Wednesday, March 02, 2005

Closing doors of US courthouses to Salvadoran civil war victims

The decision of a federal appeals court to bar a claim against two retired Salvadoran generals will close the door to future lawsuits in the United States arising out of the events surrounding the civil war in El Salvador. In the case Arce v. Garcia, the appellate court ruled that a 10 year statute of limitations applies. Although this time limit can be extended by a doctrine called "equitable tolling," the Court refused to use this doctrine to permit the suit. The court found that the 10 years began at least by 1989 when the generals moved to Southern Florida, and so the lawsuit brought 11 years later in 2000 was brought too late. The court rejected the claim that the 10 year limit on a claim should start no earlier than the end of the civil war in 1992.

The decision in Arce v. Garcia is more restrictive than decisions in some other cases which have permitted lawsuits against Ferdinand Marcos and against officials implicated in torture and murder in the Pinochet government in Chile.

The practical impact of this decision is to prevent any future claims in United States courts. Since more than 10 years have passed since both the conclusion of the civil war and the issuance of the UN Truth Commission report, any claim now would be too late. In fact, it seems clear that the lawsuit against Alvaro Saravia, which found him liable for participation in the murder of Archbishop Oscar Romero, would have been dismissed on statute of limitations grounds if Saravia had hired lawyers to make the argument rather than fleeing the jurisdiction.

The tragedy is not that the US courts are now closed to victims of a brutal civil war, torture and death squads in El Salvador. A valid argument can be made that the US courts cannot and should not be the courts of last resort for human rights violations in various parts of the world over the past several decades. The real tragedy is that El Salvador never developed a judicial system of its own which could handle such claims. In 1993, the UN Truth Commission Report stated:

The question is not whether the guilty should be punished, but whether justice can be done. Public morality demands that those responsible for the crimes described here be punished. However, El Salvador has no system for the administration of justice which meets the minimum requirements of objectivity and impartiality so that justice can be rendered reliably. This is a part of the country's current reality and overcoming it urgently should be a primary objective for Salvadoran society.

Five days after that report was published, the Salvadoran Congress passed a blanket amnesty for all the crimes committed during the war. Human Rights Watch 1994:
In an attempt to limit the impact of the report and prevent a full reckoning with its findings, President Alfredo Cristiani asked for an "immediate, general, and total amnesty" on the eve of the report's release. Within days, the Salvadoran Legislative Assembly, over the objections of the FMLN and opposition parties, passed a "broad, absolute, and unconditional amnesty" for political as well as most common crimes. As a result, those jailed in even the most notorious cases, including the Jesuit murders and the 1991 FMLN murders of two wounded U.S. servicemen, went free.
The "demands of public morality" have never been met in the years since.

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