San Salvador, May 3, 2019
1.1 Visit Summary
From April 23 to May 3, 2019, I conducted an official visit to El Salvador. I would like to thank the Government of El Salvador for extending the invitation to visit the country, as well as for their broad and efficient cooperation during the preparation and realization of the visit. I would also like to thank the Regional Office of the United Nations High Commissioner for Human Rights (UNHCHR).
The objective of the visit was to see and assess the measures adopted by the Salvadoran authorities in the fields of truth, justice, memory, reparations, and guarantees on non-recurrence - the pillars of my mandate - to address the serious human rights and international humanitarian law violations committed during the armed conflict. The visit sought to develop a broad view of the different initiatives that were adopted, identify best-practices, determine problems and challenges, and draft recommendations.
During my trip to El Salvador, I visited San Salvador, Morazán, La Paz, and San Vicente. The visit provided an opportunity to meet with State officials, victims of the armed conflict and their relatives, representatives from different civil society organizations, academic and religious organizations, and representatives from United Nations agencies, international and regional organizations, and the diplomatic community.
I also had the opportunity to make field visits to memorial sites such as the Monument to Memory and Truth at Cuscatlán Park, the monument and memorial at the site of the El Mozote massacre, the memory site at the El Calabozo massacre, the memorial to the victims at San Francisco Angulo, the mausoleum for Monsignor Romero, and the sites holding historical archives from the armed conflict, such as the Human Rights Office (Tutela Legal) at the Archbishop's Office in San Salvador, and the Monsignor Rivera y Damas Documentation Center and Archive.
Over the course of the visit, I met with the current President of the Republic, Mr. Salvador Sánchez Cerén, the Vice-President-Elect of the Republic, Mr. Félix Ulloa, and with officials from the Ministry of Foreign Affairs, the Ministry of National Defense, the Ministry of Justice and Public Security, the Ministry of Education, the Ministry of Public Health and Social Assistance, the Supreme Court of Justice, the Legislative Assembly, the Office of the Attorney General, the Office of the Ombudsman for Human Rights, the Institute for Access to Public Information, the Secretariat for Transparency and Anti-Corruption, the Presidential Communications Secretary, the Planning Secretary, the Deputy Secretary for Social Inclusion, the National Search Commission for Disappeared Persons (CONABÚSQUEDA), the Monitoring Commission for the El Mozote Ruling (CODREVEM), and the National Program for Reparations to Victims (CODREVIDH).
A detailed report of my conclusions and recommendations will be submitted to the United Nations Human Rights Council. The observations and recommendations presented in this report are preliminary and may be updated with additional information for the final version.
1.2 General Impressions
The Chapultepec Peace Accords ended the armed conflict that ravaged the country from 1980 to 1992. 27 years later, the pain and impact that these events caused to the Salvadoran population are still evident. While the peace accords produced a series of positive institutional reforms that sought to orient a peace process under the rule of law, the implementation of the transitional justice project outlined within the agreement remains incomplete.
At the start of the transition within the Salvadoran SState, important strides were made toward truth and guarantees for non-recurrence, with support from the international community. In 1993, the UN-backed Truth Commission published a report documenting the cases of over 75,000 people who were tortured, killed, or disappeared during the armed conflict. This commission recommended that the people responsible should be brought to justice. The conclusions from the Truth Commission and the initial criminal prosecution in certain cases of violations committed during the conflict gave hope to thousands of victims. At the same time, a reform process was undertaken to fortify the legal and institutional framework of the State and transform certain political, judicial, and security bodies.
Nonetheless, with the adoption of the General Amnesty Law for Consolidation of Peace, in 1993, an impunity mechanism was put in place that lasted for over two decades, whose effects can still be felt. This mechanism for impunity was accompanied by an institutional and widespread system to deny and forget the past violations that gouged deep rifts in the social fabric and collective narrative of the Salvadoran people. In this process, the victims of the abhorrent crimes of the past were forgotten and rendered invisible.
