PANAMA / GENEVA (22 / 23 May 2019) – The UN High Commissioner for Human Rights, Michelle Bachelet, has warned that the draft bill for Transitional and Restorative Justice for National Reconciliation, currently under discussion in El Salvador's Legislative Assembly, contains a series of provisions that could result in a de facto amnesty for serious human rights violations.
"If passed, these provisions will unduly benefit the people who, during the armed conflict, were directly responsible for crimes against humanity and war crimes, such as extrajudicial executions of children, women and the elderly, enforced disappearances, torture, sexual violence and other serious violations of international law,” the High Commissioner said. “They will also result in impunity for the masterminds and military leaders who ordered such crimes, or failed to adopt measures to prevent or stop them."
The draft law, which was recently presented by the Sub-Commission of the Political Commission of the Legislative Assembly, is founded on the work of an "Ad Hoc" Commission that was severely compromised as some of its members were themselves involved in the armed conflict, and by a lack of transparency and participation of victims during its elaboration. The Ad Hoc Commission was created following a July 2016 Supreme Court ruling that the 1993 Amnesty for Peacebuilding Law was unconstitutional, and the Court asked the Legislative Assembly to draft a new National Reconciliation Law.
"It is disturbing that the new bill is based on the results of the work of this Commission, and does not reflect the perspective of the victims, particularly those who live in rural communities – whose voice has not been heard so far – and those who suffered the pernicious effects of the armed conflict," Bachelet said.
The bill seeks to suspend prison sentences for everyone who admits responsibility for crimes committed during the conflict, replacing these sentences with community service.
As the UN Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-repetition recently stated: “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.” 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.
The draft law contains other provisions that are of concern, In particular it allows criminal responsibility to be attributed only to those who participated directly in the commission of the crimes. That would prevent any investigation and punishment of the masterminds as well as the entire chain of command of those involved in the atrocities.
The High Commissioner welcomed the fact that the Sub-Commission of the Political Commission of the Legislative Assembly recently met representatives of civil society organizations, who are members of the Round Table against Impunity. The alternative proposal made by this group – ‘the Law of Integral Reparation and Access to Justice’ – aims to incorporate the views of victims and is in line with the State's human rights obligations, and with the ruling that the Amnesty Law was unconstitutional.
"I hope these contributions – in addition to others that could emerge from a broad consultation process at the central, local and community levels – will guide the members of the Legislative Assembly, and encourage them to refrain from adopting provisions that contravene international law and undermine the persistent search for justice by all those who, to this day, are still suffering the consequences of the atrocities that occurred during the conflict," Bachelet said.
"I urge the competent institutions in El Salvador to reflect deeply on the significant progress made in the area of transitional justice and the importance of continuing to advance towards truth, justice, reparation and guarantees of non-repetition as conditions for national reconciliation,” she added. “My Office reiterates its offer to provide technical assistance to the Legislative Assembly and other institutions for this purpose."