Leonor Arteaga*

1982 was a dangerous year in El Salvador. The civil war had officially begun two years prior, and by then, security forces had already committed a series of massacres against the peasant population in the country. In August of that year the armed forces focused on the San Vicente department, launching a military operation in areas deemed to be hotbeds for insurgency. As word of the military offensive spread, the community members began running towards the hills, though not everyone reached safety.

After days of bombings, on August 22, armed soldiers attacked the region by land. In the riverbanks of Amatitán River, the Atlacatl Battalion – which months before had executed close to 1000 civilians in El Mozote – encircled at least 200 civilians, many of them pregnant women, elderly people, and children, in a zone known as El Calabozo or “the dungeon” due to its depth. Here, they would be killed. According to survivors’ accounts, many of the bodies were thrown to the river after the execution, and many others were sprayed with acid and then burned, in order to make it impossible to identify those murdered. The horror presented in these scenes tells the tale of a well-orchestrated plan executed at the highest level and with precision.

Years later, thanks to investigations by survivors and human rights organizations, it was revealed that the Armed Forces had carried out operation “Lieutenant Coronel Mario Azenon Palma”; other massacres were committed under the same military operation, as well as the disappearances of at least 25 children.

In March 1993, the United Nations Truth Commission, established by the Peace Accords, published their iconic report, which included the case of El Calabozo among 32 paradigmatic cases on the patterns of violence in the war. Its conclusions on this specific case were categorical: “There is sufficient evidence that on 22 August 1982, troops of the Atlacatl Battalion deliberately killed over 200 civilians – men, women and children – who had been taken prisoner without offering any resistance (…) Although the massacre was reported publicly, the Salvadorian authorities denied it. Despite their claim to have made an investigation, there is absolutely no evidence that such an investigation took place. The El Calabozo massacre was a serious violation of international humanitarian law and international human rights law.”

The Commission also indicated that “On 8 September, two weeks after the incident, the massacre was reported in The Washington Post. The Minister of Defense, General José Guillermo García, said that an investigation had been made and that no massacre had occurred. He repeated this assertion in an interview with the Commission.” In 2016, Garcia was deported from the United States to El Salvador due to his involvement in this massacre and many other human rights violations. Since 2017, he is being tried for his responsibility in the criminal acts committed in El Mozote, while he oversaw national defense.

The judicial process

The end of the war brought hopes for justice which would very soon be dashed. In 1992, survivors of the El Calabozo massacre and their family members filed a lawsuit in the court with jurisdiction over where the killings took place (Court of First Instance of San Sebastian). The judge at the time ordered investigations to be carried out, though they were never actually followed through. After the approval of the Amnesty Law in 1993, though it was not formally applied in this case, the investigation lost traction and eventually the case was archived.

For their part, the victims, accompanied by the «Madeleine Lagadec» Center for Human Rights Promotion (CPDH), continued the fight to determine the truth about this criminal act and keep the memory of the atrocities alive.

In 2006, after compiling additional evidence, these groups presented a formal accusation to the same San Sebastian court, adding itself to the initial accusation. On this occasion, they accused 6 senior military officers, including Sigifredo Ochoa Pérez, of 5 serious crimes committed during the massacre, and called for the reopening of the case. By then, a new judge continued the line of denials: he ordered that the case remain in «state of archive,» arguing the validity of the amnesty and the statute of limitations.

The Constitutional Court of the Supreme Court to the rescue

In 2010, the victims and their representatives presented a writ of amparo to the Constitutional Chamber within the Supreme Court of Justice against the San Sebastian court for the denial of the right of access to justice.

There was little to no progress until July 2016. That year, the Constitutional Chamber, in a long-awaited decision, declared the 1993 Amnesty Law to be unconstitutional with respect to all crimes against humanity and those war crimes which constitute violations to the fundamental guarantees of Additional Protocol II to the Geneva Conventions, committed by any of the parties that participated in the conflict, such as the ones that occurred in El Calabozo.

The Court also indicated that prosecutors should give priority to the cases highlighted in the Truth Commission report, along with those that have been the object of investigations and accusations by the corresponding authorities regarding El Calabozo.

In November 2016, the same Chamber favorably resolved the amparo filed in 2010: it declared that the judicial refusal to investigate the massacre generated a violation of the constitutional rights of the surviving victims and ordered the reopening of the case to determine those responsible.

Reopening the cases

Finally, by December 2016, and with respect to both the amnesty and the amparo, the case was “unarchived” by the court under Judge Joaquin Humberto Padilla. However, no further progress occurred at that time.

Almost a year later, in November 2017, the Constitutional Court followed up on the granted amparo. This time, the judge began taking the right steps, likely following up on the decisions being taken in the case of El Mozote.

First, Judge Padilla requested information from the Ministry of Defense regarding the military history of the accused who were identified by the victims in their 2006 petition. However, an answer to this request has not yet come to light. This resistance by the armed forces to collaborate in the justice process exists even today, in the era of democracy: these actions repeat themselves every time they are asked for any information.

Despite this, the criminal process remains open and ongoing, although oral hearings have not yet been held, for example, to charge the accused or to take testimony. In January 2018, the same judge ordered an investigation at the scene of the massacre, and recently more exhumations have been carried out that confirm what was already known by the survivors.

In this new stage, the CPDH has continued representing the victims, now with support from lawyers from Cristosal, who are also the private prosecutors in the case of the El Mozote massacre.