Over the last decade, a series of legislative, judicial, and public policy measures were adopted to give renewed momentum to the Salvadoran transitional justice process. The Constitutional Court ruling on the unconstitutionality of the Amnesty Law is certainly one of the most important strides forward. The creation of the National Search Commission for Children Disappeared during the Internal Armed Conflict (CNB) and the National Search Commission for Disappeared Adults (CONABUSQUEDA) are also important new measures, along with the creation of the group of prosecutors responsible for investigating the events of the armed conflict, the adoption of the Criminal Investigation Policy for Crimes Against Humanity and War Crimes Committed in the Context of the Armed Conflict, the public apology, the reopening of certain judicial cases that were stopped during the years of impunity, and the judicial progress made in the case of the El Mozote massacre.
Other measures, however, are cause for great concern, such as the proposed draft of National Reconciliation Law that has been presented within the Ad Hoc Commission in February 2019, the slow pace of action by the Attorney General's Office (FGR) in investigating human rights and international humanitarian law violations committed during the armed conflict, the obstacles to accessing military files from the years of the conflict, and the insufficiency of the reparations and historical memory process. To a great extent, the gaps and delays in transitional justice are due to the lack of a State policy to this end.
I would like to take this opportunity to recognize the progress achieved, and to urge the Salvadoran State - the outgoing administration as well as the incoming government - and the three branches of the State, to continue to advance in the pending aspects on the transitional justice agenda. There is a long road ahead. The effective search for truth on past violations, the search for the disappeared, sanctions against those responsible, reparations for the victims, inter-sectoral and inter-generational debate on the events of the past, and the recognition of a common historical memory for all of the Salvadoran society will be critical in recovering confidence in the State and its institutions, and trust among all members of society.
The current violence and rifts in the social fabric are a clear example that society cannot advance toward a future of peace and progress without addressing the difficulties of the past and learning from its mistakes.
I will share my preliminary observations and recommendations below on the issues of truth, justice, reparation, memory, and guarantees of non-recurrence.
Search for and identification of disappeared persons
In addition to the initial work of the Truth Commission, in recent years the State has moved to adopt certain measures to know the truth and search for the large number of people who disappeared during the conflict, including children.
The National Search Commission for Children Disappeared during the Armed Conflict was established by Presidential Decree in 2010, in accordance with the ruling of the Inter-American Court of Human Rights (IACHR) in the Serrano Cruz Sisters case of 2005. The National Search Commission (CNB) seeks to investigate and determine the whereabouts and situation for disappeared children, and promote reconnection with families of origin. The CNB has had important success in finding alivechildren and promoting their reunion with families. As of December 2019, the CNB has reported 319 registered cases and 92 solved cases.
In September 2017, the President also decreed the establishment of the National Search Commission for Adults Disappeared in the Context of the Armed Conflict in El Salvador (CONABUSQUEDA), which operates with functional autonomy but under the auspices of the Ministry of Foreign Affairs. The commission's mandate is to investigate, locate, exhume, identify, and return the bodily remains of persons disappeared at the hands of the State during the armed conflict. The commission is made up of a team that includes researchers and psycho-social support staff; the team works efficiently but is not large enough. A request to hire additional personnel is pending approval at the Ministry of Foreign Affairs. Despite its mandate, CONABUSQUEDA does not have the capacity for technical genetic or forensic study. The Institute of Forensic Medicine (Instituto de Medicina Legal), which works under the auspices of the Supreme Court of Justice, does not have certified officials nor sufficient staff to provide effective assistance in this task.
Victims' organizations have asked that both commissions gain formal status through specific legislation to ensure their legal sustainability and allocate resources for their operations. In the case that disappeared persons are found to be deceased, their remains must be duly identified and given with dignity to their family members to facilitate the mourning process.
Over the course of my visit, I received concerning testimony regarding the role played by the "Ladies of the Red Cross", members of the National Society of the Salvadoran Red Cross, in putting children taken during the Salvadoran armed conflict into the hands of other families. Information on the children given in adoption and their destination is likely held by this association, and these data could help to verify their whereabouts. Nonetheless, despite efforts made by civil society organizations, victims' families have not been able to gain access to this important information.
Collection of testimony and forensic investigation
Some victims and victims' families have given testimony in the context of the claims opened. Nonetheless, there does not appear to be a systematic mechanism for the collection of victims' testimonies - not only for the purpose of investigation and criminal prosecution, but also to preserve the historical memory of the events and aid in the search for the disappeared. The lack of a national genetic database and a certified forensic anthropology and genetics team represents an obstacle for search and criminal investigation goals.
