International Criminal Justice: El Salvador’s General Amnesty Law and Its Impact on the Jesuits Case

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves[2]  and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3]  We also have summarized the Salvadoran criminal case regarding this crime[4] and the work of the Truth Commission for El Salvador as it pertains to this crime.[5] Now we look at El Salvador’s General Amnesty Law and its impact on the Jesuits’ case.[6]

Adoption of the General Amnesty Law

Five days after the delivery of the Truth Commission Report in March 1993, El Salvador’s National Assembly adopted the General Amnesty Law for the Consolidation of the Peace (Decree 486). It granted in Article 1: “a full, absolute and unconditional amnesty to all those who participated in any     way in the commission, prior to January 1, 1992 [the end of the civil war], of political crimes or common crimes linked to political crimes or common crimes in which the number of persons involved is no less than twenty.”

This law’s Article 6 stipulated that the amnesty shall apply “to the persons referred to in article 6 of the National Reconciliation Law . . . of January 23, 1992 [i.e., to those who would be named or implicated in the anticipated Truth Commission Report].” In addition, Article 2 of the Law broadened the definition of “political crime” to include “crimes against the public peace,” “crimes against the activities of the courts,” and crimes “committed on the occasion of or as a consequence of the armed conflict, without regard to political condition, militancy, affiliation or ideology.” Article 4 stated that all pending cases should be dismissed and all individuals being held should be released while anyone charged in the future could obtain dismissal of the charges. In addition, Article 4 provided that the amnesty extinguished all civil liability.[7]

This legislation had been recommended by then President Cristiani and passed by the ARENA- party-controlled Assembly over objections by the U.N. Secretary General and the new Salvadoran Human Rights Ombudsman. It should also be noted that the Truth Commission had not recommended any amnesty as the Commissioners thought that was a decision for the people to make after an appropriate dialogue on the subject. But the manner in which the General Amnesty Law was rushed through the legislature was later seen by at least one of the Truth Commissioners as “unseemly at the very least, indicative of a lack of respect for the democratic processes, and thus incompatible with the spirit of the Peace Accords.” [8]

In passing the General Amnesty Law, the Government overruled the agreed-on terms of the National Reconciliation Law of January 23, 1992, that provided amnesty for combatants in the civil war, but not for (1) persons convicted by juries and (2) those named by the Truth Commission as responsible for serious human rights violations, but that allowed the latter exception to amnesty to be overruled by the National Assembly six months after the issuance of the Truth Commission Report and presumably after public debate about any such overruling. Significantly the National Reconciliation Law of 1992 was a political compromise. The right-wing ARENA party that controlled the government wanted a blanket amnesty that would have immunized all persons committing any war crimes while opposition parties wanted a more limited amnesty, and the two sides instead agreed to the compromise provision just noted.[9]

Impact of the General Amnesty Law on the Jesuits Case in El Salvado

In 1993, pursuant to the General Amnesty Law, Colonel Benavides and the others who had been convicted in the Jesuits case were released from prison.[10]

 Salvadoran Litigation over the General Amnesty Law

 Immediately after the adoption of this law, Salvadoran human rights organizations brought a lawsuit to challenge its constitutionality, but the Salvadoran Supreme Court in 1993 rejected that claim. The court, in part, justified its conclusion by relying upon the following provision of Article 6(5) of the Protocol II to the Geneva Convention relating to the Protection of Victims of Non-International Armed Conflicts: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those   deprived of their liberty for reasons related to the armed conflict, whether they are  interned or detained.” [11]

This broad reading of the above provision of Protocol II of this Geneva Convention, however, is not sustained by the International Committee of the Red Cross (ICRC), which has primary responsibility for monitoring world-wide compliance with the Geneva Conventions. Instead, the ICRC says it is inappropriate to grant amnesty to persons who have violated international humanitarian law, i.e., the law of war; Article 6(5) instead was intended to encourage amnesty or immunity for combatants so long as they act in accordance with that humanitarian law.[12]

