EL SALVADOR

The Inter-American Commission on Human Rights has continued to monitor, with particular attention, the status of human rights in El Salvador during the period covered in this annual report. The information presented in this section is the result of that observation and updates information provided in earlier annual reports.

During this period there have been numerous developments related to human rights in El Salvador, and others related to the rules of humanitarian law. During this period, there were also significant new developments in the negotiations that the Government of El Salvador is conducting with the leadership of the Farabundo Martí for National Liberation Front, with the Secretary-General of the United Nations participating in the person of his representative. The first steps were taken for the municipal and congressional elections slated for March 10, 1991. The pages that follow are devoted to these developments and to the Inter-American Commission's contacts with the Government of El Salvador.

During the twentieth regular session of the General Assembly of the Organization of American States, held in Asunción, Paraguay, the Executive Secretary of the Human Rights Commission of El Salvador, Lic. Benjamín Cestoni, conveyed President Cristiani's invitation to the Inter-American Commission on Human Rights to conduct an on site observation in El Salvador on a date to be determined. As it noted in its previous annual report, the Inter-American Commission has decided to prepare a special report covering the period since its approval of its last Report on the Situation of Human Rights in El Salvador. In order to compile more data for that report, two working visits were made to El Salvador by a member of the staff of the Commission's Executive Secretariat, from June 23 through 27 and from October 28 through November 3, 1990. A third working visit planned for late January 1991 was suspended by a decision taken by the Government of El Salvador.

One matter of particular importance that developed during this period has been the negotiations between the Government and leaders of the FMLN, under the auspices of the United Nations Secretary-General. In the wake of the heightened violence of the previous period and the suspension of negotiations, there was a resumption of negotiations. The first fruits of the new round of negotiations were the Agreements concluded in Geneva on April 4, 1990. Following the agenda and procedure planned in those agreements, further meetings were held in Caracas, Venezuela, from May 10 through 21: in Oaxtepec, Mexico, from June 19 through 25: in San José, Costa Rica, from July 20 through 26 and from August 17 through 22, and in Mexico City, Mexico, from to October 31. At this most recent meeting, it was decided that changes would be made to the mechanics of the negotiations. It was agreed that the mediating role of the United Nations Secretary-General's representative would be highlighted and that there would be greater confidentiality about the matters discussed. Since then there has been less publicity surrounding the meetings, which now function in the form of working groups.

It is important to note that on July 26, 1990, as part of the negotiations, a human rights agreement was concluded. Though it is partial and does not cover the subject matter thoroughly, that agreement does establish the bases of the rights and freedoms covered therein and the operating mechanism, which would be in the hands of a human rights Verification Mission. This Agreement, of course, is in addition to the commitments that El Salvador has already undertaken by signing interna- tional instruments on human rights in the framework of both the United Nations and the Organization of American States. Basically, it contains the rights recognized in those instruments and in the Constitution of El Salvador. At the time this section of the Annual Report was drafted, the agreement and its verification mechanism had not yet begun to function, though there was a chance that they would go into operation shortly.

The human rights issue would be taken up at the San José meeting in July, along with the issue of the Armed Force. This is a topic that is related to the latter's role, especially the violations of human rights and of humanitarian law resulting from its activities. With this the issue of "impunity" was raised, which concerned the need ascertain those responsible for violations of human rights and punish them as appropriate. This would "purge" the Armed Force, something that the FMLN believed was absolutely imperative if it was to become a political party and abandon the armed struggle. At a later date, the FMLN brought up the issue of the dissolution of the Armed Force and of its own military troops, which it called the Army for Democracy. This, it said, would lead to the country's "demilitarization" by means of a gradual and concerted process. As of the time this section was prepared, however, no progress had been made on this point. It would have been an obstacle to other political agreements that further the negotiation process. That process, nevertheless, was still being conducted through the established channels.

