Open Wounds in El Salvador: Action of the International Tribunal for the Application of Restorative Justice

Mas­sacre of el Chupadero

The many exper­i­ences of trans­itional justice tak­ing place in a num­ber of coun­tries today do not fol­low a pre­defined model. They are shaped by the vari­ety of trans­itional pro­cesses which, in turn, vary accord­ing to the polit­ical and mil­it­ary repres­sion through which each coun­try lived. As a res­ult, the pro­cess of justice can take on sin­gu­lar, and at times unpre­ced­en­ted char­ac­ter­ist­ics. Cur­rently, one of the most rel­ev­ant of such cases can be seen in El Sal­vador and the Inter­na­tional Tribunal for the Applic­a­tion of Res­tor­at­ive Justice, of which I am a mem­ber. The tribunal is an ini­ti­at­ive that brings together organ­isa­tions and human rights experts aware of the lack of respons­ive­ness of a state con­fron­ted with extremely ser­i­ous human rights viol­a­tions car­ried out dur­ing one of the cruelest and most inhu­man wars in Latin Amer­ican his­tory. The fourth ses­sion of the Tribunal, held in Tecoluca, El Sal­vador, between 20 and 23 March, was organ­ised by the Human Rights Insti­tute of the “José Simeón Cañas” Cent­ral Amer­ican Uni­ver­sity (IDHUCA) and the El Sal­vador National Coordin­ator of Com­mit­tees of Vic­tims of Human Rights Viol­a­tions dur­ing the Armed Con­flict (CONACOVIC), and with the assist­ance of Brazil’s Amnesty Com­mis­sion and Spain’s Justice Found­a­tion. As in pre­vi­ous years, it has declared its goal to heal the wounds cre­ated by the array of human rights viol­a­tions that occurred dur­ing the “war years” (1981 – 1992), not to men­tion those car­ried out in the 1970s — a period known as the ‘“years of repression”.

The armed con­flict in El Sal­vador, which accord­ing to the UNDP stun­ted the country’s devel­op­ment by around twelve years, was never offi­cially declared. The oppos­ing sides were the Sal­vadorian Armed Forces (FAES) on the one hand, and ‘insur­gents’, known as the Maribundo Martí National Lib­er­a­tion Front (FMLN), on the other. This lat­ter force has pro­tested in vary­ing degrees against the social, polit­ical and eco­nomic injustices car­ried out at that time. The social and human reper­cus­sions of the con­flict were dread­ful: over 75,000 deaths, the major­ity of which com­mit­ted by government-​led armed forces against a non-​combatant civil­ian pop­u­la­tion, many of who were women, chil­dren and the eld­erly. Fig­ures of forced dis­ap­pear­ances were in the region of 20,000 and 40,000, depend­ing on the source; over a mil­lion and a half inhab­it­ants were either forced to emig­rate or were intern­ally displaced.

The con­flict ended with the sign­ing of a series of agree­ments, medi­ated by the United Nations and signed on 16 Janu­ary 1992, known as the Chapulte­pec Peace Accords. Whilst the treaty called for a cease­fire, it also helped spread an aspir­a­tion towards peace, cre­at­ing a frame­work within which a five-​point struc­tural reform pro­cess could take place, in what has been called a “his­toric change towards the country’s demo­crat­isa­tion”. The areas of reform were the demil­it­ar­isa­tion of the armed forces and their place­ment under civil­ian con­trol; the cre­ation of a national civil­ian police force and the National Academy for Pub­lic Safety; elect­oral reform and the estab­lish­ment of the Elect­oral High Court; the rees­tab­lish­ment of the polit­ical and civil rights of FMLN lead­ers, in addi­tion to a vari­ety of addi­tional social and eco­nomic reforms.

These meas­ures were deman­ded by Sal­vadorian soci­ety at that time. A factor in this was no doubt the population’s fatigue de guerre. Nev­er­the­less, one of the key causes was the igno­miny that befell the armed forces fol­low­ing the assas­sin­a­tion of six Jesuits and two asso­ci­ates dur­ing a guer­illa mil­it­ary offens­ive in Novem­ber 1989 — known as the Mas­acre de los jesuitas and amongst whom was Father Ignacio Ella­curía. Inter­na­tion­ally, the United Nations has had an influ­ence on nego­ti­ations tak­ing place. Nev­er­the­less, a new world and regional geo­pol­it­ical situ­ation brought about by the fall of the Soviet block also helped steer the coun­try towards an end to viol­ence which, at the end of the 90s, had entered a new phase of violence.

