El Salvador without Amnesty

The Salvadoran Supreme Court ruling on the country’s amnesty law has been praised by human rights advocates, but could open a Pandora’s Box for a country that already faces daunting challenges.

In a bombshell ruling, El Salvador’s Supreme Court has declared that the country’s 1993 amnesty law—which covers crimes against humanity committed by both sides in the twelve-year Salvadoran Civil War—is unconstitutional.

The ruling, announced last Wednesday, could have enormous ramifications. On one hand, it means that some of the Hemisphere’s most brutal crimes against humanity might finally see justice. According to the Truth Commission set up in the aftermath of the civil war, more than 75,000 Salvadorans were killed, tortured, or “disappeared” by the military and left-wing guerrillas between 1980 and 1991. Cases that have long garnered international attention—including the 1980 assassination of Roman Catholic Archbishop Oscar Romero, the 1989 murder of six Jesuit priests, and the 1981 massacre of more than 800 civilians at El Mozote—could now see trial. Erika Guevara-Rosas, the Americas director for Amnesty International, called the ruling “an historic day for human rights in El Salvador.” 

On the other hand, the amnesty law has been an integral part of El Salvador’s political process for almost 25 years. After the peace accords were signed in 1992, both sides of the conflict made an impressive transition from violence to democratic competition, trading bullets for ballots. Since 1994, Salvadoran politics have been dominated by two opposing coalitions of former combatants: the left-wing Farabundo Martí National Liberation Front (FMLN) and the conservative Nationalist Republican Alliance (ARENA). Through these two parties, former fighters have participated in five presidential cabinets, dozens of local governments, and every session of the Legislative Assembly since the end of the war; the country’s current president, Salvador Sánchez Cerén, is himself a former guerrilla commander.

For better or worse, the amnesty law paved the way for this remarkable transition to democratic competition. Passed ahead of El Salvador’s first peacetime election, the law effectively authorized former combatants to participate in democratic politics. But more importantly, the law was designed as an opportunity to leave the conflict’s hatreds behind: amnesty, for many, was the cost of turning a new page. Now, leaders from both major parties worry that the Supreme Court’s ruling will destabilize the political process and rekindle old hatreds. Moreover, they argue that the ruling could distract precious resources away from the daunting challenges of crime, violence, and economic stagnation that already threaten El Salvador’s future.  

That said, the practical repercussions of the court’s ruling are anything but clear. There appear to be at least three possible scenarios:

1. The Non-Event. Despite the ruling’s breadth, its impact will likely come down to enforcement. Again, for good or ill, the amnesty law was supported (albeit in some cases only privately) by all the key political actors in postwar El Salvador. And because amnesty has been a cornerstone of the country’s political order for over two decades, the principles behind it have become even more deeply entrenched. Indeed, few politicians are happy with the law being struck down: even those who are unlikely to be held directly accountable for civil war crimes have a strong interest in protecting their parties and their parties’ standard-bearers. It is possible, therefore, that the spirit of the law will live on even after this ruling. Major actors throughout the political system may continue to defend their partisan interests, resulting in very few—if any—significant cases being prosecuted. This scenario would have an obvious cost for justice, the rule of law, and the legitimacy of Salvadoran institutions. Previously, immunity for brutal wartime crimes at least had a legal backing; now it may simply become politically expedient. This scenario may, however, prove to be the least destabilizing outcome.

2. The Witch Hunt. Conversely, political leaders have opposed the ruling for a reason: it does, after all, open up dozens of elites to prosecution at relatively short notice. The cases against many of them have been rigorously documented, in part through the highly effective Truth Commission. Without the amnesty law, former combatants and commanders on both sides are vulnerable to a broad array of unpredictable suits from victims and their relatives. While this would undoubtedly be a positive development for justice and human rights, it could be crippling to the political system. Though the courts and the Attorney General’s office have gained significant political autonomy in recent years, it is also possible to envision a future in which prosecution for wartimes crimes (or the threat thereof) is applied selectively and as a partisan weapon. Whoever controls the presidency, the congress, the courts, or the public prosecutor’s office could in effect use the amnesty ruling to eliminate opponents and extract concessions. In a worst-case scenario, legal actions and retributions against former fighters could spiral out of control, reaching a critical mass that destabilizes both the political system and the independence of the courts.

3. The Middle Ground. Thankfully, the most likely outcome is somewhere in between these two extremes. It is possible that the ruling will be used to resolve only a handful of high-profile cases that are both particularly deplorable and especially damaging to the country’s reputation. These cases could include the execution of the six Jesuit priests (which is in fact already being considered by the Supreme Court), the massacre at El Mozote, and perhaps even the assassination of Archbishop Romero. In other words, El Salvador could find justice for many of the victims of the most heinous crimes without risking political fracture.

