A War Crimes Trial That Needs More Attention

Introduction

There is an ongoing landmark domestic trial for international crimes that is steadily progressing at this very moment in relative obscurity. The case is about one of the worst single-event crimes that has occurred since the Second World War and was matched in its methods and gravity only by the likes of the Nyarubuye, Gikondo, and Srebrenica Massacres of 1994 and 1995. In 3 days, 1000 people from several neighboring villages were rounded-up, imprisoned, tortured, raped and killed. More than 500 of them were children. The crime was committed during an internal armed conflict that lasted 12 years during the final decade of the Cold War. The crime was then denied, forgotten and eventually literally exhumated by Argentinian forensic experts in 1992. The crime took place between 11 and 13 December 1981 in a cluster of small villages in North-East El Salvador. The crime is remembered as the El Mozote Massacre.

It will be 37 years in December since this massacre took place. So far, nobody has been held criminally responsible for it, despite the fact that the details of the incident were well documented in the 1993 Report of the UN Truth Commission for El Salvador. This is largely because of the General Amnesty Law which was passed in 1993, shortly after the signing of the Chapultepec Peace Accord by which the Salvadoran civil war ended. However, in 2012, the Inter-American Court of Human Rights passed the Judgment in the Case of the Massacres of El Mozote and Nearby Places v. El Salvador in which it declared the Amnesty Law incompatible with the Inter-American Convention of Human Rights and with the peace accord itself.

It took some 4 years for the Salvadoran Constitutional Chamber of the Supreme Court to declare the Amnesty Law unconstitutional. Shortly after the law was derogated, the investigation into the El Mozote Massacre continued, and in March 2017 charges against 18 high-ranking military officers were brought before the criminal court of first instance in San Francisco Gotera, a small municipality in Morazán department. The charges were not brought by the Salvadoran Attorney General (Fiscalia), but by two NGOs – Fundacion Cristosal and Tutela Legal Maria Julia. The Attorney General initially claimed that the case was res judicata and that, therefore, it should be rejected. The trial judge, Guzman Urquilla, disagreed and let the proceedings continue.

The trial is of great importance for Salvadoran reconciliation. It is also important for the global push to end impunity and bring war crime prosecutions to the doorstep of the highest-ranking officials. For one of the accused in this case is a former Salvadoran Defense Minister, Jose Guillermo García. He is a powerful figure who had been granted asylum and subsequent permanent residence in the United States, only to have it revoked in 2015 because of his command responsibility in relation to the war crimes committed in El Salvador, as the U.S. Immigration Court put it (the first instance decision here, the appeals decision here). He is joined in the box for the accused by the former Chief of Joint Staff of Salvadoran Army, General Rafael Flores Lima; the former Commander of the Airforce, General Juan Rafael Bastillo Toledo; the former Vice-Minister of Defence, Francisco Adolfo Castillo; and a number of others who were, at the time of the crime, mid-ranking officers, but have subsequently risen to the ranks of colonels and generals.

There is not much information as to what is actually happening in the courtroom. The trial is taking place some four-hour drive from the capital, San Salvador, through the serpentine roads of the Salvadoran countryside often infested with gang violence (El Salvador has one of the highest murder rates in the world). Foreign governments and international organizations didn’t precisely race to shower local and international NGOs with funds to monitor this historic process. Public information about the trial is only circumstantial and rarely focused on legal issues. When there is some information, it is mostly in Spanish. This (not so) short entry is supposed to bring this case to some more attention of international criminal lawyers.

Organization of the Trial

The El Mozote Trial is a purely domestic process tried before an ordinary, first instance, territorially competent criminal court in a remote North-Eastern Morazán Department of El Salvador. There are no specialized chambers, internationalized courts or international tribunals there. There is not even a state prosecutor in the lead role. The prosecution is conducted by private prosecutors instead of the Attorney General Office.

This is by no means a unique situation. In fact, these kind of prosecutions for gross human rights violations are fairly common (and successful) in Latin America. There are, however, some peculiarities when it comes to the justice system in El Salvador that make this state of affairs particularly bothersome.

First, there is nothing ordinary in the “ordinary workload” of a Salvadoran judge. El Salvador’s extraordinary murder rate has already been mentioned. Add to this systemic inefficiency of the justice system, and one gets a staggering backlog of unresolved cases. As a result, the conviction rate in El Salvador is extremely low – some estimate it at only 5%. At this point, one can only make a wild-guess as to how many cases, beside the El Mozote Massacre, the trial judge has in his docket. The fact that this is the nation’s (and by extension Judge Urquilla’s) first war crimes trial, makes it logical to assume that he could use some help both by relieving his docket and by providing him with some expert assistance. The former most certainly did not happen. The latter did, but only thanks to private initiatives through two amici curiae submissions – the first by the Due Process of Law Foundation (DPLF) and the other by the American University’s Academy for Human Rights and Humanitarian Law (both are available only in Spanish).

