THROUGHOUT Latin America outgoing military dictatorships and authoritarian regimes have decreed amnesty laws that have prevented the prosecution of those culpable for human-rights crimes.
It was unexpected, however, when El Salvador's Legislative Assembly passed a broad amnesty law just one week after the Jan. 16 signing of the peace accord between the FMLN guerrillas and the Salvadoran government. Many observers believed that the FMLN had sufficient leverage to prevent a blanket amnesty, and that the thousands of human- rights violations committed over the last decade would not be eliminated from official memory.
How was the peace accord, representing a hope for fundamental social change, transformed so quickly into a law that could institutionalize the current power structure?
The Law of National Reconciliation declares an amnesty except for all those convicted of serious acts of violence and those whom an accord-created body, the Truth Commission, determines have committed serious acts of violence since Jan. 1, 1980.
This puts enormous weight on the members of the Truth Commission: Thomas Buergenthal, the president of the Inter-American Institute on Human Rights; Belisario Betancur, a former president of Colombia; and Reinaldo Figuereda, a well-known Ven-ezuelan diplomat. The Truth Commission will have the authority to investigate all human rights abuses of national import and make recommendations, including bringing prosecutions. Given the expanse of the task the commissioners face and their limited tenure - six mon ths - the product will by design be limited.
Under the American Convention on Human Rights, a state violator like El Salvador has no authority to brush aside its tragic history of abuses and promise to be good hereafter. While prosecutorial discretion exists as to the type of sentence sought, a state has a legal obligation to fully investigate and take legal action on each violation. A state cannot forgive itself for its own crimes.
The Salvadoran amnesty, like so many others in Latin America, applies not only to acts of war, but also to war crimes, crimes against humanity, and gross human rights abuses. The right to be free from such abuses attaches to the individual. The state must respect them.
How was this illegal law passed? Nowhere in the accord is an amnesty called for. The careful wording of the accord indicates that the drafters purposely avoided amnesty language, knowing the human rights mine fields amnesties have created throughout Latin America.
Yet shortly after Jan. 16, the governing ARENA party argued that a broad general amnesty should be passed as a means to implement the accord and, as the accord mandated, allow FMLN members legally to return to San Salvador. An amnesty properly limited to acts of war would have been appropriate. But ARENA achieved an amnesty law that was not required by the accords and that violates international law. Why did the FMLN acquiesce?
ON the day of the signing of the peace treaty Boutros Boutros-Ghali, the new United Nations secretary-general, stated that what was being signed was a revolution by negotiation. This affirmed what the FMLN believed: While they had given up their original goal of economic transformation of Salvadoran society, at least the military would be removed from its elevated status.
Also, it appears that the FMLN agreed to the amnesty because the political ambitions of a few FMLN leaders could have been frustrated by prosecutions for their links to human rights abuses. Seeing only their political futures, the FMLN gave up what could have been the most effective weapon to transform the present Salvadoran power structure, the actual and proper application of human rights law.
ARENA will look at the accords as a place to begin to whittle. They have both the accord-created implementation body and the Legislative Assembly to make what would otherwise be distasteful accords palatable. Perhaps the FMLN wrongly believed the compromising phase had ended. It is now beginning in earnest.
The accord is said to have ushered in a new era for El Salvador. Whether the UN-brokered accord does lead to fundamental social change or simply to the end of fighting will be played out throughout the year. If the starting point remains an illegal amnesty law, an ill wind blows for the "negotiated revolution."