The Uncertain Future of Reparations in Post-Conflict El Salvador

Leonor Arteaga and Amanda Eisenhour*

  • Civil society has pushed the government of El Salvador to establish both symbolic and material reparations programs for war victims through executive decrees.
  • These programs, while crucial first steps, have been plagued since their inception with chronic underfunding, ineffective and splintered bureaucracy, and the exclusion of victims.
  • These programs could be at greater risk as the Bukele administration dissolves a key department implementing reparations, and the programs remain without legislative backing.

Between 1980 and 1992, El Salvador was immersed in an armed conflict that took at least 75,000 lives; its human costs included more than 8,000 disappeared people and countless victims of torture, sexual crimes, and other human rights violations. Government forces massacred and displaced over a million people, predominantly rural workers. The armed forces and death squads allied with the government committed these grave violations against people considered to be political opponents, such as students, teachers, trade union members, and individuals involved in the social work of the Catholic Church. The opposition force FMLN was also responsible for acts of sabotage, selective killings, and other forms of violence against civilians, although to a much lesser extent.

To end this devastating civil war, the government and guerrilla groups signed a final peace agreement in 1992, overseen by the United Nations Secretary-General, which included reforms to economic, security, and judicial institutions, along with numerous commitments to uphold human rights for victims. In theory, a major pillar of these accords was overcoming impunity for grave human rights violations. Nonetheless, legal and political obstacles to accountability, including a blanket amnesty law, were implemented, encouraging the society to forgive and forget those responsible for the widespread violence

Twenty-six years have passed since the Commission on the Truth for El Salvador issued its report. Despite significant advances in the fight for truth, justice, and reparations for victims, there remains significant state resistance to changes in the post-conflict status quo.

 Transitional Justice, Reparations, and International Human Rights Law

Reparations are essential to Transitional Justice processes because they directly address the suffering of victims, both in taking steps to redress the harms already committed against them and their families, and to improve their current quality of life. Further, when well implemented, reparations express to victims and wider society that the state is committed to addressing the root causes of past violations of human rights, and guaranteeing non-repetition. Multiple international and regional instruments, including the UN Declaration on Human Rights and the Inter-American Convention, recognize the right to effective judicial remedy for human rights violations, which have been clarified in both jurisprudence and international instruments to include reparations to victims.

The UN Basic Principles and Guidelines on the Right to a Remedy and Reparation outline five major categories of reparations owed to victims of grave human rights violations: restitution, or the restoration of the victim to their living situation before the violation occurred; compensation for any “economically assessable” damage or costs resulting from the violation; rehabilitation, consisting of medical, psychological, legal, and social services; satisfaction, which includes public apologies, the search for truth, the prosecution of those responsible for the violations, and memorials/tributes to the victims; and guarantees of non-repetition, or institutional reforms to prevent future violations. Reparations are also often classified as material, tangible benefits for victims and their communities such as infrastructure development, psychological counseling and monetary compensation, or symbolic, such as formal acknowledgements of responsibility, legal and political reforms, and sites of historical memory. Reparations may also be individual, owed to a uniquely identified individual victim of a human rights violation, or collective, owed to the community as a whole that suffered from a single or series of human rights violations.

In post-conflict contexts such as El Salvador, implementing a comprehensive reparations program capable of responding to grave violations of human rights that have affected thousands of people requires a strong political and fiscal commitment by the state. Such a commitment should be based on a shared understanding of how the country sees its past and its obligations to victims, especially considering that victims often lack the political power to ensure the government respects those obligations, and the state rarely prioritizes the perspectives of victims when returning to a state of peace. This is still a struggle in El Salvador, where perpetrators from both sides of the conflict (military and guerrilla groups) retain positions of power. As a result, most efforts to satisfy the right of victims to reparations have resulted in limited progress, and initial commitments have been hampered by insufficient political will.