The Office of the Attorney General

This process has followed the path of other judicial cases that have been reopened after the invalidation of the Amnesty Law. The judge is guided by the criminal procedural law of the time, of an inquisatorial nature, which enables him to conduct investigations directly rather than wait on prosecutors. However, in practice, the logic of the case, and the evidence and arguments developed, follow the guidelines set by the victims’ representatives. While the Office of the Attorney General is not obstructing investigations as it did in past decades, it is still passive, sometimes due to a lack of specialized knowledge in international crimes, such as those at El Calabozo, and in others, due to lack of will of its highest representative, the Attorney General.

Without detracting from the efforts of the group of prosecutors in charge of this and the other cases regarding the war, it must be noted that even without amnesty or the misapplication of statutes of limitations, there has been little change in terms of impunity in the country: we see dispersed investigatory efforts that do not seem to respond to a clear theory of the case, and form no part of a specialized strategy for this type of crime; little initiative to present evidence; and difficulty in following lines of investigation that take into account the context and information that victims have already presented in the process.

According to the standards of due diligence, in cases such as this, the authorities in charge of the investigation have a duty to ensure that the systematic patterns are evaluated, as well as the structures in which these defendants may have been involved in, thus avoiding omissions in the collection of evidence and in following up on investigations.

Declassified information from the United States offers evidence on one of the accused

In 2015, the Center for Human Rights at the University of Washington (UWCHR) brought a lawsuit against the Central Intelligence Agency (CIA) of the United States for withholding documents containing information on the Salvadoran Colonel Sigifredo Ochoa Pérez. According to the UWCHR, the information the CIA had refused to give in the first place was related to the retired military officer’s involvement in grave human rights violations which took place at the beginning of the war, in the departments of Cabañas, Chalatenango, and San Vicente, as well as the El Calabozo massacre, while he would have commanded troops or assisted with other army units.

Responding to the lawsuit filed by the UWCHR, the CIA stated that they could neither confirm nor deny the existence of files that contained information on the involvement of Ochoa Perez in military operations that ended in massacres against the civilian population. The CIA claimed national security reasons for not delivering these documents or even acknowledging their existence.

In an April 2015 interview with the Salvadoran newspaper El Faro regarding his supposed participation in El Calabozo, Ochoa Pérez implied that the accusations against him were “invented.” The colonel also insisted that his job was to defend the country and fight guerrillas with full force “because they were not throwing flowers.” To this day, it is not known whether the Attorney General’s office will use this information as part of their investigations.

As a result of the lawsuit, the CIA sent the UWCHR copies of 140 documents. More than half of these documents were previously classified. Among them, one intelligence document names Ochoa as the mastermind and leader of Operation Azenon Palma, which resulted in the massacre.

In 2017, the UWCHR presented a broader lawsuit against the Department of Defense of the United States for refusing to give them access to documents regarding three military operations – Operation “Rescate” (Rescue), which resulted in the El Mozote massacre; Operation “Mario Azenon Palma”, which included the massacres in El Calabozo and La Conacastada, along with dozens of forced disappearances; and an operation in Chalatenango known as “la Guinda de Mayo”, in which approximately 100 individuals were executed and disappeared. This lawsuit, still in progress, has resulted in 43 documents being delivered to the Center, 37 of which were previously classified. More documents will be delivered in the coming weeks.

Symbolic recognition

In August 2016, as the criminal process was beginning to falter, the government, through the Secretariat of Culture and by initiative of the victims, declared the site of the massacre as a “protected cultural property.”

A year later, in August of 2017, during the 35^th anniversary of the massacre, the government performed an act of public recognition and apology for these acts, as recommended by the Office of the Ombudsman for Human Rights. The ceremony took place where the acts were committed, and where the victims and the community had built a memorial years before. Liduvina Magarí, Vice Minister for Salvadorans Abroad within the Ministry of Foreign Affairs, presided over the ceremony on behalf of the President. I was present for these acts and was able the witness the importance of having this event for those who, for decades, have felt invisible.

Surely, both actions marked a different type of relationship with the State, one based on a more dignified treatment and the restoration of a certain level of trust. For the populations of the area, which were terrorized and persecuted by state agents during the war, those gestures became one of the few moments in which the State paid attention, and recognized the damage that was caused.

However, this public validation of their pain – while both important and necessary – is contradicted by the insufficient support given by the government to justice processes, added to the lack of interest by judicial authorities to determine the truth of what happened, to find all possible victims, and punish the perpetrators. During the recognition ceremony, the victims made their demands known in terms of this debt that is still owed to them. They also felt that the regret, apology, and claims of non-repetition will not be completely satisfactory, as long as they do not come from the perpetrators themselves or the sectors to which they belong. The Armed Forces, as the democratic institution that falls under civilian rule, has refused to review its checkered past or to distance itself from the legacy of atrocities committed.

What comes next?

This case comes when the country has been redefining its view of the past, and represents an unprecedented opportunity to respond to an important sector of society that has waited decades for the clarification of the truth. However, it is yet to be seen whether the new members of the Constitutional Chamber and the newly-selected Attorney General, who has been politically close to the right-wing ARENA party (historically affiliated with military sectors), will work to advance accountability for crimes of the past. The upcoming presidential election must also be noted. The results of these changes, whatever they may be, should not mean the end of justice for atrocities, which is still in its infancy.

It will be important to see if the Court can conduct an effective investigation that will conclude in a restorative way for the victims, based on due process. If so, it will be a significant step forward, demonstrating that the criminal justice system in El Salvador is in favor of never again.

*Senior Program Officer, DPLF