Thursday, December 08, 2011

El Mozote - Seeking Justice in Spite of the Amnesty Law

Fifth in a series

This post in my series on El Mozote is a reprint of an essay by Bethany Loberg originally posted by my friends at SHARE on Tuesday.   They have graciously allowed me to reprint it here.

December 11th, 2011 marks the 30th anniversary of the El Mozote massacre – one of the largest, most brutal massacres in Latin America. As part of the military’s scorched earth campaign to remove any possible source of supplies for the guerrilla by killing entire rural villages, members of the armed forces entered El Mozote and the surrounding villages in December of 1981, rounding up, separating, and systematically killing men, women, and children. Through investigations including exhumations and testimonies, Tutela Legal, the San Salvador Archdiocese’s human rights office has identified 819 individuals killed in the massacre – over half under the age of twelve.

Thanks to Rufina Amaya’s tireless efforts to tell her story, as the sole survivor of the massacre, international news coverage, several rounds of exhumations of human remains, and the work of human rights organizations like Tutela Legal, the massacre can no longer be denied. El Mozote has become a well-known symbol of the brutality of the armed forces during the war.

The Salvadoran government, however, has not taken actions to investigate or bring to trial the intellectual and material authors of these brutal murders. To the contrary, since the peace accords, the army and government have paid homage to Colonel Domingo Monterrosa, a key leader in the massacre, on numerous occasions. As Gisela León of the Center for Justice and International Law (CEJIL) stated in a recent interview, “The massacre of El Mozote represents the absolute impunity that all cases from the conflict are in.” Efforts at truth-telling and investigation, necessary elements in reaching reconciliation, have come solely from civil society.

Pedro Chicas Rivera, survivor of the massacre in La Joya, a village near El Mozote, first presented the massacres in La Joya, El Mozote, and the surrounding communities in Salvadoran courts in October of 1990, with the assistance of Tutela Legal. The case faced one set-back after another. When auxiliary attorney Hugo García requested inspection of the massacre site, exhumations of the victims, and that the president name the officials in charge of the military operation, he was immediately removed from the case. The judge assigned to the case stated that he could not investigate the case without orders from the president of the Salvadoran Supreme Court, and later admitted that he had received orders from high-level officials to definitively close the El Mozote case.

Nevertheless, through countless acts of lobbying and advocacy, Tutela Legal, families of the victims, and international solidarity exerted enough pressure for the judge to name the Argentinian Forensic Anthropology Team as advisors in the case and begin inspections in April 1992. In October of the same year, the team began exhumations, initially uncovering 143 skeletons, 136 of whom were children.

Though proof of the massacre had been irrevocably established, in February 1993, the judge illegally suspended investigations and further exhumation. The following month, the Legislative Assembly passed an amnesty law officially freeing perpetrators of crimes during the war from any legal or civil responsibility – a law which violates multiple international laws and conventions El Salvador has signed.

The amnesty law continues as the central legal deterrent to seeking government-sanctioned investigations and justice. Passed March 20th General Amnesty Law for the Consolidation of Peace was the second amnesty law passed following the peace accords. The Salvadoran legislative assembly passed an initial amnesty law entitled the National Reconciliation Law on February 23, 1992. While the law extended amnesty to those who had committed political crimes during the war, it noted the importance of victims being able to clarify what happened to their family members and explicitly excluded “those who, according to the Truth Commission report, participated in grave acts of violence … whose footprint in society most urgently require public knowledge of the truth. The law required the government to wait six months after the release of the U.N. Truth Commission’s report to make any further decisions regarding these cases.

Nevertheless, when the Truth Commission report came out, the Salvadoran legislative assembly waited only five days to pass the General Amnesty Law for the Consolidation of Peace, which provided “broad, absolute, and unconditional” amnesty to everyone who participated in political and common crimes in any form during the war, including those previously exempted under the reconciliation law. The amnesty law went so far as to explicitly preclude any further investigation into these cases. The amnesty law was a clear attempt to keep anyone involved in the murder of Archbishop Romero, the El Mozote Massacre, the murder of the Jesuits, and other crimes against humanity from facing investigations, charges or further publicity.