Decades Later: Some Progress, Many Obstacles

Following decades of denial of past atrocities, in 2009 the FMLN (a left-wing party formed by former guerrilla members) rose to power for the first time with the promise to heal the wounds from wartime. The new government opened regular dialogues with victims, experts, and civil society to address the massive human rights violations committed during the country’s internal armed conflict.  Then, in 2010—18 years after the peace accords were signed –then-President Funes officially and publicly acknowledged the state’s responsibility for the human rights violations committed during the internal armed conflict, and later created a national commission for the search of children who were forcibly disappeared. His successor, President Sánchez Cerén, subsequently installed a similar commission for the search for forcibly disappeared adults. These commissions continue to operate today and have achieved notable successes

After extensive pressure from civil society, the state has also formally acknowledged responsibility and apologized for specific cases, including the El Calabozo massacre, the San Francisco Angulo massacre, the Las Canoas massacre, and the assassination of Archbishop Romero. Although delayed for many decades, these state efforts to establish the truth, identify victims, and take responsibility are important advances in symbolic reparations for the massive violations committed during the conflict.

Despite this progress towards symbolic reparations, material reparations have lagged further behind. After 21 years, the government approved (in 2013) and partially implemented (in 2015) a Reparations Program via Presidential decree known as CODREVIDH. While on paper, this program emphasized a comprehensive set of both individual and collective reparations measures encompassing indemnification, rehabilitation, dignity, and guarantees of non-repetition, in reality the program was almost entirely focused on monetary reparations, which themselves left much to be desired. Human rights groups criticized the program for being overly bureaucratic and severely underfunded. They have also criticized the program’s formula for paying reparations that resulted in a small monthly payment of $15-50 per victim. This paltry payout was in place for only a few months because the Program did not have enough money to continue. Additionally, the government office responsible for maintaining complete lists of victims, has been slow to add the names of victims and indicate their eligibility for reparations: in 2017, only 4.4% of the estimated 5,000 conflict victims received reparations. Further, this Program is not designed to address the needs of female victims, although many women suffered sexual violence, torture, forced displacement, or illegal incarceration during the conflict, and are family members of disappeared people.

El Salvador has also implemented reparations measures in compliance with five different judgments from the Inter-American Court of Human Rights, regarding forced disappearances of children and the El Mozote massacre. In the case of the El Mozote Massacre, the government created a reparations commission, based on a 2016 Presidential decree, to identify victims of the massacre that should benefit from the collective social development programs and indemnifications required as reparations by the 2012 Inter-American Court decision. The state has complied with the majority of the symbolic reparations,  including formal apologies for the El Mozote massacre and the disappearances of the Serrano Cruz sisters, the Contreras brothers, and Rochac Hernández and others,  as well as indemnification payments. However, the Court’s 2018 supervisory ruling in the El Mozote case indicates that the state has yet to implement the required collective reparations programs, especially the provision of physical and mental health services, and the development of housing and economic infrastructure that would allow internally displaced victims to return to the region. Further, the obligation to investigate and punish those responsible for the violations in each case has not yet been fulfilled, as the few trials that have been opened face major procedural hurdles and military obstruction.

Civil Society Keeps the Pressure On

The UN Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Fabián Salvioli, who recently conducted an official visit to El Salvador to evaluate the country’s transitional justice process, criticized the reparations programs and urged the government to adopt “a comprehensive reparations policy for victims…designed and implemented in coherence with current international standards.” In particular, Salvioli expressed concern that only four prosecutors were assigned to handle the 148 cases of grave violations of human rights abuses submitted to the Attorney general’s office thus far. As a result, investigations were opened in only 46 cases, only 16 cases were brought to the courts, and none have reached the trial stage. Reducing this systematic impunity is imperative: reparations programs are more effective in combination with truth-seeking, criminal accountability and commemoration initiatives to prevent the perception of monetary reparations as a form of “transactional” justice meant to silence victims.