Such a lethargic approach to this historic trial has its roots in several factors. While there are no specialized polls examining the attitude of Salvadorans towards transitional justice and historical crimes trials, there are indications that the appetite for them is fairly low (for more detailed discussion see here). The local population is much more concerned with the current gang crimes and police brutality which are an immediate threat. The necessity of prosecuting historical crimes in order to break the circle of violence must seem a rather theoretical suggestion in a country where there is a murder committed every two hours. This, in turn, perfectly plays into the hands of the Salvadoran power structures which are more or less the same as during the civil war. Those who participated in atrocities were never meaningfully deprived of power, and they are obviously not particularly enthusiastic about the prospect of going to jail.

In addition, the Salvadoran government is not under much international pressure to prosecute war crimes. Besides the activities of the Inter-American system, there is very little additional interest from the international community. The power most in a position to exert pressure, the United States, is too preoccupied with issues of immigration and MS-13 gang violence. Both of these issues are deeply connected with the situation in El Salvador. Finally, the trial remains off the radar of Europeans, who are much more vested in another process emanating from the Salvadoran civil war – the Jesuit murders for which a former Salvadoran colonel faces trial in Spain.

The support to the El Mozote Massacre trial is, therefore, confined to private initiatives of several NGOs acting either as representatives of the private prosecutors or as amici curiae. Both groups are doing great favor to the Salvadoran nascent process of transitional justice (or rather post-transitional justice as argued by some). The following discussion is the analysis of the El Mozote Case as informed by these efforts.

The Anatomy of the Case

As it stands now, the Act of Indictment introduced at the hearings of 29 and 30 March 2017 qualifies the acts of the El Mozote Massacre as ordinary crimes as they were proscribed by the national Criminal Code in force at the time. The defendants are charged with murder, aggravated rape, unlawful imprisonment, search without warrant, robbery, creating mayhem (estragos), aggravated assault, preparatory acts of terrorism and acts of terrorism.

The two amici curiae briefs, on the other hand, advocate for the introduction of double charges – those based on national law and those based on international criminal law and customs. The amici proposals seek to address the major practical concerns of the “ordinary crimes” approach: emphasizing the gravity of the crimes; overcoming the pitfalls of the statute of limitations; and expanding the reach of criminal responsibility.

The Absence of Adequate International Crime Provisions in Salvadoran Law

The 1998 Criminal Code currently in force in El Salvador contains a general prohibition on war crimes and crimes against humanity (Arts. 362 and 363). Unfortunately, these provisions cannot be applied to El Mozote Massacre due to the prohibition on retroactivity in criminal law. The law that is applicable – the 1973 Criminal Code – also contains a prohibition on war crimes and crimes against humanity, but this prohibition is far from a general one. It is formulated in a way that shields military personnel from criminal prosecution before the ordinary courts for these specific crimes:

Article 488 – Crimes Against the Laws of War

A civilian who is not subject to military jurisdiction, and who during an international or civil war violates international laws or customs of war, with acts such as psychological or corporal damage, deportation for forced labor of civilian population in occupied territories, ill-treatment of prisoners of war, death of hostages, plundering of private or public property, unnecessary destruction of cities or towns not justified by military necessity, will be sanctioned with imprisonment from five to twenty years.

Article 489 – Crimes Against Humanity

A civilian who is not subject to military jurisdiction, that violates the duties of humanity against prisoners or hostages of war, wounded during war actions in hospitals or places intended for the wounded, and whoever commits any inhuman act against the civilian population before, during or after war, will be punished with imprisonment from five to twenty years.

In the El Mozote Case, all of the indicted are retired military officers. They do not fit the above description, since they were active servicemen at the time of the commission of the crime. One could argue that they are civilians now, so that these provisions could apply to them just as any other provision of the Criminal Code, but that would be a stretch. First, their status at the time of the commission should be relevant. In addition, Salvadoran Military Career Law follows the doctrine of “once a soldier, always a soldier”. Therefore, even if retired, the men on trial are still military officers. The next best chance, therefore, is to look at the criminal laws regulating the Salvadoran military justice system at the relevant time. The 1964 Code of Military Justice in its Art. 68 proscribes:

A member of the Armed Forces who, during international or civil war, burns or destroys ships, aircraft, buildings or other property, or loots the inhabitants of villages or the countryside, or commits acts of violence on people, without military necessity required by the international war operations, will incur the penalty of imprisonment from fifteen to twenty years.

