Post-transitional Justice: Human Rights Trials in Chile and El Salvador

7. Changing to Stay the Same: Post-Transitional Justice in El Salvador

This chapter examines the principal features of El Salvador’s post-transitional accountability trajectory. The first section deals in turn with two chronological periods: 1994–97, and 1998 onward. Each represents a recognizable phase in the accountability trajectory of El Salvador after the peace accords. During the first phase accountability actors were scarce and there were few challenges to the edifice of impunity. In and after 1998, limited domestic and external accountability initiatives emerged, although, to date, political and judicial responses have been absent or decidedly negative. The second section of the chapter deals in turn with accountability actors and legal strategies in posttransitional accountability, offering where relevant more detailed analysis of the events outlined in the first section. Judicial system protagonism in El Salvador has not been sufficient to warrant a dedicated thematic section: changed judicial receptivity over accountability , which proved so significant in Chile, has been virtually undetectable in El Salvador. Moreover, Salvadorean courts were effectively sidelined as accountability players when 1990s judicial reforms reassigned investigative powers and discretionality over criminal prosecution to other parts of the justice system. Substantive court action over accountability in the recent period has been restricted to a Supreme Court decision upholding the principle of amnesty. Only in the external field are there some signs of renewed efforts to challenge persistent impunity in El Salvador, in the form of third-country cases plus a handful of domestically impulsed attempts to activate regional mechanisms. 7 changing to stay the same: post-transitional justice in el salvador changing to stay the same: post-transitional justice in el salvador 169 Accountability Milestones impunity preserved: 1994–1997 This period has been described as a phase of re-design and re-creation of El Salvador’s state apparatus, in an effort to make transition real through a drive for democratization.1 The FMLN made its debut as a legitimate political party in the postwar polls. But ARENA, the right-wing party voted into power before the peace accords, retained its hold on the presidency and legislature.2 Some of the major institutional changes agreed to in the peace accords began to take shape, under the watchful eye of the UN. Reduction of military strength went forward, with the dissolution of entire divisions, including the notorious Atlacatl Battalion implicated in the El Mozote and Jesuit massacres. A new national civilian police force, the Policía Nacional Civil (PNC), was introduced.3 The UN’s role shifted away from peacekeeping and mediation functions and toward technical assistance and capacity building.4 The UN mission, ONUSAL, took a particularly close interest in the evolution of the new human rights ombudsperson’s office, the Procuraduría para la Defensa de los Derechos Humanos (PDDH), which had been created by constitutional reforms in April 1991. Given a broad remit, the PDDH was nonetheless restricted to an essentially denunciatory and advisory role. It could investigate and report on complaints against state functionaries, but could not enforce its recommendations . With the appointment of Victoria de Avilés as its second procuradora , in 1995, the PDDH achieved public prominence and took on a more interventionist style. Greater profile, however, brought greater politicization . De Avilés’s strong identification with the left undoubtedly heightened ARENA’s antipathy to the institution she headed, culminating in a disastrous 1. Cañas and Dada (1999, 70). The authors are, however, less sanguine about the genuine acceptance of these changes by actors used to “the old system of unwritten, undemocratic rules” (71). 2. ARENA retained presidential power in every national election between 1994 and 2009, although its legislative majority at times depended on alliances with other right-wing parties. In 2003 the FMLN became the single largest party in the Legislative Assembly, but did not have an independent legislative majority. See below. In 2009, FMLN candidate Mauricio Funess won the presidency. 3. There were, however, criticisms that military intelligence functionaries earmarked for dismissal had been secretly transferred to the new PNC. See LCHR (1995, 33–34). 4. Although, according to Popkin (2000, 253), this did not happen quickly or comprehensively enough. See also LCHR (1995, 111–12). 170 post-transitional justice replacement appointment that amounted to sabotage.5 Even during the de Avilés period, however, the PDDH took relatively little action over the historical HRV question. Its agenda was driven by complaints from the public, often over labor rights issues or allegations of official corruption. It was widely...