After Repeal of El Salvador's Amnesty Law: Next Steps in Justice and Accountability

By Hajji, Nadia | Texas International Law Journal, Spring 2018 | Go to article overview

After Repeal of El Salvador's Amnesty Law: Next Steps in Justice and Accountability


Hajji, Nadia, Texas International Law Journal


TABLE OF CONTENTS

TABLE OF CONTENTS............77

INTRODUCTION..............78

I. BACKGROUND. ......78O

A. The Civil War.....78

B. Peace Process and Truth Commission.....82

C. Amnesty Law......84

D. Repeal of Amnesty Law.....87

E. Obligation to Prosecute......88

II. CAPACITY TO PROSECUTE......90

A. Consolidating Trials into Mega-Trials......91

B. Prioritizing Cases: Prosecutorial Discretion..96

1. Overview of Prosecutorial Discretion......96

2. Identifying the Most Responsible Actors.....97

3. Alternative Punishment......99

4. Risks and Application to El Salvador......100

C. Private Prosecution......102

III. IMPLICATIONS OF PROSECUTION EFFORTS.....106

CONCLUSION.....108

INTRODUCTION

On July 13, 2016, the Salvadoran Supreme Court struck down a 23-year-old amnesty law that protected soldiers, paramilitary groups, high-ranking officials, and guerrilla fighters from investigations and prosecutions for human rights violations committed during the Salvadoran Civil War.1 By declaring the amnesty law unconstitutional, the Supreme Court opened the door to pursuing justice for massacres, forced disappearances, torture, and other abuses that spanned from 1980 to 1992.2 While human rights groups and many victims celebrated the decision as a landmark in transitional justice for the country's tragic past, reactions to the decision remain mixed.3 Some members of the public and government fear that revoking the law could destabilize El Salvador's deeply divided political system.4

A debate has ensued as to whether El Salvador can or should initiate criminal justice mechanisms for its civil war crimes.5 This Note argues that El Salvador has an international and domestic obligation to promptly and diligently prosecute these crimes. Moreover, based on the experiences of similarly situated post-conflict countries, prosecution is feasible using a three-pronged approach.

This Note proceeds in two sections. Section I of this Note discusses the history of El Salvador's civil war, peace process (including the General Amnesty Law), truth commission efforts, and the recent repeal of the law. Section II discusses El Salvador's capacity to prosecute, the various mechanisms the country can employ to make prosecutions achievable, and how other post-conflict countries have employed these mechanisms to assist in their accountability efforts. Section II. A details the possibility of consolidating multiple cases and defendants that relate to a single war crime incident. Section II.? addresses the use of prosecutorial discretion to determine which cases and defendants will be prosecuted in an efficient manner while serving individual rights. Section II.C suggests that the right of private prosecution may serve as a check on prosecutorial discretion and may generate momentum for justice in the face of a reluctant state.

I. BACKGROUND

El Salvador has struggled for decades with the daunting question of whether and how to confront the atrocities of its past.6 With the overturn of the 1993 amnesty law, the country has a renewed opportunity for justice and reconciliation. Unfortunately, there is no simple prescription or template approach for countries to heal the wounds of violent conflict.7 Effective post-conflict justice requires an informed understanding of the particular experiences of-and conditions in-the country.8 As such, this section begins by discussing the history of El Salvador's civil war, the crimes at issue, the peace process, and the 1993 amnesty law. This section then explains the relevant international law and victims' rights that impose a duty on El Salvador to prosecute its civil war crimes. The background that this section provides will inform the subsequent argument that El Salvador should employ certain prosecutorial mechanisms to address its painful past.

A. The Civil War

Between 1979 and 1990 El Salvador underwent a civil war that resulted in an estimated 75,000 deaths and 8,000 disappearances, the majority of which were civilians. …

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