V. RECOMMENDATIONS

INTRODUCTION

As part of its mandate, the Commission is called upon to make recommendations. Indeed, under the terms of its mandate,

"The mandate of the Commission shall include recommending the legal, political or administrative measures which can be inferred from the results of the investigation. Such recommendations may include measures to prevent the repetition of such acts, and initiatives to promote national reconciliation".

The Commission decided to first comment generally on the results of its investigations, the principles on which these investigations and its recommendations are based and the persons and institutions to whom they are addressed, before making specific recommendations.

1. General conclusions

The causes and conditions which generated the large number of serious acts of violence in El Salvador derive from very complex circumstances. The country's history and its deeply rooted relations of injustice cannot be attributed simply to one sector of the population or one group of persons. This or that Government institution, certain historical traditions, even the ideological struggle between East and West which went on until only recently, and of which El Salvador was a victim and an episode, are mere components. All these factors help to explain the complex situation in El Salvador during the 12-year period which concerns us. The Commission was not called upon to deal with all these factors, nor could it do so. Instead, it focused on certain considerations which prompted it to formulate its basic recommendations in such a way that this situation might be fully understood.

The lack of human rights guarantees in El Salvador and the fact that a society has operated outside the principles of a State subject to the rule of law imposes a serious responsibility on the Salvadorian State itself, rather than on one or other of its Governments. The political, legislative and institutional mechanisms required to ensure the existence of a society subject to the rule of law existed in theory, at least in part, but the reality was not what it should have been, perhaps as a consequence of excessive pragmatism. With the passage of time, the military establishment and, more specifically, some elements within the armed forces, having embarked upon a course from which they found it difficult to extricate themselves, ended up totally controlling the civilian authorities, frequently in collusion with some influential civilians.

None of the three branches of Government - judicial, legislative or executive - was capable of restraining the military's overwhelming control of society. The judiciary was weakened as it fell victim to intimidation and the foundations were laid for its corruption; since it had never enjoyed genuine institutional independence from the legislative and executive branches, its ineffectiveness steadily increased until it became, through its inaction or its appalling submissiveness, a factor which contributed to the tragedy suffered by the country. The various, frequently opportunistic, alliances which political leaders (legislators as well as members of the executive branch) forged with the military establishment and with members of the judiciary had the effect of further weakening civilian control over the military, police and security forces, all of which formed part of the military establishment.

The wide network of illegal armed groups, known as "death squads", which operated both within and outside the institutional framework with complete impunity, spread terror throughout Salvadorian society. They originated basically as a civilian operation, designed, financed and controlled by civilians. The core of serving officers, whose role was originally limited to that of mere executants and executioners, gradually seized control of the death squads for personal gain or to promote certain ideological or political objectives. Thus, within the military establishment and in contradiction with its real purpose and mandate, impunity vis-à-vis the civilian authorities became the rule. The institution as a whole was a hostage to specific groups of officers, which were sometimes formed even as their members graduated from officer training school, abused their power and their relations with certain civilian circles and intimidated fellow officers who were reluctant to join in or to collaborate with their corrupt and illegal practices.

The internal armed conflict between opposing forces grew in intensity and magnitude. The inevitable outcome was acts of violence, some of which were brought before the Commission with anxiety and anticipation. The more bloody the conflict became, and the more widespread, the greater the power of the military hierarchy and of those who commanded armed insurgent groups. The outcome of that vicious circle was a situation in which certain elements of society found themselves immune from any governmental or political restraints and thus forged for themselves the most abject impunity. It was they who wielded the real power of the State, expressed in the most primitive terms, while the executive, legislative and judicial branches were unable to play any real role as branches of government. The sad fact is that they were transformed, in practice, into mere façades with marginal governmental authority.

How else can the modus operandimodus operandi of the death squads be understood? The disappearance of large numbers of people, the assassination attempts on important Government officials, church leaders and judges, and the fact that the perpetrators of these atrocities were only rarely brought to trial. What is ironic is that the web of corruption, timidity and weakness within the judiciary and its investigative bodies greatly impeded the effective functioning of the judicial system even where crimes attributed to FMLN were involved.

