DPLF Team, with thanks to Ali Boyd for her assistance*

On March 24, 1980, Oscar Romero became the most emblematic casualty of the brutal civil war in El Salvador, which would go on to last twelve years. As the culmination of a deliberate state plot, he was shot and killed while celebrating mass. More than 75,000 civilian victims would come to share the fate of the Archbishop of San Salvador during the course of the war. Though the conflict was then in its infancy, Romero unequivocally denounced the violence, prophetically speaking directly to the death squads and to government officials during his weekly homily less than 24 hours before he was killed. The murder of the beloved Archbishop has galvanized the Salvadoran people for the last four decades. And with the canonization of Oscar Romero in October of 2018, the fight for justice at home – in the domestic court system – has once again captured the headlines.

Advocates have sought justice for Romero’s assassination at both domestic and international venues. However, from the beginning, the Romero case has faced numerous challenges. Civil society organizations have long warned that the investigation launched after Romero’s death was inadequate. In the face of government complicity and inaction, the UN-backed Truth Commission published its findings in 1993 and explicitly named those involved with Romero’s killing. Chief among the litany of names was Roberto D’Aubuisson, the founder of the ARENA right-wing political party. Despite Truth Commission’s identification of the perpetrators, the impunity resulting from the flawed State-run investigation was codified with the 1993 Amnesty Law that shielded those most responsible from prosecution.

When the Amnesty Law was passed, Tutela Legal del Arzobispado[1] filed a petition before the Inter-American Commission on Human Rights (IACHR). That body ruled against El Salvador in 2000, finding that the State had not protected the life of Romero and had violated the right to truth, a fair trial, and effective judicial protection.

Four years later, the first and thus far only person was found responsible in a court of law for Romero’s killing. A groundbreaking civil judgment won in the United States by The Center for Justice and Accountability in 2004 determined that Captain Álvaro Rafael Saravia, a member of the hit squad that took Romero’s life, was responsible for his death. (Saravia subsequently admitted as much in interviews with independent investigatory news outlet El Faro, chronicled here.) The judge in the case ordered Saravia to pay monetary damages to Romero’s family, which is important for its symbolic reparative value.  The judge also concluded that D’Aubuisson was the mastermind behind the assassination. While this undoubtedly represented progress in the Romero case, no intellectual authors of the crime (D’Aubuisson died in 1992) have been convicted or otherwise held legally accountable in El Salvador.

However, the domestic landscape has produced a window of opportunity. The high-profile canonization of Romero has triggered renewed interest, and with the repeal of the Amnesty law, justice can now be delivered by a court in El Salvador. At the end of 2016, the organization Tutela Legal “María Julia Hernández” requested that the Romero case be reopened. The presiding judge, Rigoberto Chicas, did so in May 2017 and ordered the Attorney General’s office to carry out the relevant investigations. Judge Chicas also ordered the arrest of Saravia, who remains at large. However, it appears that to date neither the Attorney General’s office nor the police have taken effective steps to carry out this order. (As the accused is presumed to be living outside of El Salvador, cooperation with Interpol is warranted.)

Judge Chicas also urged prosecutors to proceed with a serious investigation into the intellectual authors of this crime. The possibility that others will be named as the intellectual and material authors of the crime is one of the most critical developments yet in the Romero case. In noting that the hierarchy of those involved is “clearly visible,” Judge Chicas has echoed what others have affirmed since the first factual finding of the Truth Commission in 1993: that those most responsible for this notorious crime must be held accountable.

In this regard, Judge Chicas applied the newer criminal procedure law, in effect since 1998, which gives primary criminal investigatory authority to prosecutors. He argued that the Attorney General’s office was best equipped to take on such a complex investigation, rather than the judge himself, as would have been the case under criminal code in effect at the time of Romero’s assassination. However, the Attorney General’s office seems to be reluctant to comply with its duty to investigate. Prosecutors have continued to argue that the prior criminal code should apply, i.e. that the judge should lead the investigation.

The Attorney General’s office (under Douglas Meléndez, whose term ended in early January 2019) publicly supported the reopening of the Romero case. Nonetheless, Judge Chicas had to issue a reminder to the Attorney General’s office to comply with the Constitutional Court order invalidating the Amnesty Law, raising questions about the true commitment to this and other wartime cases. Furthermore, there are serious doubts about whether new Attorney General Raúl Melara, who has close ties to ARENA, will continue this incipient progress. For now, prosecutorial action on this case has been limited to pro forma requests for information from the judge, generally about facts already known regarding Saravia. It does not appear that the Attorney General’s office is carrying out in good faith Judge Chicas’ recommendation to pursue specific new lines of investigation, including those related to prosecution of intellectual authors.

Failure to comply with the repeal of the Amnesty Law remains just one obstacle of many that could threaten the resolution of this case. Lack of political will to seek justice for the victims of war crimes is also a serious problem. (Indeed, it has been argued that even more political will is necessary to move the Romero case forward as compared to other wartime cases, given that the powerful ARENA party is associated with the archbishop’s murder.)

The most troubling manifestation of these obstacles is in the formation of a legislative ad-hoc commission in June 2018 charged with creating a new National Reconciliation Law. This commission is comprised of members of Congress who belonged to either the armed forces or to guerrilla groups; as well as Rodolfo Parker, who is mentioned in the Truth Commission report as playing a role in covering up the 1989 Jesuit massacre.

Civil society groups in El Salvador have rejected the ad-hoc commission and have raised this matter before the IACHR. Congressman Parker recently issued draft text for a proposed “National Reconciliation Law” that is problematic on multiple counts. The most blatant is that the law would provide for a “full, absolute and unconditional” amnesty, which is prohibited under international law and by the Supreme Court judgment ruling against the prior amnesty law. The draft law likewise establishes a superficial definition of “crimes against humanity” and “war crimes” that does not comply with the universal acceptance of these terms under international law. Furthermore, it would inhibit victim participation, and eliminate criminal penalties for these crimes without requiring any reparatory action by the perpetrator (such as providing a formal apology or relevant testimony).

In response to criticisms, Congressman Parker recently resigned from the ad-hoc commission. However, he has not withdrawn the legislation, and so it continues to be under consideration.   Congress’ further handling of this proposal will be closely examined to see whether El Salvador is committed to satisfying the demands of truth and justice, or rather shielding officials from prosecution in a manner akin to the 1993 Amnesty Law.

While much remains to be seen, one thing is certain: civil society will continue to defend the right to know the truth. Through the many ups and downs of this case, human rights organizations have indefatigably called for a complete, impartial, and effective investigation. 39 years after Oscar Romero was assassinated, justice demands that the truth behind the killing of the people’s priest is finally adjudicated in a Salvadoran court.

[1]  Tutela Legal de Arzobispado was subsequently closed by Catholic authorities. As a result, the former staff founded a new NGO, Tutela Legal “María Julia Hernández”, which continues to represent the victims in this and other cases related to human rights violations committed during the civil war.

*Ali Boyd is currently a third year law student at American University Washington College of Law and was a legal intern at DPLF in 2018.