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The Struggle for Lasting ReformVetting Processes in El SalvadorExecutive Summary
Rubén Zamora with David Holiday
The El Salvadorian system of authoritarian military domination was established in the 1930s, at the same time that the county's economic structure was modernizing. When the economic crisis hit El Salvador, the response of those in power was to turn over the management of state affairs to the military. Military control was institutionalized over the following decades, and for more than 50 years the military not only held power, but also enjoyed a level of impunity that placed its members over the citizenry at large. From 1980 to 1992, the country was plagued by armed insurgency where a leftist guerilla demanded democracy and social justice, and by the end of the 1980s, it became clear that there was no prospect of a military settlement of the armed conflict. A negotiated solution was favored by both parties, and in January 1992 a UN intermediated peace agreement was signed. The agreement both ended the armed conflict and prescribed a broad array of political reforms. Constitutional reform redefined the role of the armed forces, limiting in to the defense of the country, as well as separating the police function from it and creating a new police force, the National Civilian Police (PNC). The peace agreement also reduced the total number of forces, introduced institutions to protect human rights, enhancing the independence of the Office of the Attorney General of the Republic, as well as established the Commission on the Truth in El Salvador and the Ad-Hoc Commission (AHC). The AHC's sole function was to undertake the vetting of the officers corps of the armed forces based on full respect for the rule of law, professional competence, and capacity to operate in the new situation of peace. The attempts in El Salvador to produce mechanisms that will ensure democracy, respect for human rights and accountability have moved from a primary focus on human rights abuses to being centered principally on weeding out corrupt and incompetent state functionaries. Following decades of dictatorship and the institutionalization of military domination, El Salvador experienced increasing incidents of insurgency and the rise of guerilla groups during the 1970s. In response, the government accentuated its dependence on repression through the use of military force, undermining its already fading legitimacy. Between 1980 and 1992, the country experienced continuous internal conflict in which guerillas, demanding democracy and social justice, incessantly fought against the government, which claimed to be defending itself against an international communist conspiracy. By 1990, with no prospect of a military settlement in the foreseeable future, both sides agreed to come to the negotiating table, mediated by the UN Secretary-General. The peace accord, signed in January 1992, focused on political reform and assumed that the other underlying causes of conflict, such as socioeconomic disparity, could be addressed through the democratization of Salvadoran society. Overcoming militarism was achieved by dismantling paramilitary organizations and creating a new police force, the PNC, in order to clearly separate police functions from those of the armed forces. Additionally, reducing the total number of forces, creating institutions to protect human rights, bolstering the independence of the judiciary and the Office of the Attorney General of the Republic, and establishing the Truth and Ad Hoc Commissions were part of the greater efforts to prevent the country from sliding back into militarism and to reinforce the objectives of the peace accord. Vetting Prior to the Peace Accords In the late 1970s, under pressure from guerilla movements, the international community, and Salvadoran society, the authoritarian regime of General Romero made a number of unsuccessful attempts to address the human rights violations committed under current and past administrations. In one of these, the government established a Special Commission for Investigating Political Prisoners and Disappeared Persons, which concluded that illegal disappearances and extrajudicial killings were an official policy of the three previous administrations. It recommended that criminal proceedings be carried out against a group of individuals from the upper echelons of the government and military from these administrations. Due to a political crisis and the resignation of many cabinet members in the following months, these recommendations were shelved. This example pointed to the limitations of vetting as an instrument in a climate of political instability and the need for a clearer mandate in terms of authority, operations, and resources, for a body such as the Commission to affect real change. A second vetting effort was conducted in December 1983 when the US government demanded active-duty officers suspected of directing death squads be relieved of their command duties and exiled in exchange for military equipment. In subsequent months, most of the officers were retired, but extrajudicial executions continued, although less frequently, within the armed forces. The 1992 peace accords could be interpreted as a program for democratization by reforming the institutional framework put in place by the previous regime. The armed forces would continue to exist and the Frente Farabundo Martí para la Liberación Nacional (FMLN) would become a legal political party, shed of its weapons and military structure. The peace accords served a dual function: first, to introduce institutions allowing for democratic political coexistence; and second, to prevent the relapse into another military dictatorship. For the sake of political stability, the issue of retribution was largely ignored and punitive action was the exception, rather than the rule. The security and military forces suffered different fates following the peace accords. A number of FMLN combatants were integrated into the PNC after the dissolution of the guerilla forces, while members of the National Guard and Treasury Police were incorporated into the armed forces. Other groups, such as the paramilitary entities and the Rapid Deployment Infantry Battalions, which constituted the elite forces of the army, were dissolved without compensation, as they were accused of some of the worst human rights violations. The vetting of the armed forces and the police was addressed through specific reform measures in the peace accords, but the judiciary proved to be a separate issue. By shielding itself behind the separation of powers recognized by the Constitution, the judiciary evaded any possibility of serious scrutiny. Two transitory commissions were involved in the vetting of military