continued...

83.          In effect, the report concludes that Colonel Antonio Rivas Mejía, Chief of the Investigation Commission, the agency that was initially in charge of the investigation, "knew the facts of the case and concealed the truth" and "recommended to Colonel Benavides that he take steps to destroy incriminating evidence"[34].  As well, Col. Nelson Iván López y López, of the Investigation Commission, also concealed the truth of the events[35].  With respect to this officer, it is important to note that he was assigned to the Investigation Commission by Colonel René Emilio Ponce, to whom the Truth Commission attributes the decision, together with other officers, to arrange the extra-judicial executions and to order Colonel Benavides to carry them out.[36]  With respect to the Special Honor Commission, one of its members, the lawyer Rodolfo Antonio Parker Soto, " altered statements in order to conceal the involvement of high-ranking officers in the assassinations.”[37]  

84.          With respect to the material authors of the crime, the report states:  “The only persons found guilty of murder were Colonel Guillermo Alfredo Benavides Moreno and Lieutenant Yusshy René Mendoza Vallecillos”, who were officers of the Military Academy. In other words, none of the members of the Atlacatl Battalion, whose involvement was expressly recognized by the Truth Commission, were convicted of the murder, despite the fact that Lt. Espinoza, Lt. Guevara Cerritos and the other four members of the battalion confessed their crimes in their extra-judicial statements.  

85.          The Truth Commission's report states in this respect that there is substantial evidence to show that Col. René Emilio Ponce gave Col. Benavides "the order to kill Father Ellacuría and to leave no witnesses" and that "to this end he was to use a unit of the Atlacatl Battalion".  The report then states, among other things, that there is full evidence that subsequently all of these officers, and others who were aware of the events, took steps to conceal them.  The report adds that there is substantial proof that Col. Oscar Alberto León Linares, Commander of the Atlacatl Battalion, knew of the murders and concealed incriminating evidence.  

86.          The circumstances as documented show that senior officials in charge of the investigation set themselves the objective of preventing a complete, impartial and effective investigation, and of covering up the involvement of specific perpetrators.  In fact, given that the officials mentioned in the preceding paragraphs knew the truth and concealed it, there is no doubt that the investigation was designed to conceal the full truth in order to prevent the prosecution and punishment of all the authors of the extra-judicial executions.

b.            Other evidence reinforcing the conclusions of the Truth Commission  

i.            Former prosecutors Henry Campos and Sidney Blanco  

87.            For greater certainty, the IACHR has also considered the public statements made by Henry Campos and Sidney Blanco, former prosecutors assigned to the investigation of the case.  Those former State officials declared in a televised interview that there was no desire on the part of official agencies to conduct a real investigation.[38]  In that interview, they announced that they were resigning their positions, because the Public Prosecutor had consistently placed obstacles in their efforts to undertake a serious and full investigation of the extra-judicial executions.  

88.            In this respect, the former prosecutors declared that the Public Prosecutor had prohibited them from attending the questioning of certain witnesses and from cross-examining them.  The Public Prosecutor also prevented them from taking routine steps to shed light on the crime.  

89.            The former prosecutors declared that the first Public Prosecutor in charge of the case showed no interest in it and took no part in the proceedings.  The new Public Prosecutor, for his part, placed severe restrictions on the prosecutors working on the case to prevent them from fulfilling their duty, and this led them to resign.  The former officials related that they suffered considerable pressure to abandon their pursuit of the case.  

90.            Former prosecutor Blanco stated moreover that "any person who takes the trouble to examine the record will arrive at the very logical conclusion that in this case, Col. Benavides could not have acted alone, and that he must have had the support of other, high-ranking officers in order to take such an important decision." The former officials explained that the involvement of senior military officers in the murders is clear from the decision to carry out the initial house search, and from the failure of the Armed Forces to respond immediately when shooting erupted.

ii.         Corroboratory reports on the investigation and prosecution of the murder of the Jesuits  

91.           It should be noted that several academic, professional and non-governmental entities submitted reports on the investigations and on the trials relating to this case.  Those reports offer conclusions consistent with those of the Truth Commission.[39]  

92.          One such report was prepared by the International Human Rights Law Institute of De Paul University, Chicago, which was invited by the president of the Supreme Court of El Salvador to send an observer to the Jesuit murders trial.[40]  The report notes that the State did not conduct a serious investigation into the possible involvement of high-ranking military officers.  On the contrary, it finds that the military conducted a series of cover-up operations intended to conceal the identity of those responsible.  As well, the report finds that the investigation conducted by the Investigation Commission and the Honor Commission lacked all credibility.  In particular, it declares that neither of these entities has been able to justify the manner of identifying the nine officers who were tried.

iii.            The Investigation Commission  

93.            The judicial summary, to which are added the extra-judicial reports of the Investigation Commission, the body that was originally responsible for the investigation, provides sufficient evidence to show that that Commission failed to carry out a full and timely investigation, and that essential evidence disappeared, or was even destroyed.  This allowed the military to organize a far-reaching cover-up operation.  A graphic example is the destruction of the log books of the Military Academy, since when Judge Zamora asked for them, it was found that they had been incinerated in December 1989.  

