Almudena Bernabeu Garcia

By Mary Jo McConahay. She is the author of Maya Roads, One Woman’s Journey Among the People of the Rainforest (Chicago Review Press).

Almudena Bernabeu Garcia, 41, came to San Francisco in 1999. The U.S. Congress, responding at the time to an influx of Central American refugees fleeing civil wars and counterinsurgency campaigns, had recently enacted the Nicaraguan Adjustment and Central American Relief Act (NACARA) (Pub. L. 105-100). Bernabeu assisted immigrants seeking political asylum or family reunification under provisions of the statute.

The experience had a lasting effect on her career. “I am reminded, every day, I am an immigrant,” Bernabeu says today. “This is still a homogenous culture we have to aspire to. I have to prove myself three times more, including to other lawyers, but it has paid me back.”

As a young law school graduate in Valencia, Spain, Bernabeu had been helping a friend prepare immigration papers when she stumbled into a local legal aid office there – a “basement of pathetic cubicles” she recalls, staffed by volunteers “who smoked too much, drank too much coffee, and still thought they could change the world.” She was hooked. “Little miracles happen to me,” she says of the serendipity, “even though everything that led me to today looks so linear now.” She threw in her lot with immigrants’ advocates and Amnesty International-Spain for four years, then emigrated to California.

“I was driven,” Bernabeu says. “I was blown away by stories of all those who benefited from the sanctuary movement in Northern California.”

Living in a cheap San Francisco apartment with a shared bathroom down the hall, she began working with immigration attorneys Byron B. Park and Karyn Taylor, filing as many as 300 NACARA requests a month.

Bernabeu came to know a local circle of figures who gave vital support to the new arrivals: There were immigration attorneys Marc Silverman and Mark L. Van Der Hout; Father Cuchulain Moriarty at the Castro District’s Most Holy Redeemer Church (a priest whose name, it was said, every Central American who reached the Bay Area carried on a scrap of paper); Sister Maureen Duignan of the East Bay Sanctuary Covenant in Berkeley; and Felix Kury, a psychotherapist and human rights advocate from El Salvador who now teaches at San Francisco State University.
Educated entirely in Spain, Bernabeu took the California Bar exam in 2002 but was flummoxed by the multiple-choice section, which she failed to pass. She became “frankly depressed” at the prospect of dropping immigrants’ cases and incipient human rights work to tackle preparation for the exam a second time.

“Felix Kury asked me, ‘What did you study law for, and how can you do it?’ ” Bernabeu recalled.

She took her own path, becoming a registered foreign legal consultant in California (Cal. Rules of Court 9.44) and 20 other states while retaining her license to practice in Spain. She has been an investigator for the European Court for Human Rights, and is currently vice president of the Spanish Association for Human Rights.

It was also Kury who introduced Bernabeu to Gerald Gray, a San Francisco psychotherapist who treated torture survivors. Gray, along with attorney Paul Hoffman of Schonbrun DeSimone Seplow Harris Hoffman & Harrison in Venice, had founded the CJA with support from Amnesty International and the U.N. Voluntary Fund for Victims of Torture. Its mission was to assist torture survivors not only in healing, but also in pursuit of legal redress.

In 2002 Bernabeu volunteered to work on a CJA case on behalf of two Honduran immigrants who’d been tortured in the 1980s, and relatives of two other Hondurans who had disappeared at the same time. She joined CJA full time the next year.

CJA was a shop unlike any other Bernabeu had known, dedicated to hunting down egregious human rights abusers who expected no one would pursue them. The center’s first client, a survivor of the Bosnian civil war, had recognized one of his torturers living in his adopted California community. “This was politics at a level I cared about,” Bernabeu says. “I realized what potential there was at CJA for the kind of law I wanted to do.”

Filing claims under the Alien Tort Statute (28 U.S.C. § 1350) and the Torture Victims Protection Act (Pub. L. No. 102-256), the center has brought cases in U.S. courts on behalf of clients in California and other states for human rights abuses committed in Sudan, Somalia, Cambodia, Bosnia-Herzegovina, and Central America. It has won tens of millions of dollars in default judgments.

In a milestone for CJA, Bernabeu led an investigation into the 1980 murder of El Salvadoran Archbishop Óscar Arnulfo Romero, who was assassinated while saying mass in a San Salvador hospital chapel. She flew to the city where the killing took place and risked a predawn car ride, blindfolded, to make contact with an informant.

