WOLA: Advocacy for Human Rights in the Americas

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27 Oct 2017 | Commentary

Tracking El Salvador’s Progress in Historic Human Rights Cases

Background 

In recent weeks El Salvador has witnessed a sharp upturn in homicides. In just the first 15 days of October, officials estimated that an average of 14 people were murdered each day. Sadly, the spike in violence is not unfamiliar in El Salvador, and the high numbers of homicides are a chilling reminder of the challenges the country faces. Difficulties in managing the problem of insecurity and violence are compounded by a weak criminal justice system unable to hold perpetrators accountable. At the same time, deeply polarized politics have made it difficult to agree on solutions and measures to effectively address the country’s challenges.

This commentary is the first of a three-part series that will attempt to assess various areas where El Salvador has made progress and others where resistance to change, underdeveloped institutions, and a weak culture of respect for the rule of law have hindered progress.

El Salvador took a historic step for human rights last year, when the country’s Constitutional Court overruled the 1993 Amnesty Law which banned the prosecution of those who’d committed abuses during El Salvador’s twelve-year civil war. The law meant that those who committed thousands of killings and disappearances, as documented by a United Nations (UN)-backed Truth Commission, were never held accountable. 

El Salvador now faces a major test: can those behind the crimes described by the Truth Commission finally be held responsible, and has the country’s justice system evolved sufficiently to mete out justice in a reliable manner?

While much remains uncertain, there are some signs that the Court’s rejection of the Amnesty Law may have, to some degree, paved the way for significant actions on human rights issues in El Salvador. Two recent developments in particular represent positive steps forward on the justice and human rights front: the formation of a government-sponsored committee to search for the disappeared, and the re-opening of an investigation into one of the war’s most gruesome massacres.

Searching for the disappeared

On September 27, 2017, President Salvador Sánchez Cerén announced the formation of a commission to search for those who disappeared during the civil war. In Spanish, the group is known as the Comisión Nacional de Búsqueda de Personas Desaparecidas en el contexto del conflicto armado en El Salvador (CONABUSQUEDAD).

According to the UN-sponsored Truth Commission, over 5,000 people were forcibly disappeared during El Salvador’s conflict. Non-governmental organizations cite figures as high as 10,000 forced disappearances—none of which have ever been fully investigated or prosecuted. Today, decades after the war’s end, thousands of families are still searching for the most basic information about the fate of their lost loved ones.

The formation of the Commission is a positive step toward finding out the truth about what happened to the thousands who were disappeared during El Salvador’s civil war, and can help bring closure to the families of those who were disappeared. The president will select three leaders of the Commission, two of whom will be selected from a list of candidates presented by organizations representing the victims and families of the disappeared.

A forensic anthropologist brushes dirt from human remains, in El Mozote, El Salvador. (AP Photo/Michael Stravato, File)

The announcement follows a decades-long campaign by families of the disappeared in El Salvador and by Salvadoran-Americans, the Mauricio Aquino Foundation, the Due Process of Law Foundation (DPLF), and others. The Washington Office of Latin America (WOLA) is proud to have supported their efforts over the years.

This new Commission is modeled on, and will be linked to, the National Search Commission (Comisión Nacional Pro-Busqueda), a government-sponsored group that has led efforts to locate children who were disappeared during the war, and that has generally had the support of victims’ organizations. Once the heads of the Commission are named, CONABUSQUEDAD will be seeking funding to support its work. WOLA hopes that the United States and others in the international community will support what could be an important contribution to reconciliation in El Salvador.

To carry out its work, the Commission will need to access records and receive personal testimony from participants and survivors of the armed conflict. Access to records from the Salvadoran military—and possibly still-classified records of the U.S. government—will also be critical to the Commission’s success. While many documents, including State Department records, were released in the 1990s, others remain classified, including military and intelligence records that could contain relevant information. In a letter last year to President Obama, Representative Jim McGovern (D-MA) and Representative Norma Torres (D-CA) led 24 other members of congress calling to make these classified records available.