94.          With respect to the incineration of the entry and exit records, Lt. Yusshy René Mendoza declared before the Fourth Criminal Court of San Salvador that he had burned the log books of the Military Academy, dating back to the beginning of 1989, under orders from his superiors.  The officer responsible for these records, Juan René Arana Aguilar, declared on June 4, 1990, that at some point during the first two weeks of December, Major Carlos Camilo Hernández had ordered him to produce all the records since 1989, because they were to be burned.  Arana said that Lt. Mendoza had come to retrieve the records but that, although he knew that the records had been burned, he did not know who had done it.  

95.          The Investigation Commission, in its report of March 29, 1990 to the Fourth Criminal Court (Nº 017OUE/990) merely stated that the Director of the "Captain General Barrios" Military Academy had ordered an investigation into the whereabouts of the "records of news, entries and exits of chiefs and officers and other personnel" kept in the guardhouse during November 1989, and that it had been established that:  

Those books were burned: Mr. Juan René Arana Aguilar, who at that time was acting in charge of the general registry of the institution, on a date that he does not recall, but that was between December 1 and 16, 1989, testified that he received a verbal order from the Subdirector, the then Major Carlos Camilo Hernández, to find the books for 1989, and to advise him when they were ready, because they were going to be burned; that at approximately 9 p.m. he reported that he had carried out the order; that subsequently, at midnight, Lt. Mendoza and four cavalry cadets, whose identity he could no longer recall, came to the registry and took away the books, saying they were going to burn them;  he remembered this because he was sleeping in the registry office on that day.[41]  

96.          The IACHR considers that these acts were intended to conceal the role of the material and the intellectual authors of the Jesuit murders, since those records would have shown who had entered and left the Military Academy on the day of the murders, and the days previous thereto.  In this respect, it must be noted that the orders to conduct, first, the search and then the murder of the Jesuits were issued from the Military Academy, which was the command headquarters for the security zone created on November 13 by the Estado Mayor.  The records in question would have provided key evidence for determining the guilt of all the authors of this crime.  

97.          Moreover, the Investigation Commission made no attempt at any time to answer the key question as to who ordered the murders.  Lieutenant Colonel Manuel Antonio Rivas Mejía, chief of the Executive Unit of the Investigation Commission at the time of the crimes, declared explicitly before the Court that there was no investigation of the Estado Mayor of the Armed Forces, "since that institution is responsible for the entire country, while the security commando was responsible solely for the Military Complex, and since those responsible for the murders had been identified, it was not necessary to undertake such an investigation".[42]  

98.          The investigation was flawed from the outset, since the Investigation Commission's detectives failed even to cordon off the scene of the crime to prevent evidence from being tampered with.  According to the Investigation Commission's reports, two of its detectives arrived at the scene of the crime at 9.10 on the morning of November 16, some seven hours after the murders had been committed.  They began to take photographs and to collect physical evidence: projectiles, bullet casings, fingerprints etc.  They also began to prepare plans and to question possible witnesses.[43]  Other potentially important evidence found at the scene of the crime was simply ignored by the Investigation Commission's agents.  

99.          The Investigation Commission received the first information implicating the Atlacatl Battalion on November 17, 1989, during interviews with police officers stationed at the Torre Democracia [“Democracy Tower”], located at the junction of the Autopista Sur [“Southern Expressway”] with Avenue Albert Einstein.  Sub-Sergeant Germán Orellana Vásquez, of the national police battalion, and agent Victor Manuel Orellana Hernández, who were both on duty from midnight until 7 a.m. on November 16, told the Investigation Commission that they saw armored cars and soldiers of the Atlacatl Battalion pass by.  They also said that, around 2:00 in the morning, they heard shooting and explosions, both distant and close by.  

100.          On December 5, 1989, two lieutenants of Military Detachment Nº 7 that took part in the operation revealed that there were troops of their unit in the abandoned buildings that were used by the Atlacatl Battalion as a meeting point before launching its action on November 16, 1989.  

101.          Despite this, not a single member of the patrol from Military Detachment Nº 7 admitted having seen soldiers of the Atlacatl Battalion that night, or having heard any vehicles go by.  In light of the statements by men of that battalion[44], and given the circumstances of that night, which included a curfew lasting 12 hours, it is simply impossible to believe that these soldiers and vehicles were neither seen nor heard, since they were in exactly the same place.  

102.          In his testimony as a military expert, on May 27, 1991, the Argentine Colonel José Luis García said:  

Every unit is assigned a geographic sector to defend within the zone, and the only people who are allowed to move about within the zone are those who know the password or who are recognized as safe and law-abiding citizens, so as to avoid letting the enemy infiltrate the facilities without being noticed.  The conduct of military operations within a security zone is very tightly controlled.  Any movement not ordered or authorized by the senior command will immediately produce a combat situation, since the troops stationed in the zone would consider such soldiers to be enemy troops.  

103.          The statements of Colonel García can only reinforce those taken earlier by the Investigation Commission.  Police officer Juan Antonio Navarro Artiga told the Investigation Commission that any troops moving about would have to report by radio to the soldiers in the zone, or risk being shot.  From the beginning of the curfew, at 6:00 in the afternoon, according to Navarro, there were standing orders to shoot at any unidentified vehicle.[45]  

104.          Corporal Angel Pérez Vásquez, who later confessed to having killed Father López y López, told the Investigation Commission that "with respect to the murder of the six Jesuit priests, the first he knew of it was some two weeks after leaving the Military Academy, when he read about it in a newspaper ".  Private Juan Antonio González Torres actually maintained that he had heard nothing about the death of the Jesuits until the date he gave his testimony, on 28 December.  