Moreover, notwithstanding this provision of Protocol II, El Salvador’s General Amnesty Law and similar laws in other countries have been criticized by the Inter-American Commission on Human Rights as violating the American Convention on Human Rights. Similar criticisms have been leveled against this and similar laws in other countries under the American Convention on Human Rights and other multilateral human rights treaties by the Inter-American Court of Human Rights, the U.N. Secretary-General, several U.N. human rights bodies, the European Court of Human Rights and international criminal tribunals.[13] These arguments also have been advanced by human rights NGOs.[14]

Again in 2000 the Salvadoran Supreme Court upheld the constitutionality of the General Amnesty Law, but this time it also held that each investigative judge could determine whether application of the law in a particular case would interfere with the country’s treaty obligations or with reparation of a fundamental right, and if it would so interfere, the judge would not have to apply the law.[15]

The importance of the General Amnesty Law and whether it is constitutional under Salvadoran law has not gone away. Indeed, right now these are hot topics in El Salvador, as we will see in the next post.

In any event, as a result of the General Amnesty Law, the author is not aware of any new Salvadoran criminal prosecutions of those named in the Truth Commission Report, and the Commission’s recommendation of eventual punishment of the guilty by the Salvadoran government has been rejected. Moreover, in the years since the Supreme Court’s 2000 decision announcing the ability of a judge in an individual case to not apply the amnesty law, the author is not aware of any instance in which that has been done.

[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May31, 2011).

[2]  See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).

[3]  See Post: International Criminal Justice: El Salvador’s Military’s Attempt To Cover-Up Its Committing the Murders of the Jesuit Priests (June 7, 2011).

[4]  See Post: International Criminal Justice: The Salvadoran Criminal Prosecution of the Murders of the Jesuit Priests (June 8, 2011).

[5] See Post: International Criminal Justice: The Jesuits Case in the Truth Commission for El Salvador (June 9, 2011) .

[6]  In subsequent posts, we will examine the Jesuits case in the Inter-American Commission on Human Rights and the Spanish court.

[7]  I-A Comm’n Human Rights, Report on the Situation in El Salvador § II (4) (Feb. 11, 1994); Doe v. Saravia, 348 F. Supp. 2d at 1133;  U.S.State Dep’t, El Salvador Human Rights Practices, 1993, at 1 (Jan. 31, 1994); Hemisphere Initiatives,  Justice Impugned: The Salvadoran Peace Accords and the Problem of Impunity at 6-7 (June 1993); Lawyers Committee for Human Rights, El Salvador’s Negotiated Revolution: Prospects for Legal Reform at 62-79; Popkin at 135, 150-52; Brief Amici Curiae [26 international human rights law professors] in Support of Appellees and Affirmance at 4, Chavez v. Carranza (6th Cir. May 14, 2008) [“Law Professors Amici Brief”].

[8]  Miller, Compromise Amnesty Law OK’d in Salvador–Central America, Los Angeles Times, Jan. 24, 1992; Popkin at 150-52; Buergenthal at 536-38.There, however, was no significant political support for repeal of the General Amnesty Law, and in 1994 the FMLN said that if the Law were held unconstitutional, it would support a new, narrower amnesty law. Popkin at 157.

[9]   Id.

[10]  IACHR, Ellacuria v. El Salvador, Rep. No. 136/99 ¶ 36 (Case No. 10.488 Dec. 22, 1999); New Charges Barred in Salvador Killings, N. Y. Times, Oct. 24, 2000.

[11]  Popkin at 152-53; International Comm. of Red Cross, http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=475&t=art. Subsequently courts in South Africa and Chile apparently followed this ruling of the El Salvador Supreme Court. (Popkin at 153.)

[12]  Roht-Arriaza, Combating Impunity: Some Thoughts on the Way Forward, 59 Law & Contemp. Problems 93, 97 (Fall 1996); Roht-Arriaza, The Developing Jurisprudence on Amnesty, 20 Hum. Rts. Q. 843, 865-66 (1998); IACHR, Cea, et al, v, El Salvador . Rep. No. 1/99, ¶ 116 (Case No. 10.480 Jan. 27, 1999); Popkin at 154.

