Naomi Roht-Arriaza

President of the Board of Directors of DPLF

Professor at Hastings College of Law, University of California

Versión en español

After years of deliberations, the Constitutional Chamber of El Salvador’s Supreme Court ruled on July 13 that the country’s 1993 amnesty law is unconstitutional and must be stricken. The 4-1 decision, although long expected, has caused uproar in El Salvador, where neither side in the civil war has been supportive of prosecutions for past crimes and where rampant criminality and insecurity are present-day scourges. The four-person majority of judges Sidney Blanco, Florentín Meléndez, Rodolfo González and Eliseo Ortiz, grounded the decision in the rights of the victims to access to justice, to judicial protection of fundamental rights, and to full reparations. It makes extensive use of international law, especially the jurisprudence of the Inter-American Court of Human Rights. It will provide new hope for the long-suffering victims of the country’s twelve-year civil war, but will also complicate the country’s politics and challenge a weak and compromised prosecutors’ office.

The complaint was brought by a number of NGO representatives and victims of rights violations, alleging that the amnesty law was illegally passed and violated El Salvador’s international commitments and constitution. The 1993 amnesty was passed to deal with the crimes of both sides in a civil war that cost some 75,000 lives. The amnesty was passed just three days after a U.N. sponsored Truth Commission issued its report. The Commission found that most of the massacres, assassinations, forced disappearances and torture committed had been carried out by the armed forces or by death squads connected to them.

The text of the decision

The Court first dismissed the procedural illegality argument, but used the occasion to note that the amnesty was not, as the Prosecutors’ office argued, a part of the peace accords that ended the civil war. On the contrary, those accords had stressed the need to end impunity for human rights violations. The Court thus confronted head-on one of the central myths of the country’s political classes, that amnesty was required by the peace accords. Rather, the Court held that the legislature had to balance the need for reconciliation with the need for justice for the victims. It cited with approval in this regard the 1992 Law of National Reconciliation, which provided amnesty for political crimes, but expressly excluded “grave violent events from January 1, 1980 on, which have left their mark on society, and demand the most urgent public knowledge of the truth” that were mentioned by the U.N.-backed Truth Commission.

In its July 13 judgment, the Court held that the amnesty is unconstitutional as applied to all crimes against humanity and those war crimes that violate the fundamental guarantees of Protocol II of the Geneva Conventions, committed by either side in the conflict. The amnesty violates the country’s international obligations to investigate and prosecute under the International Covenant on Civil and Political Rights, the American Convention on Human Rights, Protocol II, and the constitutional right of the victim of a crime to civil damages and to judicial protection of fundamental rights. Regarding war crimes, although Protocol II calls for the “widest possible amnesty,” that provision must be read in light of all the country’s international obligations, and the amnesty cannot be absolute. With respect to crimes against humanity, those crimes are by definition not subject to amnesty or statutes of limitations and are subject to universal jurisdiction.

To potential critics who argue that peace processes require different rules from other types of transitions (see, for example, Judge Garcia Sayán’s concurrence in the Inter-American Court’s El Mozote case) the Court explained that while a certain “margin of appreciation” was allowed in the implementation of punishments based on the degree of responsibility of the perpetrators and even based on transitional justice considerations, that doesn’t mean that legislators could ignore the commitments and basic constitutional and international obligations of the State with respect to the judicial protection of rights.

The Court had ruled in 2000 that the amnesty law could not stand in the way of investigating and prosecuting cases that involved violations of fundamental human rights. The Prosecutors Office never took up that invitation to interpret the amnesty law as limited in human rights-related cases. The current decision laments the fact that its earlier holding didn’t have the desired effect of opening investigations, that apparently an interpretative move was insufficient to overcome impunity, and that therefore a declaration of absolute unconstitutionality was needed.

The decision adds to the extensive regional and international jurisprudence on liability for international crimes. It refers to the existence of an organized apparatus of power that not only ordered or committed atrocious crimes, but did so as part of a pattern of criminality, rather than as isolated cases. Therefore, penal responsibility extends to the direct perpetrators, those who gave orders and those who, in positions of command, could have avoided the crimes and did not. The Court calls on the authorities to prioritize and organize the cases accordingly.

It also reaches the same conclusion as other courts with respect to statutes of limitations. On statutes of limitations, the Court finds that the non-applicability of statutes of limitations for war crimes and crimes against humanity is now both customary law and a rule of jus cogens, and doesn’t depend on a State having ratified the UN Conventions on the subject. To the argument that whatever its current status, that norm had not crystallized at the start of the civil war, the Court refers to the language of Protocol II: breaches that are prohibited “at all times” implies that temporal limitations on their prosecution do not apply. And moreover, the statute of limitations would have been tolled in any case by the inability to prosecute from 1993 until now.

