This is Part III of an international criminal justice round-up covering ten of the top developments in the field this spring and summer. Part I is here and covers the Habrécase, the travel of President Al-Bashir of Sudan, and the Open Society Justice Initiative’s report on crimes against humanity in Mexico. Part II—which covered sexual and gender-based violence (SGBV) in the Bemba case, the ICC Statute aggression amendments’ 30thratification by Palestine, and more justice for Chile—is here.
- Salvadoran Amnesty Law Declared Unconstitutional: El Salvador’sconstitutional court recently declared the Salvadoran amnesty law unconstitutional, marking the end of what is perhaps the longest-running and most impenetrable amnesty law on the hemisphere. The Constitutional Court also confirmed that there are no statutes of limitations for war crimes and crimes against humanity as a matter of customary international law. For the best analysis of the judgment, see Naomi Roht-Arriaza’s terrific post over at IntLawGrrls. By way of background and impact:
- The Salvadoran legislature enacted the amnesty law days after the Truth Commission for El Salvador determined in 1993 that 85% of the abuses committed during the civil war were attributable to government and associated forces. In fact, this legislation replaced an earlier amnesty law, enacted in 1992, that would not have applied to persons who “participated in grave acts of violence” as determined by the Truth Commission. The first time the Constitutional Court considered the constitutionality of the amnesty law, it dismissed the case on grounds sounding of the political question doctrine. The law was unsuccessfully challenged again in connection with a lawsuit involving the El Mozote massacre, committed by the vicious Atlacatl brigade.
- The amnesty law had already been declared inconsistent with El Salvador’s human rights obligations by the Inter-American Court of Human Rights in a 2012 case arising out of the El Mozote massacre. In that case, El Salvador acknowledged responsibility for the massacre and apologized to the victims, so the Inter-American Court occupied itself with determining the applicable legal consequences under the relevant human rights treaties, including the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, and the Inter-American Convention for the Prevention, Punishment and Eradication of Violence Against Women. Specifically, the Inter-American Court—invoking its prior case law invalidating amnesties in Brazil and Uruguay and other comparable international jurisprudence—declared that the amnesty law ran afoul of El Salvador’s obligations to respect and give legal effect to the rights in the American Convention. It also determined that the law violated victims’ rights to a fair trial, to judicial protection, and to know the truth (which is implicit in other Convention rights). The El Mozote case presented a special twist given that the events in question were committed in the context of a non-international armed conflict governed by Protocol II to the Geneva Conventions, which at Article 6(5) states:
At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.
The Inter-American Court noted at ¶286 that this provision applies only to persons (i.e., rebels or insurrectionists) who have taken part in hostilities (and might be prosecutable for such conduct) and does not countenance blanket amnesties for war crimes or other international crimes:
article 6(5) of Additional Protocol II refers to extensive amnesties in relation to those who have taken part in the non-international armed conflict or who are deprived of liberty for reasons related to the armed conflict, provided that this does not involve facts, such as those of the instant case, that can be categorized as war crimes, and even crimes against humanity.
In conclusion, the Inter-American Court at ¶300 called upon El Salvador to “rectify the conditions of impunity” and “remove all the obstacles, de facto and de jure, that have promoted and maintained it.”
- While the amnesty law was in place in El Salvador, virtually the only justice arising out of the widespread abuses during the country’s civil war has been found abroad, most notably in courts in the United States, in cases under the Alien Tort Statute and the Torture Victim Protection Act, or in Spain under that country’s universal jurisdiction statutes. In Spain, the most important case is that involving themassacre of six Jesuits, their housekeeper, and her daughter in 1989. One of the defendants in that case, Colonel Inocente Orlando Montano, was found living in the United States. He has served a sentence for immigration fraud, and the court has since certified to Secretary of State John Kerry that his extradition from the United States to stand trial in Spain is lawful. (My colleague Professor Terry Lynn Karl submitted an expert report in the case). Montano’s habeas petition is awaiting a ruling, which has put the State Department’s process in abeyance. El Salvador is for the most part cooperating with the Spanish proceedings.
- Under these circumstances, the United States should declassify the remaining U.S. government documents related to the conflict in El Salvador (including files from the State Department as well as from the Pentagon and intelligence community(the CIA and the Defense Intelligence Agency (DIA)). Among other declassification efforts, the United States has already declassified the Argentine files on the 40th anniversary of the coup there and many of the Chilean files(although this declassification effort remains incomplete). Victims groups dedicated to El Salvador have submitted multiple requests for mandatory document review (MDR) under Executive Order 13526 and filed many Freedom of Information Act (FOIA) requests, but these have not always yielded fruit and thousands of pages remain inaccessible to the general public, despite the passage of time. Opening up these files would send a strong signal about transparency, the rule of law, and accountability as El Salvador enters a post-amnesty world and as the United States continues to acknowledge its own role in the Southern Cone during the Cold War.
Read the full post at Just Security.