Thursday, March 03, 2005

Desperately seeking justice in El Salvador

I've been lazy about blogging about El Salvador in recent days, so the easiest thing is to point you to Tim's El Salvador Blog. He has a new post up about the appellate court's decision to reverse the $54.6 million verdict against two retired Salvadoran generals accused of being responsible for the torture of citizens during the Salvadoran conflict. Tim's a lawyer by profession, so has some good lawyerly analysis to offer, and he brings that lawyerly caution in his sober analysis of all-things-Salvadoran.

He doesn't so much lament the U.S. decision as the state of justice in El Salvador:
The tragedy is not that the US courts are now closed to victims of a brutal civil war, torture and death squads in El Salvador. A valid argument can be made that the US courts cannot and should not be the courts of last resort for human rights violations in various parts of the world over the past several decades. The real tragedy is that El Salvador never developed a judicial system of its own which could handle such claims.
Then he goes on to note that an amnesty implemented shortly after the Truth Commission report prevented the prosecution of past crimes. True, but that doesn't really excuse or necessarily explain efforts since then to reform the judicial system. Furthermore, an argument can be made that the amnesty was essential for the implementation of other key transitional justice measures in the peace accords, namely the implementation of the recommendations of the Ad-Hoc Commission, which recommended the firing of over a hundred top officers. The U.S. Embassy argued as much at the time (as we know now from cables such as the following one, released under FOIA):
This report—and particularly the unresolved issue of a general amnesty—may complicate President Cristiani’s ongoing effort to effect the removal of the final 15 active duty ESAF officers who were cited by the AHC. These officers are unlikely to step down until the amnesty issue is settled, since there is greater legal and physical protection for them within the military
I tend to think the Embassy may have been right about this. Unlike many other places in Latin America, in fact, there is very little popular sentiment for reopening the wounds of the past. It's also worth noting that the main political actors essentially agreed, secretly, that an amnesty would be necessary as a part of the process. That's why the only thing the UN Secretary General criticized about the measure at the time was that it wasn't fully discussed before getting rammed through the Legislative Assembly.

Having said this, I'm glad that Tim brings the focus back to the responsibility of El Salvador in moving forward in in the reform of its system of justice.


Tim said...
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Tim said...

As usual, your posts show your greater experience in all things Salvadoran. Certainly the purge of Army officers involved in war crimes was a very important achievement of the Peace Accords. I also agree that some type of amnesty is almost always a necessary part of a negotiated resolution to such civil conflicts.

On the other hand, work with victims groups generally and the interviews with the Salvadoran plaintiffs in the suits brought in the US, like Dr. Ramagoza show that formal determinations of responsibility can have an important role in providing catharsis and closure.

More importantly, my sense is that very little has happened since 1992 to dispel the impression for the Salvadoran populace that the rich and powerful in the country, even where they commit atrocities and war crimes, act with impunity. The amnesty contributed to this impression.

I'm not sure I have a solution, but the problem of impunity will continue to poison political dialogue in the country if it is not addressed.

David said...

I would agree with you, and it is a dilemma.

It might be easier, wouldn't you think, for victims to accept a lack of prosecution in their individual cases IF the system were now seen as reformed and functioning, which is obviously not the case.

But maybe it would be no consolation, even if impunity was less of a problem now?

Tim said...

I'm afraid I have no real answers. Many people point to the South African Truth and Reconciliation Commission as a process which worked and helped heal the wounds of apartheid. The transgressors get amnesty after cooperating with the process. The victims have the opportunity to have their stories told, listened to, and acknowledged.

I think part of the problem in El Salvador was the appearance that the Truth Commission report was rejected by those in power and that probably leads to skepticism about whether it was just a paper exercise. I don't think it was a paper exercise, and it led to good things like the purge of the military. Yet how can a victim react when a perpetrator is identified in the report and two days later receives a blanket amnesty?

Bottom line -- I'm not sure there is a way to do this when the party seen as affiliated with the crimes is the party in power and in charge of implementing any recommendations.