{"id":20670,"date":"2019-07-08T12:50:27","date_gmt":"2019-07-08T16:50:27","guid":{"rendered":"https:\/\/dplf.org\/en\/?p=20670"},"modified":"2024-09-09T12:52:03","modified_gmt":"2024-09-09T16:52:03","slug":"three-years-after-the-annulment-of-the-amnesty-law-victims-of-the-armed-conflict-defeat-a-renewed-attempt-at-codifying-impunity-in-el-salvador-but-the-fight-is-far-from-over","status":"publish","type":"post","link":"https:\/\/dplf.org\/en\/2019\/07\/08\/three-years-after-the-annulment-of-the-amnesty-law-victims-of-the-armed-conflict-defeat-a-renewed-attempt-at-codifying-impunity-in-el-salvador-but-the-fight-is-far-from-over\/","title":{"rendered":"Three years after the annulment of the Amnesty Law: Victims of the armed conflict defeat a renewed attempt at Codifying Impunity in El Salvador, but the fight is far from over"},"content":{"rendered":"
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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\u2019s 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\u2019s sordid history of injustice.<\/p>\n

With the Legislative Assembly controlled by those\u00a0potentially responsible<\/a>\u00a0for the very violations of human rights they have a duty to address, the legislature drafted\u00a0another blanket amnesty<\/a>\u00a0law that would result in impunity for those suspected of committing grave human rights abuses during the civil war, despite it clearly violating the\u00a02016 ruling<\/a>. 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.<\/p>\n

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\u00a0ruling<\/a>\u00a0(requiring that legislature conduct a meaningful consultation process with victims and their families, experts, and civil society before considering further legislation regarding transitional justice).<\/p>\n

A New Opportunity: The Constitutional Court Strikes Down Amnesty<\/strong><\/p>\n

Just five days after the UN-sponsored Truth Commission published its 1993\u00a0report<\/a>\u00a0documenting the tens of thousands of grave human rights abuses perpetrated during El Salvador\u2019s 12-year-long armed conflict, the legislature passed a blanket\u00a0amnesty law<\/a>\u00a0guaranteeing 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\u00a030 years of fighting<\/a>\u00a0for 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\u00a02016 ruling<\/a>\u00a0by the Constitutional Court found the 1993 law\u00a0 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\u00a0El Mozote massacre<\/a>\u00a0and the\u00a0assassination of Archbishop Romero<\/a>.<\/p>\n

Despite this landmark ruling, the government\u00a0dragged its feet<\/a>\u00a0in 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\u00a025 point agenda<\/a>\u00a0for victim-centered transitional justice and human rights on the 25th<\/sup>\u00a0anniversary of the peace accords. That August, the Mesa and a Working Group of allies, advised by DPLF, proposed\u00a0the Comprehensive Law of Reparation for Victims of the Armed Conflict,<\/a>\u00a0which outlined how the state could pursue\u00a0 justice for victims, and implement the 2016 ruling through a reparations fund, victim registry, psychosocial services, and historical memory programs. The legislature\u00a0archived this proposal<\/a>\u00a0until civil society updated it in 2019.<\/p>\n

In 2018, civil society groups\u00a0returned to the constitutional<\/a>\u00a0court 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 \u201cad-hoc\u201d subcommittee<\/a>\u00a0charged with drafting the legal framework for the post-civil war transitional justice process.\u00a0Four of its five members<\/a>\u00a0were suspected of committing, ordering, or covering up human rights violations during the civil war, and one was a\u00a0primary architect<\/a>\u00a0of the original 1993 amnesty law that prevented investigations against these very legislators. Immediately, Mesa Contra la Impunidad\u00a0petitioned<\/a>\u00a0the\u00a0Government Ethics Tribunal<\/a>\u00a0to expose the inherent\u00a0conflict of interest<\/a>\u00a0in allowing those who could be prosecuted for human rights violations under this law to write it. The petition was\u00a0rejected<\/a>\u00a0in November 2018, and the appeal has yet to be resolved.<\/p>\n

Creating a new Blanket Amnesty<\/strong><\/p>\n

In December, legislators\u00a0claimed<\/a>\u00a0that no new attempt at an amnesty law was being made. This assertion was quickly undercut on February 19th<\/sup>\u00a0when Representative Rodolfo Parker\u00a0presented<\/a>\u00a0the first draft of the subcommittee\u2019s proposed \u201cLaw of Transitional and Restorative Justice for National Reconciliation<\/a>.\u201d This proposal calls for \u201cwide, absolute, and unconditional\u201d\u00a0amnesty<\/a>\u00a0for 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\u00a0exclude<\/a>\u00a0victims and their families from the National Reconciliation Commission, charged with making \u201cinstitutional, structural, and legal\u201d recommendations about reconciliation guarantees of no repetition, instead mandating the legislature appoint representatives from each side of the conflict. In addition, the legislation \u00a0declared the Truth Commission report and documentation to be\u00a0inadmissible as\u00a0 evidence<\/a>\u00a0in any court, and\u00a0prohibited the extradition<\/a>\u00a0of any Salvadoran accused of crimes related to the armed conflict for an international trial.<\/p>\n

