Amnesty under Fire in El Salvador: Legal Challenges and Political Implications

Amnesty under Fire in El Salvador: Legal Challenges and Political Implications

By Geoff Thale

Since the end of the Salvadoran civil war in 1992, victims of human rights abuses have chafed at the country’s Amnesty Law, which prevents the investigations of the grave human rights violations that occurred during the 12-year conflict. However, recent developments suggest that the tide is turning against the amnesty and its supporters.

Not surprisingly, the challenges to the amnesty are generating political tensions in the country; in the past few weeks, these tensions have been manifested in the debate about what should happen to the historical archives of Tutela Legal, the human rights and legal aid office of the Archdiocese of San Salvador. It is likely that the Salvadoran human rights community will be under fire for as long as challenges to the Amnesty Law continue and, as a result, will need both domestic and international support for its work.

Background

The Amnesty Law was enacted by the Legislative Assembly on March 20, 1993—one week after the U.N. –sponsored Truth Commission published a report on human rights abuses committed during the war. The Commission report concluded that 85 percent of abuses were committed by forces allied with the Salvadoran government. Its report detailed 30 high profile cases of severe human rights violations, including cases committed by both the Salvadoran armed forces and the Faribundo Martí National Liberation Front (Frente Faribundo Martí de Liberación Nacional, FMLN). Since the law’s passage, victims, the families of victims, and their allies have criticized the amnesty and argued that it has denied justice and prevented closure and reconciliation.

Until now, both the right-wing ARENA party (explicitly) and the FMLN (implicitly) have supported the Amnesty Law. Defenders argue that the law—which shielded both politicians and military leaders on the right, and senior FMLN leaders on the left, from criminal prosecutions—was a necessary element of the broad political settlement that ended the twelve year civil war. The law’s critics—human rights advocates, victims, and victims’ families—believe that the amnesty was too broad, the terms too sweeping, and the price in terms of justice and human rights too high.

The Inter-American Commission on Human Rights (IACHR) has urged El Salvador to eliminate the amnesty law on numerous occasions. In fact, in a 2012 sentence on the infamous El Mozote massacre, the Inter-American Court on Human Rights ruled that the law cannot be used to protect those that carried out the massacre. The Court also ordered the Salvadoran state to reopen the criminal investigation into the massacre and to carry out 14 reparation measures for the victims over the course of five years.

Challenges to the Amnesty Law

As in other countries (such as Chile and Argentina), challenges to the amnesty in El Salvador have increased over time, and support for the law has begun to erode. But, as in other countries, the process is complicated and politically difficult, as the possibility of criminal prosecutions threatens established interests in the political class and the security establishment.

On March 20, 2013—the twentieth anniversary of the Amnesty Law’s passage—the Human Rights Institute of the Central American University (Instituto de Derechos Humanos de la Universidad Centroamericana, IDHUCA) filed a challenge to constitutionality of the Amnesty Law. This is not the first domestic legal challenge to the law: in fact, in response to such a challenge in 2000, the Salvadoran Supreme Court’s Constitutional Chamber ruled that while the law is constitutional, individual judges had the discretion to rule that the amnesty did not prevent prosecution in cases that involved charges of crimes against humanity. But no judge has ever exercised that discretion, and de facto the amnesty has remained in place.

But the amnesty no longer appears as invincible as it once did. In an unexpected move, last month the Salvadoran Attorney General’s office announced that it will open criminal investigations into the Mozote massacre. Several weeks later, on September 21, the Constitutional Chamber of the Supreme Court indicated that it had accepted the IDHUCA’s challenge to the constitutionality of the amnesty law.

What’s more, international events are contributing to the sense that the days of blanket amnesty in El Salvador could be numbered. Two years ago, a Spanish court filed an indictment against 20 retired Salvadoran military officers for their role in planning the 1989 slayings of six Jesuit priests. (Five of the six Jesuits were Spanish citizens.) But because most of the defendants are in El Salvador and the Salvadoran Supreme Court ruled that the Amnesty Law bars their extradition to Spain, the case did not advance. However, one named defendant, Colonel Orlando Montano, was living in the United States at the time of the indictment and was detained on immigration fraud charges. Recently, he was sentenced to two years in prison by a federal court in Boston; he will be in prison long enough that the Spanish court could seek his extradition from the United States. With one defendant physically present in Spain, the Spanish court will be in a position to move legal proceedings forward again. While convictions in Spain would not have direct legal consequences on defendants in El Salvador, they would put enormous political pressure on the defendants and their supporters, and make the amnesty that much harder to defend.

Implications

Since the post-war elections of 1994, Salvadoran politicians on both the right and the left have refrained from discussing the amnesty. Its supporters allege that the repeal of the Amnesty Law and subsequent prosecution of historical crimes will reopen old wounds and disrupt the reconciliation process within El Salvador; they argue that an amnesty of some kind was necessary in order for the leaders of the warring parties to sign a peace agreement 20 years ago. But the effect of the amnesty over time has been to prevent a true reconciliation from taking place. In generating broad and absolute impunity for past atrocities, the amnesty makes a mockery of the state’s commitment to justice and the rule of law. In addition, the failure of the state to fully investigate or prosecute some of the most egregious violations of human rights that occurred during the conflict has led to the de facto continuation of what the Truth Commission referred to as “the tradition of impunity for officials and members of the most powerful families who commit abuses.”

If the court finds the Amnesty Law unconstitutional, a backlash from some sectors of society is almost certain. Overturning the law and subsequently investigating emblematic cases of human rights violations would threaten to dramatically alter the status quo. High-level politicians, officials, and their associates could be implicated in crimes and even potentially prosecuted.

It appears that pushback from threatened sectors may already have begun. Some of the attacks on El Salvador’s Constitutional Court over the last year can be understood as pre-emptive measures against a court considered likely to overturn the Amnesty Law. The recent events surrounding Tutela Legal—the legal aid office of the Archdiocese of San Salvador—may also reflect a backlash against attempts to overturn the amnesty. Tutela Legal’s offices were abruptly closed by San Salvador’s archbishop on September 30, and the future of its archives is unclear. Tutela Legal was founded in 1981 and was instrumental in documenting human rights abuses during the war; its archives contain a wealth of evidence, including testimonies from witnesses. Many observers noted that it seems unlikely that Tutela Legal—which has carried out investigations of the Mozote massacre and whose lawyers are plaintiffs on that case—just happened to be closed only days after a challenge to the Amnesty Law was accepted by the court, and some have speculated that the action came in response to pressure from pro-amnesty groups.

At this point, the challenges to the amnesty are not likely to disappear for a number of reasons: the IDHUCA, the victims, and their international supporters aren’t going anywhere; the Spanish court could move forward with the extradition and subsequent prosecution of Colonel Montano in the Jesuit case; and the Constitutional Court in El Salvador is likely to rule on the Mozote case sometime in the future. While these developments are encouraging and welcome, the accompanying political tension and uncertainty is concerning and, in all likelihood, will increase as events progress. The human rights community in El Salvador will need support, both domestically and internationally, in order to stand firm in the face of pressure and resistance. 

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Geoff Thale is WOLA's Program Director. 

Photo by Share Foundation