other words, none of the members of the Atlacatl Battalion, whose involvement was expressly recognized by the Truth Commission, were convicted of the murder, despite the fact that Lt. Espinoza, Lt. Guevara Cerritos and the other four members of the battalion confessed their crimes in their extra-judicial statements.
85. The Truth Commission's report states in this respect that there is substantial evidence to show that Col. René Emilio Ponce gave Col. Benavides "the order to kill Father Ellacuría and to leave no witnesses" and that "to this end he was to use a unit of the Atlacatl Battalion". The report then states, among other things, that there is full evidence that subsequently all of these officers, and others who were aware of the events, took steps to conceal them. The report adds that there is substantial proof that Col. Oscar Alberto León Linares, Commander of the Atlacatl Battalion, knew of the murders and concealed incriminating evidence.
86. The circumstances as documented show that senior officials in charge of the investigation set themselves the objective of preventing a complete, impartial and effective investigation, and of covering up the involvement of specific perpetrators. In fact, given that the officials mentioned in the preceding paragraphs knew the truth and concealed it, there is no doubt that the investigation was designed to conceal the full truth in order to prevent the prosecution and punishment of all the authors of the extra-judicial executions.
b. Other evidence reinforcing the conclusions of the Truth Commission
i. Former prosecutors Henry Campos and Sidney Blanco
87. For greater certainty, the IACHR has also considered the public statements made by Henry Campos and Sidney Blanco, former prosecutors assigned to the investigation of the case. Those former State officials declared in a televised interview that there was no desire on the part of official agencies to conduct a real investigation.(37) In that interview, they announced that they were resigning their positions, because the Public Prosecutor had consistently placed obstacles in their efforts to undertake a serious and full investigation of the extra-judicial executions.
88. In this respect, the former prosecutors declared that the Public Prosecutor had prohibited them from attending the questioning of certain witnesses and from cross-examining them. The Public Prosecutor also prevented them from taking routine steps to shed light on the crime.
89. The former prosecutors declared that the first Public Prosecutor in charge of the case showed no interest in it and took no part in the proceedings. The new Public Prosecutor, for his part, placed severe restrictions on the prosecutors working on the case to prevent them from fulfilling their duty, and this led them to resign. The former officials related that they suffered considerable pressure to abandon their pursuit of the case.
90. Former prosecutor Blanco stated moreover that "any person who takes the trouble to examine the record will arrive at the very logical conclusion that in this case, Col. Benavides could not have acted alone, and that he must have had the support of other, high-ranking officers in order to take such an important decision". The former officials explained that the involvement of senior military officers in the murders is clear from the decision to carry out the initial house search, and from the failure of the Armed Forces to respond immediately when shooting erupted.
ii. Corroboratory reports on the investigation and prosecution of the murder of the Jesuits
91. It should be noted that several academic, professional and non-governmental entities submitted reports on the investigations and on the trials relating to this case. Those reports offer conclusions consistent with those of the Truth Commission.(38)
92. One such report was prepared by the International Human Rights Law Institute of De Paul University, Chicago, which was invited by the president of the Supreme Court of El Salvador to send an observer to the Jesuit murders trial.(39) The report notes that the State did not conduct a serious investigation into the possible involvement of high-ranking military officers. On the contrary, it finds that the military conducted a series of cover-up operations intended to conceal the identity of those responsible. As well, the report finds that the investigation conducted by the Investigation Commission and the Honor Commission lacked all credibility. In particular, it declares that neither of these entities has been able to justify the manner of identifying the nine officers who were tried.
iii. The Investigation Commission
93. The judicial summary, to which are added the extra-judicial reports of the Investigation Commission, the body that was originally responsible for the investigation, provides sufficient evidence to show that that Commission failed to carry out a full and timely investigation, and that essential evidence disappeared, or was even destroyed. This allowed the military to organize a far-reaching cover-up operation. A graphic example is the destruction of the log books of the Military Academy, since when Judge Zamora asked for them, it was found that they had been incinerated in December 1989.
94. With respect to the incineration of the entry and exit records, Lt. Yusshy René Mendoza declared before the Fourth Criminal Court of San Salvador that he had burned the log books of the Military Academy, dating back to the beginning of 1989, under orders from his superiors. The officer responsible for these records, Juan René Arana Aguilar, declared on June 4, 1990, that at some point during the first two weeks of December, Major Carlos Camilo Hernández had ordered him to produce all the records since 1989, because they were to be burned. Arana said that Lt. Mendoza had come to retrieve the records but that, although he knew that the records had been burned, he did not know who had done it.
