A reconciliation that never arrives and the amnesty law that entombed it

The Truth Commission published its report in March 1993. Almost immediately, the political parties represented in the Legislative Assembly passed an amnesty law and President Alfredo Cristiani quickly enacted it. That sweeping and retroactive general amnesty, buried all efforts at reconciliation and remembrance. In 2016 the Supreme Court declared it unconstitutional. And now...?

Luis Antonio Monterrosa

The Peace Accords that brought El Salvador’s civil war to an end in 1992 contained a series of momentous measures, including demobilization of both Farabundo Martí National Liberation Front (FMLN) and Armed Forces fighters, and the reform or creation of key institutions such as the new National Civilian Police, a new body to regulate elections and the Human Rights Ombudsman. The Salvadoran peace process was seen as a huge achievement that even provided lessons for processes in other conflicts around the world, such as in South Africa.

The two large gaps
in the peace accords

Despite these achievements, two of the most significant issues agreed to in the measures never came to pass: socioeconomic transformation and reconciliation.

The Peace Accords stipulated the creation of a Social Economic Forum, a space in which the country’s diverse economic, social and political forces would debate transformative initiatives. But this Forum never worked. Rather, the rightwing National Republican Alliance (ARENA) found a fast track for promoting and consolidating the neoliberal reforms they had planned. Nobody even remembers either the Forum or its goals, much less calls or demands for its creation. Reconciliation, the other issue left hanging, also fell by the wayside, leaving wounds unhealed.

This year, four events have brought the topic of reconciliation back to the forefront of national politics: the trial in Spain of a former Salvadoran military officer for his participation in the 1989 massacre at the Central American University (UCA); the Salvadoran Supreme Court’s refusal to reopen the case; attempts to bring the 1981 El Mozote massacre to justice; and the possibility of passing a new law for justice and reconciliation.

The trial vs. Montano
and the Jesuit cases

The conviction of ex-Coronel Inocente Montano in a trial held in Spain following his extradition from the United States, where he had been living, breathed new life into the possibilities for bringing to justice the intellectual authors of the Army’s assassination of six Jesuit priests and two lay women on the UCA campus on November 16, 1989.

The Montano trial naturally stirred the country’s already turbulent political waters, since it refocused attention on those who always wanted the events of that early morning to be forgotten: former President Alfredo Cristiani and Rodolfo Parkers, the latter currently a Christian Democratic Party legislative representative.

In light of this event, the UCA wanted to reopen the case to bring the crime’s intellectual authors to justice. As usual, it ran into myriad obstacles. The most recent has been the Supreme Court criminal chamber’s refusal to let the case proceed, on grounds that it concerns a common crime whose statute of limitations has run out. This goes against the July 2016 determination by the same court’s constitutional law chamber that the case concerns a crime against humanity and thus has no limitations. Given this flagrant contradiction, the possibility is being considered of charging the criminal chamber with breach of duty.

The Mozote massacre case

The next event is the progress made in litigation of the Mozote massacre, where the Salvadoran Army murdered 985 civilians from three counties in the department of Morazán during a counterinsurgency operation.
This issue has gotten a lot of publicity due to the actions of the judge in charge, who requested access to Army archives to find binding evidence. The official denial of access to these files received broad coverage in the media, including print outlets that have historically been against this legal process.

ARENA and the FMLN railed against President Bukele for refusing to allow access to the files, a paradoxical position given that during the 20 years ARENA was in power followed by the FSLN’s 10 years, neither one took a single step to shed light on the massacre. Instead, only now, in the context of an electoral battle in the upcoming legislative and municipal elections scheduled for March 2021, neither one wanted to miss this opportunity to confront the executive branch.

A new law?

Finally, there is the activity in the Legislative Assembly, which for several months has been trying to comply with a sentence handed down by the Supreme Court in July 2016, when it declared the 1993 Amnesty Act unconstitutional.

Although the legislature tried to ignore the sentence for years, in early 2020 it organized consultations and negotiations, and drafted the Special National Transitional Justice, Reparations and Reconciliation Act, approved in a special session held on February 23. Bukele vetoed it the very next day, as he had warned he would do.

The Supreme Court has recently held a session to follow up on this legal process. Beyond what the institutions do or decide, the process to see justice done and the Amnesty Law lifted lives on in the demands of victims’ associations. The opening of the case on the bloody El Mozote massacre also contributes to revitalizing these demands.

