Partial Justice in Salvador
Never before have Salvadoran soldiers been convicted of human rights crimes; but US policymakers shouldn't overstate the progress
THE verdict in the trial in El Salvador of soldiers accused of murdering six Jesuit educators, their housekeeper, and her daughter raises more questions than it answers. Both in El Salvador and in the United States, the verdict is being used to make strikingly different and apparently contradictory points. These contradictions reflect the delicate and confusing state of Salvadoran politics.The conviction of two military officers for killing civilians is unprecedented in El Salvador. As such, the verdict is an important break in the Army's longstanding impunity from prosecution. For a colonel and a lieutenant to be tried and convicted of murder, the Army had to make a political decision to allow the trial to occur. The impact of that decision was amplified by the highly public nature of the proceedings. The entire three-day trial was broadcast live on Salvadoran television. For the case to have lasting importance, however, President Alfredo Cristiani must make a very difficult decision: whether to pursue those who ordered the murders. Virtually everyone in El Salvador believes that officers senior to Colonel Guillermo Benavides ordered the murder of the priests. The priests, leaders of the nation's most prominent university, were killed in the center of San Salvador, in an operation involving more than 50 soldiers. A colonel who heads the military academy would not undertak e such an action on his own initiative. Even with a civilian government in El Salvador, the Army continues to dominate civilians, including those in the courts. The Salvadoran Army will actively resist any investigation that goes higher. International attention must now focus on this aspect of the case. Success in prosecuting the order-givers would demonstrate the government's commitment to purge the armed forces of human rights criminals. Significantly, this issue remains the fundamental point of contention in the United Nations-sponsored pea ce negotiations. What effect the trial in the Jesuit case will have on the administration of justice and the prosecution of other human rights crimes is a significant concern. The Salvadoran military has treated the case as an aberration. The military continues to resist efforts to investigate other human rights abuses, and there have been many. Ultimately, the Army's impunity will be broken only when soldiers assume that they will be prosecuted whenever they abuse civilians - not just in cases that draw public attention. Unfortunately, the acquittal of seven of the nine defendants, including four whose extrajudicial confessions identified them as the triggermen, fell far short of holding the military accountable for civilian murder. AS a lawyer working closely with the Jesuits on this case, I see few aspects of either the investigation or trial that are likely to serve as a model for future trials. On the plus side, the judge carried out his duties in a thorough and professional manner. He brought the case to trial, but he did so against great odds. The case he prepared was hampered severely by the military's refusal to cooperate. From the outset, military investigators dragged their feet and failed to pursue key leads. Military officers destroyed log books from the military academy and other key evidence. Military witnesses engaged in what one of the prosecutors called a "conspiracy of silence." Largely because of the military's failure to cooperate, the case presented to the jury was seriously flawed. At the trial itself, the jury was expected to rule on the basis of a one-day review of a 5,000-page written record and two days of oral arguments by prosecution and defense lawyers. The jury heard no witnesses and was asked to sort through a range of contradictory facts and impressions presented by lawyers from each side. A demonstration by more than 200 Army supporters directly outside the courtroom, led by a senior officer, should not have been permitted to disrupt the proceedings. Clearly intended to intimidate the jury, loudspeakers blared El Salvador's national anthem and military taps into the courtroom itself - sending an unmistakable message to everyone in the room. If this is how the system performs under the glare of intense national and international scrutiny, one can imagine how routine cases are resolved. Where rhetoric clashes most dramatically with reality is in the effect the case has had and will have on US foreign policy toward El Salvador. To encourage continued military aid to El Salvador, the Bush administration seeks to put the best face on the Salvadoran situation generally, and the Jesuit case in particular. They overdo it. Unfortunately, to some members of Congress, the outcome of the Jesuit case has become an easy and efficient way to evaluate the aid program. After a decade of war and suffer ing, the people of El Salvador deserve a more nuanced and careful approach to future US policy. As Congress begins to refocus on El Salvador in anticipation of an upcoming vote on aid, two points should guide the debate and decisionmaking. First, whatever policy the US takes should be consistent with and reinforce the UN peace process that seeks to end the civil war and to reduce the power and influence of the armed forces of both sides. Second, with respect to the Jesuit case and the broader desire to strengthen the rule of law, Congress should set as a principle the need to strengthen civilian institutions in El Salvador. Until a fundamental restructuring of the armed forces occurs, and until the military accepts civilian control as a matter of principle, continued US military aid merely perpetuates a fundamental source of the country's ongoing trauma.