EL SALVADOR

          During the armed conflict in El Salvador, the Inter-American Commission on Human Rights monitored closely the events that caused the Salvadoran people so much agony.  Today, by all accounts--even the most skeptical--,El Salvador is a new country.  The Commission was most pleased with the events that brought the war in El Salvador to an end and is confident that the determination that enabled the parties to bring the negotiations to a successful conclusion, will carry over into this crucial period in El Salvador's history.

          The international attention focused on the evolution of the Salvadoran situation has not diminished, and many documents and reports continue to be presented to intergovernmental bodies, particularly in the United Nations.  Of particular interest are the reports prepared by Professor Pedro Nikken, an expert with the U.N. Commission on Human Rights, and presented to the United Nations General Assembly in November 1992 and to the Commission on Human Rights in Geneva in February 1993.  His analyses, like those prepared by the ONUSAL Observer Mission, clearly and objectively report the progress made and the obstacles that still obstruct the quest for peace in El Salvador.  The Inter-American Commission on Human Rights has followed these studies closely and believes that they are excellent accounts of the country's recent history, obviating the need for it to recount the events that occurred in 1992.

          As has been said so many times before, peace is much more than the absence of war.  With the signing of the Chapultepec Agreements and their slow but steady implementation, El Salvador has taken a major step toward peace and has overcome the most pressing obstacles; it has put an end to the armed conflict that sapped the country for twelve long years.  Today, the entire Salvadoran population is playing a role in its institutional recovery.  For this reason, in furtherance of its functions and authorities, the Inter-American Commission Rights continues to monitor closely the evolution of the situation and will promote respect for and defense of human rights, its paramount mission under the American Convention.

          El Salvador has embarked upon the road to peace, reconciliation, stronger democratic institutions and national reconstruction.  All sectors, from the Government and the FMLN--once enemies, now political opponents--to the last Salvadoran citizen, are joined in this common cause.  Needless to say, success will mean more than observing the agreements in the strictly formal sense; it implies a fundamental change for the immediate, and the correction--in the long run--of two aspects that are at the root of the conflict.

          First, the observance of economic, social and cultural rights.  As long as there are sectors of the population who live below all standards of human decency, in a state of extreme poverty, the conditions will be there for the situation to degenerate into a new conflict.  The peasant farmers --who constitute the majority of the population, but are unprotected, unpropertied and without prospects for a better future--and the many people now being reassimilated into civilian life (both from the guerrilla movement and from the army) need priority attention to enable them to satisfy a human being's most elementary necessities.  Decent housing, jobs, education and health must be the fundamental objective of the government's policies and the effort is one in which all sectors of the population, without exception, must be engaged.  Even this will not be enough, however, without the determined support of the international community, both bilaterally and through multilateral financing of development projects.

          Under Article 26 of the Convention, States that ratify it, as El Salvador did, undertake to gradually achieve the full realization of the rights implicit in the economic, social, educational, scientific and cultural standards of the Charter of the Organization of American States.  Today, the inter-American system has an Additional Protocol on the subject, which the General Assembly of the OAS adopted precisely in San Salvador and that bears its name.  Once it enters into force internationally, it will constitute one more legal mechanism to realize these basic rights.

          By now, no one questions the linkage between human rights, democracy and development.  International action vis-a-vis El Salvador should be directed precisely with that in mind.  It will do little good to rebuild a country beaten and exhausted by war if all the rhetoric about cooperation and solidarity does not materialize into real assistance.  Obviously, this attitude must begin with Salvadoran society, which will gain, as a whole, from the country's equitable growth.

          As for the programs that emanate from the agreements and the National Reconstruction Plan, the Salvadoran government's job is to carry them out in a way that encourages all social forces involved to participate actively.  In that context of participation, it is vital to determine which areas are in need of priority attention, so that problems requiring immediate solution do not go unaddressed or are not given the importance they deserve.  Earlier, health, housing, employment, and education were mentioned, and these will all figure prominently in shaping El Salvador's new society.

