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Central American University - UCA  
  Number 158 | Septiembre 1994
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El Salvador

All Roads Lead to Impunity

The death squads are undergoing a metamorphosis, evolving towards organized crime and enjoying impunity. The interests of both business associations and popular organizations are coming together now to oppose that impunity.

Juan Hernández Pico, SJ

Several recent political events have forced the country to turn once again to the issues of security, impunity and the administration of justice. The National Assembly elected a new Supreme Court of Justice; the Joint Group investigating political crimes and the structures that commit them turned in its report, reinforcing the conclusions drawn by the Truth Commission; and ONUSAL released its report on irregularities in the National Civilian Police.

There is a bitter conflict in El Salvador today between the structures of impunity and the forces interested in challenging them, but the division in the left leaves it unable to make the best use of such a unique opportunity.

The Supreme Court: Impasse to Consensus

As was expected, ARENA did not accept the candidacy of Christian Democrat Abraham Rodríguez as president of the new Supreme Court of Justice. That appointment would have been Rodríguez's springboard to the presidential candidacy in 1999. More to the point, ARENA feared that Rodríguez, formerly on the Ad Hoc Commission that had proposed purging the armed forces, would revive the past from his new post.

Despite extraordinary efforts, however, ARENA could not break the opposition's determination to keep it from getting total control over this key branch of the state. ARENA's main maneuver was to manipulate the divisions in the Christian Democratic Party (PDC) between Rodríguez's supporters and those of Fidel Chávez Mena, but it failed.

The prolonged impasse was finally broken on July 27, when Dr. José Domingo Méndez, a low profile lawyer who is not affiliated to any political party, was chosen by consensus. He seems to be an independent lawyer with a reputation for honesty.
The consensus formula reveals the transitional character of the new Supreme Court. Five magistrates were elected for nine year terms, another five for six years, and still another five for three years. Méndez will serve for three. "This court," he said in his first public remarks as president, "has no political goals; we are going to try to resolve the problems of both common and organized crime." Days later, he also spoke of "eradicating impunity."

A Unique Opportunity

It can be said that a Court with relative political independence has been constituted. Only two of the magistrates René Hernández Valiente on the Constitutional bench and Aronette Díaz on the contentious Administrative bench have any organic affiliation with political parties (ARENA and the Democratic Convergence, respectively).

The Court is also relatively balanced: an almost equal number of magistrates were proposed by ARENA and by the opposition, and no candidate deemed unacceptable by either one got on the Court. It is also the first time in El Salvador that women two are Supreme Court justices.

If the electoral process had not become so politically polarized, the Court would have also ended up with even higher quality magistrates. Nonetheless, the idea to elect the Supreme Court by consensus worked, albeit with many difficulties. The consensus was neither forced or bought.

This is no small step in the overall democratization process. At the same time, a major factor must be considered: this Court will not be independent of the country's dominant financial capital. For that to happen, El Salvador would have to have a very different group of lawyers than currently practice in the country.

El Salvador will have three years to substantially improve the administration of justice and struggle against impunity. The National Judiciary Council (CNJ) just completed an evaluation of all judges in the country, which the new Supreme Court should use to take action. The CNJ was another of the important achievements struck by the 1992 Peace Accords. It was elected by the previous Assembly from slates proposed by the lawyers' associations and has already had sharp conflicts with the former Supreme Court.

And the Death Squads?

At the end of 1993, with political crime on the rise, especially against FMLN militants and sympathizers, what was called a Joint Group came together as a result of both domestic and international pressure. It was to fulfill one of the Truth Commission's most serious recommendations: look into the death squads. In other words, it was to investigate the criminal structure within the state of impunity that passed for a constitutional rule of law.

The Joint Group is made up of representatives from the Salvadoran government and ONUSAL, hence its name. These representatives are the Human Rights Ombudsman, the head of ONUSAL's human rights division and two lawyers named by the government, one of whom died shortly before the report was finalized. The report was to have been given to then President Cristiani, but the Group asked for an extension until July 31.

The most important part of the report is that it ratifies all the conclusions made a year and a half ago by the Truth Commission. It states that politically motivated armed groups still exist, composed of members of the death squads and former members of the armed forces and dissolved security corps, as well as of ARENA members and state figures.

The report says that these groups have undergone a metamorphosis from clandestine groups with exclusively political objectives. They have now begun to specialize in common crime, all under the long shadow of impunity.

The report further specifies that the intelligence apparatuses of the armed forces and the National Police are still operating. Since the Peace Accords, intelligence gathering has been limited by law to the state organization that answers directly to the Presidency. Worse yet, the report says that the old agencies are using their information to support organized crime.

