4.     Enactment of the Amnesty Law and El Salvador's international commitments

          One cannot possibly discuss El Salvador's Amnesty Law as extraneous to the situation in the country at that time, after publication of the Report of the Truth Commission on March 15, 1993.  Indeed, of all the reactions to the Report's content, the Amnesty Law may have been the one with the most far-reaching implications for fundamental rights.  Those sectors of society that traditionally had denied the charges that were ultimately confirmed by the United Nations experts were quick to react.  The Chief Executive himself tried to belittle the importance of the report.[15]

          On March 18, 1993, in an address to the Nation concerning the Truth Commission's Report, President Alfredo Cristiani announced a general amnesty in the following terms:

          (...) one also has to consider that the Report of the Truth Commission examines only a part of everything that happened in all those years of violence.  And because the Report speaks of only certain cases and mentions only certain people, we have to think much more carefully about what course of action we should take.  What is most important now is to see what has to be done to erase, eliminate and forget everything in the past.  Our position is that it would be unjust to take legal or administrative measures against some but not others, simply because the latter did not figure in the cases examined in the Truth Commission's Report.   In this sense, our position is not to blame specific individuals, but to consider all the facts and not act on only part of the problem; it is preferable to look for a overall solution that will embrace everyone.

          (...) Therefore, we are again calling upon all sectors in the country to support a general and absolute amnesty, so that we can turn that painful page in our history and seek a better future for our country.[16]

          Once the Truth Commission's Report was published, the political parties represented in the Legislative Assembly began to discuss the Government's proposal, and on March 20 it was officially confirmed that the Salvadoran Congress had passed a "General Amnesty Law for the Consolidation of Peace."

          This bill was passed by the Conservative Party but came under heavy attack from members of grassroots organizations both within and outside Congress.

          Article 1 of Decree 486, the "General Amnesty Law for the Consolidation of the Peace", grants a "full, absolute and unconditional amnesty to all those who participated in any way in the commission, prior to January 1, 1992, of political crimes or common crimes linked to political crimes or common crimes in which the number of persons involved is no less than twenty."

          The law also stipulates that the "amnesty shall also apply to the persons referred to in Article 6 of the National Reconciliation Law contained in Legislative Decree No. 147, of January 23, 1992 (...)"[17]

          That provision basically concerned those "individuals who, according to the Report of the Truth Commission, participated in acts of violence committed after January 1, 1980, which left such an indelible imprint on society that it is all the more imperative that the public know the truth."  The National Reconciliation Law stipulated that the Legislative Assembly could take some decision in such cases, up to as much as 6 months after receiving the Report of the Truth Commission.

          In its Annual Report for 1992-1993, which was approved prior to publication of the United Nations Report, the Inter-American Commission on Human Rights had expressed its concern that this might happen, stating that:

          The important report of the Truth Commission will be decisive in consolidating the process presently underway in El Salvador, and implementation of its recommendations will help effect a true reconciliation among Salvadorans.  The atrocities committed during the war will be made public to the people of El Salvador, who will have an opportunity to reflect upon them in peacetime and learn a lesson for the future about the sorts of things that must never again be allowed to happen in their country.

          The Truth Commission's report will also have a great impact on the enforcement of the National Reconciliation Law (Legislative Decree No. 147).  The IACHR is disturbed by reports it has received that the Amnesty Law will have an adverse effect on the outcome of the Truth Commission's work (...)

          The Inter-American Commission cannot predict conclusions on the development of the process now underway.  Nevertheless, as a State Party to the American Convention on Human Rights and by its ratification of it, El Salvador has, as the Inter-American Court of Human Rights pointed out,[18]  "a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to assure the victim adequate compensation.(...)[19]

          Article 2 of the General Amnesty Law broadens the definition of political crime to include "crimes against the public peace", "crimes against the activities of the courts,"[20] and crimes "committed on the occasion of or as a consequence of the armed conflict, without regard to political condition, militancy, affiliation or ideology."

          Under Article 3, the amnesty does not apply to "acts of terrorism" wherein the individual "deprives third parties of their freedom, threatens or causes their death" for profit; nor does it apply to the crimes of kidnapping and extorsion and drug-related crimes.

          Article 4, on the effects of the Amnesty Law, provides that by virtue of this law, persons presently being held shall be released and all pending cases dismissed; in the case of individuals against whom no court proceedings have been conducted, the present decree shall mean that if at any time proceedings are instituted against them for the crimes covered by this amnesty, they may move for extinguishment of criminal action and request definitive dismissal."  Finally, it provides that an individual may appear before the Judge of First Instance to have the amnesty applied in his case.

