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August 19, 2002 |
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Their confidence was not unreasonable: the plaintiffs had no proof that either of the generals had personally tortured or killed people, or even that they had ordered such crimes. There was certainly evidence that Salvadoran troops had abducted, tortured and killed tens of thousands of Salvadorans during the 1980s -- and between them, Garcia and Vides Casanova occupied the post of Salvadoran minister of defense during nearly all of that decade. But that wasn’t enough to defeat them in court. In such cases, no matter how heinous the crimes themselves, the commanders of the troops who commit them are not automatically liable under current international law. In the absence of proof of a direct order to commit the crimes, it must be shown that the commanders could have prevented them or could have punished the offending troops – and didn’t make a reasonable attempt to do so. This is the legal doctrine of command responsibility, which has become central to attempts to hold high-ranking officials responsible for gross abuses of human rights.
The idea is well known in international criminal law, but has played little part in the U.S. domestic legal system until now. The two Florida suits (the second of which was decided last month) were the first U.S. civil cases to highlight command responsibility. Since they were decided by juries, they also mark the first time that non-lawyers anywhere have grappled with the complex questions raised by command responsibility in order to decide a case. Together, the cases demonstrate the difficulties – and the possibilities – of seeking to hold senior officials liable for human rights abuses in U.S. courts. Development of the Doctrine "Isn’t it true that, as minister of defense and public security, during those years you exercised command authority?" a plaintiffs’ lawyer, James K. Green, asked, struggling to pin General Garcia down during a deposition before the second trial. "That is, the authority to give orders to subordinates, either directly or through intermediate subordinate commanders, over all members of the Salvadoran military forces?" "That is not true," answered the general calmly. Green tried again. "But face-to-face, your soldiers, under your command, would obey your order?" "That question is a very…" Garcia left his reply in Spanish unfinished. "If you gave them a direct command, and they were face-to-face to you, [and] you were wearing your uniform either as a colonel or general, they would respect the uniform?" "They would respect it," Garcia, who is now 69, said with a little nod that showed the top of his head, covered with dark dyed hair from one white temple to the other. "But I couldn’t guarantee that they would comply with my order." As this exchange suggests, although the idea of command responsibility is simple, it can be complex to apply. It is one thing to say that an officer who does not try to stop troops under his command from committing atrocities gives them a green light to continue. In practice, however, someone – judge or jury – must decide what would have constituted a reasonable effort to stop atrocities in a given wartime circumstance, and what (however reasonable it seems in hindsight) would have been impossible at the time. Drawing that line is the difficulty and the fascination of the command responsibility doctrine. The doctrine was developed in the aftermath of World War II as a way of holding Nazi and Japanese officials accountable for war crimes at the Nuremberg, Manila, and Tokyo trials. The first and most famous case from this period was the trial of Tomoyuki Yamashita, a Japanese general accused of responsibility for the atrocities committed by Japanese troops in the Philippines after he took command there in October 1944. In his defense before the U.S. military commission that tried him, Yamashita said almost exactly what the Salvadoran generals said at their trials a half-century later: a difficult situation had tied his hands. "I believe that I did the best possible job I could have done," he testified. "However, due to the above circumstances, my plans and my strength were not sufficient to the situation, and if these things happened, they were absolutely unavoidable." Rejecting this argument, the U.S. military officers who decided the case ruled that the crimes were so widespread that Yamashita must have either secretly ordered them, or intentionally permitted them. (Unlike the plaintiffs in the cases against the Salvadoran generals, Yamashita’s military prosecutors were not required to show that he could actually have stopped his troops’ rampages.) Yamashita was convicted and executed. After the post-World War II cases, the nascent body of command responsibility law hardly grew until the 1990’s, when the United Nations Security Council established tribunals to deal with the massive crimes committed in Bosnia and Rwanda. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and its counterpart, the International Criminal Tribunal for Rwanda (ICTR), have tried more and more cases based on command responsibility, as they have sought to bring "big fish" to justice, and codified the law. The command responsibility doctrine of the ICTY and ICTR has three parts. First, the defendant must have had a "superior-subordinate relationship" with the troops who committed war crimes; in other words, he must have had command over them. Second, the defendant can only be liable if he "knew or should have known" that the troops were committing war crimes. Finally, the defendant must have failed to prevent or punish the troops for such crimes. This doctrine also informs the statute of the newly-established International Criminal Court: its Article 28 holds that "a military commander or person effectively acting as a military commander shall be criminally responsible for crimes… committed by forces under his or her effective command and control." International Law Comes to Florida
