GENEVA (16 May 2019) – The UN human rights expert on transitional justice urges the Legislative Assembly of El Salvador not to pass a bill allowing de facto pardons for serious human rights violations and war crimes committed during the internal armed conflict that claimed 75,000 lives between 1980 and 1992.
The Political Commission of the Legislative Assembly has been considering draft articles for a proposed National Reconciliation Law since 14 May 2019. Victims of the armed conflict, their representatives, and wider civil society have not been consulted in the process. A bill based on these draft articles could be approved in the plenary of the Assembly before the end of this week.
The draft articles seek to implement a 2016 Supreme Court judgement that declared the unconstitutionality of the Amnesty Law established in 1993, and requested the Legislative Assembly issue a new National Reconciliation Law.
Provisions of this draft include de facto amnesties or pardons, as prison sentences will be suspended and substituted with community service, and criminal responsibility will be attributed only for the direct omission or action in the realisation of a punishable act, risking impunity for those who ordered, participated or abetted. It also sets a status of limitation of five years for the investigation and prosecution of the violations committed during the conflict, and requests the General Prosecutor’s Office to draw a list of cases within five months.
It also stipulates that any such judicial decision will be considered res judicata and can, therefore, not be appealed. In addition, it forbids passive extraditions for the purpose of prosecution in foreign courts.
“I express serious concern at this attempt to open the door for a de facto amnesty and eliminate the enforcement of criminal sanctions for severe human rights and humanitarian law violations and crimes against humanity,” said the UN expert on the promotion of truth, justice, reparations and guarantees of non-recurrence, Fabian Salvioli. He recalled the jurisprudence from the Inter-American Court of Human Rights that prohibits amnesty mechanisms or measures that seek to impede or suppress the effects of a conviction ruling in cases of severe human rights violations*.
“Amnesties, statutes of limitations and mechanisms that remove the effect of criminal sanctions are incompatible with crimes that represent serious violations of human rights, such as torture, summary executions, forced disappearances and genocide, among others,” Salvioli said. In addition, he said, impunity in relation to such crimes can contribute to their repetition and to the creation of vicious cycles of violence, as is currently the case in the country.
Salvioli shared his concerns with relevant authorities, including the Legislative Assembly, during an official visit to El Salvador from 24 April to 3 May. In March, the UN High Commissioner for Human Rights Michelle Bachelet expressed similar concerns.
“I am alarmed that the parties to the armed conflict - who risk criminal prosecution for violations committed in that period - are attempting to establish an impunity pact before a change of Government on 1 June 2019 will see the first administration since the Peace Accords that has not been party to the conflict. This attempt is as spurious as it is illegal under national and international law,” Salvioli said.
“I have seen commitment and good intentions in the current administration to advance the transitional justice process in areas of truth, reparations and guarantees of non-recurrence. I hope that this commitment stands equally strong when setting up the basis to guarantee justice for the victims.
“I would like to recall that transitional justice processes are not a ‘pick and choose’ exercise, they must be implemented comprehensively, addressing each constitutive element of a transitional justice agenda: truth, justice, reparations and guarantees of non-recurrence.
“There are no clear reasons why impunity mechanisms such as those proposed in the draft could be considered legitimate, or even necessary in political terms. Neither are they legal. The conviction and effective punishment of those responsible is an obligation of the Salvadoran State, and it cannot be skirted through legislative decisions that run contrary to international human rights law.”
* See Corte IDH. Case of Gutiérrez Soler v. Colombia. Ruling from September 12, 2005. Series C N° 132, paragraph 97; and Case of Barrios Altos v. Peru. Supervision of Ruling Compliance. Inter-American Human Rights Court Resolution from September 7, 2012, paragraph 55
Mr. Fabian Salvioli (Argentina) was appointed by the UN Human Rights Council in 2018 as the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence. He is a human rights lawyer and professor. Fabián Salvioli is professor of International Law and Human Rights at the School of Law of the University of La Plata. He has lectured in many countries and universities across the Americas, Europe, Africa and Asia. Mr. Salvioli has authored several books and articles on international human rights law. He was member of the United Nations Human Rights Committee between 2009 and 2016, and its President between 2015 and 2016. As a Special Rapporteur, Mr. Salvioli is part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
UN Human Rights, Country Page: El Salvador
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