95. The Investigation Commission, in its report of March 29, 1990 to the Fourth Criminal Court (No. 017OUE/990) merely stated that the Director of the "Captain General Barrios" Military Academy had ordered an investigation into the whereabouts of the "records of news, entries and exits of chiefs and officers and other personnel" kept in the guardhouse during November 1989, and that it had been established that:
Those books were burned: Mr. Juan René Arana Aguilar, who at that time was acting in charge of the general registry of the institution, on a date that he does not recall, but that was between December 1 and 16, 1989, testified that he received a verbal order from the Subdirector, the then Major Carlos Camilo Hernández, to find the books for 1989, and to advise him when they were ready, because they were going to be burned; that at approximately 9 p.m. he reported that he had carried out the order; that subsequently, at midnight, Lt. Mendoza and four cavalry cadets, whose identity he could no longer recall, came to the registry and took away the books, saying they were going to burn them; he remembered this because he was sleeping in the registry office on that day.(40)
96. The IACHR considers that these acts were intended to conceal the role of the material and the intellectual authors of the Jesuit murders, since those records would have shown who had entered and left the Military Academy on the day of the murders, and the days previous thereto. In this respect, it must be noted that the orders to conduct, first, the search and then the murder of the Jesuits were issued from the Military Academy, which was the command headquarters for the security zone created on November 13 by the Estado Mayor. The records in question would have provided key evidence for determining the guilt of all the authors of this crime.
97. Moreover, the Investigation Commission made no attempt at any time to answer the key question as to who ordered the murders. Lieutenant Colonel Manuel Antonio Rivas Mejía, chief of the Executive Unit of the Investigation Commission at the time of the crimes, declared explicitly before the Court that there was no investigation of the Estado Mayor of the Armed Forces, "since that institution is responsible for the entire country, while the security commando was responsible solely for the Military Complex, and since those responsible for the murders had been identified, it was not necessary to undertake such an investigation".(41)
98. The investigation was flawed from the outset, since the Investigation Commission's detectives failed even to cordon off the scene of the crime to prevent evidence from being tampered with. According to the Investigation Commission's reports, two of its detectives arrived at the scene of the crime at 9.10 on the morning of November 16, some seven hours after the murders had been committed. They began to take photographs and to collect physical evidence: projectiles, bullet casings, fingerprints etc. They also began to prepare plans and to question possible witnesses.(42) Other potentially important evidence found at the scene of the crime was simply ignored by the Investigation Commission's agents.
99. The Investigation Commission received the first information implicating the Atlacatl Battalion on November 17, 1989, during interviews with police officers stationed at the Torre Democracia ["Democracy Tower"], located at the junction of the Autopista Sur ["Southern Expressway"] with Avenue Albert Einstein. Sub-Sergeant Germán Orellana Vásquez, of the national police battalion, and agent Victor Manuel Orellana Hernández, who were both on duty from midnight until 7 a.m. on November 16, told the Investigation Commission that they saw armored cars and soldiers of the Atlacatl Battalion pass by. They also said that, around 2:00 in the morning, they heard shooting and explosions, both distant and close by.
100. On December 5, 1989, two lieutenants of Military Detachment No. 7 that took part in the operation revealed that there were troops of their unit in the abandoned buildings that were used by the Atlacatl Battalion as a meeting point before launching its action on November 16, 1989.
101. Despite this, not a single member of the patrol from Military Detachment No. 7 admitted having seen soldiers of the Atlacatl Battalion that night, or having heard any vehicles go by. In light of the statements by men of that battalion(43), and given the circumstances of that night, which included a curfew lasting 12 hours, it is simply impossible to believe that these soldiers and vehicles were neither seen nor heard, since they were in exactly the same place.
102. In his testimony as a military expert, on May 27, 1991, the Argentine Colonel José Luis García said:
Every unit is assigned a geographic sector to defend within the zone, and the only people who are allowed to move about within the zone are those who know the password or who are recognized as safe and law-abiding citizens, so as to avoid letting the enemy infiltrate the facilities without being noticed. The conduct of military operations within a security zone is very tightly controlled. Any movement not ordered or authorized by the senior command will immediately produce a combat situation, since the troops stationed in the zone would consider such soldiers to be enemy troops.
103. The statements of Colonel García can only reinforce those taken earlier by the Investigation Commission. Police officer Juan Antonio Navarro Artiga told the Investigation Commission that any troops moving about would have to report by radio to the soldiers in the zone, or risk being shot. From the beginning of the curfew, at 6:00 in the afternoon, according to Navarro, there were standing orders to shoot at any unidentified vehicle.(44)
104. Corporal Angel Pérez Vásquez, who later confessed to having killed Father López y López, told the Investigation Commission that "with respect to the murder of the six Jesuit priests, the first he knew of it was some two weeks after leaving the Military Academy, when he read about it in a newspaper ". Private Juan Antonio González Torres actually maintained that he had heard nothing about the death of the Jesuits until the date he gave his testimony, on 28 December.
105. Declarations of this kind, intended to conceal rather than reveal the truth, were the rule, not only from the first witnesses, but from the hundreds of members of the Salvadoran Armed Forces on active duty, who were not ashamed to commit perjury before the Court.
