San José, Costa Rica, since 1956

Will El Salvador end amnesty?

March 15 marks the 20th anniversary of the release of the findings of a truth commission that investigated human rights abuses committed during the 12-year civil war in El Salvador. Five days after the release of the finding, the Salvadoran legislature passed an amnesty law that protected the perpetrators of acts including the assassination of Archbishop Oscar Romero on March 24, 1980, the murders of six Jesuit priests in November 1989, the massacre of some 1,000 people in the town of El Mozote in December 1981, and offenses committed by Farabundo Martí National Liberation Front (FMLN) guerrillas.

But a decision on Dec. 10, 2012, by the Costa Rica-based Inter-American Court of Human Rights ordered a reversal of the amnesty law, raising the possibility that crimes committed during the civil war may be prosecuted after all.

The seven-member court ordered the Salvadoran government to investigate the massacre at El Mozote – which by one count took the lives of 500 children – create a registry of victims (the number is currently uncertain), prosecute the perpetrators and provide reparations for the victims’ next of kin.

The ruling effectively, though not explicitly, calls for overturning the 1993 amnesty that followed the civil war, which ended with a U.N.-brokered agreement in 1992.

The court’s rulings are binding for states that recognize its jurisdiction, but the judicial body that operates under the auspices of the Organization of American States has no enforcement powers.

The Salvadoran government of President Mauricio Funes, of the disarmed FMLN, immediately issued a statement saying it would abide by the decision.

“The Salvadoran state, beginning with this government, has recognized these and other cases, has opened dialogue with the victims, and undertaken efforts to abide by the sentences and recommendations of the courts and the Inter-American Court of Human Rights,” the Salvadoran Foreign Ministry stated in a press release.

However, to date no official move has been made to set aside the amnesty law.

Massacre at El Mozote

The elite, U.S.-trained Salvadoran Army’s Atlacatl Batallion carried out the slaughter at El Mozote, in the department of Morazán, from Dec. 11-13, 1981. Though FMLN guerrillas were active in the area, the human rights court determined that no rebels were in the vicinity at the time of the massacres.

The court found that the massacres were the part of a deliberate “scorched earth” campaign to eliminate potential support in rebel-held areas “to deprive the fish of water,” not the isolated aberration of soldiers run amok.

“The massacres of El Mozote … responded to a policy of the state characterized by counterinsurgency military actions, like the ‘scorched earth’ operations, that had the goal of massive and indiscriminate annihilation of the populations that were targeted for suspicion (of supporting) the guerrillas,” the court said.

The court also expressed its desire that the ruling serve as a condemnation of such anti–insurgency strategies.

“In attention to the preservation of historical memory and the evident need that similar acts don’t happen again, it is the duty of this court to stress that the massacres of El Mozote and neighboring areas undoubtedly constitute an exponential example of this state policy, given the dimension of the operation and the number of victims executed,” the court added.

The Salvadoran Catholic Archbishop’s Legal Office reported to the court that based on testimony of surviving family members, the victims numbered 1,061 – 54 percent children, 18 percent women, some pregnant, and 10 percent older than 60.

The court said that 440 victims have been identified to date, but that many more, including many children, remain unidentified.

Exhumations performed to date at 28 sites have turned up at least 281 individuals, 74 percent children. At one site, the convent in El Mozote, of 143 individuals identified, 136 are children with the average age of 6, the ruling stated.

The court determined that an amnesty established one year after 1992 peace accords between the government and the FMLN should not apply to the massacres, because they potentially involve war crimes and crimes against humanity.

 “[The court] said that the approval of the Amnesty Law and its following application in the present case to dismiss the investigation, is contrary to the [American Convention on Human Rights] and the letter and spirit of the Peace Accords signed in this country, which, read in light of the American Convention, reflects a grave effect to the international obligation of the State to investigate and sanction the grave violations of human rights,” the court said in a press release.

