Leonor Arteaga, Senior Program Officer, DPLF

December 11, 2016 will mark the 35^th anniversary of the El Mozote massacre -one of the most emblematic crimes of El Salvador’s armed conflict. With at least 1000 victims, it is considered to be the worst massacre ever perpetrated against civilians –men, women, and children- by armed forces in Latin America. The massacre has regained public attention due to the recent reopening of criminal investigations into the case, 23 years after it was closed under the country’s then-valid Amnesty Law, which was recently declared unconstitutional.

Background

In December 1981, the US-trained Atlacatl Battalion of the Salvadorian Army conducted a large-scale military operation in the northern area of the Morazán department, where the village of El Mozote is located. In executing its operation, the Battalion carried out massive killings as part of a high-level counterinsurgency strategy designed to terrorize the population and to remove any possible source for guerrilla groups by exterminating entire rural villages, in a context of generalized and systematic human rights violations. In 1989, that same military unit committed another hideous crime: the execution of six Jesuit priests, their housekeeper, and her daughter at the local Jesuit University (UCA).

The first public reports of this 1981 crime came from two US media sources: The New York Times and The Washington Post, in January 1982. Journalists Raymond Bonner and Alma Guillermoprieto had traveled to the site, just days after the events took place, and had interviewed Rufina Amaya, one of the few survivors who spoke out. Later, Mark Danner reported the massacre in detail, first in the New Yorker and later on in a book; he also reported the cover-up by the Salvadorian government and the Reagan administration.

During the war, families and survivors began documentation and investigation efforts, including exhumations and testimonies, with the support of Tutela Legal del Arzobispado, the San Salvador Archdiocese’s human rights office. In 1990, an initial complaint about the case was filed before a local judge, when an effective and impartial prosecution for State crimes seemed impossible and when accusing military officers would put one’s life at risk. In 1992, the Truth Commission created by the United Nations recommended that the criminal investigation of this case be treated as a priority. This recommendation, along with the strong evidence presented by the victims’ representatives, would have been sufficient for prosecuting those who were responsible, but instead, the case was closed by means of the application of the Amnesty Law passed in 1993. Several subsequent petitions for reopening the case were rejected.

In the following years, successive Salvadorian governments, as well as the military sector, denied the existence of any State responsibility for the crimes committed -until 2011, when the government of then-president Mauricio Funes publicly acknowledged the State’s role[1] in the killings and apologized to the families of the victims, in compliance with the Inter-American Court’s judgment on the matter.[2] This shift in the government’s position brought some relief to the victims as a symbolic reparation, but it didn’t lead to any changes in terms of justice, until now.

The reopening of the criminal investigation

There seem to be grounds for hoping that the criminal case will finally be processed. On September 30, 2016, by petition of the victims, criminal court judge Jorge Guzmán Urquilla reopened the investigation into the El Mozote massacre. This historic judicial decision is the first issued in accordance with the July 13, 2016 Salvadorian Supreme Court judgment declaring the 1993 Amnesty Law unconstitutional.

In his resolution, Judge Guzmán Urquilla ordered the investigation of the high-ranking officers of the armed forces who led the war efforts during December 1981, including the former minister of defense, José Guillermo García, who was deported in January 2016 from the US precisely for committing human rights abuses while in office. The Judge also ordered the release of military records from the time of the massacre. Sectors affiliated with the military quickly rejected this decision.[3] So far, various government offices involved with records have facilitated the requested information. Two of the officials under investigation have named defense attorneys. The next step should be the issuing of arrest warrants, but due to the historical weakness and submissiveness of the judiciary, and the political power still held by the accused, this is yet to be seen.

In addition, it is not clear whether the Office of the Attorney General will act independently and with due diligence in the criminal investigation. First, the week before Judge Guzmán Urquilla issued his decision on the El Mozote case, the Attorney General opposed the reopening of the case. DPLF and other organizations signed an open letter rejecting this position, which ran against both human rights standards and the Attorney General’s own mandate. Second, the precise nature of the appropriate role of the prosecutors in this case is not quite clear due to a procedural law issue. In short, the case was initiated when the inquisitorial system was in place and investigations were led by judges; El Salvador has since implemented an adversarial procedure where prosecutors are in charge of investigating and presenting cases before a judge. The issue, however, is that Judge Guzmán Urquilla decided that this case will be conducted according to the inquisitorial system that used to be in place. In fact, in his resolution the judge issued no orders to the Office of the Attorney General, nor did he call upon it to come forward as a party in the case, as he likely would have if he had followed current adversarial procedure.

The victims and their communities are well-organized and willing to keep fighting for the truth, as well as for justice. However, there are security concerns related to possible threats and pressure against Judge Guzmán Urquilla, the representatives from the organization Tutela Legal “María Julia Hernández”[4] and the victims themselves.

 The parallel judicial process

After the judgment from the Inter-American Court was rendered, and given that the criminal case remained closed, victims filed a request before a different judge from the El Mozote area, Mario Soto, to protect their rights by allowing the continuation of exhumations on the site of the massacre and the provision of psychosocial support to the victims, as a form of reparation by the State.[5] Some victims also denounced before Judge Soto that at that time, some prosecutors, instead of conducting investigations on the perpetrations, were visiting their communities with the aim of having them waive their right to pursue justice.

