On July 13, the Constitutional Chamber of the Supreme Court of El Salvador decided, 4 to 1, that the country’s amnesty law of 1993 was unconstitutional. This post will examine that decision and a subsequent post will discuss the impact of that decision on the pending criminal case in Spain regarding the 1989 murders of the Jesuit priests in El Salvador.
The Court’s Decision.[1]
The Chamber held that the country’s amnesty law of 1993 was unconstitutional because it was “contrary to the access to justice” and the “protection of fundamental rights” as impeding the state from fulfilling its obligation to investigate, try and punish grave violations of those rights. Indeed, the court said the government has an obligation to “investigate, identify and sanction the material and intellectual authors of human rights crimes and grave war crimes” in its civil war and to provide reparations to victims.[2] The court also suggested that prosecutors begin with about 30 cases highlighted by a U.N. Truth Commission in March 1993.[3] The cases include massacres, assassinations and kidnappings by combatants from both the armed forces and the guerrilla army called the Farabundo Martí National Liberation Front (FMLN). One of the most prominent was the 1989 murders of the Jesuit priests and their housekeeper and her daughter.
The court’s announcement of its decision stated that the 1992 Peace Accords ending the civil war had contained no provision for an amnesty; that the country’s National Assembly had no power to grant an amnesty to persons who had committed crimes against humanity or war crimes constituting grave violations of human rights and that its constitution and international law of human rights required the conclusion of invalidity.
The court also stated that the crimes against humanity during the civil war were not individual and isolated acts, but the result of guidelines and orders issued by organized apparatuses of power with hierarchies of command. This implies criminal responsibility of the direct actors, those who gave the orders for the crimes and those commanders who failed to countermand the orders and thereby failed to exercise control over the hierarchies.
Much to the surprise of this blogger as a retired U.S. attorney, one of the Chamber’s four judges in this very case, Florentine Menendez, made a public statement about the decision. He said, “We’re not raising hatred or reopening wounds,” but rather emphasizing “the strength of the constitution and the right to life and justice” for the victims. The decision rescues “the jurisprudence of the Inter-American system of human rights protection to heal the wounds of the past and finally close the page and get a national reconciliation.”
Positive Reactions to the Decision.[4]
The next day the decision was celebrated at a ceremony in San Salvador’s Cuscatlan Park, the site of a 275-foot granite wall etched with the names of 30,000 civilians killed in the country’s civil war and the locations of nearly 200 massacres committed between 1970 and 1991. Below are photographs of David Morales,El Salvador’s human rights ombudsman, who made remarks that day, and of part of the granite wall.
At this celebration, David Morales said, “If prosecutors and judges are willing to comply with the ruling, it will generate for the first time in El Salvador the first glimmers of reconciliation.” He added that many Latin American countries have already abolished their amnesty laws and begun to prosecute crimes dating to the civil wars and military dictatorships of the late 20th century.
Benjamin Cuellar, former director of the human rights institute at the University of Central America (UCA) and one of the petitioners in the lawsuit, said, “This is the first step that will take El Salvador to true reconciliation; so that the institutions work and bring to justice those who commit crimes, regardless of who they are.”
UCA, the home of the murdered Jesuit priests, stated, “The majority of the victims are more noble than the victimizers. They do not want vengeance, they want the injustice to be recognized. And the State is obliged to honor them. It is time to put the victims in the center. The new phase that is opened for the country is positive, it means an advance for democracy and justice, and constitutes a late but just recognition for those who had been disrespected in their memory and in their pain.”
The Center for Justice and Accountability, which has been involved in various Salvadoran human rights cases, including the Spanish case regarding the murder of the Jesuit priests, said, “Today’s decision marks a moment many of us have hoped for, for a long time, as we struggled by the victims’ side. The victims have been demanding justice since the peace was signed and the brave truth commission report was published. The amnesty law passed only seven days after was a betrayal to the victims’ hopes and the whole peace process. With it, justice was excluded forever. Today’s decision brings back hope for investigation and prosecution both inside and outside the country.”