In the Florida cases against the two generals, Federal District Judge Daniel T.K. Hurley (who presided in both trials) adopted the ICTY and ICTR law on command responsibility. It is unusual for an American judge to show such deference to international law. Indeed Judge Hurley, a former Roman Catholic seminarian, went further, studying the law and adapting it to the circumstances of El Salvador in the 1980s, and to American jury trials. Hurley also made an effort to explain command responsibility law to the jury, as no other judge has had to do. The World War II, ICTY, and ICTR cases were all decided by professional judges or military officers acting as judges. In an American jury case like the Florida trials, by contrast, the judge does not decide the verdict, and writes no final opinion. Judge Hurley’s views of the law marked the cases, instead, by means of the written instructions on the law that he slowly read to the jury at the end of each trial. Those instructions now constitute an essential but unwieldy tool for U.S. efforts to bring alleged war criminals to justice, since they stand as the most current and detailed definition of command responsibility in U.S. law – and they have refined international law on the subject. They were written with painstaking effort. Every evening during both trials, after dismissing the jury, Hurley would remain on the bench in his trademark bow tie, immaculate dark suit and robes, to debate pending legal matters with the lawyers on both sides. Almost invariably, the matter at hand was a few paragraphs of double-spaced text on command responsibility, and the judge never seemed to tire of discussing it, not hesitating even to re-consider the placement of a comma. Near the end of the second trial, the judges and lawyers debated at length whether to refer to a commander’s "material ability" or his "practical ability" or his "actual ability" to "prevent the torture or to punish the persons accused of committing the torture". On the last day of the trial, the judge settled on "actual ability." The Churchwomen’s Case The first of the two lawsuits sprang from an incident in 1980, in which four American churchwomen were raped and killed by Salvadoran National Guardsmen; at the time Garcia was minister of defense and Vides Casanova was director of the National Guard. After tremendous pressure from the United States, five guardsmen were tried and convicted in El Salvador for actually committing the crimes.
William P. Ford, the brother of one of the nuns who had been killed, continued to press for prosecution of higher-ups; he was convinced that National Guard rank-and-file would never have killed four American women without sanction from above. There were no further prosecutions in El Salvador. Finally, nearly twenty years after the killings, Ford found out in 1999 that Garcia and Vides Casanova had retired in the United States, which made them vulnerable to suit for crimes committed abroad under two U.S. federal laws: the Alien Tort Claims Act and the Torture Victim Protection Act. The other three churchwomen’s brothers and sisters joined Ford in his suit, and then flew from their homes around the country to sit out almost a month of trial in the fall of 2000, in the incongruous surroundings of West Palm Beach’s stiff manicured grass and resort hotels. In court, the plaintiffs’ lawyers showed enormous photographs of the bodies of the four women, taken in December 1980, soon after Salvadoran villagers had discovered their makeshift grave and exhumed the bodies, covering them with tree branches until someone could find sheets. The generals argued that they had done what they could to control their troops in the midst of a chaotic civil war, but that they had not been able to prevent what Garcia called wartime ‘excesses.’ They also said it would have been impossible, after decades of military dictatorship in El Salvador, to change a longstanding practice of tolerating human rights abuses in a short time. Garcia, the senior of the two generals, did much of the arguing himself. Sitting at the witness stand, smaller and thinner than in his heyday but still clearly in charge, he fished documents out of his briefcase, made extended speeches to the jury, and directed the defense lawyer, Kurt Klaus, when to press "play" and when to press "fast forward" as they showed Salvadoran wartime propaganda films for nearly a whole day of the trial. Garcia and Vides Casanova won, even though the jury foreman, a postal worker from the seaside town of Lake Worth, Florida, later expressed "anguish" at the verdict. The main obstacle, the foreman said, had been two words - "effective command" - in the written instructions that Judge Hurley had prepared for the jury. Arguing that his clients should not be held responsible for failing to do the impossible, Kurt Klaus, the generals’ solo defense lawyer, asked that they not be held liable unless the plaintiffs had shown that the generals could have actually controlled their troops. The judge agreed. "Effective command," he wrote, "means the commander has the legal authority and the practical ability to exert control over his troops." It was not enough that the two generals had been in official command of the troops – the plaintiffs would also have to prove the generals could actually have controlled the soldiers. The plaintiffs’ lawyers never did that, the jury foreman said, so he unwillingly upheld the law. A Second Trial At the same time as the Ford case was being assembled, human rights groups in the U.S. encouraged other people who might have been tortured by the Salvadoran military to come forward. As a result, this summer the generals found themselves on trial again. For four weeks, they arrived at the courthouse each morning together, dressed in grey civilian suits and carrying hard-sided briefcases, only to take their place scarcely ten feet away from three Salvadorans who claimed to have been abducted and tortured in the early 1980s. The generals sat at the defendants’ table, nearly always impassive, listening to a running translation of atrocities and other testimony through plastic headsets that hung beneath their chins. Garcia took frequent notes, sometimes in green ink, and occasionally held up his face with the folded fingers of his left hand. Juan Romagoza Arce, the doctor who was the lead plaintiff in the second case, said he believed that while he was being detained and tortured by the Salvadoran National Guard from December 13, 1980 to January 5, 1981, Vides Casanova, then head of the National Guard, visited him. But Romagoza Arce, who emerged from detention weighing about 80 pounds, had been blindfolded and conceded that he wasn’t certain it was Vides Casanova in the room. Neris Gonzalez was abducted in the marketplace of the Salvadoran town of San Vicente in 1979 by National Guard troops and a civilian, who pointed her out as a subversive, she said, because she was a Roman Catholic catechist who had been teaching "dumb peasants" to read and to count to 100. She was eight months pregnant. Taken one block away to the local National Guard post, she said she was burned and slashed, forced to watch the torture and killing of a young man, and forced to lie face up under a metal bed frame while soldiers stood on top of it, playing ‘seesaw’ as the frame cut into her belly. After she was released she gave birth, but the child died after two months, she said.