It is important for the national authorities to take on these tasks. Additionally, the States and agencies providing international cooperation can play an important role by giving technical collaboration and training to build these highly complex capacities.
I have received notice that the Legislative Assembly is working to draft a law for the creation of a national genetic database, and another to train and certify members of the Institute of Forensic Medicine. Both of these measures could be positive if they come to fruition.
One clear obstacle in the search for truth is the impossibility of accessing the military archives from the period of the armed conflict. Despite requests from the Institute for Access to Public Information, Attorney General's Office (FGR), the court hearing the El Mozote case, and the Constitutional Court, the Ministry of Defense has refused to hand over the files, arguing that the archives do not exist or have been destroyed. This comes despite the fact that the laws from the time require documentation of the military actions conducted during the war1, and testimony from high-ranking military officers in ongoing trials that affirm the contrary. The Institute for Access to Public Information instructed the Ministry of National Defense to reconstruct and hand over the information; the Ministry has not yet complied, and has sought an injunction from the Administrative Disputes Chamber of the Supreme Court. The government announced the future creation of a commission to review the military archives, made up of three representatives of the executive branch, including the Ministry of Defense, and one from civil society. Nonetheless, there is little data available with respect to the scope of this commission's mandate, and whether it will have unrestricted access to the files.
I have also received information on the difficulties in accessing the archives from the Truth Commission report from 1993. Of the three copies recorded for these files, only the archives deposited at the United Nations have been confirmed. Issues related to the confidentiality of the testimony recorded in the files, and the need to digitize and copy the archives currently restrict access.
Ad Hoc Commission and the National Reconciliation Law
In 2017, the Board of Directors of the Legislative Assembly established an Ad Hoc Commission to study the implications of the ruling that invalidated the General Amnesty Law. From the start, the Commission has faces harsh criticism due to: i) its mandate that includes the role of interpreting the implications of the ruling, which cannot and should not be a prerogative of the legislative branch; ii) its composition, as four of its members present a conflict of interest by virtue of their role as protagonists in the armed conflict - two of whom are mentioned in the Truth Commission report, and; iii) its working method that lacks transparency and effective participation - beyond the formal mechanisms - from victims and social organizations, whose voices must be heard above those of the actors in the conflict.
In February 2019, the Chair of the Commission presented a proposed National Reconciliation Law that - although it States that it would not provide amnesty in cases of crimes against humanity and war crimes - contains provisions that in practice would produce a "de facto" amnesty. These provisions include the application of statutes of limitation, terms restricting criminal investigation, elimination of prison sentences, granting sentencing reduction and benefits without setting preconditions such as recognizing responsibility, collaborating with the investigation, and giving the truth. The project has been the object of intense criticism, including from the United Nations High Commissioner for Human Rights2 and the Inter-American Commission on Human Rights3, for violating compliance with the obligations imposed by the Constitutional Court and international human rights law.
I express my own severe concern at this attempt to open the door for a
de facto amnesty and eliminate the enforcement of criminal sanctions for severe human rights and humanitarian law violations and crimes against humanity. I would like to call to memory the jurisprudence from the Inter-American Court of Human Rights that prohibits amnesty mechanisms or measures that seek to impede or suppress the effects of a conviction ruling4 in cases of severe human rights violations, and stipulates that inappropriate concession of sentencing benefits can constitute a form of impunity5.
Now 27 years after the conclusion of the armed conflict, there are no clear reasons why impunity mechanisms such as those proposed in this draft bill could be considered legitimate or even necessary in political terms in El Salvador. Neither are they legal. The conviction and effective punishment of those responsible is an obligation of the Salvadoran State vis-à-vis the victims and society, and it cannot be skirted through legislative decisions that run contrary to international human rights law, which would once again put the State in a position of unlawfulness in terms of its international obligations.
Criminal Investigation and Prosecution
Since the general amnesty law has been declared unconstitutional, various criminal cases have been filed, most of them derived from claims presented by the victims. Emblematic cases such as that of the El Calabozo massacre, the killing of the Jesuits, and the execution of Archbishop Romero were reopened, although no progress has been recorded.
In the case of the El Mozote massacre, which has received a conviction ruling from the Inter-American Court of Human Rights, procedural stages have been completed and a trial scheduled. Nonetheless, IACHR officials reported in August 2018 that the State has not allocated sufficient resources for the criminal investigation of the case, assigned to the Second-Circuit Court of San Francisco Gotera, under Judge Jorge Guzmán Urquilla6. In response, the Supreme Court of Justice decided that the court limit its previously mixed mandate exclusively to criminal cases.