106. On December 22, 1989, Father Tojeira delivered new evidence to the Investigation Commission, including the handwritten sign implicating the FMLN, which was left at the pedestrian entrance to the UCA, and some bullet casings, an empty beer can found at the scene of the murders, and two cigarette butts. The Investigation Commission immediately ordered the appropriate laboratory analysis and requested handwriting tests of all commandos in the Atlacatl Battalion. On January 14, 1990, the handwriting analysis showed that the words " We have executed the dirty informers. Victory or death…FLMN" could have been written by Sub-Lieutenant Guevara Cerritos or by Sub-Sergeant Avalos Vargas. Some witnesses later declared that they had seen Sub-Lieutenant Guevara Cerritos writing something on the sign.
107. The first communication between the Investigation Commission and Colonel Benavides to appear in the record is dated January 3, 1990, when Lieutenant Colonel Rivas asked whether any of his men had used flares in the vicinity of UCA between 6 p.m. on November 15, 1989, and 7 a.m. the following day.
108. Despite the great volume of evidence recognized by this body to that date, the results were very thin. Nothing positive was obtained from any of the fingerprints taken(45), the handwriting analysis was inconclusive, and the ballistic tests provided no useful information. The British police (Scotland Yard) criticized the manner in which the Investigation Commission handle the tests, because it created confusion and made it impossible to tell where each object had been found.(46) Worse, the Investigation Commission never completed the ballistic tests, nor was it ever able to link any of the accused to the crime on the basis of such tests.
109. On January 3, experts of the Investigation Commission had determined that some of the ammunition casings found at the scene corresponded to bullets fired from the M-16 rifle assigned to private Victor Antonio Delgado Pérez, of the Atlacatl Battalion commando unit. Fifty-three casings found in the walls of the Centro Monseñor Romero came from his M-16. Yet there remained 73 casings to be compared with samples taken from commandos of the Atlacatl Battalion.(47)
110. On January 4, the ballistics experts reported that they had identified a second M-16, belonging to Private Neftali Ruiz Ramírez(48), as having fired 41 casings at the north side of the Centro Monseñor Romero.
111. It is important to note that the two soldiers to whom the rifles belonged were never tried. It is inexplicable, moreover, that the Investigation Commission did not question Col. Benavides until January 1990, in light of the fact that he was commander of the military security zone in which the UCA was located, and that there had been shooting and explosions at the university that night, attributed to the FMLN. Only one of Col. Benavides' subordinates, Capt. García Oliva (who was named by Col. Ponce as the officer in charge of the troops stationed to the South and Southwest of the University) was questioned. Nor is there any indication that the Investigation Commission took any statement from the then Director of the Military Academy, Major Camilo Hernández, to determine what had happened that night. Major Hernández, now promoted to Lieutenant Colonel, was subsequently tried for "cover-up", accused of destroying evidence, and was sentenced to three years in prison.
112. Although every indication pointed to military involvement, the official posture of the Army and of the civilian authorities during November and December 1989 was to place the blame on the FMLN. An anonymous letter from "junior officers" accused Col. Hernández, then director of the Treasury Police, of complicity in the murders: he denied that accusation on December 9, 1989, in a sworn statement given to the Investigation Commission. He concluded his statement by saying that "terrorist delinquents" commit this kind of crime in order to discredit the Armed Forces, by making people believe that it is the Army that has committed them.
3. The investigation by the Honor Commission
113. In early January 1990, officials of the United States Embassy provided be Salvadoran High Command with information linking Col. Benavides to the crime.(49) This revelation led to the appointment by President Cristiani of a Special Honor Commission, the predominant role of which was to minimize damage to the Army and to restrict the scope of the investigation. It was during these two weeks that the names of the nine accused were given, but the process by which they were identified has never been clarified. It was also during this period that seven of the nine accused confessed their involvement in the crimes before the Investigation Commission. Their extra-judicial confessions remain the best and most complete record of the events in question. Until that moment, no one had been accused of the crime.
114. From the beginning, the objectives and activities of the Honor Commission were shrouded in mystery. The names of its members were not released, even to the judge hearing the case, until March 1990. On March 21, President Cristiani responded to a request from Judge Zamora, of March 5, with a copy of a letter from General Larios in which those names appear. The Honor Commission was made up of an officer from each rank, from general to captain, and two civilian lawyers.
115. The members of the Honor Commission also said explicitly that Lt. Col. Rivas Mejía gave the names of the nine accused to them, as chief of the Investigation Commission. Inexplicably, both the Investigation Commission and the Honor Commission said that it was the other body that provided the names.
116. The Investigation Commission made no further effort to continue the investigation, despite its legal obligation to do so. The IACHR considers that, as of that moment, there was an agreement to limit the investigation to these persons alone. The members of the Honor Commission deny having identified the names of the accused on the basis of their own investigation, and they describe their task as that of simply "exhorting" the suspects to tell the truth. Nowhere is it made clear how it was determined who should be accused, or who made that decision, or why this information was not made public.