On one side, this provision gives a clear legal basis for prosecuting military personnel for war crimes committed during a non-international armed conflict. Note, however, how the principle of military necessity is only attached to the acts committed during an “international war” and not a non-international armed conflict. Leaving that aside, however, one has to wonder whether a civilian court has the jurisdiction to apply this particular norm in the first place. In one recent case in which the Salvadoran Supreme Court had to resolve a conflict of jurisdiction between the ordinary criminal and military courts, it decided in favour of the ordinary courts because the crime in question was proscribed by the general Criminal Code. It effectively ruled that military courts cannot try military personnel for ordinary crimes, even if these crimes were committed in performance of military duties. So, one can only assume that, likewise, civilian courts cannot conduct trials for the crimes proscribed by the Code of Military Justice.

Therefore, despite the fact that the relevant Salvadoran laws contain provisions sanctioning international crimes, these provisions do not seem to be adequate for the El Mozote prosecution. Left with little choice, the private prosecutors opted to rely on ordinary crimes.

The amici curiae, however, suggest that it would be better if the court introduced the international qualifications of the crimes as well. They point out that the international dimension of the crimes emphasizes their gravity. This is, in my opinion, a question of symbolism rather than of practical prudence. While it may sound heretical, I fail to see what difference it makes to the victims and society at large whether the perpetrators get maximum sentences for murder, aggravated rape and torture, or for murder, rape and torture as an international crime. What does make the difference is if the perpetrators are set free or if the process drags on indefinitely because of errors of law and a ping-pong game between the courts. This can easily happen if an overzealous prosecutor or a first instance judge introduce concepts not native to domestic system without regard to the attitudes of the higher levels of judiciary. As I will present shortly, there are hints of these attitudes from the highest judicial authority in the country. Theoreticians might be disappointed with the “ordinary crimes approach”, but the victims and their surviving families probably will not.

There is, however, another aspect of introducing international dimensions in domestic prosecutions which is of far greater practical consequence. The internationalization of crimes contributes to overcoming restrictions on criminal prosecution due to  statutes of limitations which most national legal systems have in place. In addition, it expands the field of criminal responsibility in order to enable prosecution of those who were designers of policies of gross violations but were sufficiently detached from the commission of the crimes themselves. Domestic concepts of criminal responsibility are not always well equipped for this challenge. The amici briefs are far more concerned with these issues than with the symbolism of international charges.

Overcoming the Statute of Limitations

The applicable Salvadoran criminal law contains a clear statute of limitations for the crimes for which the accused in El Mozote Case are charged (Art. 125 of the 1973 Criminal Code). The prescription period for prosecuting the gravest crimes sanctioned by the Criminal Code is 15 years. It has, therefore, long passed. A substantial part of the amicus brief submitted by the American University advocates for the introduction of international criminal qualifications in order to defeat the prescription. However, as the brief itself notes on page 25, the Constitutional Chamber of the Salvadoran Supreme Court already dealt with this issue in its decision on the unconstitutionality of the Amnesty Law. The Court concluded:

“… crimes against humanity and war crimes constitute grave violations of human rights, even if they are, or have been, qualified differently by the national laws at the time of their commission […]. Legal qualification [of crimes] […] must comply with the law which was in force at the time of their commission, although by their characteristics and context, these behaviors also belong to the international category of war crimes, crimes against humanity or international crimes of an imprescriptible nature.”

It would, therefore, seem that the Salvadoran criminal courts have the Constitutional Chamber’s blessing to disregard the statute of limitations when it comes to the crimes which could be qualified as international crimes. However, they do not seem to have gained the permission to actually use legal qualifications of international criminal law. They are, rather, invited to observe the events in question through the lens of domestic criminal law while being informed with their international characteristics and context. This is very much in line with the strategy adopted throughout Latin America. The Constitutional Chamber’s advice should be interpreted as covering the entire realm of legal issues of the case, not only those related to qualification of the crimes and prescription. It should also inform the discussion on the applicable modes of criminal responsibility, the issue to which I will turn now.

Modes of Criminal Responsibility

As I will discuss shortly, Salvadoran concepts of criminal responsibility seem fairly permissive in going after the “big fish” in cases of gross human rights and humanitarian law violations. There is, however, always a risk that the domestic courts will not give them a sufficiently broad interpretation as would correspond to that of international criminal law. To avoid this risk, the amici curiae briefs are encouraging the trial judge to accept international qualifications of the crimes and, by extension, modes of criminal responsibility defined by international criminal law. Both briefs advocate for the application of the command responsibility principle. Interestingly, neither is seeking the application of the joint criminal enterprise doctrine. Finally, the DPFL brief is proposing the application of the Roxin doctrine of perpetration by means through an organized apparatus of power, in order to overcome the limits of the Salvadoran system of criminal responsibility.