105.          Declarations of this kind, intended to conceal rather than reveal the truth, were the rule, not only from the first witnesses, but from the hundreds of members of the Salvadoran Armed Forces on active duty, who were not ashamed to commit perjury before the Court.  

106.          On December 22, 1989, Father Tojeira delivered new evidence to the Investigation Commission, including the handwritten sign implicating the FMLN, which was left at the pedestrian entrance to the UCA, and some bullet casings, an empty beer can found at the scene of the murders, and two cigarette butts.  The Investigation Commission immediately ordered the appropriate laboratory analysis and requested handwriting tests of all commandos in the Atlacatl Battalion.  On January 14, 1990, the handwriting analysis showed that the words "We have executed the dirty informers.  Victory or death…FLMN" could have been written by Sub-Lieutenant Guevara Cerritos or by Sub-Sergeant Avalos Vargas.  Some witnesses later declared that they had seen Sub-Lieutenant Guevara Cerritos writing something on the sign.  

107.          The first communication between the Investigation Commission and Colonel Benavides to appear in the record is dated January 3, 1990, when Lieutenant Colonel Rivas asked whether any of his men had used flares in the vicinity of UCA between 6 p.m. on November 15, 1989, and 7 a.m. the following day.  

108.          Despite the great volume of evidence recognized by this body to that date, the results were very thin.  Nothing positive was obtained from any of the fingerprints taken[46], the handwriting analysis was inconclusive, and the ballistic tests provided no useful information.  The British police (Scotland Yard) criticized the manner in which the Investigation Commission handled the tests, because it created confusion and made it impossible to tell where each object had been found.[47] Worse, the Investigation Commission never completed the ballistic tests, nor was it ever able to link any of the accused to the crime on the basis of such tests.  

109.          On January 3, experts of the Investigation Commission had determined that some of the ammunition casings found at the scene corresponded to bullets fired from the M-16 rifle assigned to private Victor Antonio Delgado Pérez, of the Atlacatl Battalion commando unit.  Fifty-three casings found in the walls of the Centro Monseñor Romero came from his M-16.  Yet there remained 73 casings to be compared with samples taken from commandos of the Atlacatl Battalion.[48]  

110.            On January 4, the ballistics experts reported that they had identified a second M-16, belonging to Private Neftali Ruiz Ramírez[49], as having fired 41 casings at the north side of the Centro Monseñor Romero.   

111.            It is important to note that the two soldiers to whom the rifles belonged were never tried.  It is inexplicable, moreover, that the Investigation Commission did not question Col. Benavides until January 1990, in light of the fact that he was commander of the military security zone in which the UCA was located, and that there had been shooting and explosions at the university that night, attributed to the FMLN.  Only one of Col. Benavides’ subordinates, Capt. García Oliva (who was named by Col. Ponce as the officer in charge of the troops stationed to the South and Southwest of the University) was questioned.  Nor is there any indication that the Investigation Commission took any statement from the then Director of the Military Academy, Major Camilo Hernández, to determine what had happened that night.  Major Hernández, now promoted to Lieutenant Colonel, was subsequently tried for "cover-up", accused of destroying evidence, and was sentenced to three years in prison.  

112.           Although every indication pointed to military involvement, the official posture of the Army and of the civilian authorities during November and December 1989 was to place the blame on the FMLN.  An anonymous letter from "junior officers" accused Col. Hernández, then director of the Treasury Police, of complicity in the murders: he denied that accusation on December 9, 1989, in a sworn statement given to the Investigation Commission.  He concluded his statement by saying that "terrorist delinquents" commit this kind of crime in order to discredit the Armed Forces, by making people believe that it is the Army that has committed them.

3.              The investigation by the Honor Commission  

113.            In early January 1990, officials of the United States Embassy provided the Salvadoran High Command with information linking Col. Benavides to the crime.[50]  This revelation led to the appointment by President Cristiani of a Special Honor Commission, the predominant role of which was to minimize damage to the Army and to restrict the scope of the investigation.  It was during these two weeks that the names of the nine accused were given, but the process by which they were identified has never been clarified.  It was also during this period that seven of the nine accused confessed their involvement in the crimes before the Investigation Commission.  Their extra-judicial confessions remain the best and most complete record of the events in question.  Until that moment, no one had been accused of the crime.  

114.           From the beginning, the objectives and activities of the Honor Commission were shrouded in mystery.  The names of its members were not released, even to the judge hearing the case, until March 1990.  On March 21, President Cristiani responded to a request from Judge Zamora, of March 5, with a copy of a letter from General Larios in which those names appear.  The Honor Commission was made up of an officer from each rank, from general to captain, and two civilian lawyers.  

115.          The members of the Honor Commission also said explicitly that Lt. Col. Rivas Mejía gave the names of the nine accused to them, as chief of the Investigation Commission.  Inexplicably, both the Investigation Commission and the Honor Commission said that it was the other body that provided the names.  

116.          The Investigation Commission made no further effort to continue the investigation, despite its legal obligation to do so.  The IACHR considers that, as of that moment, there was an agreement to limit the investigation to these persons alone.  The members of the Honor Commission deny having identified the names of the accused on the basis of their own investigation, and they describe their task as that of simply "exhorting" the suspects to tell the truth.  Nowhere is it made clear how it was determined who should be accused, or who made that decision, or why this information was not made public.

