“Yes, there is hope for justice,” for the crimes against humanity perpetrated by the Ortega Murillo dictatorship in Nicaragua. “I know that sometimes it is a slow process, but it’s coming, and there is merit for it,” affirms with assurance the international lawyer Almudena Bernabeu. She just got a conviction at Spain’s National Court against one of the Salvadoran military responsible for the massacre of five Spanish Jesuit priests, murdered in San Salvador in 1989, where a Salvadoran priest, a domestic worker, and her daughter also died.
Bernabeu is the director of the Guernica Center for International Justice. She has litigated in renowned cases including that of Guatemalan dictator, Efrain Rios Montt, condemned of genocide in 2013. Five years later, in Chile, she represented the family of singer-songwriter Victor Jara. The trial ended up with the conviction of nine military personnel for the murder that occurred in the first days of General Augusto Pinochet’s coup against President Salvador Allende in 1973.
The lawyer notes that in Nicaragua, “civil society is organizing itself and that will create the basis for judicial processes. And I will be there, if not in Nicaragua, in other jurisdictions.
This is an excerpt from the conversation we had on the television program “Esta Semana.”
The trial in Spain for the massacre of the Jesuits in El Salvador
You have represented before Spanish courts the families of the victims in a case that justice could not be done in El Salvador for the murder of five Spanish Jesuits, a Salvadoran, a worker and her daughter. They were massacred by the Army in the UCA of San Salvador in 1989. Coronel Inocente Montano, who was extradited from the United States to Spain, is being processed. Will justice be done 31 years later?
Yes, it was a very long road. Especially for the Society of Jesus and the families of the victims, who were there since day one. I am here, 31 years later, because they never lost hope of obtaining a measure of justice. Always based on the truth, based on the acknowledgement that the Armed Forces committed the murders. That it was ordered and executed from the Armed Forces.
After all the vicissitudes, an unthinkable extradition from the United States, a tribunal in Spain was created in the context of the international pandemic. I do think we are going to see some justice in that sense of truth that I mentioned. The purpose of the families was never for one of those people to go to jail. I think that is part of the law, and so it has been. And, he (Coronel Inocente Maduro) remains in prison, and if the sentence condemns him, he will remain in jail.
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But beyond that, in June and July, in the witness sessions, there was an exceptionally large measure of truth. Exemplary witnesses, even members of the Salvadoran Armed Forces themselves. Thirty-one years later they spoke loud and clear who and how carried out the killings. But also, from Coronel (Montano) himself, in his testimony to questions from his lawyer, and in his closing statement. Which is a right recognized by the Spanish system. He admitted what they have denied for 31 years. That the Armed Forces, in a context of reacting to a military action by the Farabundo Marti National Liberation Front to occupy the city, when the FMLN tried to occupy San Salvador, the Armed Forces response was, among other actions, to murder the Jesuit priests.
There are 15 others accused in this trial. All are Salvadoran soldiers, protected by the Supreme Court of El Salvador. The Court has prevented their extradition to Spain so that they could also be subjected to this trial. Will their responsibility for this massacre remain in impunity?
I hope it does not go unpunished. There is still a long way to go and that brings me back a little to Central America. What is important is that justice is done in El Salvador. I believe that on the contrary, as happened to us in the case of against Rios Montt, this will return home, sooner or later. That it returns to where it belongs, which is, without a doubt, the Salvadoran courts.
The situation in El Salvador today is extremely complex. However, I think the justice operators are aware it’s impossible to move forward without compensating the victims in some way. Without having some kind of judicial action or the ability to work nationally in this direction.
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There is a certain reopening with the case of the El Mozote (massacre) that continues to advance. All the work must be done in El Salvador, where the other 13 involved in the crime are. They are relaxed. I don’t know if they are actively protected. But at least they feel safe, provided that they remain inside El Salvador. I think it is important that we support and help the Salvadoran judges and prosecutors to do their job.
Throughout this process, civilian and military authorities of El Salvador have also been identified as masterminds responsible for this crime, as co-conspirators or accessories to it. Does criminal justice not reach the level of political responsibility?
Criminal justice does. We tried it in Spain, but we were unable to convince the Prosecutor’s Office. The prosecution objected to it, including the investigating judge. The pre-trial judge did not open the full range of responsibilities to that type of perpetrator, civilians, who played a role in the cover-up.
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There were many legal authorities throughout the process. In the session of both last June and July, and for reasons due to the pandemic, we had the privileged situation that it was a televised trial and, in some way, more accessible to the Salvadoran people. On various occasions, several of the witnesses reiterated the role of former president Alfredo Cristiani. Likewise, the present-day member of the National Assembly, Rodolfo Parker. The names came up of people who definitely played a role. They created a series of commissions and carried out a series of acts to confuse and evade their responsibilities as members of the government.
