Nine months after El Salvador's Supreme Judicial Court nullified a 1993 amnesty law which blocked the prosecution of war crimes committed during the country’s civil war, the online periodical El Faro now reports that the FMLN government of Salvador Sánchez Cerén is preparing draft legislation to implement the court ruling and replace the amnesty law.
The government is reportedly working with a Colombian lawyer, Juanita Goebertus, who is represented to be an expert in "transitional justice" and who worked on the peace accords signed in 2016 between the government of Colombia and the FARC guerrillas.
One issue which must be addressed in this effort is the definition of what acts committed during the war are still protected from prosecution. The ruling of the court only nullified the amnesty law as it applied to "crimes against humanity." Acts which do not rise to the level of a crime against humanity are still protected by the amnesty law:
Los hechos excluidos de la amnistía tras la finalización del conflicto armado, son los casos contenidos en el Informe de la Comisión de la Verdad, así como aquellos otros de igual o mayor gravedad y trascendencia, que pudieran ser imputados a ambas partes…
[y] hechos que puedan calificarse como crímenes de lesa humanidad y crímenes de guerra constitutivos de graves violaciones al Derecho Internacional Humanitario.
The acts excluded from the amnesty after the conclusion of the armed conflict are the cases contained in the report of the Truth Commission, as well as those others of equal or greater gravity and transcendence, that could be attributed to both parties….
[and] acts that could be characterized as crimes against humanity and war crimes constituting serious violations of International Human Rights.On one extreme, everyone agrees that a massacre of hundreds of children and civilians like the massacre at El Mozote is a crime against humanity. On the other extreme, if there was an armed skirmish between the Salvadoran armed forces and guerrilla fighters, if a guerrilla shot and killed a soldier and/or a soldier shot and killed a guerrilla during the skirmish, those deaths would remain subject to the amnesty law.
But where do you draw the line between those extremes? Is it the number of civilian victims? That might suggest that the assassination of Oscar Romero is not a crime against humanity because it was a murder of a single civilian. If it is not the number of victims, what are the special circumstances which make something a crime against humanity? If armed forces massacred a campesino family of 5 people, is that massacre standing alone a crime against humanity? If guerrillas kidnapped and murdered a prominent businessman, is that a war crime?
Up to now, the only real guidance from the court is that El Salvador should look to the UN Truth Commission Report for examples of crimes against humanity. Purportedly the legislation to be introduced will attempt to provide a more robust definition.
The second issue which must be addressed is whether perpetrators of crimes against humanity will face criminal punishment including jail time. The El Faro report suggests that both ARENA and the FMLN would like legislation in which the possibility of jail time is eliminated. What is left unclear is what process will exist to judge responsibility for these crimes and what reparations might be available to victims. Nor is it clear if the victims have had a voice in defining any of this process.
What might restorative justice look like in El Salvador with respect to the wounds of 12 years of civil war? A good illustration is provided by the International Tribunal for the Application of Restorative Justice in El Salvador. This tribunal has been annually sponsored by the Human Rights Institute at the University of Central America (IDHUCA) since 2009. International human rights lawyers and judges come to El Salvador for three day sessions to hear the testimony of victims of massacres and other crimes committed during the civil war. While the tribunal has no actual power, it provides an opportunity for the victims to be heard and acknowledged, many of them for the first time. This week the tribunal will again be convening, this year in Morazan department.
There is much to debate in deciding how the crimes of the past should be addressed. Victims voices need to be heard. Unfortunately, the parties with the power to write legislation are the parties with the greatest incentive to be closer to amnesty than justice.