Let’s not allow another amnesty

Risks of a new impunity law for human rights violations that occurred during the armed conflict in El Salvador

El Salvador is a Republic that suffered an internal armed conflict in the eighties. This conflict led to the arbitrary murder of tens of thousands of victims, the forced disappearance and torture of thousands of people, massive forced displacement, and thousands of other crimes against humanity and war crimes, including the so-called “massacres” or mass exterminations of the non-combatant civilian population.

Despite this painful past, the last two decades’ prevailing politics has institutionalized these crimes’ utmost impunity. This impunity remains despite the Peace Accords having created a Truth Commission that revealed the dimension of the atrocities and recommended justice and reparation for the surviving victims and despite the obligations in this matter derived from the International Law in force for El Salvador. Since 1993, a comprehensive and absolute Amnesty Law was established, thus contradicting the Chapultepec Peace Accords’ express text, which contains a pact to overcome impunity for human rights violations perpetrated in the armed conflict.

The surviving victims of atrocious crimes that occurred during the internal armed conflict never received adequate restitution, nor did they have access to justice; on the contrary, they were stigmatized while the perpetrators received protection, impunity, and denial of the story in their favor. However, the Executive Branch has taken small steps to provide restitution in recent years.

On July 26, 2016, a true milestone in the process of overcoming impunity for serious human rights violations of the armed conflict happened when the Constitutional Chamber of El Salvador declared that the current Amnesty Law was unconstitutional, expelling it from the legal system (judgment of unconstitutionality 44-2013 / 145-2013).

The Constitutional Chamber ordered an investigation of crimes against humanity and war crimes of that time, vindicated the right to the truth and judicial protection of the victims, and prohibited the approval of new similar amnesties and invocation of the statute of limitations. It also ordered the Legislative Assembly to enact measures to strengthen the criminal investigation of the cases and facilitate access to all public information on the military operations in which such events occurred. It also ordered legislation to establish a comprehensive restitution program for victims, following international human rights standards in this area.

Unfortunately, the Legislative Assembly failed to comply with the judgment of unconstitutionality of the amnesty, which the Constitutional Chamber itself confirmed in two follow-up hearings, the last of which took place on July 13, 2018, shortly before the majority of the magistrates that made up said Chamber had finished their term of office.

A few hours before the last follow-up hearing, however, the Legislative Assembly created an “Ad Hoc Commission” to “study” the implications of the ruling mentioned above for the Legislative Assembly. This commission included five congresspeople, four of whom were direct actors in the armed conflict (two former military chiefs and a former Advisor to the General Staff of the Armed Forces, as well as a former guerrilla chief). Two of the members were also identified as responsible for covering up serious human rights violations by the Truth Commission.

From the beginning, the civil human rights organizations that accompany the victims of human rights violations during the armed conflict have expressed their concern and doubts about the mandate and composition of the aforementioned “Ad Hoc Commission.” We are 17 civil organizations that are part of the “Working group against impunity in El Salvador.” Some of these organizations, including us, requested a hearing from the aforementioned Commission to learn about its work and express our vision from the victims’ interest; however, they did not fulfill our request. The Ad Hoc Commission summoned a few organizations only to provide related accessory information but not to comment on the process and the unconstitutionality ruling. On the contrary, the Ad Hoc Commission has promoted the calling of various Salvadoran lawyers and politicians who, for years, have publicly maintained that there should be an absolute amnesty and who have justified impunity.

In July 2018, the organizations of the Working Group Against Impunity filed a lawsuit before the Government Ethics Tribunal (TEG) against the four congresspeople who make up the Ad Hoc Commission and who were protagonists in the armed conflict (General Mauricio Vargas, Coronel Antonio Almendarez, Lawyer Rodolfo Parker, and former Commander of the guerrilla Nidia Díaz). They were people who directly benefited from the amnesty law no longer in effect, like their colleagues and former comrades in arms. Thus, a conflict of interests was evident, which disqualified them for this work, violating the same Internal Regulations of the Legislative Assembly.

The TEG rejected the organizations’ claim in November 2018, and thus, the Working Group against Impunity filed a reconsideration appeal that the TEG has not resolved yet. In this context, the legitimacy of the Ad Hoc Commission is unknown for us human rights organizations. Hence, we went to the Board of Directors of the Legislative Assembly to express our concerns in writing, including the following: a) the Ad Hoc Commission has an incongruous mandate to “study ”(not “comply ”) with the unconstitutionality ruling and has avoided having the mandate to propose measures to strengthen justice processes and access to information; b) the members of this commission are people who played a known role during the war reveals conflicts of personal interests for the legislators that comprise it, and c) its work process has been exclusive of the victims and organizations that represent them.

Therefore, we asked the Board of Directors of the Legislative Assembly to modify the aforementioned Ad Hoc Commission’s composition, define an overall and plural consultation process with victims and human rights organizations, and expand its mandate to the clear and specific terms and established by the Constitutional Chamber. On January 22, 2019, the Board of Directors rejected our request, arguing that the Commission members were “notable parliamentarians” (sic) and that they would continue in this task, which would conclude in the short term.

In addition to the previous context of non-compliance with judgment 44-2013 / 145-2013, the work of the Ad Hoc Commission is opaque and they have not generated any debate on their work plan. Just on February 19 of this year, said Commission announced the existence of a “draft” of the Reconciliation Law prepared by Congressman Rodolfo Parker (blamed in the Truth Commission’s report for allegedly altering information to conceal participation of senior military leaders in the murder of six Jesuit priests and two employees of the Central American University).

It is also appropriate to recall that the Legislative Assembly has ignored a proposal for a “Comprehensive Restitution Law” for the victims of the conflict for more than a year. This proposal was presented by various human rights organizations, integrated into the alliance called “Working Group” for a law of restitution.

The organizations that make up the Working Group against Impunity in El Salvador consider that the composition and functioning of the Ad Hoc Commission are not legitimate; it disregards international human rights standards for this type of process and is exclusive of the affected victims. Therefore, we consider it highly probable that such Ad Hoc Commission seeks to propose a project that constitutes a new law of impunity, provoking a fraud to what was mandated in the unconstitutionality judgment of the Amnesty Law.

If this possibility materializes, it could hinder the initial but unprecedented efforts of the Attorney General’s Office to investigate the human rights violations that occurred during the armed conflict, as well as the work of courts that have reopened various legal cases, including the cause to investigate the massacre of almost a thousand civilians, most of them being children, in El Mozote and nearby places in 1981 by the Atlacatl Infantry Battalion.

We ask the Salvadoran population to pay attention to the process followed by the Ad Hoc Commission. We demand transparency and a redefinition of its composition and mandate; we call on the international community to reject new attempts to consolidate historical impunity in El Salvador.