Geoff Thale, program director at the Washington Office on Latin America, said Funes has few options in responding to the court’s ruling, given that overturning the amnesty would be in the hands of the country’s Supreme Court, and opening an investigation would be up to the country’s autonomous Attorney General’s Office.

“Funes, even if he wanted to, couldn’t do anything about these two things,” Thale said. “The only thing he could do is perhaps make a public statement urging the attorney general to launch an investigation and maybe present a case before the Supreme Court to try to overturn the amnesty.” 

Thale said that given the thorny political issues at play in overturning the amnesty, including the possibility that members of his own party could face accusations, and the potential for a confrontation with the army, Funes would likely prefer to “let sleeping dogs lie.”

“Would he like to see military officers prosecuted? Yes. Would he like to be the one to make it happen? No,” Thale said.

Funes issued a public apology for the massacres in early 2012 on behalf of the Salvadoran government, and he also ordered the creation of a registry of victims’ relatives. 

Other Pending Cases

Another case that could test the amnesty declaration, Thale said, is that of retired Col. Inocente Orlando Montano, who was found guilty – despite his name – in a U.S. court in Boston, Massachusetts, of perjury and immigration fraud.

On Jan. 15, the Boston court ruled during sentencing that it would take into consideration the former colonel’s alleged role in the 1989 murder of six Jesuit priests in El Salvador. Montano is among 20 people, including 13 military officers, indicted in Spain in 2011 for the murders.

If Montano is given enough jail time in Boston, Spain would have enough time to seek his extradition to face charges there, Thale said.

“If he’s extradited to Spain, the trial of the military officers would go forward, and that would be a powerful blow against the amnesty,” he said.

He pointed to the precedent of Chile, where an amnesty toppled after former Chilean dictator Augusto Pinochet was tried in Spain. Pinochet eventually faced justice in his home country.

Thale said that the Inter-American Court of Human Rights ruling could have the effect of “strengthening the rule of law and weakening the military, and that would be a good thing.”

“Overturning the amnesty and investigating the massacres would mean jail time for some retired members of the military, and civilian allies would push back through public opinion. You’d see a lot of reaction from the military,” Thale said.

The human rights court found the Salvadoran state responsible for a whole list of violations of the American Convention, including violations of the right to life and the rights of children, as well as women’s rights, as several village women were raped.

“It added that the fact that these persons had been subjected to intense suffering violated, also, the right to personal integrity,” the court press release stated.

The court ordered a total of $17.6 million in reparations to 612 surviving next of kin, or $10,000-$30,000 per survivor, and payment of the trial costs of the human rights groups that brought the suit against the Salvadoran government.

Miguel Montenegro, director of the nongovernmental Salvadoran Human Rights Commission, told Agence France Presse he hopes the government of El Salvador now “assumes responsibility” for implementing the sentence handed down.

“This sentence reaffirms the hope for justice that victims’ families have been demanding, and that we defend human rights. We will remain vigilant to ensure [the court’s ruling] is implemented, and if those responsible [for the massacre] are identified, they should ask forgiveness and face the justice system,” he said.

The mainstream media paid little attention to the news of the court’s decision, with The New York Times running a short story focusing on the court ruling that Salvador’s amnesty law can’t apply to the massacre. The Associated Press and Agence France Presse published accounts of the ruling that were picked up by several newspapers and other outlets.

But El Mozote, despite the dimensions of the tragedy, hardly has become a household name, partly because the administration of U.S. President Ronald Reagan made a concerted effort in the 1980s to discount the accounts of the massacres, which were courageously reported at the time by Raymond Bonner of The New York Times and Alma Guillermoprieto of The Washington Post.

In 1981, the U.S. Congress had to certify the progress of the Salvadoran Army in respecting human rights for continued assistance, and the Reagan administration’s assertions that “no evidence” existed of the massacre guaranteed a continuation of the flow of aid to the army.

The murder of some 500 children, made all the more appalling because it resulted from a deliberate state policy, cannot easily be forgotten. In its ruling, the Inter-American Court of Human Rights takes an important step toward seeing that the El Mozote massacres do not end in impunity.n

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