117.          The report of the Honor Commission, which consists of seven pages and two annexes, sheds no light at all on the internal working mechanisms of the Commission, or on how it arrived at the conclusions found in the summary.  Broadly speaking, the document indicates the reasons that led to creation of the Honor Commission, explains that the Investigation Commission had determined the "possible involvement of elements of the Armed Forces" and adds that "this Commission was appointed to support the investigation into the case".  It relates succinctly the names of the soldiers and of the persons killed by them.  In its conclusions, the report declares that "the events involved the responsibility" of the nine accused, and "recommends" that "they be turned over to the competent civilian tribunals".  The description of the events that is given in the report coincides with that to be found in the summary.  The report makes no reference as to how members of the Honor Commission were able to obtain that information.[51]  

118.          In light of the foregoing, the IACHR concludes that the Investigation Commission, the authority responsible for investigating the case, failed to fulfill its task properly, since it did not immediately undertake procedures that are normal in the case of such a crime.  The Investigation Commission allowed evidence to disappear, and even to be intentionally destroyed, and it gave the suspects plenty of time to formulate alibis and to succeed in their efforts at cover-up.  While this attitude changed following the report of the Honor Commission, all the facts suggest that an effort was made to restrict the investigation to the nine suspects identified in that report.  From that time on, the Investigation Commission deepened its investigation, but only with respect to the nine persons who were finally tried, and it made no attempt to discover those responsible for masterminding the operation within the higher ranks of the Armed Forces.

v.         The operation of November 15 and the lack of reaction from the Estado Mayor  

119.          The operation of November 15, which resulted in the murder of the Jesuit priests and Mrs. Ramos and her daughter, was carried out in the most heavily patrolled sector of the city, and lasted approximately half an hour.  During the attack, high-powered weapons were used against the Monseñor Romero Theology Center.  Commandos of the Atlacatl Battalion used their M-16 rifles, anti-tank rockets and grenades, and even started a fire.  Such was the intensity of the heat generated by the assault that several nearby window panes were broken.  

120.          The soldiers stationed in the vicinity of the UCA, and the officers who were inside the Estado Mayor headquarters, testified that they heard an enormous amount of shooting at the University.  Some even said that they were concerned that there might be an attack against the Military Complex itself.  Nevertheless, according to the summary, no one made the slightest effort to investigate what was happening or to respond to the shooting.  This suggests that they were well aware of the origin of the explosions, and the reason for them; had it been otherwise, they would have reacted to such a tremendous noise.  

121.          The noise produced during the shooting of the Jesuits (machine-gun fire and automatic assault rifles, grenade explosions and rockets) could be heard perfectly well from the Estado Mayor headquarters.  "On hearing these explosions, there was extreme concern at headquarters", recalls Col. Carlos Armando Avilés.  "For the first time, they feared an attack on the vital nerve center of the Armed Forces, the Estado Mayor and the Ministry of Defense"[52].  Another officer who was present that night, the head of the Counter-Intelligence Department, Major René Guillermo Contreras Barrera, "heard heavy explosions and detonations near the Estado Mayor and he judged them to be coming from the direction of the UCA."  

vi.            The policy of cover-up and its beneficiaries: the Atlacatl Battalion  

122.          The institutional policy of cover-up was intended to create a protective shield of impunity around the intellectual authors, as well as those material authors who had not been individually named by the Honor Commission.  

123.          Thus, for example, several witnesses whose testimony appears in the summary noted that troops of the Atlacatl Battalion were stationed in the vicinity of the UCA at the approximate time of the killings.  Nevertheless, the head of the Estado Mayor, Col. Ponce, made no mention of the Atlacatl Battalion when he reported to the court, for the first time, that troops were deployed in the area.  Moreover, several soldiers who mentioned the presence of the Atlacatl Battalion later changed their statements and said that they had seen no such thing in the zone.  This suggests an attempt to conceal the presence of the Atlacatl Battalion.

vii.            The policy of cover-up for the Estado Mayor  

124.            The policy of cover-up was also carried out, and very effectively, with respect to officers of the High Command who took the decision to conduct the operation.  

125.          It is important to recall that on November 15, 1989, from 8 o'clock in the morning of that day until 8 o'clock on the morning of the following day, the command of the Joint Operations Center of the Armed Forces (COCFA)[53], at the Estado Mayor, was in the hands of Col. Nelson Iván López y López, chief of C-1 of the Estado Mayor.  Lt. Raul Antonio Mejía Chávez, of C-2 (intelligence), Major Oscar Joaquín Martínez of C-3 (operations)[54], an officer of the Air Force and a radio technician were also on duty.[55]  The chief of C-3, Col. Joaquín Arnoldo Cerna Flores, was at headquarters until about one or two o'clock in the morning, as was stated in Court on September 21, 1990.  Members of the High Command were at headquarters until two in the morning, when the killers were already within the UCA premises.[56]  

126.          Moreover, it must be recalled that the operation of November 15, 1989, took place during the curfew decreed on November 11, and within the special security zone that included the vicinity of the UCA, a few blocks from which were the headquarters of the Estado Mayor, the Ministry of Defense, the Military Academy, the National Intelligence Directorate (DNI), the San Benito battalion of the national police, and two military residential quarters, Colonia Arce and Colonia Palermo.  

127.          The IACHR considers that, if the High Command had not consented to the operation, the security forces would have reacted and would have gone to the scene of the crime.  Yet this did not occur, and the brutal killings were committed with impunity in the midst of loud shooting and bombs that shattered the silence imposed by the curfew.  