          One provision with very serious implications appears in the final subparagraph of Article 4: "The amnesty granted by this law extinguishes all civil liability."  The Commission will address this clause later in this document.

          Numerous political sectors in El Salvador disapproved of the haste with which the Amnesty Law was passed.  In their view, it could compromise strict compliance with the Truth Commission's recommendations.  At the international level, a number of States, regional groups and international organizations -intergovernmental and nongovernmental alike- told President Cristiani's Government that they were disturbed by the passage of a law so sweeping as the one approved by the Legislative Assembly.  On March 22, Alvaro de Soto, the United Nations Secretary-General's Special Envoy for El Salvador, stated that the recommendations of the Truth Commission were binding regardless of the Amnesty Law, since the latter did not affect the Commission's recommendations that certain persons mentioned in its Report be either removed from office or declared ineligible for public office.

          For its part, on March 26, 1993, the Inter-American Commission on Human Rights sent a message to the Salvadoran Government before the deadline that the President had for vetoing the recently approved law.  It stated, inter alia, that:

          The Legislative Assembly's passage of a General Amnesty Law on March 20, immediately after publication of the Report of the Truth Commission, could compromise effective implementation of the Truth Commission's recommendations and eventually lead to a failure to comply with the international obligations undertaken by the Government of El Salvador when it signed the Peace Agreements.

          The Commission would like to call Your Excellency's attention to the fact that the political agreements concluded among the parties in no way relieve the State of the obligations and responsibilities it has undertaken by virtue of its ratification of the American Convention on Human Rights and other international instruments on the same subject.

          Under Article 27 of the Vienna Convention on the Law of Treaties, a State cannot unilaterally invoke provisions of its domestic law as justification for its failure to perform the legal obligations imposed by an international treaty.  Finally, Article 144 paragraph 2 of the Constitution of El Salvador states that "the law shall not modify or derogate that agreed upon in a treaty in effect in El Salvador.  In the event of a conflict between the treaty and the law, the treaty will  prevail."

          The Inter-American Commission on Human Rights would also like to remind Your Excellency's Government that El Salvador's ratification of the American Convention on Human Rights made it a State Party and as such it has, as the Inter-American Court of Human Rights stated, "(...) a legal duty (...) to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation."  In reference to Article 1 of the Convention, the Court added that "if the State apparatus acts in such a way that the violation goes unpunished (...) the State has failed to comply with its duties to ensure the free and full exercise of those rights to the persons within its jurisdiction."

          As Your Excellency will recall, the Inter-American Commission approved Report 26/92 on case 10,287, the "Las Hojas Massacre," and included it in its Annual Report for 1992-1993.  That report makes specific recommendations on this very subject.

          The Inter-American Commission on Human Rights is confident that Your Excellency's response will match the Salvadoran State's international obligations and that you will not allow domestic laws to violate international provisions and commitments undertaken by El Salvador.

          The Government did not reply to this request from the Commission, and it was not until May 11 that a note was received through the National Secretary of Communications of El Salvador to the following effect:

          (...) As you know, in a statement made available to the national and international press, President Cristiani said that he regards the amnesty as a step toward reconciliation and a means to ensure that these crimes will never reoccur.

          He also said that he will comply with the recommendations of the Truth Commission insofar as they are consistent with the Constitution and laws of El Salvador and serve the interests of national reconciliation and contribute to what the majority of the Salvadoran people want, which is to promote national reconciliation by forgiving and forgetting a painful past that has caused so much damage.

          We believe that this law for total and absolute amnesty, passed by the Legislative Assembly, needs the support of the international and national community in order to turn this painful page in our history and look to a brighter future for our children and the nation.

          The Amnesty Law has been applied in some cases in El Salvador.  Some of these are well-publicized cases because of the international notoriety of the crimes, as in the case of the murder of the Jesuit priests, the murder of Herbert Anaya Sanabria and others, which the Commission need not examine in this report.

          Having sketched the scenario in which the General Amnesty Law was passed and having quickly reviewed its content and far-reaching effects, the Inter-American Commission on Human Rights will now analyze it from the standpoint of international commitments previously undertaken by El Salvador.

          There are several aspects of this law that need to be carefully examined:  first, the crimes covered by the amnesty; second, the individuals covered by the law; third, the extinguishment of the civil liability, and finally, the question of whether the law is compatible with the American Convention on Human Rights of which, it should be repeated, El Salvador is a State Party.

