Ignoring transitional justice in El Salvador

Monument to civilian victims of El Salvador's civil war

During this week, El Salvador asked itself the question -- how does a country engage in post-conflict transitional justice, twenty-five years after the conflict ended with a peace agreement?   The answer from politicians seems to be -- we don't know and we don't really want to think about it.

One year ago, the Constitutional Chamber of El Salvador's Supreme Judicial Court (the "Sala") nullified the 1993 Amnesty Law.    That law had been quickly passed after a UN Truth Commission Report extensively reported on crimes against humanity committed during the war, and named the persons responsible.   The Amnesty Law meant 23 years with the doors of justice closed to the victims of those atrocities.

Then last year, the Amnesty Law went away, and the doors to justice were no longer locked.    But would anyone now open those doors to the victims?   In particular, would state prosecutors from the attorney general's office (the "FGR")  and the country's judges now start to move forward cases to establish the truth and responsibility surrounding events such as the Rio Sumpul massacre?

Currently, only five cases from the time of the conflict are active in the Salvadoran courts:

Only two of those cases, Anaya and US soldiers, were initiated by the FGR in the past year. The cases of the massacres at El Mozote and El Calobozo as well as Romero's murder, have been pushed by human rights lawyers for the victims, but the FGR has been largely absent.   No other judicial process has been commenced in El Salvador to provide justice for the remainder of the estimated 75,000 civilian victims of the war.

(While atrocities committed against civilians by the armed forces and death squads have the highest profile, there is a group calling itself Victims of Terrorism which wants prosecution of former guerrillas.   The Truth Commission Report found that 5% of the reported violations of international human rights law were the responsibility of the FMLN guerrillas and listed several cases).

This week the Sala held a public hearing to ask the other branches of government what had been done to comply with the Sala's ruling last year that cases involving crimes against humanity during the war can and should be moved towards justice.

In explaining why his office had brought so few prosecutions, Attorney General Melendez said that his office had not been prepared for the avalanche of cases coming out of the unexpected nullification of the Amnesty Law last year.     He stated that he has repeatedly asked for an increase in the budget for his office without success.  Melendez estimated that he would need between 7 and 15 million dollars to have sufficient resources to prosecute the cases.

The representative of the executive branch acknowledged that there was not yet a draft of any legislation, but claimed there was an ongoing process of studying what other countries had established for national reconciliation, in particular in the peace process in Colombia.  The president of the National Assembly, Guillermo Gallegos, acknowledged that the legislature had done nothing in the prior year to comply with the court's ruling other than wait for a draft law from the executive branch.   Gallegos pledged to create a special commission to study possible legislation.

Victims rights organizations expressed their frustration with the lack of progress.  Victims were not invited by the Sala to participate in the hearing last week.   They also expressed concern that there was no acknowledgment in the hearing of the role of the Ministry of Defense and the necessity that it preserve and open the military archives to shed light on the events during the war.

Yesterday, president Salvador  Sánchez Cerén stated in his weekly program, Governing With the People, that the executive branch was in discussions with the political parties regarding the development of a new national Law of Reconciliation for transitional justice, where families of victims could learn the truth, but there would also be the possibility of forgiveness.   ( Sánchez Cerén could potentially be a defendant in one or more cases arising out of his role a top guerrilla commander during the civil war).

The Roman Catholic archbishop of San Salvador, reacted to the statement of the president with caution.  Archbishop José Luis Escobar Alas stated that it would not be good to come out with a "new evasive law" or one that just copied the 1993 amnesty.   He lamented that it had taken the Sala so long to strike down the 1993 amnesty as unconstitutional.   It was unconstitutional from the outset, he said -- it mocked justice and was a slap in the face of the victims.

There is little to motivate El Salvador's politicians to move forward with justice for the victims.  Senior figures from the right and the left could be defendants in such cases, and the military continues to honor and defend its "heroes" from the war.  The Sala has little power to force politicians to move forward, and the politicians have shown little interest in funding the FGR to prosecute the cases.   Time marches on, and time does not favor justice nor does it heal all wounds.