128.          One of the persons who attended the meeting of November 15, 1989, declared to the "San Francisco Examiner", a U.S. newspaper, that this meeting "was the most tense and desperate meeting of the highest commanders in the country since the war against the leftist insurgents had begun 10 years earlier"[57].  It is difficult to believe that a military operation that was conducted on that very day, only a few blocks from the High Command, and that involved so much movement of troops and so much noise from shooting and explosions, could have gone unnoticed by the High Command, especially when several of its members had remained at headquarters until the early hours of the morning of November 16.  

129.          The nature of the operation itself, the meeting held by the High Command on November 15, the date of the murders, the decision to name Benavides two days earlier as chief of the new security zone, and the hierarchical structure of the Armed Forces, all suggest that the decision could not have been taken in isolation by Col. Benavides alone.  On the contrary there is much circumstantial evidence to indicate that Col. Benavides was acting as part of a broader military conspiracy, as was recognized in the report of the Truth Commission.  

130.          In this respect, it is interesting to note the formal statement given on January 11, 1990, by retired Col. Sigifredo Ochoa Pérez, who was considered in his day to be one of the most effective field commanders in El Salvador[58].  Ochoa declared to the newspaper “El Diario de Hoy” that he hoped the investigation would not be limited to the lower ranks of the military, because someone higher up had to have given the order.  According to the news service "Agence France Presse", Ochoa said: "This action involved officers of much more senior rank, and even if a general or colonel is involved, the guilty parties must be punished".[59]  On May 18, 1990, at the request of the Public Prosecutor, Col. Ochoa gave a written statement in answer to the questions posed by Judge Zamora.[60]  

131.            During an interview on the American television program "60 Minutes”, aired on April 22, 1990, Col. Ochoa made his accusation more explicitly.  According to him, a smaller group of officers got together after the full general staff meeting on the night of November 15.  Ochoa declared that during that meeting Col. Benavides received the express order to kill the Jesuits:  

A group of commanders stayed behind.  Each of them was responsible for one of the zones of San Salvador.  They gave an order to kill leftists, and this is what Benavides did.  I say again, Benavides was obeying orders, it was not his decision.[61]  

132.          Col. Ochoa's statement was promptly seconded by a group of junior officers, calling themselves "Domingo Monterrosa lives".  On May 3, 1990, these officers published a five-page communiqué addressing several issues, including the case of the Jesuits.  The anonymous group said "the Ochoa case deserves to be looked into more closely.  His position is supported by many of us junior officers, as well as some of our superiors, and he has stated something that many of us are unable to express because we would be severely punished."[62]  The junior officers went on to ask: "What happened during the meeting that was held between 3 and 5 o’clock in the afternoon in Col. Zepeda’s office, involving not only Col. Benavides but other, lower-ranking officers?  The High Command knows all about this."[63]  There has never been any serious attempt to investigate the truth of these allegations.  The High Command rejected the "open letter from junior officers", calling it simply "FMLN propaganda."[64]  

133.            Col. Ochoa’s statements are relevant when it is recalled that he was a high-ranking retired military officer in El Salvador, and he based his testimony, as he said in his declaration, on the procedures that determine how decisions are taken in traditional military actions.  In his statement, Ochoa said: "The number of people involved (in the deaths) and the way the action was carried out point to a pre-conceived plan".  

134.            The United Nations Special Representative to El Salvador, José Antonio Pastor Ridruejo, also noted in his report of 1991:  

The special representative, however, shares with many sectors of public opinion, locally and internationally, and particularly with non-governmental humanitarian organizations at the local and international level, some serious doubts about the possible intellectual authors of the murders.  We must ask, in effect, if a decision with such serious consequences of every kind as that of ending the life of the Jesuit Fathers could have been taken alone by Col. Benavides who, it would appear from many sources, was known for his profound sense of discipline and his perfect obedience to orders.  In short, although the outcome of the trial in the Jesuit murders case constitutes an important milestone in the recent history of Salvadoran criminal justice, the steps taken appear to have been insufficient.  In the view of the special representative, the judicial investigation should have continued until it was absolutely clear whether there were intellectual authors behind the crime, and until any such persons were prosecuted and punished” (emphasis added).[65]  

viii.      The sham proceedings, the verdict of the jury and the sentence  

135.            With respect to the actual carrying out of the murders, it should be noted that eight of those accused gave clear confessions, with full details, about their participation in the operation of November 16, 1989, in the following terms: Sub-Sgt. Ramiro Avalos Vargas killed Fathers Armando López and Juan Ramón Moreno; Private Oscar Amaya Garibaldi killed Fathers Ignacio Ellacuría, Ignacio Martín-Baró and Segundo Montes; Sub-Sgt. Tomás Zarpate Castillo fired at Elba and Celina Mariceth Ramos, until he thought they were dead; the two females were finally killed by Private Jorge Sierra Ascencio; Corporal Angel Pérez Vásquez killed Father Joaquín López y López; Lt. Yusshy Mendoza and Lt. José Ricardo Espinoza directed the operation, backed up by Sub. Lt. Gonzalo Guevara Cerritos.  All of these men belonged to the Atlacatl Battalion, except for Lt. Mendoza, who belonged to the Military Academy.  

