It was noon in San Nicolas Lempa, El Salvador, when four men seized Neris Gonzalez and took her to the National Guard post under the pretense that her church literacy programs encouraged the guerillas. It was 1979, and she was eight-months pregnant. For more than two weeks, gangs of men raped her. They stomped on her. They forced her to watch others being tortured and killed. Finally, they threw her, with a heap of corpses, into a garbage dump, where her nearly lifeless body was found next to a Dumpster. It took her six months to regain health. Her baby boy was born disfigured and died soon thereafter.
Nearly 20 years later, Gonzalez began working with two other torture victims, Carlos Mauricio and Juan Romogoza, to sue the generals who presided over El Salvador during its brutal civil war. Last month, a Florida jury awarded the plaintiffs $54.6 million in a civil suit and found the two Salvadoran generals, who currently reside in Florida, guilty of violating international-human-rights law. It was a huge victory in the ongoing fight to hold war criminals accountable for their actions.
"This is a great day for all Salvadorans. At last we are going to get justice. We have sent a loud message that torture is not permitted, and there's no impunity anymore," Mauricio told reporters after the trial. It was a great day, also, for the many lawyers, professors and students who donated their time to the case, hoping that they would be able to set a precedent for holding international-human-rights offenders responsible in the United States.
But there's one rather glaring inconsistency. The same day, across the Atlantic, in response to the United States' threat to end peacekeeping missions, the United Nations Security Council granted our country 12 months of immunity from the International Criminal Court (ICC). Shortly afterward, the United States sought to block the newest UN conventions on torture because of a dispute over the status of prisoners at Guantanamo Bay, Cuba.
On the international level, major steps are being taken to end torture and other war crimes globally through the ICC. Under Bill Clinton, the United States signed a treaty that established the court, but in May the Bush administration firmly stated that it would not be bound by that action. According to crimesofwar.org, U.S. representatives warned their allies at the UN meeting approving U.S. immunity from the ICC that "no nation should underestimate our commitment to protect our citizens."
So, in other words: While a jury of 10 Florida citizens found two Salvadoran generals guilty for war crimes committed by their subordinates, the U.S. government simultaneously refused (on behalf of its citizens) to recognize the international laws in place to prevent such abuses and the institutions established to enforce them. What gives?
While the Florida case is certainly inspiring for international-human-rights workers, it's important not to overstate what really happened there. The lawyers who worked on the case have already admitted that the plaintiffs are unlikely to see any of the money they were awarded. The generals have their funds in foreign bank accounts, which are almost impossible for an American with limited resources to find. Nor will the generals be put in jail -- they probably won't even be deported from the United States. Most likely this is a symbolic victory.
Still, we should try not to lose that symbolism. What really happened in Florida is that 10 American citizens were presented with a complicated human-rights case -- entrenched in the legal jargon of "command responsibility" -- and were nevertheless able to say not only that what happened was wrong, but that it was wrong even in the case of war, even in the case of fighting communism.
Granted, this group of jurors is a very small sample of the American public. But their example clearly shows what is possible when Americans are confronted with real cases and real people rather than an abstract notion -- the ICC -- that has been demonized by so many leaders occupying the media spotlight.
In fact, the ICC could not have gone after the Salvadoran generals in the first place, because it lacks jurisdiction over anything that happened before July 1, 2002. What the ICC can do is normalize criminal prosecution for war crimes in the future. Because of this, it can take the symbolism of the Florida case and make it concrete.
The case in Florida did two very important things to advance the state of human-rights law enforcement in this country. First, it showed that an American court could rule on a human-rights case that occurred in a foreign country at a time of war. Second, it showed that an American jury is capable of understanding a complicated case and enforcing human-rights laws that are considered to be universal.
However great these achievements, though, building up the court system in any one country is not sufficient to deal with the human-rights violations that occur all over the world. In the case of the generals, the court was able to hear the case because both the perpetrators and victims were residing in the United States. Needless to say, that is not generally the situation in which human-rights victims find themselves. And that's why the ICC is such an important institution. Obviously, in order to truly criminalize such actions, an international body is needed that is devoted to enforcing the laws that the international community passes.
The Bush administration has attempted to cover itself on this front. On Aug. 6, the State Department's ambassador at large for war crimes, Pierre Prosper, said that despite not supporting the ICC, "We are prepared, however, to work with the states where these war crimes occur to build the capacity so that they can address these problems themselves." But that would only scratch the surface of the problem. The countries where human-rights abuses are often most grave are the same countries that lack the kind of benign leadership and supportive political culture to empower their legal systems to bring human-rights abusers to justice.
Again, consider El Salvador, where the Salvadoran generals are still cloaked in legal impunity. Even if a judge had agreed to hear the case in that country, the court system in El Salvador would have been incapable of dealing effectively with the generals. Moreover, these generals testified that they trained at the School of the Americas, a prestigious U.S. military academy, and were given U.S. Legion of Merit awards. Are we really to believe that the United States would have invested time and resources to help create a legal system in El Salvador that would have held these U.S.-funded generals responsible for war crimes?
American allies, with the exception of Israel and several Eastern European countries concerned with joining NATO, have publicly taken the United States to task on these issues of late. At a time when the United States is asking for world solidarity in the war against terrorism, why are we alienating our allies? The answer is alarming. If the ICC were retroactive, and the Bush administration was acting to protect America's past, that would be one thing. But the inescapable conclusion is that the Bush administration wishes to ensure the same safeguards for torturers and war criminals in the future. It's an approach that 10 jurors in Florida have good reason to be suspicious of.