The last plaintiff, Carlos Mauricio, was a university professor in San Salvador. He had been about to begin teaching a class in biochemistry on June 13, 1983, when a stranger approached and asked him to step outside to move his car. Mauricio went outside, where, over the protests of one of his students, a group of men in civilian clothes shoved him into a van and took him to a building he recognized as the National Police headquarters. He was beaten, had his hands tied behind his back and was then hung in the air by his hands. In response to this testimony, Judge Hurley made a change to his jury instructions from the previous trial, and an innovation in command responsibility law. The generals could be liable, he ruled, even if the plaintiffs had been tortured by non-soldiers, as long as the generals had the same authority over those civilian ‘volunteers’ as they would have had over soldiers. Regular military commanders could be held accountable for crimes committed by death squad members or paramilitaries. Hurley also made a second refinement in command responsibility law. He required the plaintiffs to show evidence that the generals had had effective control of their troops – rather than requiring the generals to prove that they had not had such control (as the plaintiffs’ lawyers had sought). It is arguably more difficult to show that someone had power that he did not use, since power is generally demonstrated by its use: proving the existence of unused power is like measuring an electrical current without plugging anything into it. So the plaintiffs’ lawyers had to persuade a jury of Floridians – with no knowledge of El Salvador in the 1980’s – that the generals had effective control over their soldiers, defined by the judge as "actual ability" to prevent them for committing torture or to punish them for it. To accomplish this first-time-ever task, the lawyers tried several methods. First, they questioned the generals. Garcia had no choice, really, when Green, the plaintiffs’ lawyer, asked him what used to happen when he walked into a Salvadoran military barracks in the early 1980s. "Would everyone stand up and salute you?" "Yes, yes," the general said through a Spanish interpreter. Of course they saluted. "And people would say ‘yes, sir’ and ‘no, sir’? "Yes," Garcia said again. "And you had parades?" Green persisted. "And the men would march by you?" Green was trying to force the old general either to affirm his former power, or to say that his men had disrespected him. "Yes," the general said calmly, once again. They had parades. But the men would march "in front of the entire high command," he said. "…It was never something specifically for me, never." Garcia described himself as "one level throughout the whole command" – too far up to discipline soldiers personally, and too far below the commander-in-chief to take responsibility for major decisions, like promoting officers who were accused of directing atrocities. Asked if he ordered specific investigations into atrocities, Garcia said it had not been his personal duty to do so. When Green, exasperated, finally asked the general what he would have done if he had seen a captain pistol-whipping a civilian in the street, the general said he would have tried to stop it since that would have been his duty – as it would have been the duty of any civilian who witnessed a law being broken. "Acts, Not Words" To refute these protestations, the plaintiffs called Jose Luis Garcia, an Argentine colonel who was imprisoned in Argentina for trying to prevent his own armed forces from committing atrocities. He testified that the Salvadoran generals could not have been ignorant of the crimes their soldiers were committing (as they said), and that they had failed in their duty by not taking "minimum measures to stop the continuous violations of human rights that damaged the prestige of the [Salvadoran] armed forces and also of their country." Colonel Garcia testified, as an expert in command responsibility, that the chain of command had functioned without interruption from 1979 to 1983 and that "the gentleman general exercised his authority to the fullest." Giving a general speech to the troops about human rights, as Generals Garcia and Vides Casanova said they had done, was not enough, Colonel Garcia maintained. They should have punished some soldiers and officers for atrocities. "There is a saying, at least in the majority of armies, that goes, "acts, not words." General Garcia, the defendant, proudly testified to one act on which the plaintiffs’ lawyers seized, arguing that it demonstrated his effective control. He had ordered his troops to oversee the nationalization of the banks in El Salvador within 24 hours – a move that was unpopular with many powerful people in the country. Terry Karl, a political science professor at Stanford University who studied and visited El Salvador in the 1980s, countered the generals’ defense that El Salvador was too chaotic to control; "repression and chaos aren’t the same," she argued. She also maintained that when the United States put strong pressure on the Salvadoran high command to curb human rights abuses, the violence dropped. "To me that shows control," she said. The defense called only one witness other than the generals. A former U.S. ambassador to El Salvador, Edwin Corr, said that in the early 1980s the Salvadoran armed forces were so fragmented and chaotic that the two generals could not have controlled them. Trying to stop the