The Political Agreements, according to the General Agenda developed at the Caracas meeting, included not only the issue of human rights and the question of the armed force, but also such issues as the judicial system, the election system, constitutional amendments, the economic- social problem and United Nations verification of the agreements. That agenda was supplemented by a timetable that began with a plan for political agreements for negotiation of a cease fire and for an end to all acts that violate the rights of the civilian population, all by mid September 1990, provided synchronized, scheduled agreements are reached that can be verified... This date would have another advantage: it would help set the stage for a legislative and municipal election process conducted in an atmosphere of calm, extensive participation and no intimidation, according to the United Nations Press Bulletin of May 21, 1990.

Those elections are slated for March 10, 1991. The Government's position is that these elections are provided for under the Salvadoran institutional system and that they must, therefore, be held. To that end, it has requested the participation of the Secretary General of the Organization of American States to send an observer mission. Measures are already underway in that regard. The FMLN, on the other hand, contends that the agreements required under the terms of the negotiations and that must predate the elections have not been reached, so that it will not support the elections. The United Nations Secretary-General will not observe the election process since the parties to the negotiations have reached no agreement in that regard.

It should be noted that out of the negotiations have come institu- tions whose purpose is to funnel the contributions from various important Salvadoran sectors to the parties to the negotiations. Thus, the political parties have formed the "Interpartidaria", which is made up of the following political parties: ARENA, Partido Demócrata Cristiano, Movimiento Auténtico Cristiano, Acción Democrática, Movimiento Popular Social Cristiano, Movimiento Nacional Revolucionario, Partido Social Demócrata, Unión Democrática Nacionalista y Partido de Conciliación Nacional. The labor sector has formed the "Intersindical", which is made up of Unión Nacional Obrero Campesina (UNOC), Unión Nacional de Trabajadores Salvadoreños (UNTS), Unión Popular Democrática and Confederación de Trabajadores Salvadoreños (CTS).

During the period covered in this annual report, the Inter-American Commission on Human Rights has received abundant information on the observance of the right to a fair trial and due process of law in El Salvador and on how those rights have had a bearing on the exercise of the right to personal liberty. According to the reports the Commission has received and transmitted to the Government of El Salvador--though as of this writing no response has been received--there are 192 people in El Salvador being held for political reasons. The irregularities reported in the case of these people involve a failure to comply with legal formalities at the time they were arrested; irregularities in the way the arrests were executed; mistreatment and torture while in custody; violation of the principle of presumed innocence on the basis of official information on those being held without a court conviction; the large number of people being held without a definitive court verdict; the ineffectualness of the remedies under the law and the deplorable conditions under which the political prisoners are held. The latter are mixed in with the common prisoners; the facilities for their confinement are terrible; the food is of very poor quality; the requirements as regards visits, food and medication are exaggerated and, finally, violence is employed when moving them from one place to another.

In reports that are public knowledge and that do not deny these irregularities, Government authorities have said that a number of measures are being taken to deal with these problems. On the question of the status of proceedings against persons being held, and to remedy the problem of so many people being held without ever having been convicted of a crime, a prison monitoring system has been instituted. Representatives of the judicial branch are posted in the prison facilities to identify these situations and correct them. In addition to this, itinerant judges have been designated to reinforce those courts that have too many undecided cases.

The fact that the majority of political prisoners have never been tried and convicted has been and continues to be a matter of grave concern to the Inter-American Commission on Human Rights. The American Convention on Human Rights, of which El Salvador is a State Party, clearly stipulates that any person detained has the right to be tried "within a reasonable time or to be released" (Article 7.5 of the Convention). Apart from the many people in El Salvador who are being held without having been convicted, there are also special cases such as that of José Abraham Dimas Aguilar, Juan Miguel García and William Rivas Bolaños. These three were arrested in connection with a terrorist incident that happened in a bar in San Salvador's Pink Zone. That incident left eleven people dead, among them six United States servicemen. The three people named above have been held for five and a half years without ever being convicted and were excluded from the amnesty decree of November 1987. Another particularly serious case is that of José Alberto Miranda Arévalo, who was charged with the assassination of Herbert Anaya. Though a stay in the proceedings was ordered by the Lower Criminal Court Judge, he is still being held on the grounds that the judicial proceedings have not yet concluded.