Investigators then tracked down an ex-army officer from the Romero death squad, operating a used-car dealership in Modesto. The officer fled, but CJA obtained a $10 million default judgment. U.S. District Judge Oliver W. Wanger stated from the bench, “the damages are of a magnitude that is hardly describable.” (Doe v. Saravia, 348 F. Supp. 2d 1112 (E.D. Cal. 2004).)

For Bernabeu, the Romero case was a chance to contribute a “granito,” or grain of sand, that helps to build a mountain. The legal victory also coincided with a turning point in her life – she met and later married Nicholas W. van Aelstyn, lead pro bono lawyer in the case and currently a partner in the San Francisco office of Beveridge & Diamond. Their son was born last year.

Back when Bernabeu was still in Spain filing legal petitions for would-be immigrants, investigating magistrate Baltasar Garzón of the Spanish National Court revived the concept of universal jurisdiction that had been established at the Nazi war crimes trials in Nuremberg, Germany, after World War II. The assertion of jurisdiction was simple enough: All human rights abuses in violation of international law – regardless of where they are committed – affect the common interests of humanity. In 1998 Garzón issued an international warrant for the arrest of former Chilean dictator Augusto Pinochet, charging him with the torture and disappearance of thousands of political opponents in the 1970s. When the British House of Lords subsequently ordered police to arrest Pinochet at a London hospital, Bernabeu says, she opened a bottle of champagne with friends and danced in front of her house.
“At the time, I don’t think I even understood the scope of what it meant,” she says. “But yes, my heart was fully involved.”

Garzón’s boldness encouraged claims in Spain brought by people all over the world who were unable to pursue former officials for human rights abuses at home. One claim came from Rigoberta Menchú Tum – a K’iche Maya and recipient of the Nobel Peace Prize – and a group of Spanish and Guatemalan organizations that together had filed the criminal complaint against Ríos Montt in Guatemala.

“When it comes to egregious human rights violations, two courts, two countries, can investigate and prosecute simultaneously without creating a conflict,” Bernabeu explains. “Evidence in one country with high standards of admissibility – such as Spain – can then be admissible in another country – such as Guatemala – creating unprecedented ways of legal collaboration.”

Impressed by Bernabeu’s record at CJA, the Guatemalan plaintiffs invited her to join their case in Madrid. But in February 2003 the Spanish Supreme Court ruled that universal jurisdiction claims could not proceed unless the parties demonstrate a close tie to Spain. The court permitted the investigation of human rights abuses in Guatemala against Spanish citizens – but threw out claims brought by the Maya plaintiffs.

Two years later, however, Spain’s Constitutional Court issued a historic reversal. “[R]estriction based on the nationality of the victims adds a limitation that is not provided for by law,” the court held. “[E]specially with respect to genocide, it contradicts the very nature of the crime and the shared objective that it be combated universally.” (Judgment No. 237/2005, Tribunal Constitucional de España, Second Chamber, Conc. of Law, X9.)

Bernabeu, then working with CJA in San Francisco, approached the Spanish National Court during its investigation of a former Argentine naval officer accused of committing crimes in the 1980s during that country’s dirty war. She was asked to prepare women who had survived the infamous Buenos Aires torture center, known as ESMA, to testify. With prosecutor Miguel Ollé, Bernabeu attended the court sessions, entering with prosecutors, wearing a borrowed gown of the type customarily used in the chamber, and feeling “scared, honored, thrilled, emocionada.” It would be the beginning of a synergetic relationship between the CJA and the courts in Madrid.

At a 2006 meeting of Guatemalan human rights defenders and lawyers – including Menchú and Paz y Paz – Bernabeu was chosen to lead the Ríos Montt prosecution in Spain. “I had a reputation as a problem solver and a ‘miracle worker’ – which I have my doubts about,” she says. “But the truth is I have been successful, and CJA has been there backing me up.”

CJA executive director Pamela Merchant adds, “We made a strategic decision to develop the case in Spain as a long-term strategy to support Guatemalan civil society’s efforts to achieve justice at home. At the time, none of us could have hoped that there would be a [Guatemalan] prosecution – the first one in the world against a former head of state for genocide – only seven years later.”

Bernabeu assembled an international team – including UC Hastings College of the Law professor Naomi Roht-Arriaza, an expert in human rights trials – and immersed herself in the case, collecting evidence and interviewing witnesses. She also engaged in legal battles over international arrest warrants for Ríos Montt, and Guatemala’s refusal to extradite him to Spain. By February 2009, the CJA had brought more than 40 witnesses to Madrid to testify – from Maya widows who had never before left their villages to international experts in forensic anthropology and sexual violence.