   Such a compromise has been played out in various forms through recent history, including in Peru, Argentina, and Chile. A similar dynamic is also evident in Colombia’s ongoing peace process. Over time, responsible parties end up facing some form of justice, although generally with political constraints and considerations. Of course, even this scenario comes at a price, as it requires a selective application of justice. In El Salvador, pursuing only certain cases and sentencing combatants while their commanders—who have since been elected legislators, ministers, and presidents—go free would give the (accurate) appearance of putting politics before the law.

The Douglas Meléndez Factor

Each of these scenarios has different costs and benefits for human rights, for political stability, and for judicial legitimacy. The non-event is the least disruptive in the short term, but with considerable costs for the rule of law and a sense of closure that so many Salvadorans deserve. A witch hunt could results in sweeping landmark cases and the possibility of long-overdue reparations, but could be disastrous for politics—especially in the short run. The middle ground balances the two, but it may prove a delicate path to maneuver and sustain.

It’s hard to predict with certainty where post-amnesty El Salvador will go. But it is likely that one man will play the decisive role in the years ahead: Attorney General Douglas Meléndez Ruiz. Meléndez (no relation to either author), a veteran public prosecutor with a hard-earned reputation for fairness and efficacy, has only presided over El Salvador’s Fiscalía General since January, but has already made waves across the country’s political scene. Described by The Washington Post as the new “point man in the war against gangs,” he must now add the implementation of last week’s ruling to his list of formidable responsibilities. Though the Fiscalía does not have full autonomy over which cases are addressed (the Supreme Court, for example, can order it to address specific cases), it does have significant control over the depth and scope of most major investigations. So far, Meléndez has said that he will respect the ruling but has not offered any details about what doing so might entail. How exactly the Attorney General interprets the ruling and how—and to what extent—he intends to enforce it will shape much of its political outcomes.

Meléndez’s first six months at the helm of the Fiscalía provide only mixed answers to these questions. On one hand, Meléndez demonstrated remarkable courage by investigating several of El Salvador’s most powerful leaders from across the political spectrum—including FMLN financier José Luis Merino, ultra-popular San Salvador Mayor Nayib Bukele, and former presidents from both parties. Recently, the Fiscalía made international headlines after arresting the mediators of a 2012 truce between the government and the country’s vicious street gangs. However, these and other investigations are yet to result in a single high-profile indictment. Therefore it remains to be seen if Meléndez and his Fiscalía have the capacity—and will—to prosecute (and not just investigate) the country’s powerful political elites.

In addition, two actors are likely to have some influence over Meléndez’s actions going forward. First, as mentioned the Supreme Court itself can order the Fiscalía to prosecute specific cases. Shortly after last Wednesday’s ruling, the Court announced that it is already evaluating whether to ask Meléndez to investigate the case of the six murdered Jesuits.

Second, the international community will have an outsized role in pressuring specific courses of action. This includes both strategic partners with a keen interest in human rights—the United States chief among them—as well as foreign governments whose citizens were victims of wartime atrocities. Indeed, the backdrop—and, some may argue, the catalyst—for Wednesday’s ruling was Spain’s extradition request against 17 former military officers involved in the Jesuits case. Citizens of at least two other foreign nations—the Netherlands and the United States—were among the casualties of high-profile and well-document wartime crimes.

The Importance of Clearly-Defined Rules

There is no doubt that Wednesday’s ruling has rattled the Salvadoran political establishment to its core. In the months ahead, Meléndez and the rest of El Salvador’s political leaders should strive to restore as much calm and stability as possible. To this end, three plausible steps are worth considering.

First, Meléndez must be clear about how he will interpret and apply the court’s ruling. A clear understanding of the new rules of the game will make it easier for political elites to prepare for—and, eventually, to accept—unpopular judicial rulings going forward. A better understanding of how the next few months will unfold will also make it easier for politicians to focus on the urgent business of running a troubled, violent, unstable country.

Second, the two main political parties must establish a working dialogue around this and future rulings. Amnesty is one of the rare issues on which the government and the opposition seem to see eye-to-eye. Yet since the ruling, both parties have been quick to launch hasty accusations and mutual attacks. Such actions are particularly counterproductive because they amount to the very backsliding into old hatreds that party leaders seem so eager to avoid.  

Finally, ARENA and the FMLN could seize this historical juncture to propose alternative, less disruptive ways of addressing the country’s past human rights violations. Already ARENA legislators have proposed the creation of a reparations program that would benefit victims’ families. That proposal is, at best, a start. But it does suggest a fourth possible scenario: that, through a feat of political ingenuity and principled compromise, El Salvador could emerge from this new period of political uncertainty as a stronger, fairer, and more peaceful nation. Using dialogue to make impressive steps forward is, after all, something that the small Central American country has accomplished before.

Manuel Meléndez is a 2016-17 Weidenfeld-Hoffmann Scholar in the Department of Politics and International Relations at the University of Oxford. Ben Raderstorf is a program assistant with the Peter D. Bell Rule of Law Program at the Dialogue.