Testimony of HR's expert.

September 3

Trial counsel Russell Cohen began by establishing Professor Roht-Arriaza’s qualifications to testify as an expert.

Prof. Roht-Arriaza testified that she is a full Professor of Law at the University of California, Hastings College of the Law in San Francisco, where she teaches international human rights law, torts, and a seminar on accountability for human rights violations. She holds a Juris Doctorate from the University of California Berkeley, Boalt Hall and a Masters in Public Policy from the University of California, Berkeley. One area of Prof. Roht-Arriaza’s research is accountability for human rights abuses in Latin America. She has written two books: Impunity and Human Rights: International Law and Practice (Oxford University Press: 1995) and The Pinochet Effect: Transnational Justice in the Age of Human Rights (University of Pennsylvania Press: forthcoming 2004). She has also written many articles on the issues of impunity, accountability, and amnesty. She observed the trial in El Salvador of the officers accused of killing six Jesuit priests, and prepared a report for the San Francisco Bar Association on her observations. She is a member of the advisory councils of a number of human rights organizations, including the Center for Justice and Accountability, for which she receives no remuneration. Neither did she receive any remuneration for her testimony.

Judge Wanger found Prof. Roht-Arriaza to be qualified to offer her expert opinions on matters of international and national law concerning accountability for human rights violations; the composition, significance, function and effect of truth commissions; the operation, function, and competency of courts in El Salvador; and the operation and effect of amnesty laws in general and El Salvador’s amnesty law in particular.

Prof. Roht-Arriaza testified that the definition of impunity is the “non-action by government in light of evidence that crimes have been committed, almost always by people in power.” She explained that human rights violations take place when those who are perpetrating the violations are sure that they will never be punished. The answer to impunity, she said, is legal accountability.

Prof. Roht-Arriaza explained that one typical situation in which impunity becomes an issue is after a period of mass human rights violations. During this transitional period, a new government faces the question – which arises during the formation of the new government or during peace negotiations – about what to do with those individuals who committed violations. During these transitional periods governments have a number of options for addressing the issue of accountability. Among other measures, they can pursue criminal prosecutions in national or international courts; pursue, or allow private parties to pursue, civil liability against the state or individual perpetrators; and establish truth commissions to compile records of past violations.

Prof. Roht-Arriaza explained that it is important for States to implement mechanisms to address accountability because unaddressed, patterns tend to re-emerge over time. She also said that the failure of governments to impose legal accountability creates situations in which there is no respect for the rule of law because only some people are held accountable to the law. Without an official attempt to deal with violations, people may take the law into their own hands since there is no other socially acceptable channel for dealing with the issues.

Prof. Roht-Arriaza then testified about truth commissions. She said that truth commissions are official bodies created for the purpose of investigating an overall pattern of violations in a certain place at a certain time. Generally, their mandate includes coming to conclusions about the causes, pattern and extent of past human rights violations, and making recommendations about how to end patterns of violations.

Prof. Roht-Arriaza described the Truth Commission in El Salvador. It was created in 1992 based on a provision of the peace accords negotiated between the government of El Salvador and the FLMN (the guerilla group). The Commission was composed of three foreign, independent commissioners and an international staff of approximately 60 non-Salvadorans (as a measure to protect the confidentiality of sources and evidence). Of the 22,000 complaints the Truth Commission received, they investigated 32 cases – those that either demonstrated a common pattern, concerning which they had received numerous complaints, or else those that had particular resonance within El Salvador.

The Truth Commission received testimony in confidence from victims of the violations, from people who were witnesses, and from people in the military. They did not take testimony in public, as some Commissions have done, owing to the high level of fear that still existed.

The commissioners decided early on that they would not find that any assertion had been proved unless they had at least two independent sources of information for the fact. They also decided that they had authority to name responsible individuals if they had sufficient evidence to do so.

Prof. Roht-Arriaza testified the Truth Commission’s final report included a number of recommendations. Some recommendations concerned social reparations, such as building a monument or helping to find bodily remains of victims. Other recommendations called for structural reforms to the military, police and justice systems. In particular, Prof. Roht-Arriaza noted that the Truth Commission found that “the glaring inability of the judicial system to investigate crimes, to enforce the law, to apply the law to acts of violence, … that were committed under the direct or indirect cover of the public authorities was parcel and parcel of the situation.” The Commission was particularly critical of the Supreme Court and the President of the Court. It accused the President of the Court not simply of inaction, but of complicity in covering up crimes.

Prof. Roht-Arriaza testified that the Salvadoran government was furious with the Commission’s report – especially that it named responsible individuals -- and totally rejected the Commission’s findings. Five days after the report was issued, the Salvadoran government passed a sweeping amnesty law. Although there had been other amnesty laws, the 1993 amnesty law was a broad, absolute, and unconditional amnesty for any person who participated as a perpetrator or an accomplice in political crimes or massacres prior to January 1st, 1992. The only exception was for people who had been involved in kidnapping for profit.

Prof. Roht-Arriaza testified that not only did the amnesty law cover any criminal prosecution of people associated with the Archbishop’s assassination, but it also extinguished the possibility of civil liability. The Salvadoran law is the only amnesty law in Latin America, to Prof. Roht-Arriaza’s knowledge, that explicitly extinguishes civil liability.

Several attempts were made to open an investigation of the murder of Archbishop Romero but all were unsuccessful. One attempt, which Prof. Karl mentioned earlier, began in 1987. Eventually, the Salvadoran Supreme Court threw out the indictment on the ground that the testimony of Garay, Saravia’s driver, on which the indictment relied, was taken seven years after the fact. One of the outrageous aspects of that decision was that the prosecutor had previously refused to interview Garay.