To respond to the growing number of claims following the declaration of unconstitutionality of the amnesty law, the Attorney General's Office (FGR) named a team of four prosecutors to investigate the violations committed during the armed conflict, with the support of 6 investigators of the police. Additionally, a Policy of Criminal Investigation of Crimes Against Humanity and War Crimes Committed in the Context of the Armed Conflict was drafted with support from the Office of the United Nations High Commission for Human Rights (UNHCR), and participation from civil society organizations.
Despite these efforts, there is a significant backlog in investigating the cases of human rights violations from the armed conflict that have been reported to the prosecutor's office. According to information received from civil society, of the total of 148 cases submitted, no investigation has been undertaken in 102 cases, some investigation was done in 46 cases, and 17 cases were opened only to authorize exhumation. None of these 148 cases have gone to trial. Eight cases are before the criminal courts, and 12 are waiting to be heard by the Constitutional Court7. According to information received from the FGR, there are 16 cases brought to courts, a number of requests sent to courts, and an arrest warrant. It is crucial to increase the capacity and personnel of the group in charge of investigating violations committed during the armed conflict.
During my visit, I received numerous reports that in the course of hearing claims of human rights violations from the armed conflict, FGR prosecutors ask the claimants to provide proof or witnesses for their cases. In discussions with the FGR, they have informed me that the prosecutors' intent is not to shift the burden of proof back onto the claimants, rather to gather information for the investigation. FGR officials have assured me that they will take the necessary precautions to avoid misunderstandings and similar situations in the future.
From the interviews conducted, I have also observed the lack of psychosocial support available for individuals providing their testimony, in scenarios that are often traumatic and can implicate reliving the events. The victims have also expressed that they are called to repeat their testimony, which suggests that the evidence collected is not used appropriately, leading to re-victimization.
There are difficulties encountered in the process of documenting all of the violations narrated by the survivors. I listened with astonishment to the number of crimes and massacres that still today have not been mapped, recorded, or documented, despite the information provided by the victims, and testimony from numerous witnesses and survivors that has yet to be collected. I also received recurrent accounts that refer to the widespread practice of rape and other events of sexual violence against women and girls committed by the perpetrators of the massacres, as a phenomenon that is still not visible and recognized.
From a procedural standpoint, I received expressions of concern with respect to the lack of harmonization in the application of the criminal procedural codes of 1974 (based on a written system for criminal investigations in which the judge instructs and investigates the facts), and of 1998 and 2013 (which establish an adversarial system of oral arguments in which the prosecutor has a monopoly on criminal investigation), and the negative impact that these gaps may have for the judicial proceedings conducted in cases of crimes committed during the armed conflict. While all of the cases refer to acts committed prior to 1998, some litigation was opened prior to the reform and other cases were opened following the changes, generating inconsistency in terms of the corresponding procedural requirements, and risk of appeals seeking to nullify the processes. The lack of clarity with respect to the application of the criminal procedural codes from 1974 and 1998 in these cases must be appropriately resolved.
I express my grave concern for the stagnation in criminal investigation and prosecution, which runs contrary to the duties of the Salvadoran State under the 2016 ruling and international human rights instruments, and which leaves the victims without access to justice for the violations they suffered over 27 years ago. During my meetings with victims, many repeated the same request: "we only want justice, and to see the perpetrators go to prison for the atrocious crimes they committed, just as anyone else who commits a crime would." This is one of the missing pieces for each of the tens of thousands of victims for the armed conflict, and its absence cannot continue.
The government has made progress in providing reparations to victims in cases that have received rulings from the Inter-American Court of Human Rights, such as the case of El Mozote, although these are still incomplete, especially for the towns in Morazán surrounding El Mozote.