136.           The extra-judicial statements referred to were truthful, consistent, detailed and fully concurrent with other elements of judgment available with respect to the crime, as required in Article 496 of the Code of Criminal Procedure of El Salvador.  They were also consistent with other confessions and declarations, ballistic tests, the weapons employed and the results of the autopsies.  Moreover, they were not extracted through violence or intimidation and they were legally validated before the court, pursuant to the provisions of Article 496 of the Code of Criminal Procedures, as confirmed by the testimony of two eyewitnesses given to Judge Zamora.  

137.            The Fourth Criminal Court in plenary, moreover, confirmed the truthfulness of these statements by the First Criminal Chamber of San Salvador and by the country’s Supreme Court of Justice.  Despite this, no member of the Atlacatl Battalion was punished.  

138.            The jury verdict led to the absurd result where seven of the accused, those belonging to the Atlacatl Battalion, were acquitted and the only two men found guilty (Col. Benavides and Lt. Mendoza) belonged to the Military Academy.  Of the two lieutenants who led the operation, Mendoza, from the Military Academy, and Espinoza, from Atlacatl, only the first was convicted, although the bullets that killed Celina Mariceth Ramos did not come from the weapon registered to him.  

139.            Both Lt. Mendoza, who was convicted of murder and the members of the Atlacatl Battalion displayed in their behavior a singular and dangerous lack of regard for human life.  Moreover, the order to kill did not come suddenly in the heat of combat, but was given after cold-blooded premeditation.  Those who received it had several hours to think it over, to appreciate its manifestly illegal nature, and to contemplate the consequences of their actions.  

140.            Nor did the judicial decision result in conviction of the intellectual authors of the crime, which means that in this case the policy of cover-up was fully effective.  It was only after signature of the peace accords and the creation of the Truth Commission that there was any serious investigation of the role played by the High Command and the Atlacatl Battalion.  It was on the basis of this investigation that that Commission, in its report of March 15, 1993, concluded that the order to kill Father Ellacuría, and to leave no witnesses, had been given to Col. Benavides on the night of November 15, 1989, by then-Col. René Emilio Ponce, in the presence and with the collusion of General Juan Rafael Bustillo, then-Col. Juan Orlando Zepeda, Col. Inocente Orlando Montano and Col. Francisco Elena Fuentes.  That Commission also concluded that Col. Ponce had arranged that for this operation “a unit of the Atlacatl Battalion was to be used, which he had sent two days previously to conduct a search of the priests' residence”.[66]  Furthermore, according to that Commission’s findings, Colonel Oscar Alberto León Linares, Commander of the Atlacatl Battalion was aware of the murders and concealed incriminating evidence. Colonel Nelson Iván López y López, assigned to assist in the work of the Investigation Commission, and Colonel Manuel Antonio Rivas Mejía, Chief of that Commission (and who also “recommended to Col. Benavides that he destroy any incriminating evidence”) also knew the truth and concealed it.  None of these officers was duly investigated, prosecuted and punished.  

141.            In light of the foregoing, the IACHR concludes that the investigation undertaken by the Salvadoran State with respect to the extra-judicial execution of the victims in this case was not conducted seriously or in good faith, but was rather intended to protect some of the material authors and all of the intellectual authors of the crime.  

142.            Despite the fact that these proceedings led to the conviction of four officers of the Salvadoran Armed Forces[67], the facts and elements of the case, which are public and well-known, reinforced by those that came to light during processing of the case before the IACHR, make it clear that the process that resulted in those convictions was neither impartial nor objective, in the terms demanded by the American Convention.  In effect, the actions were coordinated and orchestrated to give the appearance of regularity, and to make it seem that justice was being done.  But in reality, the Honor Commission, composed for the most part of military officers, and the Investigation Commission, presided by another officer, Lt. Col. Antonio Rivas Mejía, colluded to limit and negotiate accusations, in other words, to put together a convenient "package of charges" intended to provide cover for the senior military command.  With this package, nine soldiers who had been pre-selected by the Honor Commission were prosecuted; only four of them were convicted, and of those only two for the crime of murder.  The judicial power, for its part, allowed itself to be used in a sham process that constituted a denial of justice.  On the other hand, the other public powers, the Legislature and the Executive, conspired to grant amnesty to those who had been convicted, and to prevent any future investigation from ever imposing penalties for these horrible crimes against human rights.  All of this affected the integrity of the proceedings and implied the manipulation of justice, as well as the obvious abuse and misuse of power, as a result of which these crimes have to this date gone completely unpunished.

B.              Considerations of law  

143.            In light of the facts established above, the IACHR will now examine the violation of the human rights of the victims in this case, attributable to the Salvadoran State.

1.              The right to life  

144.            In accordance with Article 4(1) of the American Convention, "every person has the right to have his life respected.  No one shall be arbitrarily deprived his life."  It should be noted that this fundamental right cannot be suspended under any circumstance, in accordance with Article 27 of the Convention.  

145.            As noted above, it has been amply proven that in the early morning of November 16, 1989, agents of the State belonging to the Salvadoran Armed Forces summarily executed six Jesuit priests and two women in the residential complex of the UCA in San Salvador.  

146.            The evidence used to establish the responsibility of those agents in the crime of murder include, among other relevant items, the report of the Truth Commission and the judgment of the Fourth Criminal Court of January 23, 1992.  The rest of the evidence consists of the various items of proof found in the file of the case in the IACHR.  