117. The report of the Honor Commission, which consists of seven pages and two annexes, sheds no light at all on the internal working mechanisms of the Commission, or on how it arrived at the conclusions found in the summary. Broadly speaking, the document indicates the reasons that led to creation of the Honor Commission, explains that the Investigation Commission had determined the "possible involvement of elements of the Armed Forces" and adds that "this Commission was appointed to support the investigation into the case". It relates succinctly the names of the soldiers and of the persons killed by them. In its conclusions, the report declares that "the events involved the responsibility" of the nine accused, and "recommends" that "they be turned over to the competent civilian tribunals". The description of the events that is given in the report coincides with that to be found in the summary. The report makes no reference as to how members of the Honor Commission were able to obtain that information.(50)
118. In light of the foregoing, the IACHR concludes that the Investigation Commission, the authority responsible for investigating the case, failed to fulfill its task properly, since it did not immediately undertake procedures that are normal in the case of such a crime. The Investigation Commission allowed evidence to disappear, and even to be intentionally destroyed, and it gave the suspects plenty of time to formulate alibis and to succeed in their efforts at cover-up. While this attitude changed following the report of the Honor Commission, all the facts suggest that an effort was made to restrict the investigation to the nine suspects identified in that report. From that time on, the Investigation Commission deepened its investigation, but only with respect to the nine persons who were finally tried, and it made no attempt to discover those responsible for masterminding the operation within the higher ranks of the Armed Forces.
v. The operation of November 15 and the lack of reaction from the Estado Mayor
119. The operation of November 15, which resulted in the murder of the Jesuit priests and Mrs. Ramos and her daughter, was carried out in the most heavily patrolled sector of the city, and lasted approximately half an hour. During the attack, high-powered weapons were used against the Monseñor Romero Theology Center. Commandos of the Atlacatl Battalion used their M-16 rifles, anti-tank rockets and grenades, and even started a fire. Such was the intensity of the heat generated by the assault that several nearby window panes were broken.
120. The soldiers stationed in the vicinity of the UCA, and the officers who were inside the Estado Mayor headquarters, testified that they heard an enormous amount of shooting at the University. Some even said that they were concerned that there might be an attack against the Military Complex itself. Nevertheless, according to the summary, no one made the slightest effort to investigate what was happening or to respond to the shooting. This suggests that they were well aware of the origin of the explosions, and the reason for them; had it been otherwise, they would have reacted to such a tremendous noise.
121. The noise produced during the shooting of the Jesuits (machine-gun fire and automatic assault rifles, grenade explosions and rockets) could be heard perfectly well from the Estado Mayor headquarters. "On hearing these explosions, there was extreme concern at headquarters", recalls Col. Carlos Armando Avilés. "For the first time, they feared an attack on the vital nerve center of the Armed Forces, the Estado Mayor and the Ministry of Defense"(51). Another officer who was present that night, the head of the Counter-Intelligence Department, Major René Guillermo Contreras Barrera, "heard heavy explosions and detonations near the Estado Mayor and he judged them to be coming from the direction of the UCA."
vi. The policy of cover-up and its beneficiaries: the Atlacatl Battalion
122. The institutional policy of cover-up was intended to create a protective shield of impunity around the intellectual authors, as well as those material authors who had not been individually named by the Honor Commission.
123. Thus, for example, several witnesses whose testimony appears in the summary noted that troops of the Atlacatl Battalion were stationed in the vicinity of the UCA at the approximate time of the killings. Nevertheless, the head of the Estado Mayor, Col. Ponce, made no mention of the Atlacatl Battalion when he reported to the court, for the first time, that troops were deployed in the area. Moreover, several soldiers who mentioned the presence of the Atlacatl Battalion later changed their statements and said that they had seen no such thing in the zone. This suggests an attempt to conceal the presence of the Atlacatl Battalion.
vii. The policy of cover-up for the Estado Mayor
124. The policy of cover-up was also carried out, and very effectively, with respect to officers of the High Command who took the decision to conduct the operation.
125. It is important to recall that on November 15, 1989, from 8 o'clock in the morning of that day until 8 o'clock on the morning of the following day, the command of the Joint Operations Center of the Armed Forces (COCFA)(52), at the Estado Mayor, was in the hands of Col. Nelson Iván López y López, chief of C-1 of the Estado Mayor. Lt. Raul Antonio Mejía Chávez, of C-2 (intelligence), Major Oscar Joaquín Martínez of C-3 (operations)(53), an officer of the Air Force and a radio technician were also on duty.(54) The chief of C-3, Col. Joaquín Arnoldo Cerna Flores, was at headquarters until about one or two o'clock in the morning, as was stated in Court on September 21, 1990. Members of the High Command were at headquarters until two in the morning, when the killers were already within the UCA premises.(55)
126. Moreover, it must be recalled that the operation of November 15, 1989, took place during the curfew decreed on November 11, and within the special security zone that included the vicinity of the UCA, a few blocks from which were the headquarters of the Estado Mayor, the Ministry of Defense, the Military Academy, the National Intelligence Directorate (DNI), the San Benito battalion of the national police, and two military residential quarters, Colonia Arce and Colonia Palermo.
127. The IACHR considers that, if the High Command had not consented to the operation, the security forces would have reacted and would have gone to the scene of the crime. Yet this did not occur, and the brutal killings were committed with impunity in the midst of loud shooting and bombs that shattered the silence imposed by the curfew.