Possible routes to justice in Nicaragua
In the crisis that Nicaragua is experiencing after the massacre of more than 300 citizens, which took place during the repression in April, May, June, July of 2018, until now there is not a single policeman, paramilitary or mastermind responsible being investigated or prosecuted. Is there any hope of justice for the families of the victims, perhaps in international courts?
Yes, I believe there is, and I must say that an effort is being made. A prelude to any possibility of justice. This involves recovering information, identifying exactly what happened, and those who were responsible.
When a family member is killed or assaulted, of course, we cannot speak of patience. I think it is an initial moment of cohesion and obtaining information, which is being done in Nicaragua. Nicaraguan civil society is organizing itself and that will create the base, without a doubt, and I will be there. It will create the basis for judicial processes, if not in Nicaragua, in other jurisdictions. I know that sometimes it is a slow process, but it’s coming, and there is merit for it.
The Government of Nicaragua is not a signatory of the Rome Statute. Therefore, we can’t go, apparently, to the International Criminal Court of Justice at the Hague. Are there other paths to justice? Can the principle of universal justice be invoked in other countries?
That is so. Anyway, it’s false that not being a signatory of the International Criminal Court, frees you of any responsibility. There are other mechanisms, other avenues, through the Security Council, and even unilaterally, by the Prosecutor’s Office. Or even by opening preliminary investigations. In other words, not being a signatory does not provide carte blanche so that a country is never responsible. Or that the Criminal Court will not take up interest to investigate and elaborate on what happened.
Assuming that this is not the case, there are indeed a significant number of national jurisdictions, in several countries, that would allow (to open processes). The jurisdictional bases are different, in some cases, it is that victims are present (in those countries). There are many Nicaraguans in exile as a consequence of those events. In other cases, someone with responsibility is also present or their ties to the country are substantiated. It will be a matter of analyzing case by case, and according to the scenarios, but there are definitely alternatives.
In Nicaragua, the families of the victims have organized around the Mothers of April. They demand justice without impunity for their loss, the murder of their children, their relatives. But there are other crimes like those revealed this week in Costa Rica before a Court of Conscience in which you took part. Crimes of sexual abuse committed during the repression. Can this type of crimes be prosecuted?
Absolutely. And I would like to say two things here. The seriousness of the crimes of sexual violence, specifically those that were committed in Nicaragua. I think it was a very important initiative to tell the world what happened. But it is also innovative; in the sense of immediately extricating that violence, pulling it out, and analyzing it. Because, in general terms, we always arrive too late as lawyers, as investigators, as defenders of human rights. Too late to become aware of that component. I think it is a transversal practice that has remained hidden or somehow minimized in many of the investigations. So, I think it is a remarkable effort.
Where does the road to justice begin? By a confession, a document, a piece of evidence, a small fish, or a big fish?
It begins by preparing the community of victims and civil society. So they are together and clear about what they want to do. Then that energy, generated by those who have suffered, begins to make waves. From there, justice begins to be done. A confession appears, someone who contradicts himself appears, someone who repents appears, and the big fish can be reached.
Some sectors argue that in transition processes after criminal dictatorships, such as the one in Nicaragua, these demands for justice without impunity should be subordinated to other types of imperatives, such as stability or elections, to avoid deeper wounds and political confrontation. Can there be democracy without justice? What is your experience as a jurist, faced with these dilemmas?
I think they are false dilemmas. When one analyzes why we have justice, why there is an insistence on an independent Judicial Power, why there is an insistence on laws and regulations, it is precisely so that we all know where we are at, where we belong, and how we should act.
Justice can be put on hold, to say, we are going to talk about an election or try a political negotiation. There are thousands of scenarios in different countries. And I think that only those who are part of the country and part of the process can define it. There are many options, but justice can never be abandoned. If we begin that process and, throughout this process, some measure of justice is not guaranteed, it will be incomplete. It will exclude a significant part of the population. It will be insufficient and will be weak and break down at some point.
What would you recommend to the families of the victims in Nicaragua? And to the human rights organizations that advocate for justice without impunity?
That we continue working. They are at the very beginning, in the sense that the events were recent. The violence was a shock. I think for Nicaragua, now, more important than a trial might be an important political change. I believe that in this search for justice, only the victims, the communities, and civil society, can precipitate that change. And my recommendation is, step by step, and it will come. I know they will not desist. Through that perseverance, one finds the paths.