After the amnesty law was passed, an attempt to reopen the case was unsuccessful because the Supreme Court of El Salvador found the amnesty law constitutional, and attempts after that ruling were barred based on res judicata (that is, that the issue had already been decided). The Supreme Court would also have found the case barred on the ground that the statute of limitations had run.

Prof. Roht-Arriaza explained that there have been several attempts to find the 1993 amnesty law unconstitutional. The first was dated May 20, 1993, and entitled "1993 Political Question Resolution of the Petition for Inconstitutionality, the Constitutional Chamber of the Supreme Court, Numbers 10-93 and 11-93." In this challenge, the Supreme Court concluded that the issue was a “political question.” She explained that in this decision, the Supreme Court decided that it had no ability to even entertain the legal question because it was a “non-justiciable political question,” in other words, a decision for the political branches of the government, and not for the Court. In 2000, there was another facial challenge to the sweeping amnesty law. In this decision, Supreme Court concluded that the law was, on its face, constitutional and that an individual judge could consider whether a particular case violated a “fundamental right”, but that, in order to do so, the Public Prosecutor of El Salvador would have to ask the court not to apply the amnesty law. The Public Prosecutor refused to do that for two reasons: 1) those cases were simple murders, and thus were not violations of fundamental rights, and 2) the statute of limitations had run and there was no doctrine of “tolling” in El Salvador. Prof. Roht-Arriaza testified that the combination of the law itself, the way it has been interpreted by the Supreme Court, and the way it had been interpreted by the public prosecutor foreclosed, and continue to foreclose, any possibility of being able to bring the Archbishop’s case in El Salvador.

Prof. Roht-Arriaza testified about the case filed on behalf of Archbishop Romero with the Inter-American Commission on Human Rights. She explained that the Inter-American Commission is a body of the Organization of American States (OAS) composed of seven international Commissioners. The Commission is charged with the general responsibility for overseeing the human rights situation in OAS countries, and can carry out on-site visits and hear individual complaints regarding violations of OAS treaties. When the Commission receives an individual complaint, it may investigate, issue findings of fact, make conclusions about whether the State has violated its responsibilities under international law, and issue recommendations to the State. If the State has accepted the jurisdiction of the Inter-American Court of Human Rights, and does not comply with the Commission’s recommendations, then the Commission can forward the case to the Court.

Prof. Roht-Arriaza testified that, in the case of Archbishop Romero, the Commission found that the petitioners had exhausted all domestic remedies. It also found, in the Romero case and two others, that El Salvador’s amnesty law was violated the American Convention on Human Rights. The Commission called on El Salvador to modify or repeal the law.

Prof. Roht-Arriaza stated that the Commission had not forwarded the Romero case (or the other two Salvadoran cases) to the Inter-American Court, because El Salvador’s acceptance of the Court’s jurisdiction included an express provision that the Court would not have jurisdiction over any violation that took place before 1995.

In response to a question posed by Judge Wanger, Prof. Roht-Arriaza explained that the 1993 amnesty law in El Salvador was inapplicable outside of El Salvador for at least two reasons. First, the law is directed at domestic courts. Second, under international law, crimes against humanity cannot be amnestied.

Prof. Roht-Arriaza explained what constitutes a “crime against humanity.” She said that such a crime has several attributes: first, the crime must be either widespread or systematic in nature. Second, it must be an attack upon a civilian population. Third, it must be a part of a plan or policy of some sort. Additionally, she said, some definitions include that a crime against humanity must be against an identifiable group of victims.

Prof. Roht-Arriaza testified that the prohibition of crimes against humanity is widely accepted in international law. Evidence of this acceptance includes General Assembly U.N. Resolutions, the Convention on the Non-Applicability of Statutory Limits to War Crimes and Crimes Against Humanity, and more recently, the statutes of the international criminal tribunals for Rwanda and the former Yugoslavia, and the Rome Statute of the International Criminal Court. She stressed that although the United States has not accepted the jurisdiction of the Criminal Court, the U.S. delegation was one of the primary drafters of Article 7 of the Rome Statute on crimes against humanity, as well as a supplement to the Statute which defined the elements of a crime against humanity.

Prof. Roht-Arriaza testified that a single murder could constitute a crime against humanity when it is shown that the single act meets the elements, that is, it is within the context of a systematic attack against the population.

In closing, Prof. Roht-Arriaza testified that bringing the Archbishop’s case under the Alien Tort Claims Act in the United States could potentially have an enormous impact in El Salvador, similar to the effect that Pinochet’s arrest in London had on courts in Chile.

In response to Judge Wanger’s question re why Pinochet’s arrest in London had a substantial impact, Prof. Roht-Arriaza identified two processes that were catalyzed by the arrest.

First, victims and victims' lawyers started seeing that maybe there was some possibility of doing something, and they become more assertive in bringing domestic cases. Second, the judges started to change their attitudes from a sense of “we shouldn't touch this because it's too controversial” or “these cases are old news.” The judges started asking, “Why is this judge on the other side of the world looking at this case? Maybe we here should be looking at it. This is our case, it's our responsibility.” And they became more assertive of their own role as judges. They saw that courts in other countries, including courts of some prestige, such as the British House of Lords in the Pinochet case, take these crimes seriously, that they think that something should, indeed must, be done to address these crimes of the past. Professor Roht-Arriaza noted that she had observed this process in Chile and Argentina and in some African countries. The effect can be very substantial, much more than one would expect, the momentum starts taking on a life of its own and one can observe more and more of a willingness among domestic judges to look at these cases.

The same is very likely to happen in El Salvador because a lot of people will be paying attention to this case and the courts of the United States are well-respected in El Salvador.

[Fuente: Center for Justice and Accountability, San Francisco, Usa, 23sep04]

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