128. One of the persons who attended the meeting of November 15, 1989, declared to the "San Francisco Examiner", a U.S. newspaper, that this meeting "was the most tense and desperate meeting of the highest commanders in the country since the war against the leftist insurgents had begun 10 years earlier"(56). It is difficult to believe that a military operation that was conducted on that very day, only a few blocks from the High Command, and that involved so much movement of troops and so much noise from shooting and explosions, could have gone unnoticed by the High Command, especially when several of its members had remained at headquarters until the early hours of the morning of November 16.
129. The nature of the operation itself, the meeting held by the High Command on November 15, the date of the murders, the decision to name Benavides two days earlier as chief of the new security zone, and the hierarchical structure of the Armed Forces, all suggest that the decision could not have been taken in isolation by Col. Benavides alone. On the contrary there is much circumstantial evidence to indicate the Col. Benavides was acting as part of a broader military conspiracy, as was recognized in the report of the Truth Commission.
130. In this respect, it is interesting to note the formal statement given on January 11, 1990, by retired Col. Sigifredo Ochoa Pérez, who was considered in his day to be one of the most effective field commanders in El Salvador(57). Ochoa declared to the newspaper "El Diario de Hoy" that he hoped the investigation would not be limited to the lower ranks of the military, because someone higher up had to have given the order. According to the news service "Agence France Presse", Ochoa said: "This action involved officers of much more senior rank, and even if a general or colonel is involved, the guilty parties must be punished".(58) On May 18, 1990, at the request of the Public Prosecutor, Col. Ochoa gave a written statement in answer to the questions posed by Judge Zamora.(59)
131. During an interview on the American television program "60 Minutes", aired on April 22, 1990, Col. Ochoa made his accusation more explicitly. According to him, a smaller group of officers got together after the full general staff meeting on the night of November 15. Ochoa declared that during that meeting Col. Benavides received the express order to kill the Jesuits:
A group of commanders stayed behind. Each of them was responsible for one of the zones of San Salvador. They gave an order to kill leftists, and this is what Benavides did. I say again, Benavides was obeying orders, it was not his decision.(60)
132. Col. Ochoa's statement was promptly seconded by a group of junior officers, calling themselves "Domingo Monterrosa lives". On May 3, 1990, these officers published a five-page communiqué addressing several issues, including the case of the Jesuits. The anonymous group said "the Ochoa case deserves to be looked into more closely. His position is supported by many of us junior officers, as well as some of our superiors, and he has stated something that many of us are unable to express because we would be severely punished."(61) The junior officers went on to ask: "What happened during the meeting that was held between 3 and 5 o'clock in the afternoon in Col. Zepeda's office, involving not only Col. Benavides but other, lower-ranking officers? The High Command knows all about this."(62) There has never been any serious attempt to investigate the truth of these allegations. The High Command rejected the "open letter from junior officers", calling it simply "FMLN propaganda."(63)
133. Col. Ochoa's statements are relevant when it is recalled that he was a high-ranking retired military officer in El Salvador, and he based his testimony, as he said in his declaration, on the procedures that determine how decisions are taken in traditional military actions. In his statement, Ochoa said: "The number of people involved (in the deaths) and the way the action was carried out point to a pre-conceived plan".
134. The United Nations Special Representative to El Salvador, José Antonio Pastor Ridruejo, also noted in his report of 1991:
The special representative, however, shares with many sectors of public opinion, locally and internationally, and particularly with non-governmental humanitarian organizations at the local and international level, some serious doubts about the possible intellectual authors of the murders. We must ask, in effect, if a decision with such serious consequences of every kind as that of ending the life of the Jesuit Fathers could have been taken alone by Col. Benavides who, it would appear from many sources, was known for his profound sense of discipline and his perfect obedience to orders. In short, although the outcome of the trial in the Jesuit murders case constitutes an important milestone in the recent history of Salvadoran criminal justice, the steps taken appear to have been insufficient. In the view of the special representative, the judicial investigation should have continued until it was absolutely clear whether there were intellectual authors behind the crime, and until any such persons were prosecuted and punished" (emphasis added).(64)
viii. The sham proceedings, the verdict of the jury and the sentence
135. With respect to the actual carrying out of the murders, it should be noted that eight of those accused gave clear confessions, with full details, about their participation in the operation of November 16, 1989, in the following terms: Sub-Sgt. Ramiro Avalos Vargas killed Fathers Armando López and Juan Ramón Moreno; Private Oscar Amaya Garibaldi killed Fathers Ignacio Ellacuría, Ignacio Martín-Baró and Segundo Montes; Sub-Sgt. Tomás Zarpate Castillo fired at Elba and Celina Mariceth Ramos, until he thought they were dead; the two females were finally killed by Private Jorge Sierra Ascencio; Corporal Angel Pérez Vásquez killed Father Joaquín López y López; Lt. Yusshy Mendoza and Lt. José Ricardo Espinoza directed the operation, backed up by Sub. Lt. Gonzalo Guevara Cerritos. All of these men belonged to the Atlacatl Battalion, except for Lt. Mendoza, who belonged to the Military Academy.