The Inter-American Commission hopes to be able to continue to conduct the necessary investigation into the case in process, which concerns the situation of the political prisoners in El Salvador, so as to be able to arrive at a conclusion with respect to each of the individuals concerned. However, in general it must say that, notwithstanding the various functional problems cited by the judicial authorities to explain some of the problems detected, it is essential that El Salvador comply with its international obligations in the area of human rights and release those persons whose legal situation is irregular because of the lengthy period of time they have been held without benefit of a final sentence.

Another matter that has been brought to the Inter-American Commission's attention are the irregularities surrounding the actual apprehension or arrest, followed by various forms of mistreatment and torture while in police custody. The maximum period of time one can be held without a court order is 72 hours, unless a state of emergency exists when individual guarantees are suspended, in which case the maximum allowable period is 15 days. According to the reports provided to the Inter-American Commission, it is during that period when the self-incriminating confessions are extracted. Often those confessions are the only grounds used to deny the individual his freedom. The legal validity of such extra judicial statements is linked to the classification of the crime as either a political crime or common crime. This aspect also has a number of consequences.

The crimes for which political prisoners are tried these days are subversive association and acts of terrorism. In the 1977 amendment of Article 151 of the Penal Code the qualification of political crimes was eliminated. However, the second paragraph classifies common crimes committed for political ends as political crimes by virtue of their linkage with the crimes classified in Chapter III, Title I, Part Four of the Penal Code. This classification has very significant trial consequences in terms of the legal validity of the extra judicial confession which, as noted, is in most cases the sole piece of evidence with which the judge operates.

For the judiciary, the fact that such crimes are qualified as political has very important implications. The second paragraph of Article 151 of the Penal Code provides one means to get around the problems that the 1977 amendments created; the former classification was perfectly reasonable, i.e., to qualify as political all those that were so classified under Part Four (Crimes Against the Lawful Rights of the State).

The qualification of a crime as political also has a bearing on the prison status of political prisoners. Information provided to the Inter-American Commission--which is public knowledge as well--indicates that political prisoners are mixed in with common prisoners and those who have been convicted are not held separately from those who have not been convicted. The prison conditions are very bad, according to the reports provided. The number of prisoners is so many that there is overcrowding; compounding the problem is the fact that many prison facilities either have been destroyed in the armed fighting or are in combat areas that make them unsafe, so they are abandoned.

The Inter-American Commission must indicate its profound concern over the poor prison conditions in which the political prisoners are held. The overcrowded facilities in bad condition, with poor food and medical attention, combine to create the kind of situations where the rights of those being deprived of their freedom can be abused. The Inter-American Commission also believes that these observations are also true for common prisoners and the former members of the Armed Forces who are serving sentences for common crimes. The latter have been pleading for a general amnesty that will cover the crimes they committed.

Another matter of grave concern is the scant progress made in important court proceedings being conducted to ascertain who is responsible for the various serious human rights violations. The case that has attracted the most attention has been the murder of the six Jesuit priests at the "Simeón Cañas" Central American University, in which the cook and her 15 year old daughter were also killed. It is public knowledge that the proceedings have moved slowly and that there have been certain irregularities such as the destruction or concealment of evidence. Those accused of being responsible for these acts were members of the Salvadoran military. According to important public figures, such conduct would not have been possible without the consent of the highest-ranking military officers. The Commission is processing an individual case on these events--for which the Government has supplied no information--and expects to adopt a resolution on the matter in the near future.