In order to avoid any risk of reverting to the status quo ante, it is essential that El Salvador establish and strengthen the proper balance of power among the executive, legislative and judicial branches and that it institute full and indisputable civilian control over all military, paramilitary, intelligence and security forces. The recommendations which follow are intended to outline the basic prerequisites for this transition and to ensure that it leads to a democratic society in which the rule of law prevails and human rights are fully respected and guaranteed.

2. Principles

The report which the Commission is submitting is part of a process initiated, according to the Geneva Agreement of 4 April 1990, for the purpose of ending the armed conflict by political means as speedily as possible, promoting the democratization of the country, guaranteeing unrestricted respect for human rights and reunifying Salvadorian society. The first of these objectives has already been achieved. The remaining goals, however, require a continuous and, in some respects, permanent effort. These goals are complementary: democracy loses ground when human rights are not fully respected; human rights cannot be protected from arbitrariness without the rule of law which is the expression of the democratic system of government; and unless rights and freedoms are respected and guaranteed for all, it will be difficult to speak of a reunified society.

The Commission's recommendations, while they bear fully on the results of its investigations, provide the means for pursuing these objectives, which were defined in the context of the country's recent history by the Salvadorians who negotiated the peace agreements, and by the decisive majority which supported them, as the objectives which must be achieved in the society which they are now beginning to build. Accordingly, these recommendations are based on the following principles:

One: Democracy, which leaves the fundamental decisions as to the destiny of society in the hands of the people, and which gives priority to dialogue and negotiation as basic political tools.

Two: Participation, which integrates minorities with the majority and gives pride of place to democracy as a model respectful of the individual and collective dimensions of human coexistence; also, a participation which promotes solidarity and respect among individuals.

Three: The rule of law, in which the primacy of and respect for the law is the basis of a culture which guarantees equality and proscribes all arbitrariness.

Four: Respect for human rights, which are the raison d'être of the above principles and the basis of a society organized to serve people, all of whom are vested with equal freedom and dignity.

The consolidation of the supremacy of civilian authority in Salvadorian society and the necessary subordination of the armed forces to it stem directly from the democratic concept of the rule of law, the primordial value of the dignity of the human person and, hence, full respect for his rights.

The peace agreements envisage a new concept of national defence and public security which represents significant progress towards establishing the supremacy of civilian authority. It is essential that all, absolutely all, the agreements on these issues be complied with fully.

The Commission also underscores the special care which must be taken in implementing the provisions of the peace agreements, and the recommendations in this report, for strengthening a comprehensive system for the protection of human rights and an independent, strong and effective judiciary. The glaring deficiencies experienced by the country in this regard were a prime cause of the occurrence and systematic repetition of extremely grave human rights violations, and such violations will be deemed to have been completely eradicated only when this objective is achieved.

3. Persons and institutions to whom the recommendations are addressed

The Commission's mandate does not specify or limit the persons or institutions to whom its recommendations are to be addressed. What it does establish is a procedure as regards the undertaking given by the Parties, namely, the Government and FMLN, concerning these recommendations. In signing the Mexico Agreements, the Parties created the mechanism which is now completing its work. They undertook to carry out the Commission's recommendations (agreement on the Commission on the Truth, para. 10) and must therefore implement, without delay, those recommendations which are addressed directly to them. Where the recommendations are addressed to others or, particularly in the case of the Government, where they require action or initiatives by State organs other than the executive branch, the Government's undertaking means that it must take the necessary action and initiatives to ensure that the recommendations are put into practice by the appropriate State machinery.

It should also be noted that, with the armed conflict at an end, it is natural that the bulk of the recommendations, being institutional in nature, should be addressed to the official sector. The most crucial recommendation which would have had to be made to FMLN would have been to abandon the use of arms as a means of political struggle and, in any case, to renounce acts and practices such as those described in this report. This objective has been achieved through the peace agreements and their implementation, although this does not prevent the Commission from making a strong appeal to FMLN to ensure that its action as a political force is always accompanied by militant renunciation of all forms of violent struggle and constant adherence to the legal and civilized means proper to democracy, renouncing for ever the methods which resulted in the serious acts of violence described herein that were committed under its authority.

