In 2016, the Salvadoran Constitutional Court struck down a blanket amnesty law for perpetrators of human rights violations that had been in place since 1993. This judgment seemed to be a major leap forward after decades of strategic advocacy by victims of El Salvador’s armed conflict. This provided an unprecedented opportunity for the country to pursue a new path of truth and justice after almost half a century of impunity. However, in reaction to real progress towards justice in several landmark cases, some legislators appear intent on repeating El Salvador’s sordid history of injustice.
With the Legislative Assembly controlled by those potentially responsible for the very violations of human rights they have a duty to address, the legislature drafted another blanket amnesty law that would result in impunity for those suspected of committing grave human rights abuses during the civil war, despite it clearly violating the 2016 ruling. However, through continuous monitoring, strategic litigation, and organized advocacy efforts made by civil society organizations led by victims and their families, as well as the international human rights community, this coalition has successfully prevented the amnesty law from reaching a floor vote.
Although this is a positive outcome, the fight is far from over. The national and international community must maintain scrutiny on the legislature to ensure its compliance with the 2016 Constitutional Court ruling and the May Inter-American Court of Human Rights ruling (requiring that legislature conduct a meaningful consultation process with victims and their families, experts, and civil society before considering further legislation regarding transitional justice).
A New Opportunity: The Constitutional Court Strikes Down Amnesty
Just five days after the UN-sponsored Truth Commission published its 1993 report documenting the tens of thousands of grave human rights abuses perpetrated during El Salvador’s 12-year-long armed conflict, the legislature passed a blanket amnesty law guaranteeing impunity for the perpetrators on either side of the conflict. This enabled their return to political power, preventing victims and their families from achieving justice and reparations. After 30 years of fighting for recognition and reparative measures both internationally and nationally, reliving the trauma of violence and loss daily, the movement for justice for the victims of the conflict ostensibly achieved a major victory. A 2016 ruling by the Constitutional Court found the 1993 law unconstitutional, for violating the protected rights to access to justice, to judicial protection of fundamental rights, and to full reparations, as well as inconsistent with international treaties on human rights and the rights of armed conflict victims. In the subsequent years, civil society made real progress in investigating and prosecuting perpetrators of human rights abuses, notably in the case of the El Mozote massacre and the assassination of Archbishop Romero.
Despite this landmark ruling, the government dragged its feet in complying with the Constitutional Court order. Throughout 2017, civil society increased the pressure on the government: an emerging coalition of established human rights organizations and victims groups, who would later become the Roundtable Against Impunity (Mesa Contra la Impunidad), presented a 25 point agenda for victim-centered transitional justice and human rights on the 25th anniversary of the peace accords. That August, the Mesa and a Working Group of allies, advised by DPLF, proposed the Comprehensive Law of Reparation for Victims of the Armed Conflict, which outlined how the state could pursue justice for victims, and implement the 2016 ruling through a reparations fund, victim registry, psychosocial services, and historical memory programs. The legislature archived this proposal until civil society updated it in 2019.
In 2018, civil society groups returned to the constitutional court to force the legislature to comply with its ruling and start considering new legislation on truth and reparations. Just hours before the last hearing, the assembly formed an “ad-hoc” subcommittee charged with drafting the legal framework for the post-civil war transitional justice process. Four of its five members were suspected of committing, ordering, or covering up human rights violations during the civil war, and one was a primary architect of the original 1993 amnesty law that prevented investigations against these very legislators. Immediately, Mesa Contra la Impunidad petitioned the Government Ethics Tribunal to expose the inherent conflict of interest in allowing those who could be prosecuted for human rights violations under this law to write it. The petition was rejected in November 2018, and the appeal has yet to be resolved.
Creating a new Blanket Amnesty
In December, legislators claimed that no new attempt at an amnesty law was being made. This assertion was quickly undercut on February 19th when Representative Rodolfo Parker presented the first draft of the subcommittee’s proposed “Law of Transitional and Restorative Justice for National Reconciliation.” This proposal calls for “wide, absolute, and unconditional” amnesty for crimes committed during the civil war. While an explicit exception is made for serious war crimes and crimes against humanity, the proposal also made clear that there can be no greater consequences than community service, regardless of the severity of the harm caused. Further, the proposal would exclude victims and their families from the National Reconciliation Commission, charged with making “institutional, structural, and legal” recommendations about reconciliation guarantees of no repetition, instead mandating the legislature appoint representatives from each side of the conflict. In addition, the legislation declared the Truth Commission report and documentation to be inadmissible as evidence in any court, and prohibited the extradition of any Salvadoran accused of crimes related to the armed conflict for an international trial.