Polarization and
betting on forgetting

High levels of chronic political polarization with the impossibility of respect among adversaries; the prevailing culture of violence in community relations; and persistently high crime rates (despite
their downward trend in 2020) are the consequences of the failed process of authentic national reconciliation.

Nearly three decades after the end of the civil war, it is not just that reconciliation has been delayed. It’s that it seems there are significant powers intent on forgetting. By betting on the collapse of memory, they are also blocking any path toward national reconciliation.

Imposing punishment
is not reconciling

Two specific issues on the horizon of national reconciliation must be dealt with, as they determine the “kind” of reconciliation that will result: what kind of justice and which memory. These are not two separate issues, though they are usually seen as such.

We can try a case, but there can be no justice without knowing why it happened, because there will be no truth. The why of the 1981 El Mozote massacre against peasant farmers, or the why of the July 30, 1975, massacre of university students, or the why of so many other bloody acts, is very important for there to be true justice in El Salvador.

And there, in how cases are addressed, is precisely where the horizon clouds over. Merely bringing the case to trial will not lead to reconciliation, as is commonly thought; intellectuals tend to believe that trying a crime and convicting the criminal are enough.

From a social and human perspective, these acts fall short. Nowhere in the world has imposing punishment on the perpetrator brought relief and satisfaction to the victims. The law is obeyed, but many loose ends remain. It is therefore important to emphasize that reconciliation is a complex social process.

The Truth Commission and amnesty

The 1992 Accords were right to open a reconciliation process beginning with an investigation. It was led by a Truth Commission composed of notables whose job was to analyze the atrocities and human rights violations connected with the civil war.

The Commission’s report, titled “From Insanity to Hope,” identified prominent criminals such as ARENA head and former mayor Roberto D’Aubuisson, the main conspirator behind Monsignor Romero’s assassination. It recommended restricting the political participation of former guerrilla leaders such as Joaquín Villalobos of the People’s Revolutionary Army, who accepted his involvement in the assassination of mayors during the war.

Clearly, the Commission had its limits. Not all cases were investigated, and not all political leaders admitted their responsibility. Although the FMLN agreed internally to collaborate with the Commission, it seems only Villalobos and perhaps one or two others took responsibility for their actions. Other commanding officers chose to keep quiet and thus guarantee their participation in post-war political life.
It is also clear the Commission wanted to go further. The report detailed a whole series of initiatives the parties, and specifically the government, agreed to implement to work toward national reconciliation.

These initiatives included the proclamation of a day of remembering victims; the ideological transformation of the Army, to prevent the glorification of “their heroes” such as Lieutenant Coronel Domingo Monterrosa, who ordered the Mozote massacre; reparations for victims; and the construction of a system of memorials that would contribute to preventing the repetition of war crimes, and even war itself.

Nonetheless, just days after publication of the Truth Commission Report, the Legislative Assembly approved the 1993 Amnesty Act and President Alfredo Cristiani immediately enacted it. Thus, a broad-based retroactive general amnesty went into effect, entombing not just the reconciliation and remembrance efforts, but also any possibility of trying cases.

Not until 23 years later did the Supreme Court rule that amnesty unconstitutional.

“An eye for an eye”
is not enough

In El Salvador there are two ways of thinking about the necessary reconciliation process: a legal mentality and a political one.

The legal mentality finds justice in imposing punishment and blames only impunity where a sentence has not been handed down. From this perspective, reconciliation boils down to trials, evidence, witnesses and punishment. It sometimes includes victims’ participation, reparations or some other measure, but the epitome of the process is sentencing. The imposition of punishment is considered sufficient, in the belief that this “eye for an eye” will bring relief and peace to victims of a crime.

Naturally, perpetrators don’t want to be punished, especially if in their role as combatants they were authorized to conduct politics through violence. Regardless, the strictly punitive mentality should be surmounted as it neither ends the victim’s suffering nor confronts the perpetrator’s responsibility.

The “need to forget”

When attempting to block a legitimate reconciliation process, combatants on either side of the Salvadoran civil war demonstrate the political mentality.
Since the 1980s the national political
stage has been controlled by the FMLN, created in October 1980, and ARENA, in September 1981. Despite being staunch ideological and political adversaries during the war, these two forces very quickly converged around the “need to forget” when it ended.
This is the context in which the truth and any attempt at reconciliation and justice has been relegated to the shadows. Politicians on both sides have protected their combatants—or rather, their leaders—with a tacit agreement to avoid the topic.

