Case History: Ford et al. v. García et al. by Amanda Smith Between 1980 and 1991, El Salvador was engulfed in a civil war in which thousands of civilians were killed, tortured or suffered other severe human rights abuses. Among those that were routinely tortured and killed, often because of spurious allegations that they assisted leftist guerilla insurgents, were priests and nuns, lay churchworkers, union leaders, land reform workers and students. The Salvadoran military was often implicated in these actions. During this period, the Salvadoran military was an extremely hierarchical organization. At the pinnacle of this organization was the Minister of Defense. Subordinate to the Minister of Defense were the heads of the various armed forces and the heads of the "security forces" - including the National Guard. From 1979 to 1983, Jose Guillermo García was Minister of Defense and Carlos Eugenio Vides Casanova was Director-General of the National Guard. In 1980, four American churchwomen were working with refugees in El Salvador: Ita Ford and Maura Clarke were nuns of the Maryknoll order, Dorothy Kazell was a nun of the Ursuline order and Jean Donovan was a Catholic layworker. Around this time, Catholic nuns and priests received numerous death threats and threats of expulsion from El Salvador. On the evening of December 2, 1980, Sister Kazel and Ms. Donovan went to the airport near San Salvador, El Salvador to meet Sister Ford and Sister Clarke who were returning from Nicaragua, where they had attended a meeting of the Maryknoll Order. A Salvadoran government official on duty at the airport saw Sister Kazel and Ms. Donovan arrive and called his superior officer, Sergeant Luis Antonio Colindres Alemán, who was in charge of the National Guard detachment at the airport. Earlier that day, Sergeant Colindres had ordered four National Guardsmen to wear civilian clothing and accompany him to the airport. Sergeant Colindres told the men that they had a "special mission" involving the "capture" of four persons arriving from Nicaragua. When the four churchwomen departed from the airport, their vehicle was followed by the National Guardsmen in a military jeep. When the Guardsmen pulled over the churchwomen's vehicle, Sergeant Colindres, who was in charge of the "mission," began interrogating the churchwomen. Colindres then told the Guardsmen that they were to take the churchwomen to an isolated place. One Guardsman reported that he saw Sergeant Colindres make a telephone call and heard him say "muy bien" as if he was receiving orders. After that telephone call, Sergeant Colindres told the guardsman that he had received an order to eliminate the women. Colindres then ordered the Guardsmen to kill the women. One of the Guardsmen asked if there was a written order, to which Sergeant Colindres replied, "tengo instrucciones" ("I have instructions.") The men followed the orders, sexually assaulting and killing the women. Early in the morning of December 3, 1980, people from a nearby village found the bodies of the four churchwomen. After the murders, several investigations were initiated, none of which were effective and several of which appear to have actually covered-up the fact that the order to kill the churchwomen came from higher levels in the Salvadoran military. The four National Guardsmen were tried and convicted of the murders but, despite voluminous evidence that those men had been following specific and direct orders to kill the American women, no further investigation was made. Sometime around 1989, García and Vides Casanova, both of whom now hold the rank of General, emigrated to Florida, where they currently reside. On May 13, 1999, the families of the four churchwomen filed a federal civil lawsuit in Florida under the Torture Victim Protection Act ("TVPA") -- a 1992 federal statute designed to give torture victims or their families who are United States citizens the chance to confront the persons who committed crimes against them as the Alien Tort Claims Act had for aliens. Importantly, this law also held liable those officials who had the authority and responsibility to ensure that such acts did not take place. Plaintiffs' theory of the case was that Generals García and Vides Casanova had "command responsibility" for the soldiers under their control, like the National Guardsmen who committed the murders and the higher ranking officers that ordered the murders. On November 3, 2000, the jury found for the Defendants. The families of the churchwomen immediately appealed to the United States Court of Appeals for the Eleventh Circuit on the grounds that the trial court judge erred in issuing instructions to the jury on what they had to find in order to hold the generals responsible under a "command responsibility" theory. In particular, the judge instructed the jurors that, before they could hold the generals responsible, they had to find that the plaintiffs had proven that the generals had "effective control" over their subordinates who killed the churchwomen. Lawyers for the churchwomen argued that instead, the plaintiffs had demonstrated that the generals, by law, had authority over troops under their command. Thus, the burden should be on the generals to show that they did NOT have effective control over subordinate troops. The Eleventh Circuit Court of Appeals heard oral arguments in the appeal on December 6, 2001 and is expected to issue a decision in the spring of 2002. About the Author Amanda Smith graduated from the University of Michigan Law School in 1997 and joined Brobeck, Phleger & Harrison LLP in San Francisco in 1998. Her practice focuses on general complex litigation and policyholder-side insurance coverage litigation. Amanda maintains an active pro bono practice, including litigation of cases under the Alien Tort Claims Act and Torture Victim Protection Act in conjunction with the International Human Rights Law Clinic at the University of California, Berkeley, Boalt Hall School of Law. Learn about three key human-rights cases being tried in U.S. courts. Trial History: Filartiga v. Pena-Irala Case History: Ford et al. v. García et al. Trial History: Romagoza et al. v. García et al. Torture Victims Protection Act  Civil trials have an important role to play as a means of enforcing human rights norms. Such cases do not require official approval. They can be brought by individuals who have control over the lawsuits and thus are less subject to political vagaries. Command Responsibility   Military commanders are responsible for the acts of their subordinates. If subordinates commit violations of the laws of war and their commanders fail to prevent or punish these crimes, then the commanders also can be held responsible.