A group of independent United Nations human rights experts declared: “This historic decision for the country brings hope to victims and confidence in the legal system…. More than twenty years after the end of the conflict, this decision will restore the fundamental rights of victims to justice and full reparations.”
Amnesty International praised the decision: “Today is an historic day for human rights in El Salvador. By turning its back on a law that has done nothing but let criminals get away with serious human rights violations for decades, the country is finally dealing with its tragic past.”
Another voice of support for the decision came in a New York Times editorial calling it “ a remarkable ruling that opens the door for relatives of victims of war crimes to hold torturers and killers accountable.” “However,” the editorial continued, “there appears to be little political will in El Salvador to revisit a painful chapter of its history in courtrooms. Politicians across the political spectrum have questioned the viability of war crimes tribunals at a time when the country’s judicial institutions are overwhelmed by endemic gang violence.” Nevertheless, the Times suggested that El Salvador should create “a prosecution unit and gives it the tools and independence to pursue the most emblematic cases of the conflict” like the El Mozote Massacre,” which has been discussed in prior posts.
Negative Reactions to the Decision.
The lack of political will referenced in the Times editorial can be seen in the country’s President, Salvador Sánchez Cerén, a member of the FLMN, asserted that his government had always been committed to the restoration of the victims of the war and to building a culture committed to human rights. However, he said the court’s decision did not meet “the real problems of the country and far from solving the daily problems of Salvadorans, worsens them. Judgments of the Constitutional Chamber ignore or fail to measure the effects on our living together in society, and do not contribute to strengthening institutionality.”
Another FLMN leader had a similar reaction. The former president of the National Assembly, Siegfried Reyes, said the decision was “surprising and seeks to weaken and hit the governance and hit the security plans that the government is implementing effectively.”
The country’s Minister of Defense, David Munguia Payés, asserted that the decision was a “political error” and would be a setback to the process of pacification which had occurred since the end of the civil war.” He openly worried that the ruling would turn into a “witch hunt.”
Mauricio Ernesto Vargas, a retired general who represented the armed forces in the peace negotiations, said the court’s ruling could intensify political polarization in a country with no shortage of problems: a gang-violence epidemic, a migration crisis, crop failures and economic stagnation.
The country’s Attorney General, Douglas Melendez, had a more nuanced view. He said, “We respect from the institutional point of view this ruling. We will do what we have to do, we will fulfill our constitutional responsibilities.”
The conservative political party ARENA (founded by a leader of the death squads in the 1970s and 1980s, and in control of the government when atrocities like the massacre of the Jesuits occurred and the authors of the amnesty law) published an official statement urging respect for the court’s decisions, but also noting that the decisions would present challenges for the process of reconciliation and the strengthening of democracy and institutions.
Now we will have to see whether this decision leads to any Salvadoran investigations and prosecutions for the serious human rights crimes of its civil war and to a resumption of Spain’s criminal case regarding the 1989 murders of the Jesuit priests. (The latter subject will be covered in a subsequent post.)
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[1] El Salvador Supreme Court (Constitutional Chamber), Press Release (July 13, 2016), http://static.ow.ly/docs/20.%20Comunicado%2013-VII-2016%20Ley%20de%20amnist%C3%ADa_50Yr.pdf; Post war 1993 amnesty law declared unconstitutional, Tim’s El Salvador Blog (July 13, 2016), http://luterano.blogspot.com/2016/07/post-war-1993-amnesty-law-declared.html; Malkin & Palumbo, Salvadoran Court Overturns Wartime Amnesty, Paving Way for Prosecutions, N.Y. Times (July 14, 2016); Maslin, El Salvador strikes down amnesty for crimes during its civil war, Wash. Post (July 14, 2016), https://www.washingtonpost.com/world/the_americas/el-salvador-strikes-down-amnesty-for-crimes-during-its-civil-war/2016/07/14/5eeef2ec-49bf-11e6-8dac-0c6e4accc5b1_story.html.