136. The extra-judicial statements referred to were truthful, consistent, detailed and fully concurrent with other elements of judgment available with respect to the crime, as required in Article 496 of the Code of Criminal Procedure of El Salvador. They were also consistent with other confessions and declarations, ballistic tests, the weapons employed and the results of the autopsies. Moreover, they were not extracted through violence or intimidation and they were legally validated before the court, pursuant to the provisions of Article 496 of the Code of Criminal Procedures, as confirmed by the testimony of two eyewitnesses given to Judge Zamora.
137. The Fourth Criminal Court in, moreover, confirmed the truthfulness of these statements by the First Criminal Chamber of San Salvador and by the country's Supreme Court of Justice. Despite this, no member of the Atlacatl Battalion was punished.
138. The jury verdict led to the absurd result where seven of the accused, those belonging to the Atlacatl Battalion, were acquitted and the only two men found guilty (Col. Benavides and Lt. Mendoza) belonged to the Military Academy. Of the two lieutenants who led the operation, Mendoza, from the Military Academy, and Espinoza, from Atlacatl, only the first was convicted, although the bullets that killed Celina Mariceth Ramos did not come from the weapon registered to him.
139. Both Lt. Mendoza, who was convicted of murder and the members of the Atlacatl Battalion displayed in their behavior a singular and dangerous lack of regard for human life. Moreover, the order to kill did not come suddenly in the heat of combat, but was given after cold-blooded premeditation. Those who received it had several hours to think it over, to appreciate its manifestly illegal nature, and to contemplate the consequences of their actions.
140. Nor did the judicial decision result in conviction of the intellectual authors of the crime, which means that in this case the policy of cover-up was fully effective. It was only after signature of the peace accords and the creation of the Truth Commission that there was any serious investigation of the role played by the High Command and the Atlacatl Battalion. It was on the basis of this investigation that that Commission, in its report of March 15, 1993, concluded that the order to kill Father Ellacuría, and to leave no witnesses, had been given to Col. Benavides on the night of November 15, 1989, by then-Col. René Emilio Ponce, in the presence and with the collusion of General Juan Rafael Bustillo, then-Col. Juan Orlando Zepeda, Col. Inocente Orlando Montano and Col. Francisco Elena Fuentes. That Commission also concluded that Col. Ponce had arranged that for this operation "a unit of the Atlacatl Battalion was to be used, which he had sent two days previously to conduct a search of the priests' residence.(65) Furthermore, according to that Commission's findings, Colonel Oscar Alberto León Linares, Commander of the Atlacatl Battalion was aware of the murders and concealed incriminating evidence. Colonel Nelson Iván López y López, assigned to assist in the work of the Investigation Commission, and Colonel Manuel Antonio Rivas Mejía, Chief of that Commission (and who also "recommended to Col. Benavides that he destroy any incriminating evidence") also knew the truth and concealed it. None of these officers was duly investigated, prosecuted and punished.
141. In light of the foregoing, the IACHR concludes that the investigation undertaken by the Salvadoran State with respect to the extra-judicial execution of the victims in this case was not conducted seriously or in good faith, but was rather intended to protect some of the material authors and all of the intellectual authors of the crime.
142. Despite the fact that these proceedings led to the conviction of four officers of the Salvadoran Armed Forces(66), the facts and elements of the case, which are public and well-known, reinforced by those that came to light during processing of the case before the IACHR, make it clear that the process that resulted in those convictions was neither impartial nor objective, in the terms demanded by the American Convention. In effect, the actions were coordinated and orchestrated to give the appearance of regularity, and to make it seem that justice was being done. But in reality, the Honor Commission, composed for the most part of military officers, and the Investigation Commission, presided by another officer, Lt. Col. Antonio Rivas Mejía, colluded to limit and negotiate accusations, in other words, to put together a convenient "package of charges" intended to provide cover for the senior military command. With this package, nine soldiers who had been pre-selected by the Honor Commission were prosecuted; only four of them were convicted, and of those only two for the crime of murder. The judicial power, for its part, allowed itself to be used in a sham process that constituted a denial of justice. On the other hand, the other public powers, the Legislature and the Executive, conspired to grant amnesty to those who had been convicted, and to prevent any future investigation from ever imposing penalties for these horrible crimes against human rights. All of this affected the integrity of the proceedings and implied the manipulation of justice, as well as the obvious abuse and misuse of power, as a result of which these crimes have to this date gone completely unpunished.
B. Considerations of law
143. In light of the facts established above, the IACHR will now examine the violation of the human rights of the victims in this case, attributable to the Salvadoran State.
1. The right to life
144. In accordance with Article 4.1 of the American Convention, "every person has the right to have his life respected. No one shall be arbitrarily deprived his life." It should be noted that this fundamental right cannot be suspended under any circumstance, in accordance with Article 27 of the Convention.
145. As noted above, it has been amply proven that in the early morning of November 16, 1989, agents of the State belonging to the Salvadoran Armed Forces summarily executed six Jesuit priests and two women in the residential complex of the UCA in San Salvador.