          El Salvador's reconstruction is one great challenges and commitments of the present administration, to be accomplished through the branches of government, the organs created under the Peace Agreements or those that received a new mandate as a result of the negotiations.  The Commission hopes that this mission will be carried out in the belief that the realization of economic, social and cultural rights is the basis of authentic, ongoing development and is part of the inalienable enjoyment of human rights.  The Commission would like to remind the Government of El Salvador of a recommendation made in its 1991 Annual Report, which was that the "economic adjustments must be structured in such a way that they do not do further injury to the most needy and most vulnerable sectors, those who have suffered most as a result of internal violence and recession".[1]

          There is a second aspect, as important as the first will be in forging the peace.  El Salvador does not now enjoy --nor has it in the recent past-- the kind of efficient, impartial administration of justice that is the best safeguard against impunity and an effective deterrent against crime.  Throughout the armed conflict, and once it was over, human rights organizations and experts of all leanings and origins concurred on this one point.[2]

          Year after year, in its reports to the General Assembly, the Commission has made this point.  Now, with the change underway in El Salvador, it has to be made again, in a constructive sense, confident that the new laws to strengthen the judiciary, create institutions such as the Office of the Attorney Delegate for Human Rights, etc., will build an effective system for the administration of justice with the minimum requisites needed to be effective in repressing unlawful conduct and to end impunity.  If the citizenry does not have confidence in the administration of justice and if its impartiality and independence are not effectively guaranteed, the efforts at investigation now underway will be useless and the atrocities of the past will repeat themselves.

          The social crisis that El Salvador is experiencing is evident in the increase in the incidence of crime, in the number of gangs, in drug trafficking, and personal vendettas.  The Commission is disturbed by reports it has received to the effect that certain acts being committed, which have the appearance of common crimes, are targeted at members of opposition forces, groups or organizations or those critical of the Government.  The Commission trusts that these actions, committed by groups whose style is similar to the so-called death squads, will be prosecuted quickly and properly by the Salvadoran authorities, as they violate not only the peace agreements but the American Convention as well, and jeopardize the entire pacification process underway.

          The need to strengthen the judicial system is crucial here:  justice must be active in all realms of a nation's normal life.  It is a right recognized in international instruments and a duty of the state.  Under Article 25 of the convention, "Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties."

          As a counterpart to the right to judicial protection, this same article goes on to stipulate what the States Parties undertake, which is "to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state", "to develop the possibilities of judicial remedy" and " to ensure that the competent authorities shall enforce such remedies when granted."

          The two elements briefly touched upon--the weakness of the economic, social and cultural rights of the majority of the population and the absence of an adequate administration of justice--combined and contributed to the crisis that degenerated into an armed conflict; today, it is the sincere commitment of the parties and the international vigilance and support that the country receives that will decide whether or not there is another war.

          There is another element of pivotal importance which the Inter-American Commission would like to emphasize:  the planned report of the Truth Commission, still not delivered as of the time this Annual Report was adopted.  Under the terms of the agreements, the Commission is to present recommendations on the legal, political or administrative measures that might be indicated by the investigation entrusted to the Commission.  Those recommendations might include "measures designed to prevent a reoccurrence of such events, as well as initiatives aimed at national reconciliation."  The Report of the Truth Commission will be decisive in consolidating the process presently underway in El Salvador, and implementation of its recommendations will help effect a true reconciliation among Salvadorans.  The atrocities committed during the war will be made public to the people of El Salvador, who will have an opportunity to reflect upon them in peacetime and learn a lesson for the future about the sorts of things that must never again be allowed to happen in their country.

          The Truth Commission's Report will also have an impact on the enforcement of the National Reconciliation Law (Legislative Decree No. 147).  The IACHR is disturbed by reports it has received to the effect that the Amnesty Law will have an adverse effect on the outcome of the Truth Commission's work.  According to what the IACHR has been told, the Truth Commission's very purpose, which is to put an end to impunity, could be compromised because the law covers crimes committed by 20 or more persons and those committed by anyone in the course of the armed conflict.  However, the Amnesty Law does not include those individuals whom the Truth Commission singles out as being responsible for acts of violence since 1980.  The amnesty--which once granted is irrevocable--took effect before the Commission began its work.