Will prosecutions follow Amnesty Law strike down?  

While last year’s rejection of the 1993 Amnesty law was a long-awaited ruling for those demanding justice for wartime atrocities, the ruling has also provoked controversy in El Salvador.

The end of the Amnesty Law opens the door for a number of politically-sensitive cases to be pursued. These include the murder of Salvadoran Archbishop Oscar Arnulfo Romero, the El Mozote massacre—considered to be the worst massacres ever perpetrated against civilians by state actors in Latin America, and one where war crimes and crimes against humanity were likely committed—and the murder of six Jesuit priests and a mother and daughter at the University of Central America in San Salvador.

El Salvador’s Office of the Attorney General has a special unit charged with pursuing historic human rights cases, as well as corruption probes. But the unit is small, has limited resources, and has not invested significant efforts in re-opening wartime abuse investigations. Nor has the Attorney’s General’s Office invested significant efforts in supporting a case that private parties are currently pursuing against several former military and political officials, accused of perpetrating one of the war’s most notable massacres: the tragedy at El Mozote.

Seeking justice for El Mozote

Almost immediately after the Constitutional Court threw out the Amnesty Law last year, three human rights groups requested the reopening a 1992 investigation into the massacre of El Mozote. The original case was brought before an investigating judge by human rights groups, as Salvadoran law permitted at the time the original case was opened. The human rights attorneys accused 32 top-level military officials of coordinating the brutal killing of more than 900 civilians in 1981, but the investigation was suspended after the passage of the Amnesty Law in 1993.

The reopened case is now before a national criminal court in San Francisco Gotera, Morazán, 120 miles from El Salvador’s capital. It now involves 18 surviving military officers—including then-Minister of Defense General Jose Guillermo Garcia, and then-Air Force Commander General Juan Rafael Bustillo— who’ve been charged with multiple crimes, including aggravated rape, deprivation of liberty, robbery, aggravated homicide and acts of terrorism.  

The passage of time has already had a dramatic impact on the El Mozote case—while 17 family members of victims of the massacre are prepared to testify in the current investigation, other prominent witnesses have since passed away. In September, the court began to take testimony from witnesses, and in the final session on October 19 former Air Force General Bustillo arrived at the hearing but refused to provide testimony. Bustillo, was previously issued an international arrest warrant by the National Court of Spain for the UCA massacre in 1989.

María Rosario López, survivor of the massacre at El Mozote observes General Rafael Bustillo minutes before she provides testimony before a judge. (Photo FACTUM/Gerson Nájera)

Working with victims groups, with technical assistance from advocacy groups like Cristosal and DPLF, and support from WOLA and others, the private attorneys representing the survivors of the massacre have doggedly pursued the case. In June 2017, they asked the court to take testimony from the former military officers. Attorneys representing the former officers have routinely denied the existence of a massacre at El Mozote; they tried to stop the court from taking testimony by asserting — unsuccessfully — that the relatives of those who died at El Mozote had no legal standing before the court.

As the attorneys, the witnesses and victims continue to press for judicial action, Rep. James McGovern, co-chair of the Tom Lantos Human Rights Commission, met with the attorneys for the El Mozote victims, and pledged to support their efforts, including by visiting El Mozote in December of 2017.

It is not surprising that some former high-level military officers, government officials, and politicians rejected the decision to overturn the Amnesty Law, and oppose the El Mozote investigation by refuting the existence of key documents. Some have warned that it would lead to a “witch hunt” that could jeopardize peace. However, successfully prosecuting the El Mozote case,—as well as other cases into wartime human rights abuses— could strengthen rule of law in El Salvador, as well as bring some measure of closure and justice for victims and their families.

The case will continue over the next few months and will move into a final phase next year. It will be important to observe if the court can conduct an impartial investigation, and bring the case to a conclusion based on the evidence. If so, it will be a significant step forward in overcoming impunity and demonstrating that the criminal justice system in El Salvador can function effectively.