It is also para­mount to point out that the real causes of the con­flict have yet to be uncovered. Poverty, inequal­ity and social injustice as well as unequal con­cen­tra­tions of wealth are on the rise whilst at the same time core demands such as genu­ine agri­cul­tural reform are not being taken into account in offi­cial agree­ments. El Sal­vador is, as such, facing a dire social and eco­nomic situ­ation, in which new forms of viol­ence and author­it­ari­an­ism are devel­op­ing as a dir­ect res­ult and leg­acy of the war.

In 2012 the United Nations frame­work for peace is cel­eb­rat­ing its twen­ti­eth year in the coun­try. The res­ults of this ini­ti­at­ive are set to be appraised along with the impact of the Truth Com­mis­sion — a dir­ect res­ult of the peace accords. The com­mis­sion has received over 23,000 com­plaints, of which thirty-​two were selec­ted as illus­trat­ive of their con­cen­tra­tions of viol­ence. Although it has also issued a num­ber of recom­mend­a­tions, the major­ity of these have never been ful­filled, as is the case with those con­nec­ted with restor­ing ‘his­tor­ical memory’ and uncov­er­ing the truth sur­round­ing incid­ents dur­ing the con­flict. A case in point here is the ‘right to justice’ in the pun­it­ive sense, which requires that per­pet­rat­ors be invest­ig­ated and sen­tenced for crimes against human­ity and for per­sist­ent crimes of forced dis­ap­pear­ances. In 1993 the Amnesty Law was approved, which was noth­ing short of an endorse­ment of ‘self-​amnesty’, ‘obli­vion’ or ‘full-​stop’ laws and did noth­ing more than stop the respons­ib­il­ity for mas­sacres and other very ser­i­ous viol­a­tions from being uncovered.

Pub­lic and legal routes to justice and the truth are still being carved out in response to wide­spread state inac­tion and a repeated lack of will­power on the part of the author­it­ies to take respons­ib­il­ity for human rights — respons­ib­il­it­ies enshrined both in El Salvador’s con­sti­tu­tion, as well as in inter­na­tional reg­u­la­tions and pacts.

In the exper­i­ence of the Inter­na­tional Tribunal for the Applic­a­tion of Res­tor­at­ive Justice — which cel­eb­rated its first ses­sion in 2009 on the 20^th anniversary of the Jesuit mas­sacre — an altern­at­ive form of dis­pens­ing justice can be iden­ti­fied and is worth investigating.

The court uses a num­ber of sym­bolic ele­ments that give it a for­mid­able nar­rat­ive abil­ity. Among these ele­ments is to hold tri­als in the same loc­a­tions at which mas­sacres took place, with com­munity mem­bers par­ti­cip­at­ing along­side the author­it­ies, politi­cians and non-​governmental organ­isa­tions. Here, vic­tims and sur­viv­ors are encour­aged to speak in front of an audi­ence made up primar­ily of their own people. It is in these con­di­tions that they are empowered to verb­al­ise their memor­ies, to con­demn those respons­ible for their wrong­do­ings and to build a nar­rat­ive that uncov­ers the story of a town and of a coun­try that until the present day had pre­ferred to hide and for­get their past.

Whole fam­il­ies were wiped out dur­ing the mas­sacres. Indeed, it is often impossible to fur­ther explore the past due to the phys­ical absence of the vic­tims them­selves. The sur­viv­ors, on the other hand, are spokespeople of hor­rific accounts includ­ing extreme acts of tor­ture, rape, dir­ect accus­a­tions of cruelty and highly-​refined meth­ods of exe­cu­tion, forced dis­ap­pear­ances involving people either being dis­carded in mass graves, sold into child-​trafficking rings or for their body parts, and other related atro­cit­ies. Some were luck­ier than oth­ers and are still alive, the major­ity of whom were taken in by other fam­il­ies. Nev­er­the­less, it is not uncom­mon to find the very per­pet­rat­ors of the atro­cit­ies within these families.

This fourth ses­sion of the court, which took place in Tecoluca, looked into a series of mas­sacres: La Cayetana, El Guagoyo, El Cañal, Santa Cruz Paraíso, El Cam­panario and El Jun­quillo. The par­ti­cipants of the invest­ig­a­tion into this lat­ter mas­sacre have recently wel­comed the news that Car­los Napoleón Med­ina Garay, ‘The Butcher of El Jun­quillo’, was to be depor­ted from the United States.