[2] Prior posts have discussed the Amnesty Law: International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case, dwkcommentaries.com (June 11, 2011), https://dwkcommentaries.com/2011/06/11/international-criminal-justice-el-salvadors-general-amnesty-law-and-its-impact-on-the-jesuits-case; El Salvador’s Current Controversy Over Its General Amnesty Law and Supreme Court, dwkcommentaries.com (June 16, 2011), https://dwkcommentaries.com/2011/06/16/el-salvadors-current-controversy-over-its-general-amnesty-law-and-supreme-court; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case. It should be noted, however, that U.S. federal courts have held that the General Amnesty Law is limited to Salvadoran judicial proceedings and thus does not bar U.S. civil lawsuits for money damages against Salvadoran defendants. (El Salvador’s General Amnesty Law in U.S. Federal Courts, dwkcommentaries.com (June 14, 2011), https://dwkcommentaries.com/2011/06/14/el-salvadors-general-amnesty-law-in-u-s-federal-court-cases.
[3] Prior posts have discussed the Truth Commission: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador, dwkcommentaries.com (June 9, 2011), https://dwkcommentaries.com/2011/06/09/international-criminal-justice-the-jesuits-case-in-the-truth-commission-for-el-salvador; The Salvadoran Truth Commission’s Investigation of the 1980 Murders of the Four Churchwomen, dwkcommentaries (Dec. 19, 2011), https://dwkcommentaries.com/2011/12/19/the-salvadoran-truth-commissions-investigation-of-the-murders-of-the-four-american-churchwomen; The El Mozote Massacre: The Truth Commission for El Salvador and the Subsequent General Amnesty Law and Dismissal of the Criminal Case, dwkcommentaries.com (Dec. 13, 2012), https://dwkcommentaries.com/2012/12/13/the-el-mozote-massacre-the-truth-commission-for-el-salvador-and-the-subsequent-salvadoran-general-amnesty-law-and-dismissal-of-criminal-case.
[4] Thanks for Tim’s El Salvador Blog (http://luterano.blog spot.com) for much of the information on the reactions to the Chamber’s decision. David Morales: The sentence “is a tool of greater scope to demand justice, DiarioCoLatino (July 14, 2016) http://www.diariocolatino.com/david-morales-la-sentencia-es-una-herramienta-de-mayores-alcances-para-exigir-justicia; Dalton, Declared unconstitutional the amnesty in El Salvador, El Pais (July 14, 2016) http://internacional.elpais.com/internacional/2016/07/15/america/1468541983_506876.html.
Comment: Another Congratulations for Invalidating Amnesty Law
On July 25, the Inter-American Commission on Human Rights applauded the invalidation of El Salvador’s Amnesty Law. It said the decision brought the country “into compliance with decisions adopted in the 1990s by the inter-American human rights system.” Indeed, the statement continued: “Since the 1990s, the Inter-American Commission on Human Rights had determined that El Salvador’s Amnesty Law was incompatible with the State’s international obligations, and repeatedly urged that the law be eliminated from the country’s legal system, underscoring the need to adopt the necessary measures to ensure that victims would have effective access to judicial protection and judicial guarantees.”
The Inter-American Commission also quoted one of its prior statements: “All societies have the irrefutable right to know the truth of events, as well as the reasons and circumstances in which such aberrant crimes come to be committed, so as to prevent such events from occurring again in the future.” States, for their part, have an unwaivable legal duty to take reasonable steps to prevent human rights violations, to use the means at their disposal to carry out a serious investigation of violations committed within their jurisdiction, to identify those responsible and impose upon them the appropriate punishment, and to ensure the victim adequate compensation.”
Three days earlier, July 22, El Salvador’s President, Salvador Sanchez Ceren, said he had begun talks with political parties on a new “national reconciliation” law that allow investigations of human rights abuses, but would also allow those responsible to be granted forgiveness.
