New amnesty proposal may advance in El Salvador

El Salvador's National Assembly will take the next step towards the possible passage of a new amnesty law on Monday according to a tweet from the Assembly's twitter account.  An Ad Hoc Commission of the National Assembly had been reviewing the possible responses to the 2016 decree of the Constitutional Chamber of El Salvador's Supreme Judicial Court which struck down a 1993 amnesty law.   That amnesty law had essentially blocked all attempts to prosecute war criminals in Salvadoran courts.  Since 2016, cases seeking to hold certain military commanders and others responsible for crimes against humanity have started forward in Salvadoran courts.

The FMLN member of the Ad Hoc Commission, Nidia Diaz, tweeted that the Ad Hoc Commission had finished its mandate and that it was sending to the Political Commission of the National Assembly the suggestions and proposals and information gathered regarding the grounds for the Constitutional Chamber's decision so that a potential new law of transitional justice can be considered.

Earlier this year, a draft version of a new law was circulated in the Ad Hoc Commission.   That new proposal would have essentially restored an amnesty in El Salvador with some modifications and largely put a halt to the current cases.    The draft legislation, has been subject to strong criticism by the human rights community advocating for justice for the victims of atrocities committed during El Salvador's long civil conflict.

Last week the United Nations Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Mr. Fabián Salvioli, concluded a visit to El Salvador.  He warned about the prospects of a new amnesty law:

I express my own severe concern at this attempt to open the door for a de facto amnesty and eliminate the enforcement of criminal sanctions for severe human rights and humanitarian law violations and crimes against humanity. I would like to call to memory the jurisprudence from the Inter-American Court of Human Rights that prohibits amnesty mechanisms or measures that seek to impede or suppress the effects of a conviction ruling in cases of severe human rights violations, and stipulates that inappropriate concession of sentencing benefits can constitute a form of impunity.

Now 27 years after the conclusion of the armed conflict, there are no clear reasons why impunity mechanisms such as those proposed in this draft bill could be considered legitimate or even necessary in political terms in El Salvador. Neither are they legal. The conviction and effective punishment of those responsible is an obligation of the Salvadoran State vis-à-vis the victims and society, and it cannot be skirted through legislative decisions that run contrary to international human rights law, which would once again put the State in a position of unlawfulness in terms of its international obligations.

Despite this criticism from the UN and the international human rights community, and despite the denunciations from Salvadoran advocates, it could be that a law gets passed in the coming weeks and signed by outgoing president Salvador Sánchez Cerén.  (Sánchez Cerén, a former guerrilla commander, has also been mentioned as a potential defendant in war crimes cases and would also benefit from a potential amnesty).    Incoming president, Nayib Bukele, has expressed his own opposition to a new amnesty provision.