Of its own initiative, the State created the Program for Reparations for Victims of Severe Human Rights Violations Occurring in the Context of the Internal Armed Conflict, which creates a record of the victims and establishes a series of measures in terms of healthcare, education, and historical memory, including compensation in the form of a pension. This has been an important step, but the scope of the program is still limited and insufficient. Thus far, only around 5,000 victims have been registered as part of the program. Civil society organizations have criticized bureaucratic obstacles and insufficient resource allocation for the program. Monetary compensation is subject to available funds and is limited to paltry sums, inferior to those granted to veterans from the war. Likewise, there has not been an outreach process for the program to inform all of the victims who may be interested in registering. The census of victims was not conducted systematically, as it varied in function of victims' exposure to the limited information available on the program. Both of these elements contribute to the extremely limited number of registrations compared to the actual number of victims. Additionally, the reparations mechanisms did not include universal access for victims and their descendants, including mental health, beyond the general care provided for the community. Access to health services for victims at a large scale requires a specific and different course of treatment.
A comprehensive reparations policy for victims must still be designed and implemented in coherence with current international standards.
In terms of symbolic reparations, in 2012 the government asked for forgiveness publicly on behalf of the State, in compliance with the requirements of the Inter-American Court of Human Rights. .. No official from the Armed Forces has apologized on behalf of the military.
5. Historical Memory
The Truth Commission made specific recommendations on the importance of establishing commemorative monuments as a mechanism to repair the harm caused to the victims, and naming a national day to commemorate the victims of the conflict.
I had the opportunity to visit certain historical memory sites. While some of them were indeed erected by the State, other sites such as the Monument to Memory and Truth at Cuscatlán Park were built by victims' organizations without State support. I view with satisfaction how the authorities from the Municipal Government of San Salvador have established a corridor facilitating access to the site; nonetheless, I am concerned by the lack of maintenance and the deterioration of the monument, reflective of the general situation for the memorial sites.
For over 15 years, organizations searching for the victims of forced disappearances have requested that August 30 be declared as the "National Day for Victims of Forced Disappearance", in congruence with the international day established by the United Nations General Assembly. This request was supported by the Office of the Human Rights Ombudsman in August 2017. While no progress has been reported to date, I have received information that the Commission on Justice and Human Rights at the Legislative Assembly may be working on proposed legislation on this matter.
Over the course of my visit, I was concerned by information I received on the numerous commemorations and homage paid to high military officials that fought during the armed conflict and are named as participants in abhorrent events such as massacres, including Colonel Domingo Monterrosa, who was identified by the Truth Commission as responsible for the El Mozote massacre. These acts have even been celebrated in direct violation of the orders given by former-President Funes. Military battalions, atria, and commemorative spaces have been named after these individuals as well. On the journey to the monument and memory site of the El Mozote massacre, I was shocked to see that the Third Infantry Brigade of San Miguel is named "Lieutenant Colonel Domingo Monterrosa Barrios". I believe that this is unacceptable in a State that condemns human rights violations, and it represents the re-victimization of the survivors of these events and their families.
In my meetings with victims, they insisted on the importance of continuing to document historical memory and compile the testimonies of all of the victims. Thousands of victims are dying without having been heard, without having the opportunity to speak their truth, and without being able to share their stories with current and future generations. The State can and must do much more about this, with assistance from international cooperation if needed.
This is important for the victims, but it is also important for Salvadoran society as a guarantee for non-recurrence. As one young woman expressed during a visit to a massacre site: "a people that does not know its own history is doomed to repeat it."
6. Guarantees of Non-Recurrence
The reform of the Armed Forces as a consequence of the 1992 Peace Accords included the subordination of military command to civilian power and reconfiguration of military doctrine. A purge of members of the military was also conducted, in accordance with the recommendations from the Truth Commission and Ad Hoc Commission charged with examining the structure and operations of the armed forces. Nonetheless, I am concerned that since that time the post of Minister of Defense has been held by a member of the armed forces rather than a civilian, as well as by the activation of the armed forces as a participant in public security tasks in recent years. I have received information with regard to the training that different military regiments receive on human rights; this is a valuable step. Nonetheless, training on historical memory of the violations committed during the internal armed conflict appears to be non-existent. The institutional challenge issued in the case of access to the military archive and honor given to the perpetrators of human rights violations question the true subordination of military power to civilian authority. This ambiguity has no place in a democratic State.
