Thursday, September 04, 2008

FMLN reverses position on Amnesty Law

In 1993, the Salvadoran National Assembly passed an amnesty law which blocks the prosecution of persons for crimes committed during the civil war, including such high profile cases as the assassination of Oscar Romero, the murder of the Jesuits, and the massacre at El Mozote.  For years the InterAmerican Commission on Human Rights has told El Salvador's governments that the law should be repealed to allow for justice in the situation of these crimes.  As recently as September 2007, the FMLN pushed legislation in the National Assembly to repeal the Amnesty Law.

As described in this article in El Faro, the FMLN has reversed itself.  The FMLN and its presidential candidate Mauricio Funes have now made it clear that they will take no steps to repeal the law.  As El Faro points out, the reasons given by Funes -- to avoid opening old wounds, and to have El Salvador look forward and not backward -- are the identical reasons given by presidents Tony Saca and Francisco Flores in explaining why they would not comply with the dictates of the InterAmerican Commission on Human Rights.

Leading human rights figures in El Salvador criticized the FMLN's position.  Benjamin Cuellar, head of the Human Rights Institute at the University of Central America, commented that the FMLN's position would allow the culture of impunity to continue in the country.  Oscar Luna, the country's Human Rights Ombudsman, stated that repal of the amnesty law was a simple matter of the country complying with its international agreements and showing respect for the rule of law.

This change of position by the FMLN is regrettable.   Some will say that elements in the FMLN want to keep the law in place to prevent their own crimes during the war from being investigated.   Others will say that the FMLN is taking this position to soften opposition to a Funes' candidacy by right wing elements, by assuring them that an FMLN government will not result in a witch hunt settling old scores from the civil war.  Whatever the reason, victims and their families will continue to be left without justice.

13 comments:

Anonymous said...

This is obviously to seem to shift to the center. I'm not worried that the FMLN is losing its way. It's silly that they have to do this to fight the right wing smear and fear mongering campaign, albeit effective and proven. I don't mind if they lie and a few months after they win in '09, they look to get the amnesty repealed. Even though Funes' plans are sensible and mainstream, it's better that he and the FMLN minimize what Arena can spin.

Larry said...

This should also be taken in the context that Funes recently reported that ARENA has been sending letters to the military indicating that the FMLN will dismantle the Armed Forces.

If I were Funes, I would be very worried about the possibility of a coup to stop me from taking office. That is probably where this is coming from.

That, of course, does not make it any less disappointing.

It also overlooks that the "impossible" has been done in Chile, in Argentina, etc., because of leaders who had the courage to listen to human rights victims and their families. Perhaps Bussi and Ponce can be cell mates!

I fondly remember one piece of grafitti I saw back in 1999: "Pinochet Hoy y Manana la Tadona!"

Solavá said...

Tim, in my blog there is an article that was published in El Diario de Hoy, that includes an interview with an attorney from the human rights organization FESPAD, which is the institution that actually wrote the human rights policy of the FMLN for their government program proposal.

In essence, he says that they never proposed to reapeal the Amnesty Law because it's no longer necessary to do that, since a salvadoran Supreme Court decision made in 2000 clearly states that in cases of human rights violations that law cannot be applied because it would violate the Constitution. Therefore, prosecutors and judges cannot invoke it and must follow up the demand and open the case and prosecute it. To repeal the Amnesty Law is a legislative issue, but the problem of prosecutors and judges not applying the Supreme Court decision is judicial. Therefore, the Amnesty Law is no the obstacle. In order to get those demands moving, the state has to remove the "reserve" imposed by the State in the Organization of American States, since El Salvador signed the international agreement on human rights in 1995, and it does not apply to cases before that year. Once that reserve is lifted, the prosecutors and judges would be obligated to prosecute human rights cases, in accordance to that international agreement.

This is a fragment of the article in Spanish:

El FMLN no necesita de la Ley de Amnistía para implementar sus propuestas de derechos humanos, argumenta un abogado de la Fundación de Estudios para la Aplicación del Derecho (Fespad), una de las organizaciones que participó en las mesas de elaboración del programa de gobierno efemelenista.

"Creemos que la Ley de Amnistía debe ser derogada, pero por razones simbólicas", explicó David Morales, coordinador de seguridad ciudadana y justicia penal de Fespad.

Según Morales, el mayor obstáculo a los requerimientos de justicia en el tema derechos humanos no depende de lo que suceda en el ámbito legislativo, sino en lo judicial: el problema son los fiscales y jueces.

"Independientemente de que se derogue o no, de acuerdo con un fallo emitido en el año 2000 por la Corte Suprema de Justicia, un juez está obligado a no aplicar la Ley de Amnistía en casos de violaciones a los derechos humanos", explicó.

Esto explica por qué Funes indicó que él no iba a "promover una iniciativa en ese sentido", aclarando que sería "decisión de la Asamblea Legislativa".

En efecto, el programa de gobierno del FMLN es muy específico en el tema derechos humanos, y define objetivos concretos para las tres ramas de poder.

Para remover el obstáculo judicial al procesamiento de crímenes de guerra o de lesa humanidad presuntamente cometidos por ex funcionarios de gobierno o por miembros del Ejército, especifica que levantará "las reservas indebidas hechas a los tratados internacionales sobre derechos humanos".