The rulings/​recommendations handed down by the tribunal and the legal pro­vi­sions and demands can now be built up based on respons­ib­il­ity and the state’s duty of pro­tec­tion. Bey­ond this, it is strik­ing to note that as an altern­at­ive yet offi­cial way of hand­ing down justice, this mech­an­ism allows, among other things, sur­viv­ors to con­front the dae­mons and the fears that they have lived with for over twenty years. The method allows them to do this in front of fam­ily mem­bers, their com­munity and them­selves; it allows them to do it out loud, help­ing restore their cour­age, their defi­ance and their dignity.

This is a moment in which a cer­tain sort of indi­vidual and group cath­arsis takes place, one which takes on unima­gin­able pro­por­tions, com­par­able to the grav­ity of the viol­a­tions per­pet­rated. The effect of ini­ti­at­ives such as these is tre­mend­ous, so much so that it could never be achieved via the usual legal chan­nels, given their inher­ently lim­it­ing form­al­ist logic. Sim­il­arly, the extraordin­ar­ily detail of the accounts helps cre­ate a map of what occurred, which can con­trib­ute to restor­ing the ‘his­tor­ical memory’ so neces­sary to reach their goal: to ensure that these events will never reoccur.

Accord­ingly, as the vic­tims them­selves are gran­ted a pos­i­tion of author­ity, so they are con­ver­ted in actual authors of con­science, on which bed­rock and moral forti­tude the tribunal is built. The pro­cess of res­tor­a­tion developed over the course of the long ses­sions has two imme­di­ate effects: it provides vic­tims with moral com­pens­a­tion and, at the same time, it helps retrieve a town’s past, thus con­trib­ut­ing to the col­lect­ive res­tor­a­tion of soci­ety as a whole — the indir­ect victims.

From a legal stand­point, the right to truth is provided for in art­icles 1 and 25 of the Amer­ican Con­ven­tion on Human Rights — to which El Sal­vador is a sig­nat­ory and in which are enshrined legal pro­tec­tion and the right to seek and obtain inform­a­tion. Both dir­ect and indir­ect vic­tims — i.e., soci­ety as a whole — are legal bene­fi­ciar­ies of these rights. The legal influ­ence of the court, too, is provided for in art­icle 32, as well as art­icles 1, 28 and 29 of the Uni­ver­sal Declar­a­tion of Human Rights.

Amongst the court’s spe­cific func­tions are to remind the Sal­vadorian state to ful­fil, and to demand that it con­tin­ues to ful­fil, its duty to recog­nise the per­son as hav­ing a right over his or her begin­ning and end. It also serves as a reminder of the com­mit­ments enshrined in the country’s con­sti­tu­tion to vic­tims’ con­sti­tu­tional rights and thus their right to enjoy such rights, the abso­lute value of life and human dig­nity. Moreover, the state must also recall its com­mit­ment to the Amer­ican Con­ven­tion on Human Rights and the Inter­na­tional Cov­en­ant on Civil and Polit­ical Rights, not to men­tion other such man­dat­ory and widely-​known prin­ciples of inter­na­tional human­it­arian law.

The killings, mas­sacres, fir­ing squads and incid­ents of tor­ture were all com­mit­ted under mil­it­ary orders; their object­ive, the mass exterm­in­a­tion of mem­bers of Sal­vadorian soci­ety, includ­ing indis­crim­in­ate exe­cu­tions of women, chil­dren and the eld­erly. There was also repeated use of ‘scorched earth’ strategies, whereby any­thing deemed of use to the enemy (crops, live­stock, etc.) was laid waste. Under the dis­tor­ted Cold War-​era logic of per­se­cut­ing the ‘com­mun­ist enemy’, per­se­cu­tion of sus­pi­cious per­sons was legit­im­ised without the need for author­isa­tion or court order. Tor­ture became com­mon­place and levels of cyn­icism rose in pro­por­tion to the repress­ive meas­ures taken. The slaughter of babies and women was an integ­ral part of guer­illa group tac­tics used to mor­ally and mater­i­ally inca­pa­cit­ate the local populations.