The subcommittee justified these measures designed to guarantee impunity by arguing the investigation and prosecution of human rights abuses would only reopen “old wounds” and impede the process of reconciliation. Salvadoran civil society, arguing that true reconciliation required the full implementation of truth, justice, and meaningful reparations, was quick to condemn this draft proposal. The Mesa Contra la Impunidad released a joint statement outlining how this proposal violated both national and international law, and recommended the withdrawal of this proposal and the dissolution of the ad-hoc subcommittee that created it in favor of a transparent, participatory, and internationally observed drafting process. On March 6th, civil society organizers publicly denounced the proposal in the Associated Press.
International condemnation soon followed. On March 6th, the UN High Commissioner on Human Rights called on the Assembly to reject this proposal because it would “violate the right of victims to justice and reparation.” Representative Parker called this a misinterpretation and “unfounded criticism,” and in response stepped down from the committee, which dissolved soon after. On March 8th, 180 academics signed a letter calling on legislators to reconsider the proposal, warning of the dangers of “impunity for the powerful” and calling amnesty a “step backwards” for El Salvador, and the “consolidation of the democratic project for which Salvadorans have sacrificed so much.” Another international joint statement followed, along with Capitol Hill testimony and a letter from the families of US victims.
The “Amnesty Express” Breaks Down
Unfortunately, national and international outcry did not deter the legislature. On May 14th, a new subcommittee considered a draft law nearly identical to what the ad-hoc subcommittee produced in February, and with absolutely no interaction with the victims, despite proudly publicizing consultation with lawyers and other legislators. Thus began a race to approve the law before the new administration took office on June 1st, as then-president-elect Nayib Bukele indicated his opposition to blanket amnesty measures that day via Twitter. Quickly, Salvadoran civil society and international actors denounced the decision of legislative leaders to allow a rushed and exclusive procedure in the passage of such an impactful bill: WOLA, CEJIL, the UN Special Rapporteur for Truth, Justice, Reparations, and the Guarantee of Non-recurrence, the IACHR Special Rapporteur for Memory, Truth, and Justice, the UN High Commissioner for Human Rights, and the Archbishop of El Salvador all spoke out publicly in the next week denouncing the proposal, while civil society groups protested outside of the Assembly on May 16th.
Mesa Contra la Impunidad members were busy over the last several months, drafting yet another proposal for the committee’s consideration after months of consultation with victims and their families, a process the legislature refused to undertake itself. 15 civil society organizations representing victims and their families presented their proposed law, the “Special Law for Comprehensive Reparations and Access to Justice for Victims of Grave human Rights Violations in the Context of the Armed Conflict,” to the May 21st session of the new subcommittee. They were met with hostility and excuses from the legislators present. In contrast with the ad-hoc committee proposal, the draft legislation supported by civil society would allow prosecution and punishment of both direct perpetrators and intellectual authors of grave human rights violations, open the archives of the Truth Commission, allowing that documentation to be used as evidence, and identified funding sources for reparations, to be distributed with the input of victims. When the subcommittee would not discuss the proposal, the organizers submitted their proposal directly to the legislature. The protests of the victims at the Assembly building continued until the 23rd, when the multi-partisan coalition supporting the bill fell apart at the last minute, leaving the FMLN party the only remaining supporters of amnesty.
As the legislators reconsidered the proposal, victims and their families kept the pressure on, confronting legislators outside the assembly for consistently excluding and ignoring their perspectives. In response, the political subcommittee allowed an “express visit” from civil society on the 27th, permitting the victims and their families only 20 minutes to speak on the proposal.
Just a few hours later, the Inter-American Court of Human Rights handed down a 22 page ruling ordering the legislature to refrain from voting on any blanket amnesty law, deemed by the Court to present a grave and urgent risk of irreparable harm to the right of access to justice. Acting under supervisory capacity from a 2012 ruling ascribing responsibility to the state for the El Mozote massacre, the court approved CEJIL’s request for provisional measures to protect the rights of the victims to justice, prohibiting another vote on blanket amnesty, and requiring any further legislation on transitional justice to undergo an extensive victim consultation process. Over 50 international organizations and independent experts released a statement the next day urging compliance with both Constitutional and international legal rulings. For now, the future of the proposal is uncertain.
Where do we go from here?
President Bukele assumed office on June 1st without a signed “express” amnesty law, indicating a relatively favorable political climate for truth, justice, and meaningful reparations. However, the pressure must stay on the president, the attorney general, and the legislature to not only reject future amnesty proposals, but to make real progress towards justice and reparations. In order to comply with the ruling of the Inter-American Court, the state must conduct in-depth consultations with victims and their families to understand what they need to both heal from conflict, and to preserve the memory of their loved ones and prevent the repetition of such atrocities. Further, justice in legislation does not guarantee justice in reality: real reconciliation will require consistent enforcement and sufficient resources from all branches of government.
Despite the challenges to come, civil society demonstrated their commitment to the pursuit of justice, and built national and international infrastructure to maintain pressure on the government to protect their rights, even when against the interests of those with political power. Still, there is much work to be done, and active engagement from every sector of Salvadoran society is needed to prevent irreversible steps towards impunity and away from justice.