[13]  U.N. Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances–Mission to El Salvador ,  ¶¶  62-75, 83 (Oct. 26, 2007); U.N. Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances  ¶  426 (Jan. 10, 2008); U.N. Human Rights Comm., Concluding Observations of the Committee: El Salvador   ¶ 6 (July 22, 2003);  U.N. Human Rights Comm., Concluding Observations of the Committee: Republic of Congo  ¶ 12 (2000); U.N. Human Rights Comm., General Comment 20, ¶ 15 (Mar. 10, 1992); U.N. Comm. on Elimination of Racial Discrimination, Concluding Observations of the Committee: El Salvador   ¶ ¶ 15, 22 (April 4, 2006); U.N. Hum. Rts. Comm’n, General Recommendations of the Special Rapporteur on Torture ¶ (k) (2003); U.N. Gen. Ass’bly Res. 47/133, Declaration on the Protection of All Persons from Enforced Disappearances , Art. 18 (1) (Feb. 12, 1993); IACHR, 1985-1986 Annual Report of IACHR, ch. V (“only the appropriate democratic institutions—usually the legislature—with the participation of all the representative sectors, are the only ones called upon to determine whether or not to decree an amnesty of [sic] the scope thereof, while amnesties decreed previously by those responsible for the violations has [sic] no juridical validity”);  Law Professors Amici Brief at 8-29; Weissbrodt at 500-01.

[14]  E.g., Equipo de Concertacion por la paz, la dignidada y la justicia social, Evaluacion de 15 anos despues de la firma de los Acuerdos de Paz en El Salvador  (Jan. 16, 2007);  Equipo Regional de Monitoreo y Analisis de Derechos Humanos en Centroamerica, Derechos Humans y Conflictividad en C.A.: Violencia, impunidad y megaproyectos contra la vida y la dignidad  (June 2008); Equipo Regional de Monitoreo y Analisis de Derechos Humanos en Centroamerica, 2008-2009 Informe Sobre Derechos Humanos y Conflictividad en Centroamerica at 30, 67-68 (2009).

[15]  Brief of Amicus Curiae Republic of El Salvador, Carranza v. Chavez, 2009 WL 1511733 (U.S. Sup. Ct. No. 08-1497 May 28, 2009); Brief Amici Curiae [26 international human rights law professors] in Support of Appellees and Affirmance at 14-15, Chavez v. Carranza (6th Cir. May 14, 2008) [“Law Professors Amici Brief”].

International Criminal Justice: The Jesuits Case in The Truth Commission for El Salvador

We already have looked at a Spanish court’s recent issuance of 20 criminal arrest warrants regarding the November 1989 murders of six Jesuit priests in El Salvador[1] and the provisional facts of the murders themselves[2]  and the Salvadoran military’s attempts to cover up its being the one responsible for the killings.[3]  We also have summarized the Salvadoran criminal case regarding this crime.[4] Along the way we have encountered the findings regarding this crime by the Truth Commission for El Salvador. Now we see what that Commission was and how it did its work.[5]

In January 1992, under United Nations’ auspices, the Government of El Salvador and the FMLN, a Salvadoran guerrilla group, successfully concluded their long negotiations to end the 12 years of civil war. The Peace Accords represent a genuine compromise: the FMLN renounced its aspiration to seize the state by military force and impose radical economic changes while the government and its political supporters relinquished their historical control and violent opposition to change.[6] The Accords laid out sweeping reforms to permit the FMLN to participate in political life, to transform the institutions that had accounted for the major human rights violations and to achieve greater equity in the economic and social life of the country.[7]

The Peace Accords also created the Commission for the Truth for El Salvador.[8] Its inclusion developed out of the desire of both sides for at least symbolic justice focused on the most notorious cases with the U.N. providing the compromise formula for such a commission.[9] The U.N. Secretary-General appointed the three members of the Commission. Notably none of its members was Salvadoran because its work was perceived to be too dangerous for anyone who lived in the country.[10]