Tithe FMLN may at some point have wanted to take on the justice and reconciliation process, as President Mauricio Funes went to El Mozote in 2012 to ask forgiveness in the name of the FMLN government for the atrocities the Army committed there. But to take the next step, i.e., try military figures allegedly involved, would have meant also opening cases against former guerrilla commanding officers. In the end it was considered better to keep quiet about what happened, in the hopes that forgetfulness would work its magic.

This also explains why, despite nearly five years having passed since the 1993 Amnesty Act was declared unconstitutional, the process for making this sentence a reality remains bogged down. And it will probably continue thus. Theoretically, if the Supreme Court confirms that the Legislative Assembly is not complying with the order to issue a new reconciliation law, it should charge them with breach of duty. However, it seems unlikely that this would matter to parliamentarians who know that in a few months elections will be held to elect a new legislature.

The sealed files

Faced with the challenge of reconciliation, the new government headed by Nayib Bukele at first tried to send alternative signals.

It not only pledged to support the legal process surrounding the Mozote massacre. It also ordered that Domingo Monterrosa’s name be eliminated from the Third San Miguel Brigade headquarters, even though it was one of the most esteemed names in the Salvadoran Army.

However, it has become complicated over time for Bukele to maintain transparency on the topic of supporting the El Mozote legal process. The potential transformation of the Army got complicated as well.

This was made plain when the military denied judicial access to their institutional files on the Mozote case. After Bukele had committed to handing over “whatever there is” in those archives, he supported the military command structure and prohibited the judge’s access to the files, claiming that this access could affect past or current secret military operations exempted from the freedom of information act.

The Bukele–Army relationship

The reality is that the prohibition was an excuse. Bukele has no option but to back the Army, since his government is still a fragile new one of a weak party lacking legislative representation. This makes it an easy target for the political class, still at war and ever dominated by ARENA and the FMLN, the big losers of the elections Bukele won.

Movements in the military leadership when Bukele took power entailed changes in
the high command. Afterwards, it seems logical that, in exchange for the Army’s support guaranteeing its loyalty in the midst of the political war, he would make specific concessions to army jurisdiction. Of course, the danger of this exchange is making the Army a relevant political actor.

No good omens

The Supreme Court session held to continue the legal process leading to enactment of a new law on justice and reconciliation contained no good omens.

The Legislative Assembly seems to be doing as ordered, but just a bare minimum of what it could do. The executive, whose role is to approve the law, argues that the new law he already vetoed met neither the requirements for overcoming impunity nor those that guarantee non-repetition.

In fact, although the new law being debated contributes elements favoring historic memory and reparations for victims of the conflict, in terms of justice it places the victim in a kind of optional participation space and also grants the perpetrator a preferential position by offering to reduce sentences if the Attorney General concludes the acts are subject to prosecution and if a sentence is reached.

With all these limits, the vetoed law is nothing more than a dolled-up way of proposing a new amnesty, which means it should be rejected out of hand. The law contains no innovative alternative pathways beyond the classic punitive ones. With respect to the former military personnel
on both sides of that civil war, they know that by opening doors to punishment, no political leader of either ARENA or the FMLN would escape litigation for human rights violations. Indeed, both ex-President Alfredo Cristiani (ARENA)and ex-President Salvador Sánchez Cerén c (FMLN) continue to be seen as big game prey.

“Let’s not open old wounds”

It is unlikely in this context that anything momentous will happen. The two political parties that define the nature of the law within the Legislative Assembly have too many commitments to their ex-combatants for a fair law to have any chance of their approval. The executive won’t promote the law unless it can find another source of support besides the Army.

And even if this fair law manages to get approved, it’s easy to guess that there would immediately be an implicit agreement to avoid stirring the waters, based on the idea that “If you don’t try me, I won’t try you.” This has been the song playing softly in the background for over 30 years, a variation on “Let’s not open old wounds.”

If any citizen should attempt to heal these wounds by filing a criminal case, their effort will surely be swamped in the quicksand of the judicial system or be left eternally waiting for a favorable sentence, or even any resolution at all.

Looking to South Africa

When South Africa under Nelson Mandela launched its Truth and Reconciliation Commission in 1995, headed by Bishop Desmond Tutu, it looked to the experience of El Salvador’s Truth Commission. Now that we are attempting an authentic reconciliation process in our country, it would be worth looking back at South Africa’s experience to finally overcome the limits of the legal mentality and the punitive side of reconciliation.

Luis Antonio Monterrosa is a professor in the Sociology and Political Science Department of the “José Simeón Cañas” Central American University in El Salvador.

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