Advice and Silence

The recommendations in the Joint Group's report are excellent. The first is that investigations and trials of political crimes should be institutionalized. This would be achieved in part by creating a criminal investigation unit within the National Civilian Police, linked to neither the Anti Narcotics Unit nor the old Commission for the Investigation of Criminal Acts. In addition, special judges would be designated to take charge of such crimes.

The second recommendation is the immediate elimination of the old National Police, a purging of the judges and adequate oversight so that intelligence collection is not sullied.

The Joint Group did not clear up any of the key cases it was formed to address. The report uses timid language to refer to the military officers implicated in political crimes it speaks of "members" of the Armed Forces and not "officers" or "high ranking officers" and does not hold the state responsible for its passivity in the face of political crime.

Due to deficiencies of the Joint Group in winning the people's confidence or to the fear of speaking that is still deeply rooted within the population, the concrete names appearing in the report are there only on the basis of strong indications, not of clear evidence. The names were thus were handed over in an appendix to President Calderón and the Secretary General of the United Nations, but were not made public.

Even with these limitations, the ultra right, which speaks through the daily Diario de Hoy, rejected the Joint Group's report in the same visceral way it had attacked the reports made by the Ad Hoc Commission and the Truth Commission. "They gather dirt," the ultra right says, "to drag the nation through it, but never acknowledge the fact that foreign communism was the cause of all the blood spilled in the country."

The New Police Force

This month, ONUSAL gave the government and the FMLN its report on irregularities in the new National Civilian Police (PNC). In it, ONUSAL points out the central aspect of the attempt to undermine this key component of the Peace Accords: shifting power within the PNC to its special Anti Narcotics Unit, which had been transferred wholesale, with no purges, from the National Police to the PNC during Cristiani's last year in office.

This implies a serious militarization of the PNC, since all National Police structures are organized according to an old scheme by which police commanders are also armed forces officers. But it also suggests another serious threat: infiltrating drug traffic corruption into the new PNC.
According to the ONUSAL report, the same thing has taken place with the Commission for the Investigation of Criminal Acts, also transferred intact to the PNC, even though the PNC already had a new criminal investigation division.

ONUSAL refers to the need to be more even handed in filling the chain of command posts within the PNC, to break the hegemony still wielded by former National Police commanders. The ONUSAL recommendations also touch on program reforms in the new National Academy of Public Security and compliance with norms for entrance into the Academy.

Impunity of Organized Crime

There is evidence that the current international situation is very favorable for moving ahead on the institutionalization of a public and independent civil security in El Salvador. The ONUSAL chief, Venezuelan diplomat Enrique ter Horst, declared on July 25 that "the principal pending problem" in pacifying the country "can be summed up in one terrible word: impunity." He indicated that "the process must once again be put on track in a manner completely in line with the Peace Accords."
He disclosed that ONUSAL had given the government its report on the PNC on July 15 and that the government is obliged to comply with its recommendations, directed primarily at reversing "the process of militarization" in the PNC.

None of these statements could have been made if the ONUSAL chief had not felt completely backed by the UN's General Secretary, the Security Council and the countries making up the Group of Friends, particularly the United States.

Both the PNC's new director, Rodrigo Avila, and his immediate superior, businessman Hugo Barrera, the new Deputy Minister of Public Security, embraced the ONUSAL recommendations. Both the new Supreme Court and the PNC, will now be two stronger levers with which to fight against the impunity of organized crime.

Behind the phrase "organized crime" is the "conversion" of many political crimes, today veritable businesses of common crime. The key crimes affecting the country are vehicle theft and drug trafficking. Assaults on banks and vehicles transporting money, along with kidnappings, follow close behind.

The July 23 robbery of the Mortgage Bank in broad daylight indicates that June's Bank of Commerce robbery was not an isolated case. Both were commando style operations in which the players have absolutely no scruples about killing. This is where the organization and "spirit" of the war has been transferred. This criminal capital, accustomed to the business of war, to justifying crime for its own fanatically defended interests and to impunity as well, is today taking on the dominant sectors of legal capital.

Everyone Against Impunity

On July 26, the president of the National Private Enterprise Association (ANEP) called on the country's forces to come together in a national front against crime and to denounce crimes to the legal and police authorities. The fact that he would do this, that the Deputy Minister of Public Security is a businessman who demonstrates a strong determination to take on "organized crime", that the PNC director is taking the same line, and that President Calderón Sol ordered the strengthening of the PNC all indicate that the situation is also favorable at the national level for El Salvador's new public security forces.

Nevertheless, not everything is settled yet and many countervailing interests are at work. Unfortunately, the division inside the FMLN prevents it from creatively taking advantage of the current coinciding of business and grassroots interests in breaking with impunity. It prevents the FSLN from convoking an active, authentically national front organized to fight against and ultimately do away with this longstanding national scourge.

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