YLS Students' Work Supported Case Chronicled in PBS Documentary
The work of the Lowenstein Clinic was literally behind-the-scenes, and didn't appear in the film. However, it led to one of the crucial moments in the case.
The clinic's work started more than two years ago, when the Lawyer's Committee for Human Rights asked them to perform research and support in the case of Ford et al. v. Garc?et al. The families of four Catholic aid workers who had been raped and murdered in El Salvador by members of the armed forces in 1980 were suing two high-ranking generals from the Salvadoran Army (who now live in the United States) in U.S. district court. Their claim was brought under the 1991 Torture Victims Protection Act (TVPA), which authorized American victims of human rights abuses to sue foreign abusers.
The work of the YLS students started before the trial began. As two of the students involved in the case, Erika Serran '02 and Amy Meselson '02, explain, they researched initial procedural questions, such as whether it would be worthwhile to bring Florida tort law claims at the same time as the federal case and what the standards would be for admitting evidence, since the events in question occurred in another country many years before.
The students also began looking into the question of liability standards, and the doctrine of "command responsibility," which they knew was "an area that was going to be key," according to Serran. Five soldiers had been convicted of murdering the churchwomen in El Salvador, and four of them said that they believed they had been acting on higher orders. "Command responsibility" means simply that military commanders are legally responsible for the actions of their troops. The plaintiffs had to show that the Salvadoran generals had authority over the perpetrators, knew (or should have known) about the atrocities or a pattern of similar abuses, and failed to prevent or punish such acts. Even if the generals hadn't given direct orders to commit atrocities, the plaintiffs would argue that they created an atmosphere that allowed the crimes.
Serran began pursuing this tack by researching all of the cases that had been brought under the TVPA and in the International Criminal Tribunal for the Former Yugoslavia. Meselson looked into how command responsibility is handled in the U.S. military, by reading the case law precedents from courts martial that applied the doctrine and by looking into the U.S. military's written guidelines.
Meselson described the process as, "You just try every single approach you can think of, and you research it." The six or seven students working on the case met more or less weekly with Lowenstein Clinic Director Jim Silk to discuss their progress and generate ideas.
There were also immediate demands as the case moved forward, and the clinic helped draft briefs opposing defendant's motions to dismiss, and consulted with the trial attorneys. Serran says she pulled several all-nighters working on the case, and "became totally immersed in it."
But their main project was drafting the plaintiff's proposed jury instructions describing command responsibility, and in the last week before these were due they went through daily revisions with the trial lawyers. At the trial, however, the plaintiffs didn't get the exact wording that they wanted. The jury ended up interpreting command responsibility far more narrowly than the plaintiffs had believed was appropriate, resting their interpretation on the idea that the generals had to have "effective command" of their troops. The generals were found not liable for the deaths. The families have appealed this verdict.
Serran says that she was "disappointed and shocked" when she heard the verdict. Besides being "committed to the case and to the legal theory" she felt that the facts were on the plaintiff's side. Nonetheless, both Serran and Meselson say that their close involvement in the case and practical exposure to the process of litigation made for one of the best experiences of their law school careers.
In one final connection between the case, the documentary, and Yale Law School, Harold Hongju Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law, wrote a viewer's guide to the program. Koh is also a past director of the Schell Center and a former assistant secretary of state for democracy, human rights and labor. In his opinion, despite the verdict, the case is an important example of an international movement to hold both perpetrators and high-ranking commanders accountable for human rights abuses.