The subcommittee justified these measures designed to guarantee impunity by arguing the investigation and prosecution of human rights abuses would only reopen \u201cold wounds<\/a>\u201d 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\u00a0released<\/a>\u00a0a\u00a0joint statement<\/a>\u00a0outlining 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<\/sup>, civil society organizers publicly denounced the proposal in the\u00a0Associated Press<\/a>.<\/p>\n

International condemnation soon followed. On March 6th<\/sup>, the UN High Commissioner on Human Rights\u00a0called<\/a>\u00a0on the Assembly to reject this proposal because it would \u201cviolate the right of victims to justice and reparation.\u201d Representative Parker called this a misinterpretation and\u00a0\u201cunfounded criticism,\u201d<\/a>\u00a0and in response stepped down from the committee, which dissolved soon after. On March 8th<\/sup>, 180 academics signed a\u00a0letter<\/a>\u00a0calling on legislators to reconsider the proposal, warning of the dangers of \u201cimpunity for the powerful\u201d and calling amnesty a \u201cstep backwards\u201d for El Salvador, and the \u201cconsolidation of the democratic project for which Salvadorans have sacrificed so much.\u201d Another international\u00a0joint statement<\/a>\u00a0followed, along with Capitol Hill\u00a0testimony<\/a>\u00a0and a\u00a0letter<\/a>\u00a0from the families of US victims.<\/p>\n

The \u201cAmnesty Express\u201d Breaks Down<\/strong><\/p>\n

Unfortunately, national and international outcry did not deter the legislature. On May 14th<\/sup>, a\u00a0new subcommittee<\/a>\u00a0considered a\u00a0draft<\/a>\u00a0law nearly identical to what the ad-hoc subcommittee produced in February, and with absolutely\u00a0no interaction<\/a>\u00a0with the victims, despite proudly publicizing consultation with lawyers and other legislators. Thus began a\u00a0race<\/a>\u00a0to approve the law before the new administration took office on June 1st<\/sup>, as then-president-elect Nayib Bukele indicated his\u00a0opposition<\/a>\u00a0to 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:\u00a0WOLA<\/a>,\u00a0CEJIL<\/a>, the\u00a0UN Special Rapporteur for Truth, Justice, Reparations, and the Guarantee of Non-recurrence<\/a>, the\u00a0IACHR Special Rapporteur for Memory, Truth, and Justice<\/a>, the\u00a0UN High Commissioner for Human Rights<\/a>, and the\u00a0Archbishop of El Salvador<\/a>\u00a0all spoke out publicly in the next week denouncing the proposal, while civil society groups\u00a0protested<\/a>\u00a0outside of the Assembly on May 16th<\/sup>.<\/p>\n

Mesa Contra la Impunidad members were busy over the last several months, drafting yet\u00a0another proposal<\/a>\u00a0for the committee\u2019s 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\u00a0presented<\/a>\u00a0their proposed law, the\u00a0\u201cSpecial Law for Comprehensive Reparations and Access to Justice for Victims of Grave human Rights Violations in the Context of the Armed Conflict,\u201d<\/a>\u00a0to the May 21st<\/sup>\u00a0session of the new subcommittee. They were met with hostility and excuses from the legislators present. In contrast with the ad-hoc committee proposal, the\u00a0draft legislation<\/a>\u00a0supported 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\u00a0submitted<\/a>\u00a0their proposal directly to the legislature. The protests of the victims at the Assembly building continued until the 23rd<\/sup>, when the multi-partisan coalition supporting the bill\u00a0fell apart<\/a>\u00a0at the last minute, leaving the FMLN party the only remaining supporters of amnesty.<\/p>\n

As the legislators reconsidered the proposal, victims and their families kept the pressure on,\u00a0confronting legislators<\/a>\u00a0outside the assembly for consistently excluding and ignoring their perspectives. In response, the political subcommittee allowed an\u00a0\u201cexpress visit\u201d<\/a>\u00a0from civil society on the 27th, permitting the victims and their families only 20 minutes to speak on the proposal.<\/p>\n

Just a few hours later, the Inter-American Court of Human Rights handed down a\u00a022 page ruling<\/a>\u00a0ordering 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\u00a02012 ruling<\/a>\u00a0ascribing responsibility to the state for the El Mozote massacre, the court\u00a0approved CEJIL\u2019s request<\/a>\u00a0for 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\u00a0statement<\/a>\u00a0the next day urging compliance with both Constitutional and international legal rulings. For now, the future of the proposal is uncertain.<\/p>\n

Where do we go from here?<\/strong><\/p>\n

President Bukele assumed office on June 1st<\/sup>\u00a0without a signed \u201cexpress\u201d 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.<\/p>\n

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.<\/p>\n

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