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For more than 20 years, El Salvador’s Amnesty Law has hindered the country from pursuing accountability for serious crimes committed against civilians during the civil war of the 1980s. However, this may change in the near future. On September 20, the Salvadoran Constitutional Court admitted a petition claiming that the law passed in March 1993 to shield perpetrators of serious conflict-era crimes is unconstitutional.
The pressure to annul the law has been growing. In December 2012, the Inter-American Court of Human Rights condemned the Salvadoran state for the 1981 El Mozote massacres, in which the military killed more than 1,000 people –including 450 children. The court also ruled that the Amnesty Law cannot impede the investigation of these massacres, and that the remains should be exhumed, identified, and returned to the victims’ families. In addition, the ruling ordered reparations for victims to be provided in the next five years.
In January 2013, President Mauricio Funes publicly apologized for the El Mozote massacre and acknowledged that the military had committed serious violations of human rights. However, the Salvadoran state has done little to redress victims or face the atrocities of the past: no perpetrators have been prosecuted, no reparations programs have been established, no memorialization policies have been put in place, and no institutional reforms have been undertaken.
|After the armed conflict between leftist insurgent groups and the state ended in 1991, a UN-brokered peace agreement led to the creation of the Commission on the Truth for El Salvador (CVES, in Spanish). The commission was one of the first official bodies to identify and name those individuals most responsible for crimes committed in El Salvador–among them high-ranking members of the Salvadoran military, judiciary, and government.||
Five days after the CVES made public its final report in 1993, the Salvadoran parliament passed the Amnesty Law to protect perpetrators of human rights violations committed before January 1992.
“It is falsely stated by those who defend the Amnesty Law that it set the grounds for the peace agreements. It is simply not true. The law was approved in 1993; thus, it was not a condition for peace but a reaction to the CVES report released shortly before,” says Carlos Dada, editor in chief of El Faro, an award-winning online magazine known for its reporting on the crimes of the past.
Patricia García, director of Co-Madres, an association of mothers and relatives of those disappeared and/or killed during the military regime and the armed conflict, has been fighting for the truth about the disappeared. They have documented 8,000 cases of enforced disappearance. Because there is no official registry of victims of the conflict, they have been gathering testimonies, police claims, photos, and other documents, stored in cardboard boxes with the hope that one day they will lead to prosecutions – yet their archives have been stolen five times.
“[The Amnesty Law] was like a slap in the face for us,” García recalls. Victims are often asked to pardon perpetrators so that the country can move forward, but the head of Co-Madres says that no reconciliation will be possible without truth and justice: “We have the lawful right to know the truth. If someone is to be pardoned, we need to be told the truth. And there is no pardon without justice either.”
“Though the Amnesty Law might have been passed with noble intentions, moved by the urgency of protecting the peace agreements and threatened from still-powerful war criminals who feared imprisonment, it has proven over the years to have sent the wrong message. It implied that no matter how horrible the atrocity committed, no matter how horrendous the crime, it could have no judicial consequences as long as the perpetrator held some kind of power,” adds Dada.
|The link between accountability for crimes of the past and civic trust in institutions that are supposed to guard the rights of all citizens is a crucial element for building sustainable peace and a strong society. “Without some form of criminal justice process to ensure accountability for perpetrators of serious crimes, El Salvador cannot claim real progress in overcoming the legacy of its violent past,” says David Tolbert, president of the International Center for Transitional Justice.|
“Establishing responsibility for perpetrators of such serious and massive crimes is required for victims to gain a sense that justice has been done and for society as a whole to regain trust in institutions of the state to deliver this justice,” emphasizes Tolbert.
Many believe that the current epidemic of violent crime and gang violence, which places El Salvador at the top of the list of countries with the highest murder rates, has its roots in the culture of impunity for crimes committed against civilians during the conflict. Judge Thomas Buergenthal, who was one of the three commissioners of the CVES of El Salvador’s truth commission, says: “What we failed at is that nowadays in El Salvador crime is everywhere. People survived a terrible period politically, and now they are facing these gangs. That’s something we couldn’t solve, we didn’t see it coming.”
Dada echoes this sentiment: “Perhaps it was unforeseen by the lawmakers who passed the law, but still it set the grounds for impunity to perpetuate in El Salvador and to prevent the country from drawing lessons from a cruel civil war. The Amnesty Law not only thwarted justice, but also thwarted the establishment of historical truth. It disregarded the stories of victims and denied their right to justice and, thus, to the restoration of their dignity.”
If the Amnesty Law has proven anything, it is that victims will not give up the struggle for justice, regardless of how long it may take. “We may neither see nor enjoy justice, but future generations will. We want to clean up this country, so that they will not see impunity, so that the crimes of the past will not be repeated. I think this would be the best legacy we could give them,” says García.
Justice cannot come soon enough. For El Salvador, the petition before the Constitutional Court is one such opportunity.
Watch ICTJ's president David Tolbert interview Thomas Buergenthal, Holocaust survivor and former judge of the International Court of Justice.
Read an interview with Carlos Dada on how journalists are leding the search for the truth about past atrocities in El Salvador.
PHOTO: Protesters hold pictures of a slain Jesuit priests and signs that read in Spanish "No more impunity" during a protest outside the barracks where nine former soldiers and officials, who are suspects in the case of the 1989 slaying of six priests and two other people, are being held in San Salvador, El Salvador, Wednesday Aug. 24, 2011. (AP Photo/Luis Romero)