147.            The judgment of January 23, 1992, summarizes the evidence against each of the accused.  The principal evidence against seven of them--Lieutenants Mendoza and  Espinoza, Sub. Lt. Guevara Cerritos, Sub-Sergeants Avalos and Zarpate, Corp. Pérez Vázquez and Private Amaya Grimaldi--consists of their own extra-judicial confessions, given at the General Directorate of the National Police.  As noted above, these confessions were legally validated by two eyewitnesses, and by the Fourth Criminal Court in plenary, the First Criminal Chamber of San Salvador, and the Supreme Court of Justice.  

148.            Tomás Zarpate Castillo admitted that he had shot the two women and, believing that they were dead because they made no sound, he took his retreat.[68]  The confessions referred to contain compelling evidence.  Sub-Sgt. Antonio Ramiro Avalos Vargas confessed that he and Amaya Grimaldi had forced five of the Jesuit priests to lie face-down on the ground and that, after Lt. Espinoza said "when are you going to get on with it?", he turned to Amaya Grimaldi and said "let's get on with it".  Immediately Amaya Grimaldi, using the AK- 47 rifle given to him by the lieutenant of the Military Academy, began to shoot at the two priests in front of him, while Avalos Vargas, with his M-16, proceeded to shoot two other priests in the head and body.  He next went into the residence, where in one of the dwellings he found two women lying on the floor, shot and moaning in each other's arms, and he ordered private Sierra Ascencio to finish them off; the private thereupon fired a volley of 10 bullets with his M-16 rifle into the bodies of the two women until they ceased to moan.[69]  Amaya Grimaldi, for his part, admitted that when Avalos Vargas started to shoot the priests who were lying closest to him on the grass, he began to shoot at the two who were closer to him, with his M-16; they then repeatedly shot all five of the priests who were lying on the grass.  At that moment, he heard the voice of Lt. Espinoza, giving the following order to Private Cotta Hernández: "Get them inside, even if you have to drag them”.[70]  

149.            Corporal Angel Pérez Vásquez admitted that he killed Father López y López, who had already been wounded by another soldier.  According to the Corporal’s testimony, upon entering the second floor the University, where there are several dwelling chambers, he saw a tall man in a white robe (Father López y López) leaving the corridor.  One of the soldiers shot at the priest, who fell to the floor.  When Corporal Pérez Vásquez went to search the rest of the dwelling, he felt the wounded priest grab him by the feet.  He turned around and shot the priest four times.[71]  

150.            Although Lieutenants Mendoza and Espinoza and Sub-Lieutenant Guevara Cerritos were less truthful in their testimony, and denied responsibility, the three admitted having participated in the operation on the orders of Col. Benavides.  

151.            Lt. Mendoza declared, among other things, that on November 15, 1989, at 11 p.m. or midnight approximately, he received an order to appear before Col. Benavides at the office of the director of the Military Academy.  There, Mendoza met Col. Benavides and two other officers, one of whom he recognized as Lieutenant Espinoza, a member of his promotion class.  He did not recognize the other officer, but soon heard him being called Lieutenant Cerritos.  According to his testimony, Col. Benavides said: "Look, Mendoza, you are to go with Espinoza on a mission, he already knows what it is", to which Mendoza replied "very well, Colonel.[72]  He subsequently took part in the operation.  

152.            Lieutenant Espinoza declared that Col. Benavides had said to him: "This is a case where it’s either them or us; we're going to start with the ringleaders; we have the University inside our sector, and that's where Ellacuría is".  He then turned to Espinoza and said: "You scouted the place; now you have to get rid of him, and I don't want any witnesses, Lieutenant Mendoza is going to go with you in charge of the operation, so there will be no problems".  Espinoza told Benavides that this was a serious problem, and the Colonel replied: "Don’t worry about it, you have my full support".[73]  

153.            Sub-Lieutenant Guevara Cerritos, for his part, admitted having received orders from Col. Benavides, along with two lieutenants, to carry out the operation at the UCA.  He testified that Col. Benavides told them: "Well, gentlemen, we're going to play this for all or nothing, it's either them or us - these people have been the brains behind this war for a long time".  According to Guevara Cerritos, Benavides went on: "Here we have Lieutenant Mendoza, and since he is a comrade of Lieutenant Espinoza and has more seniority, he is the one who will lead the operation.  Espinoza's soldiers already know where the Jesuits are sleeping, and I do not want any witnesses".  Guevara Cerritos also admitted that he and Espinoza subsequently called together the patrol leaders who were there, and told them the orders that they had received from Col. Benavides.[74]

154.  With respect to Col. Benavides, it has been proven that on November 16, 1989, he was the commander of the Security Commando zone that was created on November 13, and in which the UCA was located; that on the day of the events, the Atlacatl rapid-response commando unit, to which the other accused except for Lieutenant Mendoza belonged, was under the operational control of the security commando; that Col. Benavides, Lieutenants Mendoza and Espinoza and Sub-Lieutenant Guevara Cerritos held a meeting in the office of the Military Academy director, on the night of November 15, at which the execution of the Jesuit priests living in the UCA was decided; that there is a "formal command structure" in the Salvadoran Armed Forces, by virtue of which the commander of any garrison, detachment, etc., has the power to issue orders to any subordinates who are under his operational command, without the need to consult his immediate superiors first; that "the superior officer takes responsibility for all orders given" (Article 9 of the Army Ordinances in effect at that time); that Col. Zepeda declared in his testimony that since he was commander of the zone where the crime was committed, Col. Benavides must take full responsibility for it; that in his testimony, given in the form of a sworn statement, Col. Ponce declared that the rapid response unit of the Atlacatl Battalion, from the time it was constituted to reinforce the mission of the security commando, was under the operational command of that commando, and therefore of its commander, Col. Benavides; that orders in the Armed Forces must be given within the rules laid down by law, and that "any member of the institution who gives an order contrary to law is personally responsible for its results and consequently liable to the corresponding penalty"; that in light of the ballistic evidence, it was proven that the bullet casings found at the scene of the crime belonged to an M-60 machine gun and an AK-47 rifle, weapons that, as noted in the Court record, were under the responsibility of Col. Benavides who, in his capacity as director of the Military Academy, was the only person who could authorize their use.[75]  