personnel. The Commission on the Truth in El Salvador (Truth Commission), made up entirely of international staff, made binding legal, political and administrative recommendations. The Ad Hoc Commission (AHC), consisting entirely of Salvadorans, vetted the military officer corps shortly after the peace accords were signed. It was the first and only example in Latin America of the military submitting to an external civilian review panel with the power to fire or transfer officers. The naming of the three commissioners for the AHC was done through the consensus of both military and government representatives. Additionally, the President appointed two high-ranking retired officers as observers. The AHC did not approach its evaluations as criminal investigations following strict procedural guidelines, but instead worked to gather relevant information regarding the officer corps to form opinions. In formulating its decisions, the AHC took into account an officer's record of observance of the legal order, with particular emphasis on respect for human rights, both in his personal conduct and in the rigor with which he ordered the redress and punishment of unlawful acts, excesses or human rights violations committed under his command; his professional competence; and his capacity to assimilate into the new situation of peace. "Serious deficiencies" in any one of these three areas would be sufficient cause for the Commissioners to recommend the transfer or dismissal of personnel. The work of the Commission was to begin shortly after the signing of the peace accords and last three months, and its recommendations were to be implemented within 60 days of its report being issued. Although the wording of the mandate is not precise, it is clear that the Commission was to look not at all of the members of the armed forces, but rather only at the officer corps. The recommendations of the Commission were to be binding and non-negotiable. The PNC was to be a "new body, with a new organization, new cadre, new mechanisms for education and training, and a new doctrine." As such, former guerillas and National Police (PN) were vetted using institutional mechanisms for selecting personnel while simultaneously increasing accountability. These measures were to encourage the demilitarization of society as well as guarantee the safe reincorporation of the FMLN into civilian life. The body entrusted to select the new PNC personnel was the National Public Security Academy, and the Inspector General's Office within this institution conducted continual investigations for disciplinary cases of police officers. The composition of the PNC included former FMLN (up to 20%), ex-National Police (up to 20%), and recruits from the general public. The peace accords did not fully address the issues of judicial reform or vetting within the judicial branch, and the various recommendations submitted by the United Nations Observer Mission in El Salvador (ONUSAL), the UN Special Rapporteur on El Salvador, and the Truth Commission were never implemented. However, efforts were made to improve judicial independence and the quality of justice by reforming the National Judiciary Council. The effectiveness of this body remains in question as its role is an advisory one with limited authority, particularly over the Supreme Court. Vetting and Post-Vetting Situation The AHC, created by presidential decree, began functioning on May 19, 1992, and was originally set to last three months, although it was later extended for an additional month. Prior to its official opening, the Commissioners rented office space, hired staff, and requested initial information from the Salvadoran armed forces about the more than 2,000 active members of the officer corps. By mid-June, the Commissioners had reviewed all the files and began a rigorous schedule of interviews, up to 14 a day. The final report was submitted to President Cristiani and the UN Secretary-General on September 23, 1992. The final report was never made public but its basic results soon became an open secret. It recommended 103 officers be transferred or dismissed, including nearly all of the members of the Army High Command, all the Colonels who had command of troops during the war, as well as the Minister and Vice-Minister of Defense. In each case the Commission only stated one or more of the three criteria-human rights record, professional competence, or ability to adapt to the new situation of peace-used to judge each officer. The report came at a tenuous time, with the final demobilization of the FMLN and government forces scheduled for October 31. There was widespread discontent within the armed forces over the AHC recommendations, and there were initial delays by both sides. By the final deadline at the end of December 1992, however, it became clear to the UN that the government had discharged or transferred all but 15 of the officers on the list. The publication of the Truth Commission report of March 15, 1993 helped to encourage both sides to comply with AHC recommendations by providing a more systematic critique of the armed forces as a whole. By early July, the UN Secretary General said that the government was in "broad compliance" with the AHC recommendations. More than ten years following these events, most analysts agree that the Salvadoran military is subordinate to the civilian authority and the separation of the functions of the military from that of the police has played a key role in sustaining the peace. While the vetting was an important symbolic component of the peace process, the redefinition of the military's role in society has been of arguably more long-term importance. But the significance of the vetting of the high officers of the Salvadoran army can be seen when looked at from the perspective of the officer corps' long history of impunity. This impunity, which stretched back to the 1930s, was broken in a dramatic way. Future generations of officers, from that moment on, would have to consider the possibility of being held accountable for their actions as military men. The creation of a new civilian police service has been widely hailed as one of the greatest legacies of the peace process. The PNC, however, has come under increasing criticism for its inability to root out criminal activities and corruption. One reason for these problems may be attributed to flaws in the vetting process as well as the more permanent mechanisms of selection, recruitment and internal accountability. PNC candidates are required to pass psychological, physical, general knowledge and educational requirements, which the government and the FMLN consistently tried to cheat during the transition period. Furthermore, there was no practical way to conduct complete background checks of the officers as the police records