El Salvador: Tackling Impunity Past and Present

In 2016, the Salvadoran Supreme Court overturned a 1993 amnesty law—one of the most controversial legacies of the country’s decade-long civil war. Enacted shortly after the end of the war, the amnesty law effectively eliminated the possibility of bringing perpetrators of forced disappearances, mass killings, and other serious human rights violations to justice. In voiding the law, the Salvadoran court applied well-established jurisprudence of the Inter-American Court of Human Rights (IACHR) and followed in the footsteps of courts in countries such as Chile and Argentina.

While some praised the court for repealing a law that fostered impunity for perpetrators on both sides of the conflict, others argued the court’s decision risked the political stability on which El Salvador’s democratic transition was built. Some even suggested that El Salvador would be “wasting time” on civil war cases when it should focus on more pressing problems—specifically, violence and corruption. Such reservations were not without foundation. More than two decades after the end of the civil war, El Salvador faces some of the highest rates of violence in the world. To make matters worse, accusations of embezzlement against high-level government officials—including three former presidents and an attorney general—have brought corruption to the forefront of Salvadorans’ concerns.

In the two years since the repeal of the amnesty law, El Salvador has taken tentative steps towards establishing accountability for the atrocities of the civil war. Are these nascent advances in transitional justice threatening political stability and exacerbating present-day challenges as critics feared? Alternatively, could seeking accountability for past abuses facilitate efforts to tackle widespread impunity for contemporary crimes?

Rather than political destabilization, one of the most visible effects of the repeal of the amnesty law has been the mobilization of civil society in El Salvador. With the legal pathway for addressing civil war crimes finally available, human rights organizations and victims have concentrated on ensuring the implementation of the court’s decision. Despite initial government inertia, their efforts seem to be paying off. In 2017, President Sánchez Cerén announced the creation of the National Commission on the Search for the Disappeared (CONABUSQUEDA), a commission tasked with locating the adult victims of forced disappearances during the civil war. Civil society actors also successfully lobbied for the reopening of the 1980 murder of Archbishop Óscar Romero, the 1989 murder of six Jesuit priests, and the infamous 1981 El Mozote massacre. Yet, the involvement of victims’ groups has not stopped there. Since these cases are being litigated in the old inquisitorial system which granted victims’ legal representatives significant procedural rights, civil society organizations have responded by taking on an active role in evidence-gathering and trial preparation.

Investigations into these civil war cases, rather than shifting attention away from El Salvador’s current problems, have highlighted them. Take the El Mozote case, for instance. Decades after the systematic killings of almost 1,000 people in El Mozote, charges were brought against multiple retired military commanders, including a former minister of defense. Progress, however, has been hindered by the investigation’s failure to find evidence of the military strategy used to carry out the attack and the chain of command through which orders passed. The Salvadoran military refuses to provide information on the massacre, claiming that archives on the event do not exist. At best, the claim is true and the absence of records is a relic from the military’s dark history. At worst, military personnel continue to cover up crimes of the past.

Allegations of state-sponsored abuses are unfortunately not consigned to the civil war era. Recent accusations of extrajudicial killings at the hands of military and police personnel have been repeatedly dismissed by government officials. When five police officers were accused of carrying out extrajudicial killings in the widely known San Blas case, Vice-president Óscar Ortiz defended their actions and pledged the government’s continued support to the National Civil Police. Similarly, in September 2017 Deputy Security Minister Raúl López rejected accusations of extrajudicial killings made before the IACHR and blamed rogue factions within security forces for any alleged misconduct. Officials claim that hardline measures against criminal violence implemented as part of “Plan El Salvador Seguro” are responsible for reducing murder rates in one of the world’s most violent countries, but at what cost? By calling attention to a tradition of official impunity, civil war cases like El Mozote raise difficult questions about the country’s present as well as its past.

The post-amnesty period has seen tangible—if incipient—advances not only on past crimes, but present ones as well. Three months after the repeal of the amnesty law, Attorney General Douglas Meléndez announced the establishment of an anti-impunity unit that would focus primarily on corruption cases. Since its creation, the unit has been responsible for indicting multiple government officials; most recently, former president Mauricio Funes was brought up on embezzlement charges in June 2018. On the issue of state violence, the Attorney General’s Office recently announced that it would pursue a new trial for the police officers involved in the San Blas case, overturning their earlier acquittals. In June, four members of the National Civil Police were convicted of aggravated homicide resulting from an encounter with gang members in 2017. These developments followed the February conviction of six police officers accused of killing gang members in exchange for money.

Thus far, revisiting civil war cases appears not to have crippled prosecutors’ capacity to tackle present-day crime and corruption. And El Salvador has begun to pursue justice for civil war abuses without spiraling into political destabilization.

That said, El Salvador finds itself at a critical juncture in its efforts to strengthen the rule of law.  Academic research reflects conflicting perspectives on the relationship between transitional justice and rule of law in post-conflict societies. Research by Kathryn Sikkink of the Harvard Kennedy School of Government suggests that a combination of different mechanisms of transitional justice has been found to have a positive effect on human rights practices in the post-conflict period. If this is the case, El Salvador’s contemporary struggles with violent crime, human rights violations, and impunity could be explained in part by the failure to establish peace on a bedrock of accountability and rule of law.

Proponents of transitional justice in El Salvador have suggested pathways through which focusing on the past could positively influence struggles in the present. At an Inter-American Dialogue discussion on crime and impunity in El Salvador, Leonor Arteaga of the Due Process Law Foundation (DPLF) identified the possible role of transitional justice in developing the institutional capacity of the Salvadoran state and sending a public message about the government’s credibility. Beyond El Salvador, the experiences of other countries throughout Latin America speak to the potential benefits of transitional justice. Sikkink’s research indicates that Argentina’s highly-publicized trials for human rights violations likely raised the public’s expectations for justice and lowered tolerance for widespread impunity. Similar trends can be identified in Chile, suggesting a link between justice for past abuses and present ones.

For countries with a recent history of armed conflict, El Salvador could offer a compelling reminder that, beyond seeking justice for long-ago crimes, transitional justice has the potential to interrupt cycles of impunity and violence that continue into the present-day.

Anna Egas was an intern with the Peter D. Bell Rule of Law Program.