Al mismo tiempo, levantaría reservas al reconocimiento de la jurisdicción "de los órganos de protección internacional de derechos humanos, como la Corte Interamericana de Derechos Humanos y el Comité contra la Tortura de las Naciones Unidas".

El-Visitador said...

«I don't mind if they lie and a few months after they win in '09, they look to get the amnesty repealed»

Are these the new lefty morals: lie your way into government?.

Their morals used to be kidnap, extort, and kill your way into government. I guess lying is an improvement for these people?

Tim said...

For an eloquently argued rejection of those positions Solava, read this post by our friend and human rights lawyer/blogger Ixquic.

Solavá said...

Tim, I know Ixquic's positions quite well. I wasn't arguing in favor or against a position, I was simply informing you that the FMLN position, as confusing as it may be, is actually consistent. The attorney I interviewed, David Morales, is the same one who investigated and litigated the El Mozote massacre and several of the most politically significant cases of human rights abuses during the war. And the organization that he works for, Fespad, wrote the human rights policies for the FMLN contained in their Government Program, so his position could easily be considered the FMLN's rationale behind Funes' statements.

Clearly, if a law cannot be applied because the Supreme Court considers it unconstitutional, very little could be achieved by repealing it. In other words, Visitador, the FMLN may not necessarily be lying on this issue. Even with the Amnesty Law in place, high level officials could be prosecuted for human rights abuses or for war crimes, but only those who were linked to the State, since human rights law only applies to crimes committed by the State. The neat detail about this is that no FMLN official could be tried for their crimes, since the Amnesty Law would still be in place. Therefore, Funes statements could be construed as cynical or opportunistic.

Ixquic arguements focus on Funes' responsibility as a candidate who is seeking the presidency. And yes, if the Amnesty Law is repealed, without a doubt, high FMLN officials, including their candidate for the vicepresidency, would be tried for war crimes committed during the 1980's.

El-Visitador said...

«Even with the Amnesty Law in place, high level officials could be prosecuted for human rights abuses or for war crimes, but only those who were linked to the State, since human rights law only applies to crimes committed by the State.»

Interesting. So if a terrorist kidnaps, tortures, extorts, and murders, he has committed no human rights violations: but if the State captures him and fails to provide "dignity" to the thug, then the State has violated the "human rights" of the criminal.

Sounds to me like a legal doctrine concocted by thugs, for thugs. Or by Socialists, for Socialists.

Solavá said...

It would be like a doctrine "concocted by thugs" if there were no laws against terrorists, but usually states have laws against them. Human rights doctrine is assumed by the states by way of international agreements because it became an international imperative to prevent what happened in Germany and Europe during World War II. But laws to prevent or punish terrorism have to be enacted individually by each country and according to their national reality because they tend to affect civil liberties.

NathanLee said...

It's not that old wounds would be re-opened; they would just actually be healed properly. Both ARENA and FMLN committed horrible crimes during the civil war and in the years after, but its ridiculous to just "overlook-by-law" past crimes that still cause so much civil unrest and political strife.

Anonymous said...

check your facts all. From Madness to Hopes U.N. analysis states 5% human rights abuses commited via FMLN. the rest were Army, and security forces tied to army (deathsquads).
Never forget El Mozote, Sumpul etc.
U.S. Fudned Atlacatl and them trying to blame the FMLN on the jesuit murders. Nice try.
Diario del Hoy currently using the word "matanzas" for Sanchez Ceren regarding FMLN assasinating spies within its ranks. What a joke.

Anonymous said...

..and again..El Salvador should follow South Africas model.

They are scared @#$Less though due to the U.S. sponsoring the majority of the crimes.

Anonymous said...

"Interesting. So if a terrorist kidnaps, tortures, extorts, and murders, he has committed no human rights violations: but if the State captures him and fails to provide "dignity" to the thug, then the State has violated the "human rights" of the criminal."

The U.N. Truth Commission in its early 1990s report found that 85% of the human rights violations were committed by the Salvadoran state military/police apparatus, together with the Sol Meza, Hans Christ, Roberto Regalado, et. al. "death squads."
The magnitude of human rights crimes--violations of the right to life, habeus corpus (non-disappearance), torture--committed by the Salvadoran military/police apparatus is 600 per cent greater than the U.N. Truth commission alleges were committed by FMLN associate groups (FPL, ERP, RN, PRTC, PCS).
Another example, no U.S. courts have brought to trial any Salvadorans with links to the FMLN, but they have successfully tried Carranza, Garcia, and Vides Casanova for Crimes Against Humanity and Command Responsiblity for Torture.

Perhaps universal jurisiction for human rights violations or for violations of the law of armed conflict (Geneva Conventions) will reach Salvadoran military and "death squad" backers in locations outside of the U.S. Many ex-Salvadoran military came to settle there to "get away with murder." At least the aforementioned three did not.

Any suggestions about how to rectify the perceived injustice?

Anonymous said...

"Are these the new lefty morals: lie your way into government?.

Their morals used to be kidnap, extort, and kill your way into government. I guess lying is an improvement for these people?"

Let's face it, nice guys finish last. If Funes attempts to just use logic and reason then he will not win. Arena makes politics a race to the bottom. As leftists we get caught up in idealism, but we need to be a bit more realist and use some of the propoganda mechanisms that the right has perfected. Fight fire with fire etc...,