Legal Affairs

Current Issue


printer friendly
email this article
letter to the editor

space space space

September|October 2002
A Penny Saved By John Swansburg
Effective Command By Susan Benesch
The Disobedient Dozen By Josh Saunders
After the Rainbow By Megan Twohey
Go Dutch By Tom Geoghegan
The O.J. Effect By Wendy Davis

Effective Command

By Susan Benesch

"As a colonel in October 1979, and later as general, you were well respected in the military?" the lawyer asked.

"I believe so," General José Guillermo García answered quietly in Spanish after listening to an interpreter's translation.

García had been sued in a U.S. federal court in West Palm Beach for torture committed by soldiers in El Salvador two decades ago, when he served as the country's minister of defense. The plaintiffs' case hinged on showing that he had actual as well as formal command over his soldiers. The 69-year-old retired general understood that as a result, conceding his former authority could point only toward his own guilt. So after years of projecting his clout, he hedged.

"Isn't it true that, as minister of defense and public security, during those years, you exercised command authority?" the lawyer, named James K. Green, asked. "That is, the authority to give orders to subordinates either directly or through intermediate subordinate commanders over all members of the Salvadoran military forces?"

"That is not true," answered the general, white at the temples and slight in his grey suit.

Green tried again. "But face-to-face, your soldiers, under your command, would obey your order?"

"That question is a very..." García's reply trailed off.

"If you gave them a direct command, and they were face-to-face to you, [and] you were wearing your uniform either as a colonel or general, they would respect the uniform?"

"They would respect it," García said with a small nod of satisfaction. Then he backpedaled. "But I couldn't guarantee that they would comply with my order."

García and his co-defendant, Carlos Eugenio Vides Casanova, a former chief of the National Guard and García's successor as minister of defense, retired in 1983 and 1989 respectively. In 1989, they moved to modest homes in south Florida. Living there made them vulnerable to suit under two U.S. laws, the Torture Victim Protection Act and the Alien Tort Claims Act, which allow civil lawsuits for injury caused by major wrongdoing, like torture and war crimes, committed abroad.

The generals' trial drew attention to a key question involving the legal doctrine of command responsibility: How do you prove a commander had power over his troops that he didn't use and says he didn't have? The answer will affect other attempts to hold foreign military commanders accountable for atrocities, because this case and an earlier one against the generals were the first in which U.S. juries grappled with the concept of command responsibility. "Although this doctrine may be alien to the experience of United States jurors," the plaintiffs' lawyers argued, "it is of paramount importance in the world's efforts to bring the rule of law to bear on commanders who fail to adequately prevent or punish human rights abuses committed by subordinates."

On several steamy days in June and July, the three Salvadorans who sued García and Vides Casanova took the witness stand and described being abducted and tortured in the early 1980s. It was the beginning of the decade-long civil war in which leftist guerrillas fought to overthrow the Salvadoran government. The three plaintiffs said their torturers falsely accused them of being guerrillas or subversives, and tried to torture them into "confessing."

Dr. Juan Romagoza, who now runs a low-income medical clinic in Washington, D.C., said that when he left detention he weighed about 70 pounds and had untreated bullet wounds in an arm, a foot, and his head. Carlos Mauricio was hung in the air and beaten at the National Police headquarters, he testified. Neris González recounted that, when she was eight months pregnant, she was taken to the local National Guard post, where soldiers pushed her under a metal bed frame and see-sawed it across her belly. Her child was born injured and died two months later.

Evidence introduced at trial, including the report of the Truth Commission for El Salvador sponsored by the United Nations, left little doubt that Salvadoran soldiers had abducted and tortured civilians. Neither those facts nor the two generals' high-ranking titles, however, were enough for a plaintiffs' victory. Only Romagoza directly tried to link either of the generals to the torture, and his evidence was slim. The doctor said he thought he recognized Vides Casanova's voice while he was being tortured by the National Guard. But he also admitted that all he could see were a high-ranking officer's shiny boots and pants through a tiny gap between his cheekbone and blindfold.

It's common for plaintiffs in cases like this to lack concrete evidence against top commanders. Like Mafia dons, commanders rarely commit the crimes themselves, and they don't leave much of a paper trail—not since the Nazis' zealous documentation proved so useful to Nuremberg prosecutors. Even at Nuremberg, there wasn't enough evidence of direct control to convict all the defendants who seemed guilty, so the tribunal there developed the doctrine of command responsibility. The idea was that a commander who did little or nothing to stop his troops from committing atrocities was effectively encouraging them and should be held responsible.

In the 1990s, the two U.N.-sponsored tribunals that have been trying top suspects for atrocities committed in Bosnia and Rwanda elaborated on the Nuremberg idea. They suggested that, to be convicted, a commander must have had "effective control" over the troops who committed the crimes.

In West Palm Beach, in applying the international standard to García and Vides Casanova, Judge Daniel T.K. Hurley refined it in an important way. Unlike many of the Bosnian and Rwandan defendants, who were paramilitary strongmen without rank, title, or a role in a formal chain of command, the generals had undisputed titular authority. Still, Judge Hurley told the jurors that they could find the generals responsible only if the plaintiffs proved that the generals had control over the people accused of doing the torturing—the ability "to prevent the torture or to punish" the people accused of doing it. The judge's instruction turned the case into a test of proof of "effective command."

Hurley issued similar instructions to a jury two years ago, in another lawsuit against the generals brought by the families of four American churchwomen who were raped and killed in El Salvador in 1980. In composing the instructions, the judge responded to Kurt Klaus, the generals' only lawyer, who argued that it would be unjust to hold his clients responsible for crimes that they couldn't have prevented. The generals said that they tried their best to clean up the Salvadoran armed forces in response to pressure from the guerrillas and from right-wing death squads. They won that case.

Faced with the same legal standard in the second trial, the plaintiffs' lawyers had to convince the jury that the generals could have prevented the torture suffered by the three plaintiffs. They called José Luis García, an Argentine retired colonel, and Terry Karl, a Stanford political science professor who studies El Salvador and visited there in the 1980s. The Argentine testified that the Salvadoran armed forces functioned because the chain of command allowed superior officers to pass effective orders down the line. Karl gave her opinion that "General García was probably the most powerful person in El Salvador when he was minister of defense" and argued that when U.S. officials put strong pressure on the Salvadoran military high command, violence decreased immediately. "To me that shows control," she said.

Refuting these arguments for the defense, Edwin Corr, a former U.S. ambassador to El Salvador, said that in the early 1980s the Salvadoran armed forces were so fragmented and chaotic that it was extremely difficult to exercise power effectively.

After a day of deliberations, the 10-member jury sent the judge questions that suggested they, too, were struggling to define command responsibility. After another 15 hours of deliberations that included "yelling, screaming, and crying," according to Arnie Esbin, the jury's foreman, the jurors made their decision. They found both generals liable on each of the five counts against them and ordered them to pay the plaintiffs $14.6 million in compensatory damages and $40 million in punitive damages.

"The generals were in charge of the National Guard and the country," Esbin said after the verdict. "It was a military dictatorship. They had the ability to do whatever they chose to do or not do."

The plaintiffs may recover little or no money, since, according to Klaus, the generals can't even afford to appeal the verdict. But the case will encourage other torture victims and relatives of the "disappeared" to take on former commanders now living in the United States. Its bankrupting outcome may also cause some of those potential defendants to leave rather than risk a trial at all.

Susan Benesch is a writer and lawyer in Washington, D.C., who did legal research for the plaintiffs in the first case against the generals.

printer friendly email this article letter to the editor reprint premissions
space space space

Contact Us