The Commission was charged to consider and resolve “the need to clarify and put an end to any indication of impunity on the part of officers of the armed forces, particularly in cases where respect for human rights is jeopardized.”[11]

More specifically, the Commission was to investigate “serious acts of violence that have occurred since 1980 and whose impact on society urgently demands that the public should know the truth.”[12] In conducting these investigations, the Commission was to take into account “the exceptional importance that may be attached to the acts to be investigated, their characteristics and impact, and the social unrest to which they gave rise” and the “need to create confidence in the positive changes which the peace process is promoting and to assist the transition to national reconciliation.”[13]

In addition, the Commission was to make “legal, political or administrative” recommendations for specific cases as both sides had agreed that the Commission could recommend criminal prosecutions.[14] More generally, the Commission recommendations “may include measures to prevent the repetition of such acts, and initiatives to promote national reconciliation.”[15] Under the Peace Accords, the parties “undertake to carry out the Commission’s recommendations.”[16]

The Commission was to conduct its activities “on a confidential basis.” It was not to “function in the manner of a judicial body.” It could use “whatever sources of information it deems useful and reliable.” It could “interview, freely and in private,” anyone. Its procedures should “yield results in the short term, without prejudice to the obligations incumbent on the Salvadoran courts to solve such cases and impose the appropriate penalties on the culprits.”[17]

In evaluating and implementing this Mandate regarding its procedures and methodology, the Commission made the following decisions:

  • It would investigate individual cases or acts that outraged Salvadoran society and/or international opinion as well as a series of individual cases with similar characteristics revealing a pattern of violence or ill treatment that also outraged Salvadoran society.
  • Its sources would be confidential.
  • It would interview people and receive reports from governments and international bodies.
  • It would take all possible steps to ensure the reliability of the evidence used to arrive at a finding; to verify, substantiate and review all statements of facts by checking them against a large number of sources whose veracity had been established and by not basing any finding on a single source or witness or only on a secondary source.
  • It would name perpetrators of human rights violations.
  • Its report would specify the degree of certainty for each finding.  “Overwhelming evidence” would indicate “conclusive or highly convincing evidence.”  “Substantial evidence” would indicate “very solid evidence.”  “Sufficient evidence” would indicate “more evidence to support the . . . finding than to contradict it.”[18]

On March 15, 1993, the Commission delivered its report to the U.N. Security Council, the Government of El Salvador, the FMLN and the National Commission for the Consolidation of Peace (COPAZ). The Report made findings on 32 cases of serious acts of violence, one of which was the murders of the Jesuit priests.[19]

The Commission had no power to prosecute anyone, and it recommended against immediate prosecutions by the Salvadoran government because the Commission believed the Salvadoran judicial system was not capable of handling such cases.[20] Instead, the Commission’s findings on specific cases were intended to be used by the Salvadoran judicial system after it had been reformed to make “whatever final decisions they consider appropriate at this moment in history.”[21]

Finally  the Truth Commission Report has been held by U.S. federal courts to meet standards of trustworthiness and thus was admissible into evidence in cases involving El Salvador.[22]  The Inter-American Commission on Human Rights has reached the same conclusion for cases from the country.[23]


[1] See Post: International Criminal Justice: Spanish Court Issues Criminal Arrest Warrants for Salvadoran Murders of Jesuit Priests (May31, 2011).

[2]  See Post: International Criminal Justice: The Salvadoran Murders of the Jesuit Priests (June 2, 2011).

[3]  See Post: International Criminal Justice: El Salvador’s Military’s Attempt To Cover-Up Its Committing the Murders of the Jesuit Priests (June 7, 2011).

[4]  See Post: International Criminal Justice: The Salvadoran Criminal Prosecution of the Murders of the Jesuit Priests (June 8, 2011).