The respons­ib­il­ity of some coun­tries for this cruel armed con­flict is pat­ently clear, espe­cially that of the United States, which provided mil­it­ary and eco­nomic assist­ance towards the government’s offens­ive dur­ing the civil war act­ing on the basis of an ‘ideological/​anti-​communist war’. It is estim­ated that dir­ect aid from the US gov­ern­ment into the armed con­flict was in the order of US$1.73 bil­lion; indir­ectly — includ­ing resources for elec­tions — this fig­ure almost doubles, rising to US$3.3 billion.

A people that for­gets its past is con­demned to repeat it

This pro­cess was more than just the prin­cipal act­ors work­ing off the dia­lectic of “the good” versus “the bad”. Rather, the sever­ity of the situ­ation lies prin­cip­ally in what allowed them to con­tinue com­mit­ting such atro­cit­ies: the con­vic­tion that they were act­ing with com­plete impun­ity, that they were unstop­pable. This sen­ti­ment has been rein­forced by the amnesty and obli­vion pro­cesses men­tioned above, which came after the armed con­flict and which cur­rently form the basis of national recon­cili­ation efforts. There are, how­ever, no excuses for the crimes com­mit­ted. Sal­vadorian soci­ety is fight­ing against this obli­vion. It under­stands that a people that for­gets its past is con­demned to suf­fer the same fate again. This is why justice must be done.

From a legal stand­point the per­pet­rat­ors have com­mit­ted crimes against human­ity provided for extens­ively in inter­na­tional law, both by the UN Gen­eral Assembly in a num­ber of pre-​civil war recom­mend­a­tions, as well as from decisions handed down fol­low­ing the Nurem­berg tri­als. At that time, in 1946, El Sal­vador already had a legal sys­tem that, under inter­na­tional law, pun­ished crimes against peace, war crimes and crimes against human­ity. Fur­ther­more, the pun­ish­ment of crim­inal acts was already provided for in the country’s crim­inal code.

These crimes were com­mit­ted sys­tem­at­ic­ally and gen­er­ally by state agents, by oper­at­ives of these state agents, or without the know­ledge of any state agent. Even at the begin­ning, these crimes were pun­ish­able offences and, as such, there is no doubt that the state is respons­ible for them and for neg­lect­ing its right to protect.

Fol­low­ing on from this, UN res­ol­u­tion 2338 (18 Decem­ber 1967) declares that crimes against human­ity can­not be pre­scribed. The Interamer­ican Court of Human Rights has handed down judge­ments in two cases—Bar­rios Altos vs Peru and Almonacid vs Chile—whereby crimes against human­ity were unpre­scrib­able, since they con­sti­tuted an inter­na­tional legal axiom, that is, a jus cogens prin­ciple, upon which no time lim­it­a­tions can be enforced.

The vic­tims them­selves do not just seek the incal­cul­able moral com­pens­a­tion that they are due. Rather, they also request that their right to com­plete repar­a­tion be upheld includ­ing fac­tual veri­fic­a­tion, com­plete and pub­lic dis­clos­ure of the truth, and the con­tin­ued search for dis­ap­peared people, the iden­tit­ies of kid­napped chil­dren and cada­vers. They also hope for an offi­cial declar­a­tion that may restore their dig­nity, their repu­ta­tion, as well as the rights of the vic­tims and other people who were affected (prin­ciples provided for in UN A/60/509/Add.1 of 19 April 2005). These could be upheld as Joinet’s ‘Prin­ciples against impun­ity’, set out in inter­na­tional law and which con­sti­tute the fol­low­ing five aspects: 1) resti­tu­tion, 2) com­pens­a­tion, 3) rehab­il­it­a­tion, 4) recon­cili­ation, 5) the guar­an­tee of non-​recurrence. These con­sti­tute an attempt to redress and, to a cer­tain extent, to restore the pro­jects of life hitherto cut short

It should be noted that import­ant changes are being seen thanks to the more col­lab­or­at­ive stance taken by the cur­rent gov­ern­ment. Sal­vadorian pres­id­ent Maur­i­cio Funes has ful­filled an import­ant part of his oblig­a­tions towards the trans­ition pro­cess. On a few occa­sions he has offi­cially acknow­ledged and apo­lo­gised for his state’s respons­ib­il­ity for the mas­sacres. On a recent visit to Morazán depart­ment in the north-​east of the coun­try, where the El Mozote mas­sacre took place, Funes made the fol­low­ing declar­a­tion: “over three days and three nights, the largest mas­sacre of a civil­ian pop­u­la­tion in mod­ern Latin Amer­ican his­tory was per­pet­rated. Here, almost a thou­sand Sal­vadorian men and women were exterm­in­ated, half of whom were chil­dren under 18 years of age.”