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OAS, IACHR Hails Determination of Unconstitutionality of Amnesty Law in El Salvador (July 25, 2016), http://www.oas.org/en/iachr/media_center/PReleases/2016/098.asp
Assoc. Press, Human Rights Body Applauds Removal of Salvadoran Amnesty Law, N.Y. Times (July 25, 2016), http://www.nytimes.com/aponline/2016/07/25/world/americas/ap-lt-el-salvador-amnesty-law.html
Assoc. Press, El Salvador Looks for New ‘National Reconciliation’ Law, N.Y. Times (July 23, 2016), http://www.nytimes.com/aponline/2016/07/23/world/americas/ap-lt-salvador-amnesty-law.html
Comment: Update from Tim’s El Salvador Blog
Reposting Tim’s El Salvador Blog: With the amnesty law gone, what’s next? (July 26, 2016), http://luterano.blogspot.com/2016/07/with-amnesty-law-gone-what-next.html.
“Following the invalidation of El Salvador’s 1993 Amnesty Law, many are wondering what happens next. While many assume that there should be prosecutions of such infamous war crimes as the El Mozote or Rio Sumpul massacres, the form of such proceedings is far from certain. El Salvador’s courts seem ill-equipped for the job, and the country’s chief prosecutor is not exactly showing an eagerness for the possible challenges ahead.”
“From the New York Times:
• ‘However, there appears to be little political will in El Salvador to revisit a painful chapter of its history in courtrooms. Politicians across the political spectrum have questioned the viability of war crimes tribunals at a time when the country’s judicial institutions are overwhelmed by endemic gang violence. President Salvador Sánchez Cerén warned that the ruling threatened the ‘fragile coexistence’ that binds Salvadoran society.’
• ‘His concern has some merit. Politicians may be tempted to use the case to settle political scores. As a former guerrilla leader, Mr. Sánchez is among the country’s leaders who could be exposed to prosecution. Some of his allies have criticized the decision as a veiled coup….’
• ‘Douglas Meléndez, El Salvador’s attorney general, said the government would abide by the ruling. But he has not indicated that his office intends to start dusting off old files and start building cases any time soon. Unless that happens, the ruling will serve as little more than a reminder of long-ago brutalities for which the country’s leaders refuse to make amends.’”
“From the Economist:
• ‘The supreme court’s ruling is a sign that El Salvador’s judiciary is eager to assert its independence of both political parties. If Mr Meléndez takes up its invitation to prosecute civil-war-era crimes, that separation of powers will become more pronounced…..’
• ‘A belated pursuit of justice would force Salvadoreans to relive the horrors of the 1980s and remind them of the bloody origins of the main political parties. Some will ask whether amnesty and impunity were too high a price to pay for peace.’
“Can El Salvador develop a process of national reconciliation? President Salvador Sanchez Ceren has stated that he will seek to reach agreement with the country’s political parties on a new national reconciliation law which would investigate crimes against humanity, but would also allow for forgiveness of the transgressors.”
“The idea of designing a process to declare the truth and provide pardons for those who acknowledge fault is supported by the country’s Roman Catholic bishops.”
“From the Catholic Register:
• ‘Salvadorans must not overreact to the Supreme Court decision to declare the country’s amnesty law unconstitutional, said Auxiliary Bishop Gregorio Rosa Chavez of San Salvador.’
• ‘’We have to see this with calm,’ he said. ‘My call is to not see this in a dramatic way, but with simplicity, in a natural way, because human beings need truth and justice.’’
• ‘While Salvadorans must not forget what happened during their more-than-12-year civil war, people must learn to seek reconciliation, not revenge, he said.’
• ‘”Those who have been offended have the right to ask for forgiveness … We can’t forget (what happened), but we’ve got to know how to deal with it,” he said.’
“Such a process might be based on principles of restorative justice:
• “After the decision, rights defenders argued that Salvadoran officials should not seek to jail hundreds of ‘war criminals, explaining instead that restorative justice efforts would better bring truth and relief to victims of the violence.”
• ‘”We want the perpetrators to apologize, and the country must seek appropriate mechanisms to forgive and repair, so that that does not happen again,’ said Miguel Montenegro, director of the nongovernmental Human Rights Commission.”