Amnesty laws have been used in various other countries, though El Salvador’s is unique in legally preventing further investigation into crimes. In a presentation on amnesty laws last May, Salvadoran legal expert Edgardo Amaya noted that proponents of amnesty laws convey them as a means for laying the past to rest and moving forward, and stated that amnesty laws do not always mean burying truth. He gave the example of South Africa, where perpetrators of political crimes could receive amnesty only after submitting an application and giving full public disclosure of their crimes. Amaya posited the necessity of establishing the truth as integral to reaching justice.

Similarly, Martha Minow, author of Between Vengeance and Forgiveness: Facing History After Mass Violence and Genocide, recognizes the important distinction between conditional amnesty and blanket amnesty laws that come without government acknowledgement of the crimes perpetrated, and the great pain of the people. Minow argues that blanket amnesty laws “institutionalize forgetfulness, and sacrifice justice in a foreshortened effort to move on. Moreover, such an effort to move on often fails because the injury is not so much forgiven, but publicly ignored, leaving it to fester.”

In El Salvador, deep wounds have certainly been left to fester. While former president Cristiani and other right-wing politicians have repeatedly declared that discussing, investigating or opening any of the cases from the armed conflict would mean “re-opening old wounds,” many Salvadorans respond that these wounds never had the chance to heal.

Though the general amnesty law slammed the door on judicial justice in El Salvador, family members of the victims and human rights organizations have sought justice through other routes. In 1990, María Julia Hernández, then-director of Tutela Legal, took the El Mozote Massacre case to the Inter-American Human Rights Commission (IAHRC). In the El Mozote Case, along with Monseñor Romero’s assassination, the assassination of the Jesuits and the two women, and other cases of grave human rights abuses during the war, the Inter-American Human Rights Commission has continually observed that the amnesty law is incompatible with the American Human Rights Convention, and should be overturned. The commission also found the Salvadoran state responsible for the violation of various human rights, including the right to life.

Given the lack of government compliance to the IAHRC ‘s recommendations in the El Mozote case, in March 2011 the IAHRC introduced the case to the Inter-American Human Rights Court. The Court accepted the case, and a hearing is pending for the first trimester of 2012. This will be the first time that an international court will rule on the General Amnesty Law. CEJIL, the Center for International Justice and Law, will represent the victims together with Tutela Legal. Unlike the Human Rights Commission, the Court’s rulings are legally binding.

While seeking justice at the international level, the “Pro-Historic Memory Committee for Human Rights” and the Romero Coalition have continued to work for justice in El Salvador. In 1998, members of the Pro-Historic Memory Committee submitted a legal case to declare the amnesty law unconstitutional. While the court upheld the constitutionality of the amnesty law, it recognized the existence of constitutional limits to amnesty in cases of violation of fundamental rights, and declared that judges should determine the applicability of the amnesty law in each individual case. The ruling paved the way to re-open cases of grave human rights violation, like the El Mozote massacre. The challenge thus far has been to find a judge brave enough to accept such a case.

In spite of the amnesty law, Tutela Legal and the families of the victims of the massacre brought the Argentinian Forensic Anthropology Team back to El Salvador to continue exhumations in 2000-2004. They argued that the exhumations were for humanitarian reasons, so that families might bury their loved ones and find closure in their grieving process.

This past year, the magistrates of the constitutional division of the Salvadoran Supreme Court have ruled on a variety of controversial cases, taking a valiant judicial stand never seen before. With this change in circumstances, the Romero Coalition has worked to investigate possibilities of challenging the constitutionality of the amnesty law and of re-opening the case of Romero’s assassination in Salvadoran courts.

Despite ongoing impunity, neither the victims nor human rights organizations will allow the massacre to be forgotten. The triumph of the people in the El Mozote case has been resilience: constantly seeking and telling the truth. The massacre is well known and documented, and the Victim’s Committee continues to receive visitors and share the story. Though the government sought silence, the people continue to seek justice – through their own monuments and documentation as well as through official legal channels for justice, nationally and internationally. Monseñor Romero’s hope continues to inspire them: “I have faith, brothers, that one day all these shadows will come to light and so many disappeared and so many assassinated, and so many unidentified cadavers will have to come to the light.”

The people have brought their light to the massacre. It is time for the government to bring theirs.

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