Nor has the Salvadoran Government acted upon the recommendations that the Inter-American Commission made when it adopted resolution No. 28/89, concerning the summary execution of ten people by members of the Fifth Infantry Brigade. Those executions took place in the town of San Francisco, in the Department of San Vincente, on September 21, 1981. The Commission's recommendations were to ascertain those responsible and compensate the victims' next-of-kin. The same has happened with Resolution No. 26/89, where the Commission recommended that the victims' next-of-kin be compensated and those directly or indirectly responsible for the brutal death by torture of two Salvadoran citizens and the disappearance of another be held accountable. These events took place in the town of Temepechín on February 25, 1988. The victims had been taken into custody that day by uniformed soldiers. Again, the Government has yet to reply to similar recommendations made in Resolution No. 27/89, which concerned the summary execution of three persons by members of the Armed Force of El Salvador on April 14, 1988, in the town of Las Cañas.

This annual report also includes three reports adopted in connection with cases No. 9999, 10000, and 10001 on disappearances in El Salvador attributable to its Armed Forces. They involved three persons, two of whom were minors. Here again, the Government has not responded to the recommendations made by the Inter-American Commission, which were to identify those responsible for these very grave violations so that they might be brought to trial, to compensate the victims' next-of-kin and to accept the jurisdiction of the Inter-American Court of Human Rights in these cases.

On November 20, 1990, the FMLN launched a series of military operations which some observers described as a new offensive. It lasted until December 31 of that year. According to the FMLN, those actions were in response to military attacks on its positions in various regions throughout the country. During this campaign the FMLN began to use surface-to-air missiles, which inflicted damage on a number of the Armed Force's aircraft. A number of observers have said that this time, both sides made a greater effort to avoid inflicting damage on the civilian population, though the latter was still affected, as described below.

In effect, in the armed conflict in El Salvador the Army's military operations left many people dead, both in the ranks of the FMLN and among the civilian population. Because no on-site observation has been possible, the Commission has been unable to ascertain precisely how many FMLN combatants died and how many civilians died, but the overall figure is 852. According to information supplied to the Commission, in 1990 the Army and other security forces had a total of 592 casualties.

As for the right to life in general, statistics provided by human rights organizations for all of 1990--this report covers most of that year--continue to paint a grim picture. Thus, military or paramilitary groups are blamed for the deaths of 119 people in 1990; of these, 53 were executed by death squadrons, while 42 were executed by the Army.

One particularly serious development was the killing of 15 campesinos in the El Zapote district on the night of January 21-22, 1991. The Inter-American Commission on Human Rights has opened up a case on this incident and has urgently requested that the Government of El Salvador take steps to authorize an on-site visit in connection with this case. The Government has said that this was a case of family reprisals in which individuals who were members in the Army might have had a hand. The Office of the Legal Counsel of the Archdiocese of San Salvador has indicated that after making a careful investigation, judicial proceedings should focus on the First Infantry Brigade.

As for FMLN actions that have resulted in violations of the right to life, according to information supplied to the Inter-American Commission there were 21 deaths in 1990; of these 14 were political assassinations.

On July 9, 1990, members of the "Modesto Ramírez" FMLN urban commando executed Major Carlos Alfonso Figueroa Morales, who was serving as Chief of the Legal Department of the Armed Forces Joint Command. He was killed while riding in his car. On July 17, the same FMLN urban commando group killed Captain Ramón Arístides Reyes Hernández as he was riding in his car with his wife. She was gravely wounded in the attack.

Two children also died in an FMLN attack on the headquarters of the Armed Force Joint Command in San Salvador, when the explosive launched by a device that has very poor accuracy hit a house located near the headquarters. The FMLN said it was an accident. It should be noted that the FMLN has been told repeatedly that it must avoid using devices such as the one described, precisely because of the indiscriminate effect they can have on the civilian population, as happened in this case.

On January 2, 1991, a Huey UH-1H helicopter belonging to the United States Army was shot down by the FMLN. The crew consisted of three United States servicemen. At the time, they were flying over the San Francisco district of the jurisdiction of Lolotique in the department of San Miguel. According to information obtained by the Inter-American Commission, the pilot of the helicopter, Officer Daniel Scott, was killed, while the other two occupants, Lieutenant Colonel David J. Pickett and Corporal First Class Ernest Dawson, survived but were seriously injured. While the FMLN group sent the people from the village for help, the two surviving servicemen were killed, summarily executed by an FMLN combatant. The FMLN has admitted to what happened and has said that those responsible have been charged with committing a war crime by violating the FMLN's code of conduct and the Geneva Conventions. The FMLN has said that the trial of the accused will be open and independent observers will participate.