The Commission will now make its recommendations. Clearly, not all of them have the same importance or the same meaning. Some of them, which are inferred directly from the results of the investigation and must be acted on urgently, are aimed at the immediate removal of factors relating directly to the acts investigated or to the fact that the latter were not cleared up when they should have been. Another group of recommendations seeks to remedy certain structural defects linked directly to the acts examined by the Commission. A third group concerns institutional reforms designed to prevent the repetition of such acts. Lastly, the Commission will present its considerations and recommendations concerning national reconciliation.

I. RECOMMENDATIONS INFERRED DIRECTLY FROM THE RESULTS OF THE INVESTIGATION

In this section, the Commission will make recommendations which are the direct and inevitable consequence of its findings concerning acts which it has been called upon to investigate and clarify, in the light of realities connected directly with them which still pervade the country. By their nature, these recommendations are the ones which must be carried out most urgently.

The Commission makes the following recommendations which must be carried out without delay:

A. DISMISSAL FROM THE ARMED FORCES

The findings on the cases investigated by the Commission on the Truth and published in this report give the names of officers of the Salvadorian armed forces who are personally implicated in the perpetration or cover-up of serious acts of violence, or who did not fulfil their professional obligation to initiate or cooperate in the investigation and punishment of such acts. For those officers who are still serving in the armed forces, the Commission recommends that they be dismissed from their posts and discharged from the armed forces. For those now in retirement or discharged, the Commission recommends application of the measure described in paragraph C below.

B. DISMISSAL FROM THE CIVIL SERVICE

The findings on the cases investigated by the Commission on the Truth also give the names of civilian officials in the civil service and the judiciary. These officials, acting in their professional capacity, covered up serious acts of violence or failed to discharge their responsibilities in the investigation of such acts. For these persons, the Commission recommends that they be dismissed from the civil service or judicial posts they currently occupy. For those who no longer occupy such posts, the Commission recommends application of the measure described in paragraph C below.

C. DISQUALIFICATION FROM HOLDING PUBLIC OFFICE

Under no circumstances would it be advisable to allow persons who committed acts of violence such as those which the Commission has investigated to participate in the running of the State. The Commission therefore believes that the persons referred to in the preceding paragraphs, as well as any others equally implicated in the perpetration of the acts of violence described in this report, including the civilians and members of the FMLN Command named in the findings on individual cases, should be disqualified from holding any public post or office for a period of not less than 10 years, and should be disqualified permanently from any activity related to public security or national defence. While the Commission does not have the power to apply such a provision directly, it does have the power to recommend to the National Commission for the Consolidation of Peace (COPAZ) that it prepare a preliminary legislative draft on this issue, offering proper guarantees in accordance with Salvadorian law, and that it submit such draft to the Legislative Assembly for early approval. It also has the power to recommend to the bodies authorized to make appointments to public office that they refrain from appointing the persons referred to above.

D. JUDICIAL REFORM

All aspects of the agreed judicial reform must be put into practice. Even if this reform must be complemented by additional measures, some of which will be the subject of other recommendations by the Commission, the agreements reached on this issue during the peace process must be complied with immediately and in full. Two specific aspects should be noted:

(a) REFORM OF THE SUPREME COURT OF JUSTICE

The constitutional reform approved as part of the peace process provided a new procedure for the election of judges to the Supreme Court of Justice, the body which heads the judicial branch. Those innovations cannot be put into effect until the current judges' terms expire, with the result that the Court continues to consist of persons elected in accordance with the rules that applied before the constitutional reform and the peace agreements. Given the tremendous responsibility which the judiciary bears for the impunity with which serious acts of violence such as those described in this report occurred, there is no justification for further postponing the appointment of a new Supreme Court of Justice, whose current members should make way for the immediate implementation of the constitutional reform by resigning from their posts.