          The Inter-American Commission cannot predict the outcome of the process now underway.  Nevertheless, as a State Party to the American Convention on Human Rights and by its ratification of it, El Salvador has, as the Inter-American Court of Human Rights pointed out,[3] "a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to assure the victim adequate compensation."  In reference to Article 1 of the Convention, the Court added that the "the State is obligated to investigate every situation involving a violation of the rights protected by the Convention.  If the State apparatus acts in such a way that the violation goes unpunished (...), the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction".

          The Commission must again point out that the political agreements concluded by the parties do not in any way relieve the State of the obligations and responsibilities it undertook with ratification of the American Convention on Human Rights and other international instruments on the subject.

          Furthermore, under Article 27 of the Vienna Convention on the Law of Treaties, a State may not invoke the provisions of its internal law as justification for its failure to perform the obligations imposed by the Convention.  Finally, Article 144, paragraph 2 of the Constitution of El Salvador states that "The law may neither amend nor abolish what has been agreed to under a treaty in force for El Salvador.  In the event of a conflict between the treaty and the law, the treaty shall prevail."  In Chapter III of this Annual Report, in its report on case 10,287, known as the "Las Hojas Massacre", the Commission made some observations in this regard.

          Under the Chapultepec Agreements the bases were established for the mechanisms by which the Armed Forces would be undergoing a selective review.  An Ad Hoc Commission was established for that purpose, one of its functions being to evaluate the conduct of all members of the Armed Forces.  As for human rights, the Commission investigated direct participation in abuses, negligence in the face of abuses or conduct that led to such abuses, and systematic violations attributable to a specific officer.

          While the aforementioned processes have still not been completely implemented, the Inter-American Commission on Human Rights is confident of the determination of the Salvadoran Government, as expressed in the Peace Accords, and hopes that determination will lead to strict observance of these and other aspects of the agreements still pending as of presentation of this annual report.  Major advances, among them a reduction in the size of the Army before the deadline originally set and the creation of a National Civilian Police Force, are testimony to the Salvadoran Government's resolve.  It is vital that this constructive, positive behavior be present in all areas covered by the Chapultepec Agreements.

          The Commission has been informed that as of the date on which this Annual Report was approved, those provisions of the Chapultepec Peace Agreements whereby licenses allowing private persons to carry weapons that are reserved for the Armed Forces were to be revoked and the weapons immediately retrieved had still not been carried out.  This and the alarming levels of crime discussed earlier must be brought under control by the authorities, in a context where the rule of law and the country's institutions and international obligations are respected.  For example, the National Civilian Police Force should be better paid and better equipped to protect the citizenry, so that it can effectively defend and guarantee the people's fundamental rights.  Resorting to extraordinary measures such as the proposal to reinstate the death penalty or the proposal to use the Armed Forces to police public security will, rather than solve the problem, merely create new, unsettling issues that heighten tensions and will doubtless be detrimental to the consolidation of peace and the tranquility of the citizenry. 

          The Commission is also calling upon the FMLN, which is today part of El Salvador's political life, to carry out the letter and spirit of those aspects of the Peace Agreements that have not yet been completely settled, as a demonstration of its commitment to the peace that the Salvadoran people need so much.

          Even though, as noted, there have been obstacles to the complete fulfillment of the Peace Agreements, considerable progress has been achieved and deserves to be applauded as a model of commitment and to encourage the pursuit of genuine democracy in El Salvador.

          It is the Commission's desire that the present attitude of cooperation on the part of the Government of El Salvador will enable the many individual cases that the Commission is now processing to be concluded swiftly, through the administration of justice and the implementation of the necessary corrective measures in respect of all those events denounced during the period of conflict.

          The Commission has received an invitation from the Government of El Salvador to conduct an on-site visit there.  It hopes to make that visit in the second quarter of 1993, whereupon it will prepare a special report on the situation of human rights in that country.