146. The evidence used to establish the responsibility of those agents in the crime of murder include, among other relevant items, the report of the Truth Commission and the judgment of the Fourth Criminal Court of January 23, 1992. The rest of the evidence consists of the various items of proof found in the file of the case in the IACHR.
147. The judgment of January 23, 1992, summarizes the evidence against each of the accused. The principal evidence against seven of them - Lieutenants Mendoza and Espinoza, Sub. Lt. Guevara Cerritos, Sub-Sergeants Avalos and Zarpate, Corp. Pérez Vázquez and Private Amaya Grimaldi-- consists of their own extra-judicial confessions, given at the General Directorate of the National Police. As noted above, these confessions were legally validated by two eyewitnesses, and by the Fourth Criminal Court in plenary, the First Criminal Chamber of San Salvador, and the Supreme Court of Justice.
148. Tomás Zarpate Castillo admitted that he had shot the two women and, believing that they were dead because they made no sound, he took his retreat.(67) The confessions referred to contain compelling evidence. Sub-Sgt. Antonio Ramiro Avalos Vargas confessed that he and Amaya Grimaldi had forced five of the Jesuit priests to lie face-down on the ground and that, after Lt. Espinoza said "when are you going to get on with it?", he turned to Amaya Grimaldi and said "let's get on with it". Immediately Amaya Grimaldi, using the AK- 47 rifle given to him by the lieutenant of the Military Academy, began to shoot at the two priests in front of him, while Avalos Vargas, with his M-16, proceeded to shoot two other priests in the head and body. He next went into the residence, where in one of the dwellings he found two women lying on the floor, shot and moaning in each other's arms, and he ordered private Sierra Ascencio to finish them off; the private thereupon fired a volley of 10 bullets with his M-16 rifle into the bodies of the two women until they ceased to moan.(68) Amaya Grimaldi, for his part, admitted that when Avalos Vargas started to shoot the priests who were lying closest to him on the grass, he began to shoot at the two who were closer to him, with his M-16; they then repeatedly shot all five of the priests who were lying on the grass. At that moment, he heard the voice of Lt. Espinoza, giving the following order to Private Cotta Hernández: "Get them inside, even if you have to drag them".(69)
149. Corporal Angel Pérez Vásquez admitted that he killed Father López y López, who had already been wounded by another soldier. According to the Corporal's testimony, upon entering the second floor the University, where there are several dwelling chambers, he saw a tall man in a white robe (Father López y López) leaving the corridor. One of the soldiers shot at the priest, who fell to the floor. When Corporal Pérez Vásquez went to search the rest of the dwelling, he felt the wounded priest grab him by the feet. He turned around and shot the priest four times.(70)
150. Although Lieutenants Mendoza and Espinoza and Sub-Lieutenant Guevara Cerritos were less truthful in their testimony, and denied responsibility, the three admitted having participated in the operation on the orders of Col. Benavides.
151. Lt. Mendoza declared, among other things, that on November 15, 1989, at 11 p.m. or midnight approximately, he received an order to appear before Col. Benavides at the office of the director of the Military Academy. There, Mendoza met Col. Benavides and two other officers, one of whom he recognized as Lieutenant Espinoza, a member of his promotion class. He did not recognize the other officer, but soon heard him being called Lieutenant Cerritos. According to his testimony, Col. Benavides said: "Look, Mendoza, you are to go with Espinoza on a mission, he already knows what it is", to which Mendoza replied "very well, Colonel.(71) He subsequently took part in the operation.