One situation of which the Inter-American Commission has been informed during the period covered in this annual report concerns the conditions at the communities of former refugees who were repatriated to El Salvador from other countries in the region, especially Honduras. One community in particular stands out, called "Segundo Montes," consisting in large part of those who were in the Colomoncagua encampment in Honduras after having been forced to abandon the department of Gotera between 1980 and 1981. With the return of these repatriates legal actions have been instituted to look into the events that occurred in those two years; according to sources, hundreds of civilians in that department were killed by Army troops.

According to information received, military authorities have frequently created various obstacles that make it difficult for those repatriate communities to function. Supplies and provisions are sometimes cut off, the people are not allowed to go to other cities and visitors are not allowed in. Military authorities say they have to resort to these measures because the repatriate communities are used by the guerrilla movement as bases of operations and that the communities and the guerrillas often act in concert. The Inter-American Commission on Human Rights is deeply concerned by any actions that affect the rights of the repatriates, as they have spent long years living under very adverse conditions. It hopes that the progress made in the negotiations will relieve the tension in such a way that they and the organizations that represent them are free to carry on their business.

The Inter-American Commission on Human Rights is deeply concerned over reports it has received in connection with various developments that affect the exercise of political rights in the current electoral process. It was informed that on February 9, 1991, there was a serious attack on the Diario Latino, a newspaper that, according to what was said, had been willing to publish opinions of political sectors that were unable to get space in other newspapers. As a result of that attack, all of the facilities and machinery were destroyed. A number of sectors felt that this had been detrimental to their exercise of the right to freedom of expression. The Inter-American Commission on Human Rights also received information on the death of Salvador López, a member of the Convergencia Democrática, in the Department of Santa Ana on February 10. A suspect in the crime was placed under arrest. The Commission was also informed of an attack on the office of Convergencia Democrática in Usulután on January 31.

The Commission is also disturbed by the reports it has received concerning a newspaper campaign and statements made by prominent Salvadoran political figures that link the activities of respected human rights institutions with the activities of the Farabundo Martí National Front Government. The Commission has addressed the Government of El Salvador on this matter to again impress upon it the need to guarantee that the human rights organizations, which have suffered greatly in the past, will be free to conduct their activities to the fullest.

Summing up, the Inter-American Commission on Human Rights finds that certain problems gravely prejudicial to the observance of human rights in El Salvador have persisted during the period covered in this annual report. The activities of the death squadrons and the security forces lead to serious human rights violations and the authorities of the Salvadoran judicial system seem to lack either the will or the means to stop such conduct. The lack of progress made in important investigations, such as the inquiries into the case of the Jesuits murdered on November 16, 1989, and the failure to comply with the Commission's recommendations on individual cases, show that there are still obstacles in the way of ascertaining the identity of those responsible for such serious human rights violations and bringing them to justice.

This is in sharp contrast to the irregularities surrounding the situation of those persons who are being held for political reasons. In most cases, no decision has ever been handed down in the proceedings against them. They are being held in subhuman conditions and are mixed in with common prisoners. All of this is highly irregular from the standpoint of the right to personal liberty and the right to a fair trial and due process of law recognized under Articles 7 and 8 of the American Convention on Human Rights.

On the other hand, the Inter-American Commission is encouraged by the negotiations between the Government and the leaders of the FMLN, under the auspices of the United Nations Secretary-General, and regards them as a very positive development. It hopes that they will continue to move ahead until the conditions are there for full observance of human rights. This includes proper exercise of political rights, in such a way that they reflect the will of the Salvadoran people, contribute to peace and are a true manifestation of a democratic form of government which, as the Commission has said repeatedly, is the best guarantee of the observance of human rights.

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