Lowenstein Clinic Students Play Key Role in Jesuits Massacre Case Indictments

The recent decision by a Spanish judge to indict 20 former members of the El Salvadoran military, including several members of the High Command, is a victory for human rights and a victory for the Lowenstein International Human Rights Clinic at Yale Law School as well.

Judge Eloy Velasco charged the defendants with crimes against humanity and state terrorism for their role in the murders of six Jesuit priests and two women during El Salvador’s civil war in 1989. The priests had been outspoken critics of the country’s military dictatorship.

In reaching his decision, Judge Velasco relied heavily on a legal brief drafted by Lowenstein Clinic students Jayme Herschkopf ’11, Jay Butler ’11, and Eva Rigamonti ’12 on the doctrine of command responsibility, which states that commanders can be charged with the crimes of their subordinates if certain conditions are met. The brief helped convince the judge that those conditions had been met and that the military officers who planned the crime could be charged, even though they had not personally carried out the crimes.

“There has long been substantial evidence that the murders were planned at the highest levels of the Salvadoran Armed Forces, but only those that directly participated and the commander who directly oversaw the battalion that carried out the murders had ever been charged before,” said Herschkopf. “In other words, justice was never sought against those from whom the murder plot originated, who put the pieces in motion for it to be carried out, and who instigated a massive cover-up so that the crime would not be discovered.”

The clinic’s partner on the project was the Center for Justice and Accountability (CJA), a San Francisco-based human rights organization that filed the criminal case before the Spanish National Court three years ago and has worked vigorously ever since to ensure the indictment and arrest of the defendants. CJA has partnered with the clinic on a number of projects, but this was the first time that the two teamed up on active international litigation.

“Working as part of the legal team representing victims gave the clinic students first-hand experience in promoting justice for the massacre that has defined the international campaign to punish former Salvadoran military officers for their crimes,” said Clinical Visiting Professor Laurel Fletcher, who supervised the clinic team.

For their part, the students pored through hundreds of pages of documents and oral testimony in both Spanish and English to prepare their case. Their biggest challenge was structuring the brief in such a way as to make it convincing to a Spanish judge.

“The clinic usually presents work to international courts, where international law’s legitimacy is familiar and accepted and its contents embraced,” said Herschkopf. “Here, we needed to assure the judge that the doctrine we were asking him to use was both legitimate in itself and applicable to the case.”

Herschkopf says the indictment is significant in that it’s the first time any court has acknowledged the likely culpability of El Salvador’s highest officials in the murders. She applauds what she says is a growing trend in international law for courts at all levels to give renewed attention to assigning culpability for crimes of humanity in the recent past.

“Only through accountability can we hope to foment the institutional change that will prevent further violations of basic human rights around the world,” she said.

Read the CJA press release about the indictments.