152. Lieutenant Espinoza declared that Col. Benavides had said to him: "This is a case where it's either them or us; we're going to start with the ringleaders; we have the University inside our sector, and that's where Ellacuría is". He then turned to Espinoza and said: "You scouted the place; now you have to get rid of him, and I don't want any witnesses, Lieutenant Mendoza is going to go with you in charge of the operation, so there will be no problems". Espinoza told Benavides that this was a serious problem, and the Colonel replied: "Don't worry about it, you have my full support".(72)
153. Sub-Lieutenant Guevara Cerritos, for his part, admitted having received orders from Col. Benavides, along with two lieutenants, to carry out the operation at the UCA. He testified that Col. Benavides told them: "Well, gentlemen, we're going to play this for all or nothing, it's either them or us - these people have been the brains behind this war for a long time". According to Guevara Cerritos, Benavides went on: "Here we have Lieutenant Mendoza, and since he is a comrade of Lieutenant Espinoza and has more seniority, he is the one who will lead the operation. Espinoza's soldiers already know where the Jesuits are sleeping, and I do not want any witnesses". Guevara Cerritos also admitted that he and Espinoza subsequently called together the patrol leaders who were there, and told them the orders that they had received from Col. Benavides.(73)
154. With respect to Col. Benavides, it has been proven that on November 16, 1989, he was the commander of the Security Commando zone that was created on November 13, and in which the UCA was located; that on the day of the events, the Atlacatl rapid-response commando unit, to which the other accused except for Lieutenant Mendoza belonged, was under the operational control of the security commando; that Col. Benavides, Lieutenants Mendoza and Espinoza and Sub-Lieutenant Guevara Cerritos held a meeting in the office of the Military Academy director, on the night of November 15, at which the execution of the Jesuit priests living in the UCA was decided; that there is a "formal command structure" in the Salvadoran Armed Forces, by virtue of which the commander of any garrison, detachment, etc., has the power to issue orders to any subordinates who are under his operational command, without the need to consult his immediate superiors first; that "the superior officer takes responsibility for all orders given" (Article 9 of the Army Ordinances in effect at that time); that Col. Zepeda declared in his testimony that since he was commander of the zone where the crime was committed, Col. Benavides must take full responsibility for it; that in his testimony, given in the form of a sworn statement, Col. Ponce declared that the rapid response unit of the Atlacatl Battalion, from the time it was constituted to reinforce the mission of the security commando, was under the operational command of that commando, and therefore of its commander, Col. Benavides; that orders in the Armed Forces must be given within the rules laid down by law, and that "any member of the institution who gives an order contrary to law is personally responsible for its results and consequently liable to the corresponding penalty"; that in light of the ballistic evidence, it was proven that the bullet casings found at the scene of the crime belonged to an M-60 machine gun and an AK-47 rifle, weapons that, as noted in the Court record, were under the responsibility of Col. Benavides who, in his capacity as director of the Military Academy, was the only person who could authorize their use.(74)
155. With respect to the senior officers who gave the orders or planned the extra-judicial executions, it should be noted that none of the high-ranking officers admitted in his testimony that there was any question of consent, acquiescence, higher orders or even political orders.(75) Nevertheless, the evidence in the possession of the IACHR, including the report of the Truth Commission, shows that Col. Benavides was not acting on his own when he ordered the murders at the UCA.
156. Col. Benavides reported, for operational purposes, to Col. Ponce, and the security commando was directly under the Estado Mayor. It was Ponce who, according to the Truth Commission's report, gave Col. Benavides the order to kill Father Ellacuría, without leaving any witnesses. To this end, he arranged for the use of a unit of the Atlacatl Battalion which he had sent, two days earlier, to conduct a search of the priests' residence. Ponce gave this order to Benavides on the night of November 15, 1989, in the presence of and with the collusion of General Juan Rafael Bustillo, Col. Juan Orlando Zepeda, Col. Inocente Orlando Montano and Col. Francisco Elena Fuentes.
157. The IACHR considers that the facts here described are clearly imputable to the State, since the State is internationally responsible for any actions of its agents in violation of the American Convention. In this respect, the Inter-American Court of Human Rights has ruled:
In any circumstance in which an organ or official of the State or a public institution improperly violates one of these rights, grounds are constituted for presuming failure to observe the duty of respect enshrined in this Article (Article 1.1).
This conclusion must prevail whether or not the organ or official has acted contrary to the provisions of domestic law, or has exceeded the limits of his own authority, since it is a principal of international law that the State is responsible for the deeds and omissions of its agents acting in their official capacity, even if they were acting outside the limits of their authority or in violation of domestic law.
It is clear then, in principle, that any violation of the rights recognized by the Convention is imputable to the State if it was performed through an act of the public power or by persons availing themselves of such authority by reason of their official capacity.(76)
158. The IACHR considers that the international responsibility of the State also arises from international humanitarian law, since the Jesuit priests who were killed were not legitimate military targets, but members of the civilian population who should not have been the object of attack.
159. In interpreting and applying the rules of international humanitarian law(77), the IACHR has been guided by the decisions of the International Criminal Court in judging persons responsible for serious violations of international humanitarian law that were committed in the territory of the former Yugoslavia since 1991. Specifically, in its decision on the Tadic case, the Appeals Chamber of that Court ruled that United Nations resolutions 2444 (respect of human rights in armed conflicts)(78) and 2675 (basic principles for the protection of civilians in armed conflicts)(79) were "declaratory of the principles of customary international law with respect to the protection of civilian populations and property in armed conflicts of any kind."(80)
160. These resolutions prohibit, among other things, attacks against the civilian population, and they require the parties to an armed conflict to distinguish at all times between members of the civilian population and persons who are actively participating in the hostilities, and to direct their attacks solely against the latter, and by inference, against other legitimate military targets. In order to protect civilians from the effects of hostilities, other principles of customary law require the attacking party to take precautions to avoid or minimize the loss of life among civilians, or damage to their property, inherent or collateral to attacks against legitimate military targets.
161. The immunity of civilians against direct attack is also found in certain conventions. Specifically, common Article 3 of the Geneva Conventions of 1949(81) expressly prohibits, under all circumstances, "violence to life and person, in particular murder of all kinds" of those who are taking no active part in the hostilities.
162. Moreover, Article 3 of the Second Additional Protocol to the Geneva Conventions of 1949,(82) elaborates and strengthens the basic rules of common Article 3, and codifies the principle of civilian immunity as follows:
2. The civilian population as such, and civilian taken individually, must not be the o