El Salvador
Ending the Trauma of Terror
Envío team
El Salvador has more than 75,000 war dead and thousands of disappeared persons—the majority of them victims of a systematic violation of fundamental human rights by the armed forces and the death squads. Such generalized acts of political terror by a power bloc that opposed political change for decades has left social and political trauma in its wake.
The human rights division of the United Nations' oversight body in El Salvador (ONUSAL), the Truth Commission and the Ad-Hoc Commission, entrusted with evaluating the army officers, have become instruments to dismantle the army's impunity, see that it is purged and accomplish something more than a simple return to "normalcy" in terms of respect for human rights. In principle, they also aim to help the country move past the terror to which those who sought justice were submitted—a seemingly impossible task after decades of military power and impunity.
The Legal Office of the Archbishop of San Salvador has been a staunch defender of the basic rights of Salvador's citizens throughout this long and terrible period. It has publicly denounced the atrocities and questioned the country's corrupt legal system. envío spoke with its director, María Julia Hernández, who offered her impressions about the human rights situation in the new process initiated with the peace accords.
envío: What is the human rights situation in this new period?
Hernández: The key mission of ONUSAL, which came to the country before the final accords were signed and before the cease-fire took effect, was to verify the accords signed by the FMLN and the government in San Jose, which included a strong human rights component. This laid a foundation for human rights verification.
The most critical step was taken on January 16, with the signing of the peace accords. With that, according to ONUSAL's verification, all rights falling within the criteria of the Geneva Convention's second protocol—which relates to human rights issues in wartime—ceased being violated since the cease-fire ended military operations against the civilian population, bombing raids and obstacles to free passage throughout the country. In addition, there were no more problems with detained, wounded or imprisoned combatants.
Nevertheless, concern about a number of other basic rights began to take center stage, and, although there has been a quantitative reduction in their violations, there has been no qualitative change. Bodies continue to appear with signs of torture characteristic of the death squads, done in special rooms created for that purpose. This means that the methods used prior to the signing of the peace accords continue being used. There's an attempt to pass off many of these acts as common crimes; their authors are no longer called "heavily armed civilians," but "unknown persons."
When cases of violations are investigated, we see, first, that there is media disinformation, and second, that these acts say a lot about the political motivations behind them. Unfortunately, we lack adequate scientific instruments to carry these investigations out to their final consequences, but we do have sufficient tools to deduce when a crime has a political motive and when it doesn't. Very few of these crimes are difficult to evaluate in this respect.
envío: What role does common crime play?
Hernández: Undoubtedly, in a country with serious structural and economic deficiencies, there's more crime than in other places.
But it's merely coinciding with the historic political violence.
There's systematic violence against the right to life and the population's physical and moral integrity, as well as a systematic desire to strip people of their freedom and right to expression, either covertly or in the guise of common crime.
The structures generating these phenomena haven't disappeared.
We're talking not only about the National Police but also the Municipal Police, as well as the paramilitary bands that kill on orders; then there are the common delinquents, who are getting the message now that they can act. A series of factors that politically motivate human rights violations are thus coming into play.
envío: Does this violence affect the political motivation and mobilization generated by the optimism that the peace accords unleashed?
Hernández: The signing of the accords opened a new space, which dismayed some and animated others. Those who were unsettled by it began to react. It's very important to look closely at this.
The armed confrontation came to an end—that is, the shooting stopped—but peace must still be constructed. That means the need to implement a complex constellation of accords to effect the FMLN's incorporation into civilian life, reduce the military and open political space for the structural reforms the country needs.
At first, all these activities were virtually paralyzed, because, little by little, the forces that have always opposed change began to react in two ways. One is a systematic, legalistic opposition involving nitpicking about the placement of a comma rather than the essence or spirit of the accords, all in an effort to entangle the process and buy time. The other is to use terror to scare the population away from political involvement. This is their tried-and-true method, and it's easy to use, given the kind of persecution and the extent of human rights violations that took place. It was so intense and touched so many sectors that the population was traumatized about persecution. The death squads kill one or two individuals and, with those deaths, know they're sending a message of terror to already terrorized people who are afraid to express themselves, to recognize that they have won their rights. That message is not lost on such a traumatized people.
The judicial system and impunityAnother important element has to do with the current judicial system. If we want to achieve the rule of law, one key institution that must be transformed is the judiciary, because it has been one of the main promoters of impunity in this country.
That's not only because of its historic internal corruption, but also because everything that should be functioning has simply not functioned.
Thousands of political crimes and human rights violations have been committed, and the judiciary hasn't taken any action. Even the few honest judges who remain are too afraid to act. Of course, it also hasn't functioned because of the violence of the war. But, what surprised us is that, in the peace accords, the judicial system was the aspect least touched on, least discussed or negotiated. The only item included was a minimal change in the judges' term of office, when much deeper structural changes are needed so that the system, which must serve as the guarantor of justice in the future, can function.
To do this will involve many Constitutional reforms, as well as reforms to secondary laws and the signing of established treaties such as the international human rights pacts. The problem of changing the entire Supreme Court bench is pending as well, given that its justices are all tainted with corruption. Still another element to be taken into account is the training for judges, which should be serious legal preparation and should extend to the judiciary's support institutions. Judicial research bodies should be created as well, as should independent forensic medicine institutes, among others.
envío: Are there no advances in the legal system and the dismantling of impunity?