          A review of the crimes covered by the law indicate that they include, apart from those that are generally classified and acknowledged to be political, crimes against "the activity of the courts"; in other words, it covers perjury, false expert opinions and reports, procedural fraud, false evidence, bribery, cover-ups, punishable omissions, prevarication and the delay of justice, among others.  The Commission believes that a provision of this nature is very serious.  It fails to see what justification there could be for including, in an amnesty law intended to "promote and achieve national reconciliation"[21], crimes committed by officers of the court and by litigants in court proceedings, especially in a country where many criminal acts -including grave and systematic violations of basic human rights- went unpunished because that country had no trustworthy, independent and effective judiciary.

          On the matter of civil liability, the principle that the rights of victims should be safeguarded is generally recognized in amnesty laws and is one from which there can be no derogation except by virtue of an explicit provision. 

          In the past, the Inter-American Commission on Human Rights has addressed the amnesty issue and has stated that "independently of the problem of proving guilt, which in every case must be determined individually and with due process guarantees, by a pre-existing court which applies the law in force at the time the crime was committed, one of the first matters that the Commission feels obliged to give its opinion on in this regard is the need to investigate the human rights violations committed prior to the establishment of the democratic government (...)  Every society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the future.  Moreover, the family members of the victims are entitled to information as to what happened to their relatives (...).[22]

          In reports 28/92 and 29/92, which concern individual cases involving Argentina and Uruguay, respectively, the premise used by the Inter-American Commission to make its legal arguments was the right of the claimants to some economic compensation "for damages and injuries caused by the State".  It not only recommends to the States that they pay "just compensation for the violations" but also recommends the adoption of the measures necessary to clarify the facts and "identify those responsible for the human rights violations that occurred during the de facto period."[23]

          In the specific case of El Salvador, in a report stemming from a petition received concerning the Las Hojas Massacre, the Commission cited the following considerations, which are relevant to the subject under review, as the grounds for inferring the responsibility of the Salvadoran State:

          11.     (...) that as a result, the passage of the amnesty, even after an arrest warrant had been issued to Armed Forces officers, legally eliminated the possibility of an effective investigation and the prosecution of the responsible parties, as well as proper compensation for the victims and their next-of-kin by reason of the civil liability for the crime committed.

          12.     Article 27 of the Vienna Convention on the Law of Treaties prohibits the State from unilaterally invoking national law as a justification for failing to comply with legal obligations imposed upon it by the Convention.

          13.     Additionally, Article 144 paragraph 2 of the Constitution of El Salvador declares that:  `The Law shall not modify or derogate that agreed upon in a treaty in effect in El Salvador.  In the event of a conflict between the treaty and the law, the treaty will prevail.'

          The competence of the Inter-American Commission on Human Rights to address the issue of whether domestic laws are compatible with the American Convention on Human Rights has been corroborated by the Inter-American Court, which in its most recent advisory opinion found that:  "There are many ways a State can violate an international treaty.  In the specific case of the Convention, for example, the State can violate it by failing to enact the laws that it is obliged to enact under Article 2.  Of course, it can also violate the Convention by enacting provisions that are contrary to what its obligations under the Convention require of it, which would make the question of whether such provisions were enacted in accordance with or contrary to domestic law irrelevant."  The Court added that "there must be no doubt that under such circumstances the Commission has the same authorities as it would have vis-à-vis any other type of violation, and may avail itself of the same opportunities to state its findings that it has in the other cases.  In other words, the fact that these are domestic laws adopted in accordance with provisions of the Constitution means nothing if they are the means through which protected rights and freedoms are violated.  The authority of the Commission is in no way constrained by the manner in which the Convention is violated."[24]

          This last finding by the Court is particularly relevant to the analysis of the observations that the Government of El Salvador used to justify such a sweeping amnesty as the one approved.  That amnesty extinguishes criminal and civil liability and thus disregards the legitimate rights of the victims' next-of-kin to reparation.  Such a measure will do nothing to further reconciliation and is certainly not consistent with the provisions of Articles 1, 2, 8 and 25 of the American Convention on Human Rights.

          Consequently, based on these considerations, the Inter-American Commission on Human Rights believes that regardless of any necessity that the peace negotiations might pose and irrespective of purely political considerations, the very sweeping General Amnesty Law passed by El Salvador's Legislative Assembly constitutes a violation of the international obligations it undertook when it ratified the American Convention on Human Rights, because it makes possible a "reciprocal amnesty" without first acknowledging responsibility (despite the recommendations of the Truth Commission); because it applies to crimes against humanity, and because it eliminates any possibility of obtaining adequate pecuniary compensation, primarily for victims.