This proposal is very well informed. Besides its civil law origins, a good reception in Latin America and its endorsement by the International Criminal Court, the Roxin doctrine is particularly attractive for the El Mozote Case because it can be implemented in the existing structure of Salvadoran criminal law without much ado.

The concept of indirect perpetration is by no means a novelty for the Salvadoran system (or any legal system for that matter). But Salvadoran law goes a step closer to the Roxin doctrine by explicitly contemplating indirect perpetration in hierarchical organizational settings. Art. 46, in conjunction with Art. 40(3), of the 1973 Criminal Code proscribes that those who issue an illegal order which is then obeyed by the subordinates will be considered as indirect perpetrators of the crime (autores mediatos). The indirect perpetrators will be held responsible regardless of the responsibility of the executioners.

It is immediately evident that this mode of responsibility shares some of the elements of the Roxin doctrine: it presupposes the existence of a hierarchical organization established by law; it also assumes a responsible command of the indirect perpetrator; finally, it at least accepts the possibility of replaceability of direct perpetrators. However, one significant difference is obvious – while the Roxin doctrine requires that this apparatus systematically operates outside of the boundaries of law (the detachment from law requirement), the indirect responsibility from Salvadoran law simply requires the illegality of a particular act. Consequently, it is important to identify a specific order for each criminal act in order to hold the indirect perpetrator responsible. It would take some creativity to stretch this in order to include criminal responsibility for the crimes committed by the members of the group simply on the basis of the de jure or de facto position of control over the group and, by extension, over the crime itself. But one can see how one could use the premises of the Roxin doctrine in order to secure conviction on the basis of Salvadoran indirect perpetration: if one proves a pattern of criminal behavior of the troops under the command of the accused, it becomes more difficult for the defense to deny the knowledge or direction of criminal acts by the accused. In light of the findings of the Truth Commission and the Inter-American Court (paras. 69-72 of the El Mozote Judgment), which established that targeting civilians was, indeed, a pattern of behavior within the “scorched earth” policy of Salvadoran counter-insurgency activities, the prosecution’s job seems to be relatively easy. Therefore, the Salvadoran courts might not have to introduce the Roxin doctrine as a novel principle of national criminal law (and risk objections of violation of principle of legality, however unfounded), but simply incorporate it through the evaluation of evidence.

It should also be mentioned that Salvadoran regulation of perpetration of crimes by omission unequivocally places the duty to act against the commission of a crime on those who have obligations of care, protection and supervision vested on them by law; it also places the responsibility for omissions on those whose previous behavior created the risk of the commission of the crime (Art. 22 of the 1973 Criminal Code). The latter is yet another element of criminal responsibility native to the Salvadoran legal system which bears semblance to indirect co-perpetration in international criminal law. The former, on the other hand, could serve as domestic substitute for command responsibility.

The proposition to use perpetration by omission as a backdoor for command responsibility in national legal systems is not new. It had been proposed in the context of domestic war crimes trials in the Balkans – particularly in Croatia and Serbia. Unfortunately, the proposition was not well received, and the overly general formulation of the rule in the applicable Criminal Code of SFR Yugoslavia left plenty of room to avoid interpreting it as the basis for command responsibility. The Salvadoran rule regulating perpetration by omission, however, is much more robust, and it could be interpreted as a ground for command responsibility without great problems.

Conclusion

Domestic trials of international crimes are always challenging, especially in jurisdictions which had not fully and adequately incorporated international crimes in their legal systems. While double charge is the ideal way to address the shortcomings of such systems, such an approach is not always welcomed by the domestic courts and legal professionals for various reasons. In order to avoid controversy and possible overruling of the case, legal professionals often stick with ordinary crimes in such situations. There is, however, a middle ground, a sort of light version of double charge. This “double charge light” still requires prosecution on the basis of the applicable domestic criminal norms (even if that means qualifying international offences as ordinary crimes), but allows these domestic norms to be observed in the context of international criminality. This approach has worked quite well in Latin America so far. In El Salvador, not only do the existing norms of criminal law make such an approach a relatively easy exercise, but it also seems that it had been invited by the Constitutional Chamber of the Supreme Court. Considering that this is the judicial authority which will have a final say in the case anyway, following its advice seems like a reasonable choice.