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Justice & The Generals
El Salvador
Around the World
About the Film
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About The Film - Viewer's Guide
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From His Introduction to the Viewer's Guide

Justice and the Generals
by Harold Hongju Koh

This is a story about an unfinished search for truth and accountability. On December 2, 1980, four American churchwomen -- Ita Ford, Maura Clarke, Jean Donovan, and Dorothy Kazel -- were found raped and murdered near San Salvador. They had come to work with the rural poor during the 12-year Salvadoran civil war.

For years, their family members' search for truth was met by silence, indifference, and political obfuscation. Finally, the United States Congress threatened to withhold military aid until efforts were made to find those accountable. With this incentive, El Salvador tried and convicted five low-level National Guardsmen for the churchwomen's murders. But the families believed that in the environment of El Salvador in 1980, the guardsmen could only have committed such an outrageous crime if they had acted on higher orders. In the late 1990s, two of El Salvador's senior military leaders had retired to Florida, where the families launched a civil suit against them.

The story of the families' lawsuit against El Salvador's former Minister of Defense Jose Guillermo García and former National Guard director Eugenio Vides Casanova raises a number of important questions. What did all the years of investigation yield? Was this simply a foreign policy "show trial," an effort to rehash old grievances about Central America? Or does the case of the El Salvadoran generals fit into the line of precedent that began with the Nuremberg Tribunals and that continues with efforts to try Yugoslavia's Milosevic, Marcos of the Philippines, Chile's Pinochet, and the genocidal killers of Rwanda? In a globalized world, what is the responsibility of U.S. officials, legislators, and courts to prevent gross human rights violations elsewhere in the world? What is our responsibility as Americans to monitor human rights abuses by governments that receive millions of dollars of U.S. aid, then countenance the murder of their own people and our fellow citizens?

The Case
What made this case possible? First and foremost, it was a brother's quest. Bill Ford, Ita's brother, committed his life to finding out who had killed his sister. Second, an American human rights non-governmental organization -- New York's Lawyers Committee for Human Rights devoted extraordinary resources to pursuing those responsible. Third, American human rights lawyers began invoking a 200-year-old legal provision, the Alien Tort Claims Act -- originally designed to target pirates and those who attack diplomats -- to begin a series of U.S. lawsuits in the United States on behalf of foreign victims of human rights abuses. In 1991, Congress passed the Torture Victim Protection Act, which authorized U.S. victims of human rights crimes or their surviving kin to win civil damages in American courts against foreign human rights abusers who torture and kill. By century's end, numerous successful cases had been brought under these laws.

After El Salvador's peace accords, concluded in 1992, a United Nations-sponsored truth commission determined that during the civil war, government armed forces had committed the majority of the murders, many with the knowledge or acquiescence of the top command -- including Jose Guillermo García and Eugenio Vides Casanova. By the mid-1990s, the two generals had retired and moved to West Palm Beach, Florida. In 1998, four of the convicted Guardsmen finally stated that higher officials had sanctioned the churchwomen's killings, but they didn't know who those officials were. Furthermore, a general amnesty in El Salvador prevented anyone from being prosecuted there for human-rights crimes.

The Lawsuit
In May 1999, the families of the deceased churchwomen filed suit against García and Vides Casanova in a Florida federal court under the Torture Victim Protection Act and the Alien Tort Claims Act, seeking to establish ultimate responsibility for the murders. The legal argument turned on when military commanders have a legal responsibility to take action to prevent human-rights abuse. The plaintiffs argued that the defendants' failure to act when they reasonably should have known of the systematic murder of political dissenters and opponents by forces under their command created an atmosphere of approval for which they should be held responsible.

At the trial, the jury heard extensive evidence that the churchwomen's murder was part of a pattern and practice of human-rights atrocities against civilians believed to be leftist sympathizers, that Vides Casanova had engaged in a coverup, and that García had made no serious effort to conduct a thorough investigation of the murders. In response, the generals professed innocence.

The Verdict
Following the three-week trial, the jurors found that the plaintiffs had not carried their burden of proving the generals legally responsible for their murders. Interviews with jurors showed that they had difficulty grappling with the judge's instructions, which required them to find liability only if the killers acted under the generals' effective command and control. One juror reported that the plaintiffs' evidence had convinced the jury instead that a situation of chaos reigned, which deprived the generals of control over what the National Guardsmen were doing. The families of the churchwomen are appealing the decision.

The Significance
The case had far-reaching impact. For the first time the truth about El Salvador was finally examined in a U.S. court. The "real victory is that we got the story out," said Mike Donovan, Jean's brother. The trial record unearthed years of declassified documents that confirmed the findings of the United Nations Truth Commission.

Can a civilized world live with impunity as the verdict for gross human rights violators? Or do we have an obligation to pursue the truth, to turn knowledge into legal acknowledgement, to create a public record of abuse, and to declare such gross violations to be crimes against humanity? Should we let gross abusers live quietly among us, or should we treat them as enemies of all mankind? And has the churchwomen's memory been honored by the result? As Bill Ford has told reporters, "People who do these things should know that maybe not today, maybe not tomorrow, but some day somebody is going to catch up with them."

Photo of Harold Koh About the Author
Harold Hongju Koh is Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School. He served as counsel for plaintiffs in numerous human rights cases, and served as Assistant Secretary of State for Democracy, Human Rights and Labor in the Clinton Administration.

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