El Salvador's amnesty ruled unconstitutional
The Constitutional Chamber of El Salvador's Supreme Court has ruled that the country's 1993 amnesty law is unconstitutional. In a 4-1 ruling, the CC found that the Legislative Assembly had no authority to amnesty crimes against humanity and other war crimes.
Why now after 23 years? Latin America has led the way in pursuing investigations and prosecutions into human rights abuses committed during the Cold War. Argentina leads the way but there has been progress in Chile, Brazil, and, perhaps more relevant for El Salvador, Guatemala. Domestic and international courts have found that states cannot amnesty crimes against humanity and other war crimes. El Salvador is a little late to the party, but the efforts throughout the rest of the hemisphere have no doubt played a part. Outside of Latin America, the amnesty came under pressure because of legal proceedings in Spain (Jesuit murders) and the United States (civil trials of deported generals) (Can El Salvador continue to resist calls to investigate war time atrocities?).
Domestically, the Constitutional Court, and really the entire Supreme Court, has become more independent over the last few years. Their rulings might not have always been politically-wise, but they do not seem to to perfectly aligned with the wishes of the country's political parties as they did in the past. At times, critics have argued that it is convenient that the courts are now behaving more independently. They are only now ruling against the government when there is a left-wing party in power. The courts were perfectly fine to roll over for previous right wing government. (Given that the FMLN doesn't appear to happy with this ruling, why would they, maybe that is still the case.) While not that strong, Salvadorans have caught the anti-impunity bug and have less tolerance for corruption and their leaders efforts to use the law to hide criminal wrongdoing, whether that wrongdoing is related to more recent crimes or those of the war.
What next? In Guatemala, they went after "little" fish (Does Erres, soldiers, commissioners, police chiefs) to lay the groundwork for a more complex trial involving the intellectual authors of the military counterinsurgency (Rios Montt). In El Salvador, I don't know. I imagine that some of the high profile killings committed during the war will be at the top of the list, I am guessing El Mozote will be the focus. Regardless of what cases someone seeks to investigate and prosecute first, I do hope that the lifting of the amnesty, followed by greater investigations and some prosecutions, will help the Salvadoran people heal from the wounds of war, especially those civilian victims. I also pray that such criminal proceedings lead to the strengthening of the country's political and judicial institutions. I believe that transitional justice efforts in Guatemala contributed to the overall strengthening of that country's judicial institutions. Hopefully, that will happen in El Salvador as well.
As I mentioned on Twitter last night, the legal barrier to transitional justice has been removed (if it was even there in the first place). However, it's not clear where the political will to prosecute these crimes are. Unsurprisingly, Defense Minister David Mungia Payes and the PDC's Rodolfo Parker have spoken out against the ruling. Mungia Payes characterized the ruling as a "political error"
And how does the FMLN respond to this historic announcement? Lorena Pena, president of the Legislative Assembly, said that she needs to read the resolution in detail and better understand the single dissident opinion. “Esas heridas hay que sanarlas, no se trata de despertar más odio." This is not something that the FMLN leadership has wanted to deal with.
The high court's judges found that the amnesty law denied Salvadorans the right to access justice as well as compensation for war crimes.
"Amnesty is contrary to the right to access justice ... and the right to full compensation for victims of crimes against humanity or war crimes that constitute serious violations of international humanitarian law," the court said in a statement.
The law prevented the state from fulfilling its obligation "to prevent, investigate, judge, punish and offer reparations for series rights violations." In light of the ruling, investigations into the crimes could now be opened.Big news out of El Salvador. A few quick thoughts.
Why now after 23 years? Latin America has led the way in pursuing investigations and prosecutions into human rights abuses committed during the Cold War. Argentina leads the way but there has been progress in Chile, Brazil, and, perhaps more relevant for El Salvador, Guatemala. Domestic and international courts have found that states cannot amnesty crimes against humanity and other war crimes. El Salvador is a little late to the party, but the efforts throughout the rest of the hemisphere have no doubt played a part. Outside of Latin America, the amnesty came under pressure because of legal proceedings in Spain (Jesuit murders) and the United States (civil trials of deported generals) (Can El Salvador continue to resist calls to investigate war time atrocities?).
Domestically, the Constitutional Court, and really the entire Supreme Court, has become more independent over the last few years. Their rulings might not have always been politically-wise, but they do not seem to to perfectly aligned with the wishes of the country's political parties as they did in the past. At times, critics have argued that it is convenient that the courts are now behaving more independently. They are only now ruling against the government when there is a left-wing party in power. The courts were perfectly fine to roll over for previous right wing government. (Given that the FMLN doesn't appear to happy with this ruling, why would they, maybe that is still the case.) While not that strong, Salvadorans have caught the anti-impunity bug and have less tolerance for corruption and their leaders efforts to use the law to hide criminal wrongdoing, whether that wrongdoing is related to more recent crimes or those of the war.
What next? In Guatemala, they went after "little" fish (Does Erres, soldiers, commissioners, police chiefs) to lay the groundwork for a more complex trial involving the intellectual authors of the military counterinsurgency (Rios Montt). In El Salvador, I don't know. I imagine that some of the high profile killings committed during the war will be at the top of the list, I am guessing El Mozote will be the focus. Regardless of what cases someone seeks to investigate and prosecute first, I do hope that the lifting of the amnesty, followed by greater investigations and some prosecutions, will help the Salvadoran people heal from the wounds of war, especially those civilian victims. I also pray that such criminal proceedings lead to the strengthening of the country's political and judicial institutions. I believe that transitional justice efforts in Guatemala contributed to the overall strengthening of that country's judicial institutions. Hopefully, that will happen in El Salvador as well.
As I mentioned on Twitter last night, the legal barrier to transitional justice has been removed (if it was even there in the first place). However, it's not clear where the political will to prosecute these crimes are. Unsurprisingly, Defense Minister David Mungia Payes and the PDC's Rodolfo Parker have spoken out against the ruling. Mungia Payes characterized the ruling as a "political error"
It is an error to declare the amnesty law unconstitutional. I hope this does not turn into a witch hunt," Defense Minister David Mungia said following the decision.ARENA's Velado has reminded everyone that high functionaries of the FMLN government have benefited from the amnesty. While right-wing forces might have committed the vast majority of human rights violations during the war, that does not excuse the FMLN from the crimes that it committed (mayor assassinations, Mayo Sibrian, forced recruitment, among others).
And how does the FMLN respond to this historic announcement? Lorena Pena, president of the Legislative Assembly, said that she needs to read the resolution in detail and better understand the single dissident opinion. “Esas heridas hay que sanarlas, no se trata de despertar más odio." This is not something that the FMLN leadership has wanted to deal with.
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