El Salvador Amnesty Is a Travesty - Violates Peace Accords
SALVADORAN President Alfredo Cristiani's commitment to democracy was challenged by the UN Truth Commission's report - and it failed the test. Even before its contents were fully known, Mr. Cristiani was calling for a blanket amnesty - "forgive and forget." Following the publication of the report, which attributes 85 percent of the investigated human rights abuses to the government and right-wing death squads, the Nationalist Republican Alliance (ARENA)-controlled Legislative Assembly rushed through a bro ad amnesty law.
The Commission's report shows that systematic human rights abuses were carried out by the government without any legal consequence. Laws were broken with impunity, with terrible consequences for Salvadorans.
The enormous task of ending such impunity was assigned to the Truth Commission by the 1992 peace accords signed by the Salvadoran government and the Farabundo Marti National Liberation Front (FMLN). The accords avoid using amnesty as part of the means toward national reconciliation. In fact, the accords state that the creation of the Truth Commission in no way replaces the legal principle to which both parties subscribed: that everyone, regardless of political affiliation, must be subject to "the courts so that the punishment prescribed by law is meted out to those found responsible." Therefore the Truth Commission was designed as a step in developing the rule of law, not an end.
The passage of the amnesty law has arrested development toward a rule of law. ARENA believes its survival depends on people forgetting its connection to atrocities. But its passage of an amnesty law should not go unnoticed by the international community.
Under international law, amnesty cannot, under any circumstances, free a government from its legal obligation to investigate and punish those responsible for war crimes, crimes against humanity, and gross human rights violations. Amnesty laws are appropriate only in limited circumstances - to provide a means to free political prisoners, for example.
AMNESTY eradicates all domestic legal consequences of abuses attributed to the Salvadoran government and military. It also will have a perverse and damaging effect on the construction of democracy. Massive numbers of government-employed serial killers are being freed from prosecution. The rule of law, long ignored, is being institutionally undermined.
While there is no magic formula for transitions to democracy from military-dominated governments, especially when those governments are implicated in mass killings, the international legal obligations of a state during this transitional period have been established by an Organization of American States commission.
In precedent-setting decisions last fall regarding Argentina, Uruguay, as well as El Salvador, the OAS weighed the complex issues involved in such transitions and determined that a government cannot act unilaterally to provide amnesty for gross human rights violators. These holdings are supported by the 1985 UN report, "Study on Amnesty Laws," which found that amnesty laws that cover blatantly illegal acts do not encourage national reconciliation, but exacerbate antagonisms. Therefore the ARENA governmen t's "broad and complete amnesty" is not only illegal but also destabilizing. ARENA knows it. So does the international community.
The ARENA government signed the peace accords knowing they presented both risks and opportunities. It is only through the full implementation of the accords that democracy and the rule of law can be established in El Salvador. The amnesty law will pervert the agreed-to mechanisms of the peace process and force El Salvador to construct its future based on an illegal act.
Fortunately the international community has signaled that it is willing to use its influence to ensure full implementation of the peace accords. The first step is to tie financial aid to compliance. However, ARENA is endangering much-needed reconstruction aid in order to protect itself and its accomplices through an amnesty that clearly undercuts the Truth Commission.
If ARENA does not repeal the amnesty law to meet its obligations under both the peace accords and international law, the UN should form a tribunal to prosecute those implicated in the Truth report.