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5 August 2016

Door to justice finally opens in El Salvador

Open Democracy

(published on on 5 August 2015)

by Luciana Téllez Chávez, Research & Training Fellow

As the door finally opens for war criminals to face justice in El Salvador, the law can start serving the country's poor.

Following almost two decades of courageous activism from human rights defenders, on 13 July 2016 El Salvador's highest court declared the General Amnesty Law unconstitutional, opening the door for war criminals to finally face justice.

El Salvador's civil war, which pitched an authoritarian government against left leaning guerrilla groups, began in 1979 and raged for more than 12 years. By January 1992, when the peace accords were signed, the conflict had claimed 75,000 lives and an estimated 7,000 persons had disappeared. 

A Truth Commission set up at the war's end investigated 20,000 complaints of human rights violations, war crimes and crimes against humanity allegedly perpetrated during the civil war. The Commission named specific perpetrators, in a move aimed at combatting impunity. Instead, in 1993, parliament approved a General Amnesty Law – in a record five day legislative sprint – which granted a blanket amnesty for all crimes committed during the conflict.

Ten years later, in March 2013, a group of human rights defenders from the Central American University Institute for Human Rights (IDHUCA), the Institute for Women Studies "Norma Virginia Guirola de Herrera" (CEMUJER), the Foundation for the Study of the Application of the Law (FESPAD) and the Institute of Legal Studies of El Salvador (IEJES) challenged the constitutionality of the law. The matter was admitted for consideration by the court on September of that year. Only two weeks later the Legal Protection Office of the Archbishop of San Salvador, a free legal clinic that had courageously represented the interests of the victims and survivors of atrocities during  the war, was abruptly shut down. The powerful political-military elite trembled at the thought of the 50,000 cases of human rights violations that the Office had evidence on.

The Supreme Court of Justice's decision to strike down the General Amnesty law comes after a long string of challenges by human rights defenders over the years, who have slowly chipped away at El Salvador's culture of impunity. In the first ruling in 1993, the court dodged the matter by declaring itself incompetent, arguing that the provision of amnesty was "an eminently political act". Human rights organisations challenged the result again, which led to the September 2000 ruling in which the court declared that the law was not intrisically unconstitutional but that judges had discretion to decide when to apply it, unfortunately not a single judge used this leeway to prosecute. Again, human rights defenders fought back. The final ruling this year completely and immediately invalidates the General Amnesty Law, removing any obstacles to war crime prosecutions and reparations for ordinary Salvadorans who have long awaited justice.

“Salvadoran human rights defenders have proven that their will to fight impunity outlives the capacity of the state to oppress it's people,” said Mary Lawlor, Executive Director of Front Line Defenders. “This is a victory for El Salvador, and a victory for all those who support the right of HRDs to struggle peacefully for justice in their communities – even when it takes decades.”

Justice For Archbishop Romero

One victim of El Salvador's brutal civil war was human rights defender Archbishop Óscar Arnulfo Romero. Archbishop Romero was known for denouncing authoritarianism, repression, assassinations, torture and enforced disappearances. In a highly dramatic turning point for the country, a State sanctioned death squad assassinated Archbishop Romero on 24 March 1980. A single bullet to his chest silenced his voice while he celebrated evening mass in the small chapel of the "Divina Providencia" Hospital. 

On the eve of his assassination, Archbishop Romero famously declared during his last mass "In the name of God, in the name of this suffering people whose cries rise to heaven more loudly each day, I beg you, I plead with you, I order you, cease the repression!"

The assassination sent shock waves through a convulsed region and was condemned across the world, similar to how the killing of Honduran indigenous rights defender Berta Cáceres in March 2016 shook Latin America. At the time, Salvadorans wondered in terror: if the State dared kill an internationally renowned human rights defender and eminent member of the Catholic church, who wouldn't they kill? In fact, the judge who attempted to prosecute Archbishop Romero's killing that same year barely survived an assassination attempt himself and the key witness was forcefully disappeared, his whereabouts still unknown.

Renewed efforts to prosecute Archbishop Romero's killers took place in 1986, however successful attempts to obstruct justice prevented any convictions. In March 1993, a judge determined that the only perpetrator who was both alive and physically in El Salvador, Alvaro Saravia, benefited from the application of the General Amnesty Law passed that same month and thus concluded the case. Now, with the derogation of the amnesty law, a door has opened again to prosecute the perpetrators, even if only in absentia as many of them are now deceased. This, however, would still have huge significance to countless Salvadorans who see in Archbishop Romero the most influential human rights defender the country has had. 