were unreliable and, in the case of ex-FMLN members, there was no documentation other than the opinions of immediate commanders. A second failure of the vetting process was the secret agreements between the FMLN and the government in December 1992 and February 1993, which allowed all members of the Special Investigative Unit and Anti-Narcotics Unit of the PN to be incorporated into the PNC. These defective screening procedures for entering the PNC were complemented by weak internal disciplinary systems, which added to the lack of accountability and inefficiency. By early 1996, half of the police commissioners had been charged, but not necessarily dismissed, and the disciplinary tribunal rarely acted on the recommendations of the disciplinary unit. The modification of the Organic Law of the PNC in 2001 formally eliminated the autonomy of the Inspector General, placing the post under the PNC Director, resulting in the lack of due process for those accused of disciplinary violations. Nearly one third of the entire police force was subject to a complaint in 2003. The arbitrariness and externally-driven nature of the disciplinary procedures clearly illustrate the lack of real institutional development in the new police force. Internal and permanent procedures for maintaining a more or less clean police force did not function properly; they were understaffed, subject to pressures from outside and within, without a clear and consistent policy, and under weak leadership. As such, they opened the door to the development of non-institutional procedures implemented more to satisfy public opinion than to build up a model police force. While vetting in the military and police has at least been attempted, the judicial system has been a more reluctant partner in reform. This urgent task is all the more complex because, unlike the police or military, which are subject to executive branch authority, the principle of judicial independence must be balanced against the need for evaluation and review of judges. Nevertheless, El Salvador has fallen far short of the mark. The Truth Commission attempted to jumpstart a much-needed reform process by calling for the resignation of the entire Supreme Court and seeking to give the National Judiciary Council (CNJ) greater responsibilities for evaluation and oversight of judges. A new Supreme Court was elected in 1994, with nominations from the bar associations and the CNJ, but party allegiances and loyalties continued to play a dominant role for top judicial appointments. As such, the Supreme Court has shifted its dependency from the President to the political parties. The CNJ performs mainly administrative and procedural reviews of individual judges, but it cannot look into the qualitative handling of cases. Moreover, the fact that its disciplinary recommendations are not binding for the Supreme Court has significantly hindered the effectiveness of the body. For example, between 1994 and 1997, only one judge was successfully removed and a mere 82 of the 230 judges recommended for sanctioning between 1999 and 2001 were disciplined. The Court continues to carry out transfers, promotions, and demotions without consulting the CNJ and only managed to sanction four judges between 2003 and 2005. The lack of cooperation between these two institutions is a major barrier against the implementation of a legitimate vetting process. One of the most widely held misconceptions about the results of the Truth Commission was that it barred those named in the report from holding public office for a period of not less than ten years. This issue has often been mistakenly praised, but in fact it was never implemented. First, there was a serious legal problem with the recommendation. As ONUSAL reported, legislation to implement this recommendation would have conflicted with other Truth Commission recommendations concerning political rights, and would have required reforming the Constitution. Second, implementation of the recommendation would have amounted in practice to asymmetric treatment of the sides to the conflict. It would have unfairly disadvantaged the FMLN, which would have been forced to enter the political scene for the first time without its most recognized leaders as potential candidates, while the armed forces, whose active members were by constitutional mandate forbidden to present themselves as candidates unless they ended their military careers, would continue as an institution. The Commission was also accused of holding double standards in favor of the FMLN, particularly for excluding the human rights violations which were committed during the first phase of the war. Ad Hoc Commission, Vetting, and Fortuitous Circumstances While vetting and related processes of institutional reform were key to the resolution of the Salvadoran conflict, it should also be recognized that they took place under the most fortuitous of circumstances, namely:
A review of the functions of vetting, as part of the negotiated political solution to the Salvadoran internal armed conflict, tends to support two conclusions. First, it demonstrates the usefulness of such an instrument in circumstances in which stronger responses to the underlying causes of conflict are unlikely. In the Salvadoran case, there was a broad consensus that one of these causes was the role played by the armed forces for many decades, as has often been the case elsewhere. But both the balance of military forces and the international context allowed only for a more "modest" solution, the vetting of the officer corps, but it was one that was instrumental in moving the peace process forward. A second conclusion is the inherent limitation of vetting processes: insofar as they deal with personnel and not entire institutions, their effects can be short-lived. The comparison between the impacts of vetting in the army and the judiciary in El Salvador illustrates the point. In the army, vetting was accompanied by a deep and comprehensive institutional reform, the combination of which has been one of the reasons behind the successful demilitarization of politics in El Salvador. On the contrary, in the case of the judiciary there was no direct vetting, and the institutional reform that did occur was not comprehensive and was restricted to the two leading institutions of the system, the Supreme Court of Justice and the Council of the Judiciary. The absence of comprehensive vetting and accompanying institutional reform seems to be recipe for failure and frustrated expectations.
Click here for the full text of this chapter as it appears in Justice as Prevention: Vetting Public Employees in Transitional Societies, ed. Alexander Mayer-Rieckh and Pablo de Greiff (New York: Social Science Research Council, 2007).
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