Michael Busch

Yesterday afternoon, El Salvador’s Supreme Court issued a landmark ruling that could change the face of justice in the country. The court found a 1993 amnesty law—which blocks investigations and prosecutions of crimes committed during El Salvador’s civil war—to be unconstitutional. The high court’s decision follows on the heels of a number of other hopeful developments of late, and unequivocally takes aim at the perpetrators of alleged crimes as well as the governing elite itself. 

In a statement announcing the decision, the court noted that “While the constitution, international humanitarian law, international human rights law, and international jurisprudence on human rights permit the adoption of amnesties…[this] does not imply that the legislature is able to declare unrestricted, absolute and unconditional amnesties.” To do so would ignore “constitutional and international obligations of states regarding the protection of fundamental rights, to investigate and identify the masterminds and perpetrators, and punish them in accordance with its domestic law.”

Importantly, the court makes clear that crimes committed during the civil war by all sides to the conflict cannot be understood as isolated actions. “On the contrary,” the ruling argues, “they are the result of guidelines and orders issued by an organized power structure where the hierarchy of command and operations is clearly visible…In this respect, the perpetrators usually acted under the direction of the top leaders of the military, paramilitary, and guerilla structures to which they belonged. All of this implies the necessary criminal responsibility of both the direct executors and those who gave the respective orders…”

The ruling will surprise some, but it follows a modest string of other recent developments in El Salvador, and Central America more broadly, that suggest the era of impunity for past crimes may be drawing to a close. A series of arrest warrants for high-ranking former military men were issued earlier in the year in connection with the slaughter of six Jesuit priests, their housekeeper and her daughter at the University of Central America in San Salvador in 1989. Four of them were arrested, though their fate remains unclear. At the same time, the United States agreed to deport Jose Guillermo Garcia—architect of brutal campaigns of carnage—to El Salvador to stand trial for past crimes. 

Justice for the victims of war atrocities won’t come easily, however. In cases where action has been taken against the perpetrators of civil war crimes, the process drags and progress has been elusive. The high court’s ruling will likely be no different. It has already sparked a backlash in El Salvador, and will likely face staunch resistance from the opposition ARENA party as well as the ruling FMLN. Indeed, Defense Minister David Munguia Victoriano called the decision a “political mistake,” while Rodolfo Parker, secretary of the Partido Demócrata Cristiano, labeled it a “failure” that does not align with the “historical needs of the country.” Thus far, ARENA officials have kept their own counsel, but will surely chafe against the court’s findings.

Despite these challenges, the court’s ruling suggests that El Salvador is moving in the right direction. Contrary to the claims of political elites—who maintain that re-opening the past will threaten the relative stability El Salvador has enjoyed since the 1992—addressing the grave injustices visited on tens of thousands of Salvadorans during the war offers the only real way forward to a sustainable peace. Bringing war criminals to justice will not solve the country’s many problems—the continuing gang crisis, hideous abortion laws harming women, and a lackluster economy, to name but a few—but will offer a much firmer foundation for tackling these challenges effectively and in good faith.  

What happens next is anyone’s guess. But the court’s ruling appears to put responsibility for seeking remedy squarely in the prosecution’s court. The failure to guarantee “right of access to justice, judicial protection or protection of fundamental rights, and the right to full compensation to victims of crimes against humanity and war crimes,” the court argued in its statement, “constitute serious violations of international humanitarian law.” The exercise of these rights, the court proclaimed, may commence immediately.  Whether there exists political will to pursue old injustices, however, is an entirely separate concern. 

Michael Busch is Senior Editor at Warscapes Magazine. Follow him on Twitter at @michaelkbusch.