The reform of the police following the peace accords led to the creation of the new National Civilian Police, incorporation of new police officers, and transfer of FMLN and military combatants to this police force. The reform included a new public security policy rooted in citizen services, subordination to civilian authority, and training on democratic values and human rights. I am concerned that despite these original efforts, the National Civilian Police has recently been involved in a number of cases of human rights violations, including extra-judicial killings and excessive use of force, as reported by the Special Rapporteur on extra-judicial, summary, or arbitrary executions after her visit to the country in 20188. While there are indeed mechanisms in place for training and education on human rights, these capacities are not fully reflected in the daily actions of the security forces.
With regard to the role of the police in criminal investigations of the cases of human rights violations committed during the armed conflict, I have received concerning information regarding the insufficient human and financial resources dedicated to these tasks, as well as the lack of training for police officers on forensic science and attention to victims. I am also concerned by the lack of coordination between the FGR and National Civilian Police (PNC) on this matter. The government informed me of the project to create a forensic genetic institute within the PNC.
During the years of impunity, political power repeatedly asserted that the amnesty law was a requirement for peace and national reconciliation. This assertion produced a culture of impunity and silence that permeated society and undermined the victims' struggle. Generations of Salvadoran men and women were raised and educated under a culture that denies victims' suffering and the need for justice in the case of past violations. As a result, the society has not been able to mobilize and overcome the horror of that violence. This is the violence that has come home to roost.
The ruling of unconstitutionality of the amnesty law implicated a rupture in the narrative of impunity. Nonetheless, this progress was not replicated by other sectors of Salvadoran society, including the media and powerful political factions. Nonetheless, I acknowledge the efforts of memory dissemination and recovery through the national television programme “Memoria Viva”. It is essential that all sectors of society that wield social influence take part of the responsibility to disseminate the truth and historical memory of the violations suffered during the armed conflict.
I cannot stress strongly enough the role that the education system plays in historical memory and education. While schools and teacher training institutes do have programs to this end, these programs must be updated and strengthened; the lack of knowledge and debate among youth reveals the ground that must be covered in this topic. Since 2017, at the request of the Ministry of Education, the University of El Salvador has facilitated admittance of an important number of family members of the victims of the El Mozote massacre into university programs.
7. Cooperation with the regional and international human rights protection system
The Inter-American Court of Human Rights has issued rulings on the armed conflict, in the cases of the El Mozote massacre and the Serrano Cruz Sisters amongst them. While the government has adopted some of the measures in terms of reparations and the search for the disappeared in accordance with these rulings, many other areas have yet to be complied with, in particular the areas related to criminal investigation and prosecution.
In recent years, the Salvadoran State has established an open and fruitful relationship with the United Nations Human Rights Council and its Special Procedures, as well as with the United Nations Human Rights Treaty Bodies. El Salvador has also made progress toward the ratification of certain international instruments, such as the Rome Statute. Nonetheless, the lack of a series of important instruments is cause for concern: the International Convention for the Protection of All Persons from Enforced Disappearance; the Inter-American Convention on Forced Disappearance of Persons; the Optional Protocol of the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment; and the Optional Protocol of the Convention for the Elimination of All Forms of Discrimination Against Women; and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.
During my stay in the country, I visited the memorial sites for the massacres at El Mozote, El Calabozo and San Francisco Angulo, and spoke with the victims of these events and many other victims of the armed conflict. Their testimony gives an account of unimaginable and barbaric acts perpetrated against thousands of children, adults, and older men and women, and of the pain that they continue to feel as intensely as they did on the first day. I also observed the neglect that the victims have received from State institutions over the course of decades. The victims have gone over three decades without the psychosocial support needed to address the trauma they have endured; without receiving – in most cases- individual or collective reparations that would enable them to remake their lives; without accessing basic social services; without being heard or recognized by the State institutions with which they have engaged; without accessing the truth about the people responsible for the crimes they suffered, historical memory, or justice.
The violations that they have suffered are unacceptable. The abandonment in which they live, now 30 years later, is also unacceptable. While I recognize the steps taken in the last decade toward transitional justice, there is much left to do, and it must be done immediately. I hope that the current administration and the government-elect can take on this commitment. The victims are waiting for them to do so. Salvadoran society and the international community are, too.