Hernández: There has been no advance whatsoever in the legal system, and the legal system is key to putting an end to impunity. Looking into the past, the military factor stands out.
Except for the Jesuit case, in which only the material authors were determined, in no case has justice, even with its deficiencies, been seriously administered.
envío: What is the status of the investigations into large-scale massacres?
Hernández: We've really struggled to get them into the courts.
It was a truly titanic legal struggle in the case of El Mozote.
There were many obstacles but, little by little, we've been able to reach the point that the judge is taking testimony from the survivors and inspecting the site. We're fighting for the judge to set a date for exhumation, so as to be able to establish the corpus delicti, and to see that the investigation is done in such a way as to permit the truth to come out.
The special commissions envío: Is this an independent task for the Truth Commission?
Hernández: No, with or without the Truth Commission or the Ad-Hoc Commission, our work consists of ensuring the protection of human rights. Now that these commissions are beginning their investigations, we've been able to offer both of them the elements they need for their investigations, and, in the case of the AdHoc Commission, to help them take the necessary administrative measures relating to the guilty parties.
envío: Should we be optimistic about these commissions?
Hernández: Both commissions are very limited. They have very narrow faculties, but the spaces they are opening are quite important. They'll be judged once the results are out. In principle, we can say at the least that they are serious commissions. Their problem is the limitation on their functions.
Neither has a jurisdictional function and that seems very grave to me. But, in the end, they're opening important spaces: never before has the military been questioned at the administrative level, and the Ad-Hoc Commission is doing that. They'll make a report to the President indicating about which officers could continue as active members of the army which ones should be discharged. Their report will be very limited, because they haven't had the time to examine all cases, nor do they have all the information to judge them, but some action will be taken.
The Truth Commission is charged with receiving reports of events that took place and then investigating and making some judgment, but not at a jurisdictional level. They'll give their report to the government, the FMLN and the UN General Secretary, with the goal that these sorts of crimes not be repeated in the future.
And this is where we find the commission's weak point. As it doesn't have a jurisdictional function, the most it can do is make recommendations to the public prosecutor's office or the government about the steps that should be taken at the processing level. Unfortunately, the accords state that this work of the Truth Commission can be transferred to the Legislative Assembly. With the Assembly's current makeup, the majority of those charged could well be given amnesty, which could touch off a serious human rights problem. It's not a question of calling for revenge, but of searching for basic measures to build peace and the rule of law in our country. We asked for three steps: one, knowledge of the truth; two, administration of justice; and, three, pardons in order to reach reconciliation. Amnesty doesn't strike us as appropriate, because it doesn't call for the administration of justice. Without this base, the peace process will face very serious difficulties, as there will be neither a social catharsis nor exemplary actions to serve as deterrents to similar human rights violations in the future by those parties opposed to the peace accords.
envío: Are there obstacles to the commissions' work?
Hernández: Undoubtedly there are. I']] give you an example: if the Ad-Hoc Commission requests the files of the officers, and only receives part of them, that's an obstacle to their work. By the same token, the Ad-Hoc Commission requested the information the State Department has about human rights violations committed by the army, but, for some reason, the United States hasn't given the commission access to this information and that, too, has been a serious obstacle to its work.
It seems to me that ONUSAL's role is very important, in that it comes at the moment of transition. An international verification mechanism is essential during this period. But it's important to point out that we, as Salvadorans, should be more active protagonists of the process. It would seem that we've turned quite often to third parties, and the great majorities, the political parties, the government itself and the FMLN aren't the most prominent protagonists. This must be criticized, and looked at more seriously.
envío: What about the declarations made by Jung-Hecker, the former ONUSAL official?
Hernández: Jung-Hecker points out specific cases that reveal the lack of investigation into the human rights component, as well as the prevalence of political and diplomatic criteria about the human rights reality. It seems to me that those declarations should be received and responded to very seriously, so that, if these difficulties really did take place within ONUSAL, they not be repeated. I'm not clear about what sorts of internal measures have been taken, but it's logical to assume that, as the verifying agent overseeing human rights, it should have taken corrective measures.
The key is a structural error, which perhaps ONUSAL wasn't aware of, as this was its first experience of this sort at the time it was established in the country. Personally, I think ONUSAL's human rights section should have been autonomous from the rest of its verification components, so it wouldn't have had to be sifted through the overall political-diplomatic process.
Here's the verdict on this human rights component. It's been a very rich experience. It's a new body of international law as a mechanism to protect human rights, and that's very important.
But, at the same time, an error was made that should be corrected in the formation of future UN missions. Full legal autonomy should be given to the human rights component, rather than integrating it into the political and diplomatic work, where it suffers. If human rights violations are hushed up in order to not affect political and diplomatic interests, the human rights reality in this country and its progress is being sacrificed for a few political or diplomatic points.
Any human rights component should always be autonomous. It's natural that the defense of human rights won't have the political-diplomatic requisites that require saying nothing is happening, or not speaking out at all against either side.
envío: Will the mandate of ONUSAL's human rights section end on October 31?
Hernández: I think it will be extended for reasons of political logic, and also due to our country's reality. Although positive advances have been made, there has also been a lot of stagnation in human rights. Given a reality as problematic as human rights, it can't be left without adequate and qualified verification. In October, a new director of ONUSAL's human rights section will be named. This in itself is a relief, and we hope the section will be granted greater autonomy.
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