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 20th 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.
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.
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.