Dissenting judge Belarmino Jaime rehearsed some of the common arguments against invalidating amnesties. He began by agreeing with the majority that terrible human rights violations were committed, and should be punished. However, he argued that the Court had overstepped its jurisdictional authority and ignored areas of constitutional law. His argument was, first, political: the legislature had good reasons to pass both an amnesty and to undo the 1993 amnesty risks reopening conflict. El Salvador did enact a law declaring no statute of limitations on certain grave crimes, but they did so only prospectively and in 1996.

The decision to allow reopening of cases that would otherwise be subject to an expired statute of limitations is contrary to the constitutional principle of legality (non-retroactivity of law), he argued. Some crimes can be imprescriptible, but the declaration of imprescriptibility cannot itself have retroactive effects. Moreover, the judgment constitutes in practice an annulment of the law rather than a declaration of unconstitutionality, and this Court has no power to annul the law with retroactive effect. It also constitutes a violation of judicial security and ne bis in idem, in that potential defendants had a due process right to rely on the closing of their cases due to the amnesty law. Not doing so violated the rule against double jeopardy, and the penal law rule that when there is a change in the law during the course of a proceeding, the law most favorable to the defendant prevails. Nor did the majority take into account El Salvador’s reservation to its acceptance of the jurisdiction of the Inter-American Court, which expressly limited jurisdiction to future acts or laws. It ignored the reservation even while treating international law as directly applicable, when it is actually just an interpretative aid to constitutional law.

As to the right to the truth and reparations, the dissenting judge argues that these can and should be untied from criminal prosecutions. Even if prosecutions do not go forward, the state can and should develop a reparations program (citing decisions from Colombia and Peru on the subject).

Now what?

With the annulment of the 1993 law, the Court specified that the earlier 1992 National Reconciliation Law governs, to the extent it is consistent with the current judgment. Prosecutors should prioritize those cases cited in the Truth Commission report, as well as those others of equal or greater gravity and importance, that can be imputed to either party in the war, and that have been the subject of investigation and indictment by the proper authorities.  This gives rise to some ambiguity: while most of the cases discussed in the Truth Commission report have a record of proceedings that was closed when the amnesty law was passed, it is unclear what happens to those cases that have no preliminary proceedings, or even no complaint. The Court makes clear that the cases that do have initial investigations should be reopened and pursued, that the legislature may not pass a new limitation on prosecution of these cases, and that defendants may not raise claims of settled expectations or ex post facto law to defeat investigations and prosecutions. In addition, the Court affirms that those cases involving state actors during the presidential period in which the amnesty was passed, that is, 1989-93, cannot be amnestied under Art. 244 of the Constitution.

The Truth Commission’s mandate was to pursue grave acts of violence, not to legally determine whether these violated international criminal law. It received 23,000 testimonies, which resulted in a list of 13, 569 cases that needed investigation. Its report discussed 32 cases in detail. The Truth Commission report, however, makes clear that it is detailing “illustrative” cases, and its report by no means exhausts the number of similar incidents that took place in the context of the armed conflict. Thus, the Court could not limit its decision only to the cases named in the report. One way to read the decision is as a map for prosecutors to prioritize those cases mentioned by the Truth Commission, while not shutting completely the door to others. The Court thus tries to answer the objection that, especially given the glut of current cases, reopening all possible cases of crimes against humanity and war crimes would overwhelm the courts. It remains to be seen whether the Prosecutors’ Office will take the hint, or will deliberately atomize and disperse the cases into thousands of individual events.

The Court calls on the legislature to facilitate access to information about the crimes, make available the necessary resources to investigate, prosecute and punish those responsible for the crimes, and make possible true and integral reparations. It also indicates that judges may issue reparations awards as part of criminal sentences. The insistence on reparations measures will hopefully jumpstart the government’s fitful efforts at reparations, which have stalled on a lack of adequate budget and political commitment.

A long, hard road lies ahead. The government has said that it supports the Court’s decision, which is not reviewable. However, military spokespeople and politicians are already warning of witchhunts and chaos. The Prosecutors office defended the amnesty law before the Court, and has used it as a shield to avoid bringing cases. It will no longer have that shield, but without adequate budget and security for prosecutors, judges and witnesses, the Court’s decision may not translate into action. Moreover, serious investigations of complex crimes will require the creation of a special investigative unit like those used in other Latin American countries, including neighboring Guatemala. So far, it is not clear that the current prosecutor has the appetite to set up such a unit.

Both sides have worried that a reopening of cases will reach the economic and political elite of the major political parties, with unpredictable results. Many elite voices have called on the authorities to prioritize current gang warfare, widespread extortion and organized crime, and corruption cases above the now 20+ year old cases arising from the war. However, the vicious methods used by criminal organizations, the heavy-handed police response, and the lack of attention to civilian victims are, at least in part, legacies of the war. The impunity for crimes of the past facilitates impunity for current crimes. By breaking the former, it may be easier to attack the latter. At least that is the hope that this decision provides.