Peace Without Justice: Obstacles to Building the Rule of Law in El Salvador (review)

Margaret Popkin, a lawyer whose eight-year residence in El Salvador included a stint working for the Central American University Human Rights Institute between 1985 and 1989, explores why overcoming impunity and establishing a firm rule of law have proven to be so troublesome for that country, even when United Nations negotiator Alvaro de Soto and many others heralded the 1992 peace accords as a "negotiated revolution." This study derives from both her personal observation and the extensive research she has undertaken since 1993 with the support of the MacArthur Foundation, the United States Institute of Peace, and the Schell Center for International Human Rights at Yale University Law School. Popkin combines her close examination of legal justice in El Salvador with careful comparative references to other societies striving to establish a rule of law in the aftermath of prolonged repression and conflict, particularly Argentina, Chile, Guatemala, and South Africa.

In summing up the lessons of the Salvadoran experience for those actively involved in the international human rights movement, she concludes "that changing entrenched attitudes and practices is far more difficult than outside actors tend to appreciate" (p. 251). She contends that unless domestic civil society is deeply involved in the processes of establishing accountability for past injustices and in building durable legal codes, courts, and police systems, international assistance, even in the best of circumstances, will leave democracy unconsolidated and vulnerable to the return of abusive past practices.

Popkin offers a measured, thoughtful study, one rich in detail and bibliographical annotation. During El Salvador's 1979-1992 civil war, the country's judicial institutions remained weak and corrupt, its social order highly unjust, and its military dominant. Legal justice derived from power, not from a rule of law. Popkin characterizes efforts by the United States to promote human rights and to strengthen the Salvadoran judicial system during the 1980s as hypocritical and ineffective.

The creation of the peace accords created a "window of opportunity" of "finite duration" (p. 263). An extensive UN presence helped the institutions created by the peace accords, such as the Ad Hoc Commission and the Truth Commission, to purge the military of the most notable abusers of human rights and to fix responsibility for the most hideous killings of civilians such as the 1981 massacre at El Mozote or the 1990 slaughter of six Jesuits, their cook, and her daughter at the Central American University in 1990. The polarization of El Salvador required a strong international role in constructing and implementing the accords, yet the salience of outside participation ultimately meant that "respected Salvadorans of divergent opinions did not come together" to establish "ownership" over what had happened (p. 122). The accords failed to involve society in the creation of an enduring legal structure of accountability. The UN staff and Salvadoran non-governmental organizations did not cooperate closely, while the supreme court and other elements of the judicial system resisted UN recommendations for reform.

As a result, "peacetime" El Salvador has brought neither an accounting nor any compensation to the relatives of human rights victims. Moreover, the newly-created National Civilian Police has been overwhelmed by an enormous crime wave that has left many Salvadorans feeling more insecure than during the war. Despite some improvements in police practices, penal codes, and judicial institutions, El Salvador's criminal justice system lacks sufficient integrity and capacity to create an effective rule of law. Past abusive practices such as extrajudicial confessions and extensive pretrial incarceration continue.

While Popkin considers it too early to make any definitive judgment about the outcome of the Salvadoran peace accords, she does regard El Salvador as "an example to be avoided" in which peace building failed to construct an effective order of law and reconciliation within society (p. 163). Her findings complement those of...