Saturday, December 10, 2016

Continuing to unbury the past at El Mozote


The white and blue Justice of the Peace offices sit at the corner of the central plaza in Meanguera, El Salvador.  From this humble office, Judge Mario Diaz Soto and his small team of assistants are presiding over one of the open legal proceedings involving perhaps the largest massacre of unarmed civilians in the Western Hemisphere, the 1981 El Mozote massacre.   That massacre took place 35 years ago today, from December 10-12, 1981.

Judge Soto presides over legal proceedings directing exhumations to locate and identify the bodies of additional victims of the massacre at El Mozote and surrounding communities.  The legal case before Judge Soto began with a petition from Tutela Legal, the human rights office of the Catholic church, working on behalf of victims’ families, and concerned with the lack of progress and the manner in which previous investigations had been proceeding.

At the exhumation site, a multi-institution team of workers is present.   There is a prosecutor from the attorney general’s office responsible for this investigation phase.   There is a representative of the country’s Human Rights Advocate office (PDDH).    There are the forensic anthropologists from Canada and Argentina.   There are workers from the Ministry of Public Works who provide the muscle to dig at the sites.   There is the president of the victims’ association.    There are police officers providing security.   Judge Soto and his small staff are regular visitors.

Exhumation site in El Mozote


Judge Soto has ruled that the massacre at El Mozote and the surrounding communities 35 years ago was a crime against humanity and that his court had competent jurisdiction to oversee that matter. 

There is another open legal proceeding in Morazan Department involving the massacre at El Mozote. This case commenced in 1990 in the court in the municipality of San Francisco Gotera, but was “archived” or closed in 1993 after the passage of the Amnesty Law.    This case in Gotera has now been reopened with the nullification of the amnesty law by the Constitutional Chamber earlier this year.

There have essentially been three phases of the exhumations at El Mozote which have different legal usefulness.   One set of exhumations took place in the early 1990s, while the Gotera proceeding was still open.    These exhumations identified about 400 bodies of victims and the evidence of that work is admissible in the Gotera proceeding.   Although admissible, that work was performed prior to recent advances in DNA testing technology and other forensic science, and might be subject to attack by defendants in any further proceeding.

After the Gotera proceeding was archived, the Argentine forensic team continued to come to El Mozote and conduct more exhumations as a humanitarian gesture in support of the families of victims.    These exhumations were not conducted under the supervision of a court or prosecutor, and the results may not be admissible in court.

Now with the Meanguera proceeding, a new set of exhumations are being conducted with scientific rigor, including DNA testing to establish genetically the identity of remains, and with forensic identification where usable DNA is not available.

As the exhumations have proceeded, Judge Soto has a concern for the families of the victims.   He has obtained the services of psychologists from the court system to provide counselling before, during and after the exhumations.   When he held a hearing on the exhumation process, he ruled that not just the lawyers, but also the victims should be allowed to speak if they wanted to address the court.

Judge Mario Diaz Soto
Judge Soto has also decided that all parts of the proceeding will be open to public inspection.   Although many court proceedings in El Salvador proceed “en reserve” or under seal, Judge Soto has opted for transparency, which he believes is required by El Salvador’s transparency law.

The exhumations will determine that criminal acts took place.    It will be up to the office of the attorney general (FGR)  to determine whether to charge anyone with crimes and who to charge.   It will also be up to the FGR to decide whether to proceed in Judge Soto’s court or in the re-opened case in San Francisco Gotera.   Judge Soto would like to see the case proceed in his court, but the decision will probably not be up to him.

The questions of the chain of command and who is responsible as one of the “intellectual authors” of the massacre at El Mozote are not yet being addressed.  It is yet to be seen whether El Salvador's courts and prosecutors have the power or the political will to force the armed forces to turn over their records of operations from that bloody time.





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