• “David Morales, human rights ombudsman of El Salvador, told reporters that ‘politicians are sending messages of fear, but at this stage of our democracy, those speeches are nonsense.’”
• “’There will be no chaos nor witch hunt, but some justice to victims,’ he told reporters.”
• “Montenegro said that before forgiveness can be given, the truth surrounding atrocities must come to light. The war left about 70,000 people dead and more than 8,000 missing.”
• “’Those opposed to justice have always invoked the amnesty law, but they can’t hide behind it anymore,’ Montenegro said.”
“The slow process of justice for the victims of crimes against humanity committed in El Salvador has taken decades. The process has overcome a major obstacle with the removal of the Amnesty Law, but there is a long road yet to go.”
W.S.J. Columnist Discusses Invalidation of Salvadoran Amnesty Law #
The Wall Street Journal’s conservative columnist, Mary Anastasia O’Grady, had strangely ambivalent words about the recent invalidation of El Salvador’s Amnesty Law by its Supreme Court.
Even though she implicitly sees that Law as the compromise necessary to end El Salvador’s civil war, she says “what matters most [now] is that the independence of the judiciary will be respected and that investigations are carried out in a transparent manner without political interference.”
This is at risk, in her opinion, for two reasons.
First, the FLMN, which was the opposition to the government in the civil war, now “holds the presidency, a simple majority in Congress and a number of judicial posts.” Second, “the FMLN government and the party organization have the most to lose if a blindfolded Lady Justice carries out her duties.” Quoting a Salvadoran economist, she says “a thorough investigation will decapitate the FMLN political structure. Many of its top honchos are allegedly tied to the massacres, murders and kidnappings listed by the constitutional court.”
“One of the most-notorious of the guerrilla leaders, in her opinion, was Salvador Sánchez Cerén, now El Salvador’s president, “ who has criticized the court’s decision.
In contrast, the right-wing ARENA political party, says O’Grady, is now not railing against the court’s decision because its current leaders were not in power during the civil war.
Although I am glad to see that O’Grady supports the invalidation of the Amnesty Law, I do not agree with her rationale.
First, the ARENA political party controlled the government during the civil war and was responsible for most of its atrocities according to the report of the Truth Commission for El Salvador. ARENA, therefore, has a strong political interest in avoidance of re-opening investigations and prosecutions of war crimes and crimes against humanity during the civil war. Second, O’Grady does not cite to any evidence, much less compelling evidence, that ARENA has changed its political philosophy and its idolization of its founder, Roberto D’Aubuisson, the notorious death-squad leader and author of advertisements in the country’s media during the war: “Be a patriot. Kill a priest.”
I also do not buy her implicit belief that the Amnesty Law was necessary to end the Salvadoran civil war. As the Salvadoran Supreme Court pointed out in its decision, the 1992 Peace Accords ending the civil war had contained no provision for an amnesty. Nor did the report of the Truth Commission; instead it called for further investigations and prosecutions. Nor did the National Reconciliation Law of January 23, 1992.
I also disagree with O’Grady’s ambiguous statement that the U.S. backed the Salvadoran “agreement” and implicitly the Amnesty Law. There was no Salvadoran agreement for the Amnesty Law. Yes, the U.S. backed the 1992 Peace Accords ending the Salvadoran civil war, and in 1993 President Bill Clinton’s new administration supported the truth commission report and launched an investigation about U.S. involvement in Salvadoran atrocities. Moreover, O’Grady does not cite any evidence that the U.S. in 1993 supported the Amnesty Law. She also ignores U.S. federal courts’ rejection of the Amnesty Law in civil lawsuits for damages over human rights violations in the Salvadoran civil war.
I am troubled, however, by her argument that today’s FLMN political party has leaders, like the president, who were guerilla leaders during the war and who, therefore, fear re-opening investigations and prosecutions.
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O’Grady, A Salvadoran Lesson for Colombia, W.S.J. (July 31, 2016), http://www.wsj.com/articles/a-salvadoran-lesson-for-colombia-1469996643.