Reactions to El Salvador's unconstitutional amnesty

The Economist, The Inter-American Dialogue, and IntLawGrrls take a look at the recent court decision in El Salvador that overturned the amnesty regarding civil war era crimes. I am of the mind that the Constitutional Court's ruling that the 1993 amnesty was unconstitutional is a success of the peace accords.

During the civil war, the courts contributed to impunity. Crimes committed against the civilian population were not investigated unless pushed by the United States. The courts guaranteed impunity. When the UN completed its investigation into human right abuses, the report did not back prosecutions. The investigators did not believe that the courts were strong enough to prosecute, in a fair and just way, those accused of various crimes.

One of the direct consequences of the clarification of the serious acts which the Commission has investigated should, under normal circumstances, be the punishment which those responsible for such acts deserve. However, in view of current conditions in the country and the situation of the administration of justice, the Commission is facing insurmountable difficulties which it will describe below. 

It is not within the Commission's powers to directly impose penalties on those responsible: it does not have judicial functions and cannot therefore decide to impose a particular penalty on a person. That is a function which, by its nature, properly belongs to the courts, a question which raises serious problems for the Commission. Accordingly, the problem and possible solutions to it cannot be discussed in isolation from the current situation in the country.

One painfully clear aspect of that situation is the glaring inability of the judicial system either to investigate crimes or to enforce the law, especially when it comes to crimes committed with the direct or indirect support of State institutions. It was because these shortcomings were so apparent that the Government and FMLN agreed to create an instrument such as the Commission on the Truth to perform tasks which should normally be undertaken by the bodies responsible for the administration of justice. Had the judiciary functioned satisfactorily, not only would the acts which the Commission has had to investigate have been cleared up at the proper time, but the corresponding penalties would have been imposed. The inability of the courts to apply the law to acts of violence committed under the direct or indirect cover of the public authorities is part and parcel of the situation in which those acts took place and is inseparable from them. This is a conclusion which emerges clearly from most of the cases of this kind examined in this report.

We must ask ourselves, therefore, whether the judiciary is capable, all things being equal, of fulfilling the requirements of justice. If we take a detached view of the situation, this question cannot be answered in the affirmative. The structure of the judiciary is still substantially the same as it was when the acts described in this report took place. The reforms of the judicial system agreed on during the peace process have been implemented to only a limited extent, so that they have yet to have a significant impact which translates into a transformation of the administration of justice. What is more, the judiciary is still run by people whose omissions were part of the situation which must now be overcome, and there is nothing to indicate that their customary practices will change in the near future.

These considerations confront the Commission with a serious dilemma. The question is not whether the guilty should be punished, but whether justice can be done. Public morality demands that those responsible for the crimes described here be punished. However, El Salvador has no system for the administration of justice which meets the minimum requirements of objectivity and impartiality so that justice can be rendered reliably. This is a part of the country's current reality and overcoming it urgently should be a primary objective for Salvadorian society.

The Commission does not believe that a reliable solution can be found to the problems it has examined by tackling them in the context which is primarily responsible for them. The situation described in this report would not have occurred if the judicial system had functioned properly. Clearly, that system has still not changed enough to foster a feeling of justice which could promote national reconciliation. On the contrary, a judicial debate in the current context, far from satisfying a legitimate desire for justice, could revive old frustrations, thereby impeding the achievement of that cardinal objective, reconciliation. That being the current situation, it is clear that, for now, the only judicial system which the Commission could trust to administer justice in a full and timely manner would be one which had been restructured in the light of the peace agreements.

Twenty-plus years after the signing of the peace accords and the controversial blanket amnesty, El Salvador's judicial institutions have been sufficiently reformed to begin to tackle questions that they could not over two decades ago. The failure of judicial and political figures to act now in light of the Constitutional Court's decision will undermine what exists of the rule of law and only reinforce impunity.