[5]  Commission for the Truth for El Salvador, Report: From Madness to Hope: The 12-year war in El Salvador  at 13-14, 26-171 (March 15, 1993), http://www.derechos.org/nizkor/salvador/informes/truth.html  [“Commission Report”]; Margaret Popkin, Peace without Justice: Obstacles to Building the Rule of Law in El Salvador at 3, 6-7, 41, 46-48, 50-57 (University Park, PA: Penn. State Univ. Press 2000) [“Popkin”]; Inter-American Commission on Human Rights, Annual Report 1991, ch. IV (Feb. 14, 1992); Inter-American Commission on Human Rights, Report on the Situation of Human Rights in El Salvador § I (1) (Feb. 11, 1994).

[6]  Terry Karl, El Salvador’s Negotiated Revolution, 71 Foreign Affairs 147, 148 (1992).

[7]  United Nations, El Salvador Agreements: The Path to Peace (1992) [“Peace Accords”]; Unitarian Universalist Service Comm.,  Provisional Summary of Key Accords by Salvadoran Negotiators (Jan. 15, 1992); Search for Justice, The Salvadoran Peace Accords: A Synopsis (circa Jan. 15, 1992) [“Accord Synopsis“]; El Rescate Human Rights Dep’t, The Salvadoran Peace Accords: An Outline (1992); Popkin at 3-4, 83-95; Human Rights Watch, World Reports: El Salvador (2001); Human Rights Watch, World Reports: El Salvador (2002).

[8]  Id.

[9]  Popkin at 87-94.

[10]  Accord Synopsis; Commission Report; Popkin at 87-88, 94-95, 121-24; Buergenthal, The United Nations Truth Commission for El Salvador, 27 Vanderbilt J. Transnat’l L. 497, 499-500, 503-04 (1994) [“Buergenthal”]. Thomas Buergenthal was one of the members of the Truth Commission, and from 2000 to 2010 he was a judge on the International Court of Justice. (Int’l Court of Justice, Judge Thomas Buergenthal, http://www.icj-cij.org/court/index.php?p1=1&p2=2&p3=1&judge=11.)

[11]  Peace Accords at 53; Commission Report at 18; Popkin at 109-11.

[12]  Peace Accords at 17, 29; Commission Report at 18.

[13]  Peace Accords at 17, 30; Commission Report at 18; Popkin at 109-11.

[14]  Peace Accords at 30; Commission Report at 18; Popkin at 94.

[15]  Peace Accords at 30; Commission Report at 18; Popkin at 109-11.

[16]  Peace Accords at 31; Commission Report at 19.

[17]  Peace Accords at 30, 53; Commission Report at 22.

[18]  Commission Report at 22-25; Popkin at 112-20. The El Salvador Government tried to persuade the Commission not to name individuals. Buergenthal at 519-22 (Commissioners assumed from the start that alleged perpetrators would have to be named and not to do so would reinforce the impunity that was supposed to end); Popkin at 113-14; David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process  at 499-500 (4th ed. 2009) [“Weissbrodt”].

[19]  Commission Report at 43-171.

[20]   Commission Report at 177-79; Popkin at 131-39, 140-43.

[21]  Commission Report at 13.

[22]  Doe v. Saravia, 348 F. Supp. 2d 1112, 1131-32, 1255 (E.D. Cal. 2005); Chavez v. Carranza, 413 F. Supp. 2d 891, 903-04 (W.D. Tenn. 2005), aff’d, 559 F.3d 486, 496 (6th Cir. 2009), cert. denied, 130 S. Ct. 110 (2009); Fed. R. Evid. 801 (c), 803 (8).

[23]  Monsignor Romero v. El Salvador, Rep. No. 37/00, ¶¶ 30-54, 88, 120 (IACHR April 13, 2000); Ignacio Ellacuria, et al. v. El Salvador, Rep. No. 136/99, ¶¶ 79-86 (IACHR Dec. 22, 1999); Admissibility of El Mazote Massacre, Rep. No. 24/06, ¶¶ 30-42 (IACHR Mar. 2, 2006).