Indeed, the story, courage and compassion of Archbishop Romero lives on in the consciousness of many Salvadorans. On 3 February 2015, the Catholic Church recognised him as a martyr and on 23 May 2015 he was beatified in a ceremony officiated in San Salvador, which drew hundreds of thousands of people from across the country to celebrate his legacy.

Making the law serve the poor: Archbishop Romero's Legacy

Arguably, the most important of his legacies was Tutela Legal (Legal Protection Office) of the Archbishop of San Salvador, a free legal clinic that for more than 30 years was dedicated to seeking truth and justice for egregious human rights violations committed before, during and after the civil war. Archbishop Romero created the Legal Protection Office of the Archbishop of San Salvador  three years before his death. The Office took up the defense of victims and survivors from emblematic cases of the civil war, including the massacre of El Mozote.

For 25 years, the driving force of the Office was Dr María Julia Hernández, a doctor in philosophy, close collaborator of Archbishop Romero and indefatigable human rights defender until her death in 2007.  Largely under María Julia Hernández leadership, the Office gathered 50,000 complaints for human rights violations and was the largest historical record in the country for atrocities committed during the civil war. Indeed, human rights defenders working at the Office were the only ones willing to incur the risk that it meant to challenge the interests of war criminals who remained in the political, economic and military elite.

The Office took a tremendous blow in September 2013, when the current Archbishop of San Salvador, José Luis Escobar Alas, unilaterally declared its closure and dismissed all of its staff. By order of Archbishop Escobar Alas, the evidence the Office had collected for 50,000 cases of egregious human rights violations prior, during and after the civil war were confiscated. Human rights defenders José Lazo and Wilfredo Medrano came to work on that Monday and found their keys did not match the locks anymore and that dozens of armed private security personnel were guarding their office.

The Legal Protection Office was shut down two weeks after a group of human rights defenders challenged the constitutionality of the Amnesty Law in the Supreme Court. Many human rights defenders interpreted the Office's closure as a clear sign that the current Archbishop was not interested in pursuing accountability – something the Office had become quite good at.

The Office reopened as an independent organisation, the Legal Protection Office "Dra María Julia Hernández", but the Archbishop denied them and the victims any access to their massive troves of evidence.

The Legal Protection Office of the Archbishop of San Salvador inspired and nurtured a generation of human rights defenders, activists and victims movements seeking  justice for the Salvadoran people. For victims and survivors' movements, such as the Committee of Mothers of Political Prisoners and Disappeared of El Salvador "Monsignor Romero" (COMADRES), the Christian Comittee of Mothers and Relatives of Prisoners, Disappeared and Assassinated (COMAFAC) and the Committee of Relatives of Victims of Human Rights Violations "Marianella García Villas" (CODEFAM), the Legal Protection Office was a reliable ally in their effots to seek justice for their loved ones. For other human rights organisations, such as the Association for the Search of Disappeared Girls and Boys (Pro-Búsqueda) and the Foundation for the Study and the Application of the Law (FESPAD), the Legal Protection Office was a dynamic place where María Julia Hernández sought countless ways of challenging impunity by appealing to regional and international human rights mechanisms, devising opportunities for strategic litigation and guarding precious evidence at great personal risk.

At the very first moment of its inception, under the gaze of a ruthless dictatorship, the Office was in fact thought both as an instrument to obtain justice and as an educational experience for the children of the wealthy who were privileged enough to study law but who had grown up completely isolated from the reality of ordinary Salvadorans. The office was a rare space in Salvadoran society where the privileged tended to the need of the poor. Amongst those who received a formative experience at the Office are David Morales, currently the Human Rights Ombudsman, and Florentín Meléndez, magistrate of the Constitutional Chamber of the Supreme Court of Justice.

The legacy of Archbishop Romero is not only that of his compassion, his love for mankind and his courage to stand up to all that was corrupt in society; it also lives on in the many people he continues to inspire to go down the risky and often thankless path of being a human rights defender in El Salvador. The decision of the court to strike down the General Amnesty Law is a victory for the human rights movement he inspired and the countless Salvadorans who are still fighting for justice against all odds.