In function of the provisional observations from my visit, I wish to share the following recommendations for the Salvadoran authorities, international community, and civil society, to advance in the agenda for transitional justice in the country.
a. Recommendations for the State
- The Legislative Assembly should adopt a Comprehensive Transitional Justice Law in the short term that fulfills the requirements stipulated in the 2016 ruling of unconstitutionality of the General Amnesty, and the international human rights standards, including the jurisprudence of the Inter-American Court of Human Rights. The proposed National Reconciliation Law currently in discussion must be discarded as contrary to the human rights obligations of the Salvadoran State. The body in charge of addressing these issues should be made up of ideal, competent, and credible individuals accepted by the victims themselves.
- The Legislative Assembly should adopt a law providing a sustainable legal framework, institutional and budgetary autonomy, and the necessary financial resources for the National Search Commission for Adults Disappeared during the Armed Conflict (CONABUSQUEDA) and the National Search Commission for Children Disappeared during the Armed Conflict (CNB). This mandate should include searching for all persons disappeared during the armed conflict, whether at the hands of the State or the ex-guerrilla forces.
- In the case that the bodily remains of the victims of forced disappearance are found, they should be identified and handed over with dignity to the families.
- The Legislative Assembly should adopt a law declaring August 30 as the National Day for Victims of Forced Disappearance.
- The Legislative Assembly should create a law to establish a national genetic database.
- The Legislative Assembly should adopt the necessary measures to ratify without delay: the International Convention for the Protection of All Persons from Enforced Disappearance; the Inter-American Convention on Forced Disappearance of Persons; the Optional Protocol of the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment; and the Optional Protocol of the Convention for the Elimination of All Forms of Discrimination Against Women; and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.
- The definition and punishments associated with the crime of forced disappearance in the Salvadoran criminal code should be revised according to the recommendations from the United Nations Working Group on Enforced and Involuntary Disappearances.
- The Attorney General of the Republic should take responsibility for and implement the Criminal Investigation Policy on Crimes Against Humanity and War Crimes Committed in the Context of the Armed Conflict in El Salvador, approved in December 2018.
- The Attorney General should designate a special budget line and allocate more trained prosecutors and financial resources to the special unit charged with implementing the aforementioned criminal investigation policy.
- The Attorney General should adopt the necessary measures, including strengthening the human and financial resources allocated to the specialized group of prosecutors, to make urgent progress in the criminal investigation of the cases of violations committed during the armed conflict within its domain.
- Given the prolonged delay on account of the time that the Amnesty Law was in force, current investigations must lead to formal accusations and charges brought in the short term for the crimes committed in the context of the armed conflict.
- Officials from the Attorney General's Office (FGR) must ensure that in the course of their interactions with victims and claimants, they make it clear that the primary responsibility of the FGR is to investigate and collect the necessary evidence for criminal investigation and prosecution.
- The FGR and relevant courts should provide psychosocial assistance to victims, survivors, and families providing testimony.
- The Attorney General should physically intervene with a court order to obtain the military archives, with verification from the Human Rights Ombudsman's Office and specialized experts, to safeguard the files for use in criminal investigation and prosecution of the crimes committed during the armed conflict.
- All of the massacres that occurred in the country should be immediately recorded and documented, along with the testimony from the victims of human rights violations, for use in judicial proceedings and for the preservation of historical memory.
- The Judicial Branch should provide the financial and human resources needed, along with relevant security guarantees, to facilitate the effective work of the courts hearing cases of human rights violations committed during the armed conflict, including the Second-Circuit Court in San Francisco Gotera.
- The Judicial Branch (the Supreme Court of Justice and/or the National Council of the Judiciary) should strengthen training processes for judges on the criminal prosecution of war crimes and crimes against humanity, and undertake awareness-raising activities on victims' rights. The Attorney General of the Republic should continue the process of training his staff on these matters.
- The Judicial Branch should allocate the human and financial resources needed to improve the technical capacities of the Institute of Forensic Medicine (Instituto de Medicina Legal). This capacity-building should include training and certification for personnel on forensic anthropology, in accordance with international standards in the field such as the Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016) and the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment (Istanbul Protocol). The possibility of establishing an internationally-certified autonomous and independent forensic science institute should be considered.
- The Supreme Court should set limits in order to harmonize the application of criminal procedural codes and previous and revised criminal codes in the cases of crimes committed during the armed conflict, to avoid inconsistencies that could open the door for strategies to delay the service of justice.
- The Constitutional Chamber of the Supreme Court should supervise full and precise compliance with its ruling that repealed the Amnesty Law.