troops from committing human rights violations, he said, would have been "like trying to cure a patient with many maladies. If you tried too hard to cure one, you might kill the patient." In their closing arguments, the plaintiffs’ lawyers listed specific steps that Garcia and Vides Casanova might have taken to prevent atrocities by their troops: to repeatedly and publicly denounce human rights abuses, to demand reports of civilian deaths, to threaten to remove officers who preside over murderous troops, to inspect sites of alleged human rights abuses, to cooperate with civilian investigations, to request help of outside investigators. In reply, the defense lawyer Klaus told the jurors that they knew how hard it could be to control people one is supposed to control. "Like your kids," he said. The Verdict and the Future Since the case was a civil suit, the generals risked neither prison nor deportation – only the payment of damages. But Gonzalez said on the witness stand that she did not want money; she said she was offended at the notion that money could compensate her for her son. Mauricio also said he wanted something that the lawsuit would not provide. "I need an answer from General Garcia, and from General Vides Casanova," he said, near the end of his testimony. "Why was I detained and tortured and he did nothing to prevent it?" Mauricio asked, staring across the courtroom at one silent general, then the other. Mauricio never got an answer – except the generals’ oft-repeated contention that they did their best. Instead, after the defense rested its case, the generals rose from their seats, walked over to the plaintiffs’ table and extended their hands, offering to shake hands and apologize. Gonzalez looked at the generals, refused to extend her hand, and told them, "Go to El Salvador and make that apology – cry it out – to the Salvadoran people." Soon after that, on Thursday July 18, the jury began deliberating. On Friday the jurors sent out two questions that indicated they were struggling with command responsibility law. One of the questions asked for a definition of "actual ability," to the consternation of the judge who had worked so long and hard to make it clear. The other asked, "Shouldn’t it be absolutely necessary for the…torturers to be identified, or at least proved to be subordinates of the defendant commanders? It seems a lot is missing." "I think the question suggests some real confusion" on the part of the jury, the judge said. He gave a brief explanation, and sent them home for the weekend. On Monday the jurors began their discussions again, so contentiously that there was "yelling, screaming and crying," as Arnie Esbin, the jury’s foreman, later described it. At last they reached a verdict, late Tuesday morning, after one of the jurors threatened to quit if there was no progress. They found both generals liable on all counts and ordered them to pay the three plaintiffs an extraordinary $14.6 million in compensatory damages, and $40 million in punitive damages. "The generals were in charge of the National Guard and the country," said Esbin, who teaches stained-glass making in the schools of Boynton Beach, Florida. "It was a military dictatorship." He dispatched the question of effective control in one sentence: " They had the ability to do whatever they chose to do or not do." The plaintiffs may not collect much, or any, of the huge sums they were awarded: the generals say they have little money, although the plaintiffs suspect they have some hidden abroad. However the case is likely to have significant impact, encouraging other torture victims and relatives of the ‘disappeared’ to file lawsuits against other former commanders now living in the United States; it may cause some of those potential defendants to leave rather than risk having their retirements interrupted by a trial. The Center for Justice and Accountability, a human rights organization that helped the bring the second case, estimates that there are 500,000 victims of torture in the United States – and dozens of high-ranking officials who might be held responsible for it. More cases based entirely on command responsibility are likely to follow in other countries where victims and former commanders have all taken refuge, such as Canada. Finally, this case will have substantial impact in El Salvador, since the two generals are the first high-ranking officials ever to be found liable in any court for the deaths of an estimated 75,000 civilians during the war there. Mauricio, one of the plaintiffs, said he wants to form a group of Salvadoran potential plaintiffs, to bring more cases against other former commanders. Commenting on the verdict, the Salvadoran weekly El Faro called for future trials to be held in El Salvador – rather than the United States, a country whose government had funneled more than a million dollars a day to the Salvadoran authorities during the war. Such trials, the newspaper wrote, would allow El Salvador "to write our own history and to give at least moral justice to the victims, no matter who the perpetrators of the crimes may be." Susan Benesch is a journalist and lawyer in Washington D.C. She reported from El Salvador as a newspaper correspondent in the 1980s, and she did legal work on the first case against the generals for the Lawyers Committee for Human Rights, where she is now a fellow. Related chapters from Crimes of War: What the Public Should Know Command
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