Given the deficiencies with the Reparations Programs established by presidential decree, victims groups and CSOs have been pushing Congress to pass a comprehensive reparations law for many years, without success. However, in 2016, the Constitutional Court annulled a blanket Amnesty Law that had been in place since 1993, which has allowed cases that stagnated for years in the justice system to finally move forward. In the same decision, the Court ordered Congress to legislate on reparations. In 2017, DPLF provided technical assistance to several CSOs and victims in the process of writing a comprehensive draft law for reparations, and helped create an advocacy group to present it to Congress and promote its approval. This group and the Roundtable Against Impunity coalition (16 CSOs and victims groups) also presented in May an updated draft law in response to the efforts of lawmakers to pass a new amnesty law, which the legislature still has yet to seriously consider. In the wake of the constitutional court decision to extend the period of compliance with their 2016 ruling to pass a new reparations and reconciliation law, Cristosal, CEJIL, Tutela Legal Maria Julia Hernández, and Probúsqueda reiterated their call to the legislature a week later to abstain from passing a new amnesty law and instead consider civil society’s proposal.

These existing reparations programs -CODREVIDH and El Mozote- , although far from perfect, are important steps towards guaranteeing the right to reparation for victims of the armed conflict. However, although the newly elected President Bukele recently promised in a meeting with El Mozote victims to promote increased “urgency” in the provision of the pending reparations ordered by the Inter-American Court, these programs are at risk of collapsing after the dissolution of the Department of Social Inclusion (SIS), responsible for maintaining the victims’ registries for the El Mozote and general reparations programs, ostensibly as part of a larger bureaucratic reorganization to promote efficiency.

In a press conference on June 27th, civil society organizations and victims’ groups expressed concern about the abandonment of reparations efforts, especially the 2013 general Reparations Program, because of the dissolution of the SIS, the lack of funding for reparations from various government ministries, and the continued exclusion of thousands of names from the official victim registries and thus symbolic or material reparations. Moreover, the government has severely lagged in the provision of physical and mental health services to victims, and has not opened dialogue with survivors of massacres other than El Mozote. On July 9th, victims of the El Calabozo massacre called on Bukele to immediately reassign the functions of CODREVIDH to another department to restart the work of compiling victims’ registries and implementing individual and collective reparations.

Without a dedicated political and fiscal effort of the legislature and the Bukele government to ensure sustained and sufficient appropriations for a comprehensive reparations program, such as the law proposed by civil society, the meager progress made towards substantive reparations for conflict victims in El Salvador is in danger of being lost to institutional neglect. A legislative framework and executive commitment to material and symbolic reparations, as well as justice in the court system, is essential to both promote some relief for the decades of suffering of victims of the armed conflict, and publicly demonstrate the state’s dedication to a just transition from civil war.

*Leonor Arteaga is a DPLF Senior Program Officer on Impunity and human rights.

Amanda Eisenhour is currently a third year undergraduate student at Princeton University and a summer 2019 intern at DPLF as an Arthur Liman Fellow in Public Interest Law.

Acerca de Justicia en las Américas

Este es un espacio de la Fundación para el Debido Proceso (DPLF, por sus siglas en inglés) en el que también colaboran las personas y organizaciones comprometidas con la vigencia de los derechos humanos en el continente americano. Aquí encontrará información y análisis sobre los principales debates y sucesos relacionados con la promoción del Estado de Derecho, los derechos humanos, la independencia judicial y el fortalecimiento de la democracia en América Latina. Este blog refleja las opiniones personales de los autores en sus capacidades individuales. Las publicaciones no representan necesariamente a las posiciones institucionales de DPLF o los integrantes de su junta directiva. / This blog is managed by the Due Process of Law Foundation (DPLF) and contains content written by people and organizations that are committed to the protection of human rights in Latin America. This space provides information and analysis on current debates and events regarding the rule of law, human rights, judicial independence, and the strengthening of democracy in the region. The blog reflects the personal views of the individual authors, in their individual capacities. Blog posts do not necessarily represent the institutional positions of DPLF or its board.

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