- The upper leadership of the Armed Forces, including the President as the Commander-in-Chief of the Armed Forces and the Minister of Defense, should remove the names of the military personnel accused of serious human rights violations, including Colonel Monterrosa, from the battalions and barracks, facilities and monuments of the armed forces, and prohibit commemorations and official honors in their name.
- The Armed Forces should guarantee effective access to the military archive of the armed conflict as required by justice, the government, or the victims.
- A State archive policy should be established to ensure access to information relative to the armed conflict and the human rights violations from that period.
- The National Civilian Police should increase the human and financial resources designated for the investigation of the violations committed during the armed conflict, and train its personnel on forensic genetics and care for victims.
- A Comprehensive Reparations Policy for Victims should be designed and implemented in compliance with international standards, including a gender lens.
- An exhaustive record of victims of the armed conflict should be created.
- The Program for Reparations for Victims of Severe Human Rights Violations Occurring in the Context of the Internal Armed Conflict should expand its coverage to include all categories of victims that have been left out of the program thus far, and adjust the measure of compensation to reflect the current value of the market basket. Additionally, outreach for the program should continue to provide sufficient information for all of the victims that may be interested in registering.
- Collective measures for reparations and victim rehabilitation should be established, including free, permanent, and universal access to the healthcare system, including mental health, and to education (on all three levels). Assistance programs should be specialized to serve victims of severe violations in the context of the armed conflict.
- Urgent measures oriented to assist older adult victims in particular situations of vulnerability should be adopted without delay.
- National and local authorities should adopt measures for historical memory, such as the establishment and maintenance of public sites for this purpose, including at military or police facilities where disappeared persons were allegedly held.
- National and local authorities, legislative and judicial officials, the media, and other sectors with a measure of social influence should take part of the responsibility to disseminate the truth and historical memory of the violations suffered during the armed conflict, without distorting the findings of the Truth Commission report.
- The Ministry of Education should redouble its efforts on memory and human rights, ensuring the effective inclusion of these matters into the educational curricula and establishing evaluation mechanisms to assess and ensure the consistent and effective implementation of these programs.
- Programs to train public officials, security forces, and the armed forces on human rights and historical memory should be strengthened, including an examination of the State responsibility in the grave violations of human rights and humanitarian law during the armed conflict.
- Measures should be established to resolve the obstacles to access the Truth Commission archive and collaborate with the United Nations to facilitate this process. The need for human resources to process the extensive documentation can also be addressed with national and international aid and cooperation in this matter.
- The Salvadoran government should accept the request of the United Nations Working Group on Enforced or Involuntary Disappearances to make an official visit to the country.
b. Recommendations for the international community and civil society institutions
- The media and academic institutions should take an active role in disseminating historical memory of these violations, and giving space to the victims and the organizations that represent or assist them to express their demands for transitional justice.
- The governments and agencies providing international cooperation should aid the work of victims' organizations and other civil society groups working to promote the truth, justice, and memory of the human rights violations committed during the armed conflict.
- The governments and agencies that provide international cooperation should offer technical collaboration and assistance to build technical capacities on forensic anthropology and genetics in order to aid in the collection of victim testimonies and search for the disappeared.
- Government and agencies providing international cooperation should support projects for memory and reparations for the victims of the armed conflict.
- The authorities from the Salvadoran Society of the Red Cross should make information on the children transferred or given in adoption with alleged support from the "Ladies of the Red Cross" available for families and the justice system, and make efforts to reconstruct the needed information.
- The United Nations should establish collaboration mechanisms with the Salvadoran State and specialized entities on archives in order to overcome the difficulties and ensure access to the Truth Commission files, including the need for human resources to draft, process, and digitize the extensive documentation contained in the archive.
1. The Ministry of Defense Law of 1961 establishes that: "In times of war, the organization, jurisdiction and missions of the operational units will be established in the directive and operational documents generated by the General High Command of the Armed Forces" (Article 44).
4. Corte IDH. Case of Gutiérrez Soler v. Colombia. Ruling from September 12, 2005. Series C N° 132, paragraph 97
5. Case of Barrios Altos v. Peru. Supervision of Ruling Compliance. Inter-American Human Rights Court Resolution from September 7, 2012, paragraph 55
7. February 2019.
8. A/HRC/38/44/Add.2, paragraph 37.