Wednesday, July 13, 2016

Post war 1993 amnesty law declared unconstitutional

The Constitutional Chamber of El Salvador's Supreme Court announced this evening that it had declared unconstitutional the application of the 1993 post war amnesty law to prevent the prosecution of war crimes committed during El Salvador's civil war.    This ruling opens the door for possible prosecutions of crimes against humanity in a war in which more than 75,000 civilians were killed between 1980 and 1992.

The amnesty law was:
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. (El Mozote -- Seeking Justice in spite of the amnesty law)
The court's announcement of its decision states that the 1992 Peace Accords which ended the civil war had contained no provision for an amnesty.   El Salvador's National Assembly, the Court declared, had no power to grant an amnesty to persons who had committed crimes against humanity or war crimes constituting grave violations of human rights.   El Salvador's constitution and international law of human rights required the determination that the amnesty law was invalid.

The decision of the court emphasizes that there can be prosecutions of both the armed forces and the FMLN guerrillas for war crimes.

In a key paragraph of the Court's announcement it states:
Además, en relación a los delitos de lesa humanidad, la Sala señala que no nos encontramos ante comportamientos individuales y aislados de quienes los consumaron; por el contrario, son el resultado de lineamientos y órdenes emanados de un aparato organizado de poder, y donde es claramente visible la jerarquía, el mando y el funcionamiento automático de dichas estructuras armadas. En tal sentido, los autores materiales o directos generalmente actuaron bajo la dirección de los jefes máximos de las estructuras militares, paramilitares y guerrilleras a las cuales pertenecían. Todo lo cual implica una necesaria responsabilidad penal tanto de los ejecutores directos como de aquellos que dieron las respectivas órdenes violatorias de derechos fundamentales, y de los mandos que, estando en el deber jurídico de impedir abusos contra los derechos humanos cometidos por sus subalternos, no lo hicieron u omitieron cualquier tipo de control.
Furthermore, with regard to crimes against humanity, the Chamber notes that we are not facing individual and isolated behaviors by those who consummated them; on the contrary, they are the result of guidelines and orders issued by an organized apparatus of power, and where the hierarchy of command and automatic operation of such armed structures is clearly visible.  In this regard, the direct or material actors usually acted under the direction of the top leaders of the military, paramilitary and guerilla structures to which they belonged.  All of which implies a necessary criminal responsibility of both the direct actors and those who gave the respective orders which violated fundamental rights, and of the commanders being subject to a legal duty to prevent human rights abuses committed by their subordinates, did not do so or failed to exercise any control. [my rough quick translation].
In a future post, I will cover the reaction in El Salvador to this dramatic decision of the court.    The next question -- will anyone have the courage to prosecute these crimes now that the legal bar has been lifted away?

1 comment:

Tom said...

I look forward to your analysis of this decision.