This was without doubt an import­ant step. Nev­er­the­less, it was also an isol­ated ges­ture. The Sal­vadorian legis­lature and judi­ciary con­tinue to deny the right to justice, and are even out­right ignor­ing some sym­bol­ic­ally import­ant and poten­tially easily-​applicable demands, such as remov­ing hon­or­ific titles of per­pet­rat­ors from pub­lic spaces. Mil­it­ary bar­racks, streets and squares still bear the names of some of those respons­ible for mas­sacres and forced dis­ap­pear­ances. A por­tion of the pop­u­la­tion affected by the mas­sacres still cowers upon hear­ing a heli­copter or at the sight of mil­it­ary uni­forms or boots. There is still a gen­er­al­ised feel­ing of sus­pi­cion and fear of a remil­it­ar­isa­tion of pub­lic law enforce­ment, and this demon­strates a lack of trust in the future.

Viol­ence in El Sal­vador is on the rise, stunt­ing even the country’s eco­nomic growth. In 2010 the coun­try registered the low­est growth rates in the region, two fun­da­mental causes of which are a lack of safety and gang-​related viol­ence — the much-​reported mara gangs, which are an undeni­able byproduct of the war.

Street viol­ence is both a dir­ect and an indir­ect con­sequence of the civil war. The gang known as Mara Sal­vatrucha, or MS-​13, is one of the prin­cipal play­ers in this field. Its ori­gins date back to immig­rants who fled the civil war in the 1980s and who settled in the lower area of Los Angeles, Cali­for­nia, in a des­per­ate search for a bet­ter life. Here, vic­tims of viol­ence at the hands of already-​existing gangs turned the tables to become aggressors in new viol­ent crim­inal organ­isa­tions, gain­ing ter­rit­ory and drugs– and arms-​trafficking connections.

The mara have now become a Cent­ral Amer­ican prob­lem. It is estim­ated that in El Sal­vador they are respons­ible for 90% of all murders. They rep­res­ent such a grave threat to Sal­vadorian soci­ety that the gov­ern­ment is close to enter­ing into highly con­tro­ver­sial nego­ti­ations with lead­ers of the prin­cipal gangs of the region with the hope of arriv­ing at a peace agreement.

Most ana­lysts agree that, sim­ilar to what happened with the agree­ments that ended the civil war at the end of the 1990s, pro­pos­als geared towards peace and end­ing street viol­ence — con­clud­ing in an pos­sible agree­ment between the gov­ern­ment and the mara—are short-​termist and do not broach struc­tural prob­lems that offer longer-​term solutions.

Heal wounds to achieve peace

Stat­ist­ics on El Sal­vador are fright­ful. Nearly 80% of the pop­u­la­tion lives below the poverty line; unem­ploy­ment is at record levels, and emig­ra­tion is high — almost 720,000 people leave the coun­try each year — to the extent that huge num­bers of fam­il­ies now depend on inter­na­tional money remit­tances to sur­vive. All of this forces us to recog­nise that in a soci­ety with open wounds of this mag­nitude, both the mis­for­tune itself and the social trauma felt are dir­ectly and indir­ectly linked to a viol­ent past that shies away from social transformation.

Whilst this aspect is less widely stud­ied, effect­ing deep reforms in state insti­tu­tions is by far the most import­ant char­ac­ter­istic of trans­itional justice. In El Salvador’s case, the true causes of the civil war must be dealt with, and the ulti­mate goal must be to put an end to the population’s ordeal and to work towards a demo­cratic society.

Carol Proner is a doc­tor of Laws, Co-​Director of the Masters/​Doctorate Pro­gramme in Human Rights, Inter­cul­tural Stud­ies and Demo­cracy UNIA-​UPO-​Sevilla-​ES, Head Coordin­ator of the Mas­ter of Laws Pro­gramme of Uni Brazil and a mem­ber of the Inter­na­tional Tribunal for the Applic­a­tion of Res­tor­at­ive Justice in El Salvador.

Thanks to Oliver Boothroyd for this translation.

Tags: El Salvador, Human Rights, Latin America, Restorative Justice

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