155.           With respect to the senior officers who gave the orders or planned the extra-judicial executions, it should be noted that none of the high-ranking officers admitted in his testimony that there was any question of consent, acquiescence, higher orders or even political orders.[76]  Nevertheless, the evidence in the possession of the IACHR, including the report of the Truth Commission, shows that Col. Benavides was not acting on his own when he ordered the murders at the UCA.  

156.          Col. Benavides reported, for operational purposes, to Col. Ponce, and the security commando was directly under the Estado Mayor.  It was Ponce who, according to the Truth Commission's report, gave Col. Benavides the order to kill Father Ellacuría, without leaving any witnesses.  To this end, he arranged for the use of a unit of the Atlacatl Battalion which he had sent, two days earlier, to conduct a search of the priests' residence.  Ponce gave this order to Benavides on the night of November 15, 1989, in the presence of and with the collusion of General Juan Rafael Bustillo, Col. Juan Orlando Zepeda, Col. Inocente Orlando Montano and Col. Francisco Elena Fuentes. 

157.          The IACHR considers that the facts here described are clearly imputable to the State, since the State is internationally responsible for any actions of its agents in violation of the American Convention.  In this respect, the Inter-American Court of Human Rights has ruled:  

Whenever a State organ, official or public entity violates one of those rights, this constitutes  a failure of the duty to respect the rights an freedoms set forth in this Article (Article 1(1)).

This conclusion is independent of whether the organ or official has contravened provisions of internal law or over stepped the limits of his authority: Under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.

Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State.[77]  

158.          The IACHR considers that the international responsibility of the State also arises from international humanitarian law, since the Jesuit priests who were killed were not legitimate military targets, but members of the civilian population who should not have been the object of attack.  

159.          In interpreting and applying the rules of international humanitarian law[78], the IACHR has been guided by the decisions of the International Criminal Court in judging persons responsible for serious violations of international humanitarian law that were committed in the territory of the former Yugoslavia since 1991.  Specifically, in its decision on the Tadic case, the Appeals Chamber of that Court ruled that United Nations resolutions 2444 (respect of human rights in armed conflicts)[79] and 2675 (basic principles for the protection of civilians in armed conflicts)[80] were "declaratory of the principles of customary international law with respect to the protection of civilian populations and property in armed conflicts of any kind."[81]  

160.            These resolutions prohibit, among other things, attacks against the civilian population, and they require the parties to an armed conflict to distinguish at all times between members of the civilian population and persons who are actively participating in the hostilities, and to direct their attacks solely against the latter, and by inference, against other legitimate military targets.  In order to protect civilians from the effects of hostilities, other principles of customary law require the attacking party to take precautions to avoid or minimize the loss of life among civilians, or damage to their property, inherent or collateral to attacks against legitimate military targets.  

161.            The immunity of civilians against direct attack is also found in certain conventions.  Specifically, common Article 3 of the Geneva Conventions of 1949[82] expressly prohibits, under all circumstances, "violence to life and person, in particular murder of all kinds” of those who are taking no active part in the hostilities.  

162.            Moreover, Article 3 of the Second Additional Protocol to the Geneva Conventions of 1949,[83] elaborates and strengthens the basic rules of common Article 3, and codifies the principle of civilian immunity as follows:  

2.  The civilian population as such, and civilian taken individually, must not be the object of attack.  Acts or threats of violence, intended to instill terror among the civilian population, are prohibited.

3.  Civilians must enjoy the protection guaranteed by this Section, unless, and during such time as, they are active participants in the hostilities.  

163.  In situations of internal armed conflict, the civilian population includes those civilians not engaged in any action intended to damage enemy personnel or property. [84]  

164.  As has been demonstrated, during this phase of the Salvadoran armed conflict, agents of the State identified the Jesuit priests with subversion.  

165.           Father Ellacuría was publicly accused of being the "creator of the theory and concept of guerrilla rebellion".  The Armed Forces published a statement in which they accused him of supporting the guerrillas’ use of car bombs in the last months of 1988.  Col. Juan Zepeda of the First Infantry Brigade declared that the UCA was "a refuge for terrorist leaders, from which they plan their strategy of attacks against Salvadoran citizens".  The Vice Minister of Public Safety, Col. Inocente Montano, said publicly that the Jesuits were totally identified with subversion.  On November 11, 1989, the date on which the FMLN military offensive began, the radio station of the Armed Forces called for violence against members of the church, and against Father Ellacuría, whom it accused of having poisoned the minds of the youth of El Salvador.  During the trial, one of the witnesses testified that Col. Benavides, on giving the order to commit the murders, said with respect to the Jesuits: "these people have been the brains behind the guerrilla war for a long time."[85]  For its part, the Truth Commission, in its report, termed the murder of the Jesuits “an act of violence against opponents on the part of agents of the State".