El Salvador: Unwilling to Face Up to the Past

By Héctor Silva Ávalos*

Mural of the martyrs of the UCA

Mural of the martyrs of the UCA/ GuanacoSolido503/ Wikimedia Commons/ Creative Commons License (not modified)

The trial of Salvadoran Colonel Inocente Orlando Montano, which began last week in Madrid, provides El Salvador a historic opportunity to learn from the past and reduce impunity in the future, but the government and elites appear unlikely to seize it. Montano is the only defendant in the trial for the murders of six Jesuit priests, five of them Spanish nationals, and two domestic staff on the campus of the Central American University in November 1989. The eight were killed by a Salvadoran Army unit trained by U.S. advisors in what was the last massacre of El Salvador’s civil war (1980-1992) and the first great cover-up by the Salvadoran judicial system of the post-war period, starting with evidence-tampering and later other obstructionism by then-President Freddy Cristiani.

  • In the 31 years since, successive presidents, attorneys general, and supreme courts have failed to prosecute the Salvadoran military high command for ordering the murder of the Jesuits and their helpers. Not even the two FMLN presidents, who governed from 2009 to 2019, took judicial action despite promises to seek justice for them. President Mauricio Funes, the first of them, actually protected a group of former high-ranking military officers that a Spanish Justice alleges were masterminds of the massacre.
  • Despite the country’s political progress since the war, the failure to bring the perpetrators to account has bred a system in which even younger Salvadorans have been raised believing that it is best not to mess with the wounds of the past. People are afraid to condemn impunity, which remains one of the country’s most enduring and democracy-threatening challenges.

President Nayib Bukele, who was elected last year as an outsider committed to ending the corruption of both the FMLN and its conservative counterpart, ARENA (1989‑2009), appears reluctant to grasp the Madrid trial as a way to promote accountability and end impunity. He so far has not made a public statement about it and in recent months has increasingly relied on the corrupt and authoritarian institutions whose legacy is on trial. Some of the police officers, lawyers, and politicians that were part of the cover-up are still active in El Salvador. Some police officials who obstructed the Jesuit investigation are now high-ranking officers in the Policía Nacional Civil (PNC) and, according to a variety of evidence, continue to promote a culture of impunity.

  • Bukele and his ARENA and FMLN counterparts in Congress are occupied in a never-ending confrontation over the COVID‑19 pandemic and resulting economic crisis. Moreover, the President’s security agenda, focused on crushing the gangs, has followed the path of his predecessors, giving the military enhanced powers and nudging the civilian police force back to its military roots. Bukele’s chief of police recently appeared in public wearing a military uniform, possibly violating laws passed in 1992 in fulfillment of the Peace Accords.

These political compromises and alliances and competing priorities seem likely to keep El Salvador from embracing the historic opportunity presented by the Madrid trial – not just to bring justice to the victims of the UCA massacre, but to address the entrenched culture of impunity that has marked Salvadoran politics and its justice system for decades.

  • The United States, the Organization of American States (OAS), and others advocating human rights and transparency also seem likely to miss the opportunity the trial gives them to promote their stated values. The views of political players in Washington today reflect the same schizophrenia visible in the 1980s – with Democrats on Capitol Hill pushing for investigations into the massacres while the Republican Administrations allied themselves with the government and military. (The George H.W. Bush Administration even acquiesced in the harassment of witnesses, including a U.S. military official, who offered important information about the Salvadoran Army’s role in the Jesuit murders.) During the Obama Administration, the State Department gave key support to the extradition of Montano to Spain. Washington risks, once again, overlooking its own responsibilities in these horrible crimes of the past and the damage done to Central America’s fragile democracies.

June 16, 2020

* Héctor Silva Ávalos is a senior researcher and editor at InSight Crime and former CLALS fellow.

Mexican Judicial Reform: Example of the Need for a Closer Look

By Todd A. Eisenstadt

Foro: el Nuevo Sistema de Justicia Penal, a un Año de su Implementación en Baja California, con la ponencia: “Hacia una Justicia más Transparente” /Photo credit: Gobierno de Baja California  / Flickr / CC

Foro: el Nuevo Sistema de Justicia Penal en Baja California / Photo credit: Gobierno de Baja California / Flickr / CC

Mexico’s judicial reforms have proceeded at an uneven pace in each of the country’s 32 states since they were approved as a constitutional amendment in 2008.  The new and spacious “tower of justice” in Baja California shimmers in the desert sun, an outward sign of the $100 million-plus program that is the centerpiece of the state’s “law and order” administration.  However, halfway across Mexico, in the state of Puebla, litigators, police, and judges – untrained in the new judicial system they are implementing – watch their first important case, a manslaughter conviction, give way to a plea bargain after a series of errors.  Morelos, Oaxaca and other states do not have inter-connected computer systems for prosecutors and defenders, and Nayarit has not even passed a state-level criminal justice code to bring that state up to compliance with the 2008 reforms.  And Chihuahua, where Ciudad Juárez in 2011 held the distinction of being the most violent city in the world, a punitive “counter-reform” reducing the rights of the accused has set back that state’s reform efforts.

Progress on the reforms has been stymied by lack of a litigation tradition, a failure in interagency cooperation, a shortage of technology and resources, a lack of political will, and a lack of public support.  Mexico’s drug-related violence has put it at the center of hemispheric debate on judicial reform, but even heralded reforms of the 1990s, such as in Argentina, Bolivia, Panama, and Peru, have been unevenly implemented.  Chile’s reforms, widely seen as successful, were made possible by overcoming inertias, including judicial resistance to the creation of an adversarial relationship between defense and prosecution that moved judges into an institutionalized neutral position.  Legal scholar Mauricio Duce also argues that the retooling of Chile’s Ministerio Público – an autonomous body that functions as a fiscalía or justice ministry – was crucial because the institution became the “engine” of the reforms.

Each country brings its own history, culture and institutional strengths and weaknesses to the challenge of judicial reform. With the results of the first generation of reforms so mixed, a rigorous review of  what has worked – and not – in Latin America, Africa, or Eurasia and elsewhere can help overcome these dramatic shortcomings in the implementation of  reforms. The political commitment to reform is important, but understanding the political contexts and legal/administrative components in each case is also essential for improving the rule of law and accountability, deterring violent crimes, improving human rights recognition, economic development, and establishing security and law and order. When academics, program managers, and political leaders understand why a country like Mexico can have such vastly varying results from the same reforms, they can all take a giant step toward achieving more lasting and positive change.

Todd A. Eisenstadt is a professor of government at American University.