In several pioneering resolutions, Judge Soto ordered the Office of the Attorney General to refrain from harassing victims. He also granted the continuance of the discovery and identification of the exhumed remains by international experts from the Equipo de Antropología Forense de Argentina, and a dignified delivery to the families, as well as the provision of psychosocial support for the victims -all extremely important issues. It is still unknown whether the two legal processes will be merged. Moreover, there is concern about the possible risk that the Attorney General’s Office will attempt to move the case forward only with the exhumations measures while avoiding the prosecutions in order to stall any judgment on those responsible. According to local news source El Faro,[6] when the Attorney General’s Chief of Press was asked by that source whether the Office of the Attorney General would undertake a reopening of the criminal investigations on the case, the interviewee replied that the priority was to continue with the exhumations process.

Beyond the El Mozote case and the Amnesty Law

Following the return to peace, and even during the war, the victims, represented by human rights organizations, filed complaints before the criminal courts of serious human rights violations and international crimes. As indicated above, after the judicial reform toward an accusatory system, these complaints were submitted to the Office of the Attorney General to investigate the facts and bring the appropriate criminal actions. According to information gathered by Salvadorian organizations and the Ombudsman’s Office, these cases, numbering at least fifty, remained open for years in their initial phases without any type of procedural activity, in spite of the persistence and cooperation of the victims; in some cases, they were simply shelved without the investigation into the perpetrators having been concluded. Just a few investigations were actually closed, by applying the Amnesty Law. The systematic denial of justice was mostly attributable to the inertia of judicial authorities and to their willingness to cover up the actions of the perpetrators, rather than to the Amnesty Law itself.

Among those cases closed by the Amnesty Law are the assassination of Monsignor Oscar Romero and the material (not intellectual) perpetration of the Jesuits massacre. These should thus be the other landmark cases to be re-opened by criminal judges with the consent and collaboration of the Office of the Attorney General, in light of the Supreme Court’s decision to overturn the Amnesty Law. It is also expected that the Attorney General will demonstrate progress in the cases submitted by victims and their representatives over the years, such as those discussed above, that have as yet remained inactive. This would require the design and implementation of a specialized unit and a comprehensive prosecutorial strategy within the AG’s Office. The comparative experience of the Guatemalan Office of the Attorney General in the investigation and prosecution of armed conflict cases would be very helpful. Collaboration among both Offices are already in place for other legal matters.

There are also criminal and procedural law challenges that are slowly resurfacing after the invalidation of the Amnesty Law. In addition to the transition from an inquisitorial to an adversarial system (mentioned above), these challenges could include the absence of definitions of international crimes in the criminal codes (or their inclusion subsequent to the acts in question), evidentiary complexities related to the passage of time, and the handling of historical records. Again, in the comparative experience of Guatemala, Chile, Argentina, and Peru, among other countries, many of these obstacles have been overcome by a healthy dose of political will and specialized technical capabilities. In El Salvador, the Office of the Attorney General and the criminal judges have not been quite dedicated to these debates so far. An active and professional civil society and a committed academia will have to take the lead, especially since technical improvements will only go so far in addressing what are fundamentally political problems.

The international community should remain attentive to the development of these cases and support efforts for ending impunity in El Salvador.

[1]BBC News, “El Salvador sorry for El Mozote massacre in 1981,” December 11, 2011

http://www.bbc.com/news/world-latin-america-16129116.

[2] Inter-American Court of Human Rights (I/A Court HR), Case of the Massacres of El Mozote and Nearby Places v. El Salvador, Merits, Reparations and Costs, Judgment of October 25, 2012, Series C, No. 264. In this judgment I/A Court HR examined the application of the Amnesty Law in relation to the criminal investigation of the massacre. It found the law invalid and ordered the State to take the necessary measures to ensure that the amnesty would not block criminal prosecutions:

Given their evident incompatibility with the American Convention, the provisions of the Law of General Amnesty for the Consolidation of Peace that prevent the investigation and punishment of the grave human rights violations that were perpetrated in this case lack legal effects and, consequently, cannot continue to represent an obstacle to the investigation of the facts of this case and the identification, prosecution and punishment of those responsible, and they cannot have the same or a similar impact in other cases of grave violations of the human rights recognized in the American Convention that may have occurred during the armed conflict in El Salvador.

[3] El Diario de Hoy, “Gral. Otro Romero: nos somos los malos de la película”, October 1, 2016

http://www.elsalvador.com/articulo/sucesos/gral-otto-romero-somos-los-malos-pelicula-127125

[4] Tutela Legal del Arzobispado was abruptly closed by Catholic authorities in October 2013. The ex – members founded a new human rights organization, Tutela Legal “Maria Julia Hernandez” and kept the legal representations of El Mozote case.

[5] The State has approved an Executive Decree to comply with the Inter-American Court’s judgment, and on this basis an inter-institutional roundtable has been created to coordinate the carrying-out of reparation measures.

[6] El Faro, “Juez ordena reapertura del caso El Mozote y llama a juicio al Alto Mando de 1981,” September 30, 2016,