Third, the commission’s work was carried out in the midst of the transition rather than following the transition, as El Salvador’s elections weren’t scheduled until March 1994. Thus, ARENA’s incumbency meant that the “old regime” and the “new regime” were one and the same.101 For obvious reasons, truth commission investigations and the release of their reports generally occur after regime change or transitional elections, as was the case in Argentina, Chile, Guatemala, Peru, and South Africa. Those responsible for the abuses in El Salvador were still in power. As such, it should be of little surprise that the Cristiani administration did not endorse the commission’s findings.
Fourth, there was general dissatisfaction with the investigation of cases related to the FMLN. The Lawyers’ Committee on Human Rights referred to it as being one of the “weakest” sections of the report.102 The vast majority of the cases in the report were those attributed to the armed forces and state security agencies, which was a reflection of both the commission’s mandate and the disproportionate number of abuses committed by the state.103 However, the commission erroneously assumed that documentation of FMLN abuses could be provided by the Salvadoran and U.S. governments and conducted little investigation in this regard.104 For example, there was no investigation of summary executions within FMLN ranks, which many considered to be one of the chief offenses by the FMLN. As such, the report offered little new information about FMLN abuses. Additionally, those abuses that were included in the report, most of which the FMLN had already acknowledged, were attributed to a single group within the FMLN, the People’s Revolutionary Army (ERP).105 The government and its supporters used this lack of an adequate investigation into FMLN abuses to delegitimize the report.
Finally, the commissioners considered it beyond the scope of the mandate to investigate the role that the United States played in the conflict. This was particularly disconcerting since several of the cases of abuse presented in the report were committed by U.S.-trained units, such as the Atlacatl Battalion. Former U.S. ambassador to El Salvador Robert White was particularly critical of the omission: “The whole backdrop to the report that is missing is the U.S. role in not only tolerating violence in El Salvador but also encouraging it.”106
The Commission’s Recommendations
The recommendations made by the commission involved punitive measures, institutional reforms, and societal reparations to promote reconciliation. While the truth commission had no prosecutorial powers, the parties had agreed that its recommendations would be binding. Many of the commission’s recommendations reaffirmed changes agreed to in the peace accords, but most were never implemented. In the absence of the judicial capacity to punish those responsible for the violations in the report, the commission made a number of punitive recommendations. First, the commission recommended the dismissal of military officers and civil servants named in report. Second, the commission recommended that all those named in the report, including members of the FMLN, be disqualified from holding public office for at least ten years and be barred permanently from serving in any capacity related to public security or national defense. Finally, the commission called for the resignation of the entire Supreme Court of Justice.107 With respect to purging members of the armed forces, the Truth Commission succeeded where the Ad Hoc Commission had failed. Several officers were removed as a result of being named, although they were allowed to retire with full honors and benefits.108 A new Supreme Court was elected in 1994, but the former president of the Supreme Court was appointed to the Inter-American Juridical Committee of the Organization of American States.
The commission also made recommendations regarding structural problems related to the violence. Of particular concern was the strengthening of civilian control of the military and the promotion of training in democracy and human rights among the armed forces. The commission also recommended that Article 173 of army regulations, which requires a subordinate to obey all orders (even illegal ones) from a superior, be repealed. Additionally, the commission urged the strengthening of the National Counsel for the Defense of Human Rights (PDDH) by increasing the number of offices and its powers of inspection at detention sites. The rights of detainees, particularly with regard to extrajudicial confessions and the criminal code, were also addressed. The commission also called for the investigation of death squads, which threatened to undermine the peace process. A series of political assassinations of ARENA and FMLN leaders in 1993 led to the establishment of the Joint Group for the Investigation of Politically Motivated Illegal Armed Groups, in December 1993. In its report, published in July 1994, the joint group identified a connection between current activity and groups active during the war and stated that “political destabilization of the peace process appears . . . to be the direct objective. The perpetrators of the attacks proceed in security, showing signs of considerable organization and planning.”109 The report also highlighted the relationship between death squads and organized crime (see chapter 5).
Also of particular importance were the recommendations for judicial reforms that addressed the excessive powers and politicization of the courts. The commission recommended that judges be appointed by the independent National Council of the Judiciary agreed to in the peace accords instead of the Supreme Court of Justice, and that judges be responsible to the new council. The commission also recognized the need to strengthen the judicial system through improved training and resources. The commission’s assessment of the judiciary and of the slow pace of judicial reform was particularly pointed:
The structure of the judiciary is still substantially the same as it was when the acts described in this report took place. The reforms of the judicial system agreed on during the peace process have been implemented to only a limited extent, so that they have yet to have a significant impact which translates into a transformation of the administration of justice. What is more, the judiciary is still run by people whose omissions were part of the situation which must now be overcome, and there is nothing to indicate that their customary practices will change in the near future.110
Supreme Court President Mauricio Gutiérrez Castro, a member of ARENA with connections to ARENA deputies, was a major impediment to judicial reform. His steadfast defense of the separation of powers, particularly that the judiciary was not required to implement orders given by the executive branch, slowed the pace of judicial reform. Of course, he also had less “principled” reasons for stalling reform. Gutiérrez Castro had been named in the Truth Commission’s report for unprofessional behavior and his refusal to cooperate with the commission’s investigations.111 There was a clear unwillingness to accept technical assistance offered by international organizations to improve the functioning and independence of the judiciary. As noted by Popkin, “the institutional reluctance to accept foreign technical and professional assistance seemed to reflect a widespread resistance to changing the status quo.”112 The implementation of judicial reforms was greatly improved by the election of an entirely new Supreme Court of Justice in 1994. In 1996 the Legislative Assembly passed a new Criminal Procedures Code, and extrajudicial confessions were invalidated in 1997 by a constitutional amendment. It was progress, but many other pressing issues, particularly judicial incompetence and corruption, remained.
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