Postscript to Adjudicating the Salvadoran Civil War: Expectations of the Law in Romagoza

In “Adjudicating the Salvadoran Civil War,” I examined a successful Alien Torts Statute (ATS) civil lawsuit, brought by three Salvadoran torture victims against two Salvadoran Generals and former Heads of State. This trial was part of a broader wave of lawsuits that sought to utilize U.S. courtrooms to achieve official condemnations of foreign nationals and corporations who had committed grave violations of human rights. Beyond condemning these individuals, the plaintiffs also hoped that the law would at long last “establish a definitive narrative of the Salvadoran Civil War.” In the article, I argued that, even though the court ultimately found the Generals liable for the torture they oversaw during the 1979-1992 war, it had great difficulty assessing broader historical issues.

Following the publication of this study, I traveled to El Salvador to conduct research on how the ATS trial had been received in the country whose past had just been adjudicated by a jury of U.S. citizens. To my great surprise, and despite the widespread media coverage of these trials in the Salvadoran press at the time, most people remained largely unaware of its outcome. Even amongst the employees and volunteers of Pro-Búsqueda, an organization dedicated to locating children kidnapped and disappeared during the war and reuniting them with their biological parents, only a few people had vague recollections of the suit against the Generals. Despite the official condemnation of their crimes and the historic $54.6 million ruling, Romagoza had not made much impact in the ways most Salvadorans related to their still divisive past.

Meanwhile, in the United States, the Supreme Court has since moved to limit the scope of ATS lawsuits, in part out of concern for the effects of these tort claims on U.S. foreign policy.[1] In the 2013 Kiobel v. Royal Dutch Petroleum decision, the highest judicial body unanimously reversed three decades of lower court precedent, greatly restricting the ability of U.S. courts to adjudicate torts committed on foreign soil. Though the full implications of this ruling will not be known for a number of years, a case like Romagoza v. Garcia, which treats matters that occurred between foreign nationals on foreign soil, would today face a far more challenging legal environment.[2]

Despite this, and as I predicted in the article’s conclusion, legal efforts against the Salvadoran Generals have continued unabated. Even as the U.S. Supreme Court limited the scope of ATS lawsuits, activists found a new forum in which their claims could be heard. In recent years, the Immigration and Customs Enforcement’s Human Rights Violators and War Crimes Unit, at the urging of the Center for Justice and Accountability (CJA), has successfully sought deportation orders against both Generals, citing provisions of the Immigration and Naturalization Act that allow for the expulsion of aliens who have committed torture and extrajudicial killings.[3]

One advantage of immigration proceedings over torts litigation is their ability to address a broader range of offences. General Garcia’s deportation hearing in particular took far wider account of the historical context than the ATS lawsuit I examined. There, the immigration judge found that Garcia “fostered, and allowed to thrive, an institutional atmosphere in which the Salvadoran armed forces preyed upon defenseless civilians under the guise of fighting a war against communist subversives.”[4] Combined with the increasing possibility that El Salvador’s Amnesty Law may soon be repealed, criminal prosecution of the Generals seems more possible than ever before.[5] The law may yet prove capable of rendering a guilty verdict against them.

Whether any of these trials can rise to the level of Neris Gonzalez’s “moral court,” however, is more doubtful. As General Vides Casanova’s defense attorney correctly points out, “The United States government was an active participant on the side of the El Salvadoran government.”[6] Notably, as CJA attorney Patty Blum has argued, this does not excuse the Generals’ crimes. It does, however, suggest that the question of historical complicity exceeds the bounds of the courtroom, even as the law appears the only means of addressing them.

My more recent research continues to look at the ways legal forms both promise (and often fail) to address historical wrongs. Rather than examine courtroom proceedings, I am currently analyzing how forensic anthropological techniques originally developed to produce evidence for a truth commission, war crimes tribunal, or other juridical forums take on new meanings in post-Franco Spain. There, civil society actors have turned these juridico-scientific techniques into a means of critiquing a state that is not living up to its moral and legal responsibilities to the dead and their relatives. As in Romagoza, legal forms become the privileged idiom for addressing past wrongs. Ironically, however, the renting of forensic exhumations from the sorts of constrictive evidentiary rules, which prevented the Salvadoran torture victims from testifying to their full experiences in the United States, allows these technical procedures to be more responsive to the needs and desires of those directly affected by state violence.[7] Yet, the lack of official state sanction still restricts their broader impact.

Taken together, the limits of U.S. torts litigation described in my article, more recent developments in U.S. immigration law, and the experience of Spanish activists adopting legal forms raise challenging questions for researchers and policy makers. Why has the law become the privileged mechanism for these disputes? Are the limitations documented in these cases endemic to legal forms, as I suggest in the article, or are the wheels of justice slowly but surely grinding away at the impunity that characterizes many post-war countries? And, what modes of historical redress other than the law might be capable of addressing these wrongs?

Jonah Rubin is a Ph.D. candidate at the University of Chicago. His ethnographic research explores the dynamics of historical memory, citizenship, and political pedagogy in Castilian Spain.

Notes

[1] The U.S. Supreme court decision was part of a broader trend of countries limiting the scope of universal jurisdiction laws in recent years. Similar restrictions have were placed on UK courts in 2011 (Alexandria Malatesta. “UK Passes law limiting arrests under universal jurisdiction.” Jurist. September 16, 2011, accessed 19 May 2014) and in Spain this year (Kassam, Ashifa. “Spain moves to curb legal convention allowing trials of foreign rights abuses.” The Guardian. February 11, 2014, accessed 19 May 2014).

[2] For more information on the implications of Kiobel, see: http://www.scotusblog.com/2013/04/commentary-whats-left-of-the-alien-tort-statute/ (accessed 19 May 2014).

[3] Matter of Carlos Eugenio Vides Casanova. The United States Department of Justice Executive Office for Immigration Review, Immigration Court, Orlando, FL. 16 August 2012; Matter of Jose Guillermo Garcia-Mereno. The United States Department of Justice Executive Office for Immigration Review, Immigration Court, Miami, FL. Both of these lawsuits are based off of the Immigration and Naturalization Act, 237(a)(4)(d).

[4] Matter of Garcia-Moreno, supra n. iv, 48.

[5] On recent attempts to challenge El Salvador’s Amnesty Law, see: http://www.wola.org/commentary/amnesty_under_fire_in_el_salvador_legal_challenges_and_political_implications.

[6] Lalita Clozel. “Salvadoran Cites U.S. Backing of violence in deportation appeal.” Los Angeles Times, February 06, 2014 (accessed 19 May 2014).

[7] Jonah S. Rubin. “Transitional Justice Against the State: Lessons from Spanish Civil Society Led Exhumations.” International Journal of Transitional Justice 8(1) (2014): 99-120. doi: 10.1093/ijtj/ijt033