(b) NATIONAL COUNCIL OF THE JUDICIARY

The peace agreements provided for the establishment of a National Council of the Judiciary independent from the organs of State and from political parties (Mexico Agreements: "Political agreements elaborating on the constitutional reform", A (b) (1); Chapultepec Peace Agreement, chap. III (1) (A)). However, the National Council of the Judiciary Act, adopted in December 1992 by the Legislative Assembly, contains provisions which, in practice, leave the dismissal of some members of that Council to the discretion of the Supreme Court of Justice. The Commission recommends that this system be changed and that it be possible to dismiss members of the Council only for precise legal causes, to be weighed by the Legislative Assembly which, being the body constitutionally authorized to appoint such members, should, logically, also be the one to decide on their dismissal.

E. JUDGES

The Career Judicial Service Act, the amendment of which, the Commission understands, is under discussion for the date on which this report will be submitted, should establish that only those judges who, according to a rigorous evaluation made by the National Council of the Judiciary, have demonstrated judicial aptitude, efficiency and concern for human rights and offer every guarantee of independence, judicial discretion, honesty and impartiality in their actions may remain in the career judicial service.

F. PENALTIES

One of the direct consequences of the clarification of the serious acts which the Commission has investigated should, under normal circumstances, be the punishment which those responsible for such acts deserve. However, in view of current conditions in the country and the situation of the administration of justice, the Commission is facing insurmountable difficulties which it will describe below.

It is not within the Commission's powers to directly impose penalties on those responsible: it does not have judicial functions and cannot therefore decide to impose a particular penalty on a person. That is a function which, by its nature, properly belongs to the courts, a question which raises serious problems for the Commission. Accordingly, the problem and possible solutions to it cannot be discussed in isolation from the current situation in the country.

One painfully clear aspect of that situation is the glaring inability of the judicial system either to investigate crimes or to enforce the law, especially when it comes to crimes committed with the direct or indirect support of State institutions. It was because these shortcomings were so apparent that the Government and FMLN agreed to create an instrument such as the Commission on the Truth to perform tasks which should normally be undertaken by the bodies responsible for the administration of justice. Had the judiciary functioned satisfactorily, not only would the acts which the Commission has had to investigate have been cleared up at the proper time, but the corresponding penalties would have been imposed. The inability of the courts to apply the law to acts of violence committed under the direct or indirect cover of the public authorities is part and parcel of the situation in which those acts took place and is inseparable from them. This is a conclusion which emerges clearly from most of the cases of this kind examined in this report.

We must ask ourselves, therefore, whether the judiciary is capable, all things being equal, of fulfilling the requirements of justice. If we take a detached view of the situation, this question cannot be answered in the affirmative. 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.

These considerations confront the Commission with a serious dilemma. The question is not whether the guilty should be punished, but whether justice can be done. Public morality demands that those responsible for the crimes described here be punished. However, El Salvador has no system for the administration of justice which meets the minimum requirements of objectivity and impartiality so that justice can be rendered reliably. This is a part of the country's current reality and overcoming it urgently should be a primary objective for Salvadorian society.

The Commission does not believe that a reliable solution can be found to the problems it has examined by tackling them in the context which is primarily responsible for them. The situation described in this report would not have occurred if the judicial system had functioned properly. Clearly, that system has still not changed enough to foster a feeling of justice which could promote national reconciliation. On the contrary, a judicial debate in the current context, far from satisfying a legitimate desire for justice, could revive old frustrations, thereby impeding the achievement of that cardinal objective, reconciliation. That being the current situation, it is clear that, for now, the only judicial system which the Commission could trust to administer justice in a full and timely manner would be one which had been restructured in the light of the peace agreements.

II. ERADICATION OF STRUCTURAL CAUSES LINKED DIRECTLY TO THE ACTS EXAMINED

The peace process led to a set of political agreements which are clearly supported by society as a whole and which introduce major structural reforms and address many defects which contributed to the situation described in this report. As a general principle, the Commission recommends most emphatically that all the agreements be implemented in full: that was the undertaking made by those who negotiated and concluded the agreements and it is also what the Salvadorian people expects, believes in and hopes for.

Without prejudice to these general comments, the Commission wishes to make some additional recommendations:

A. Reforms in the armed forces

1. The transition to the new model of the armed forces outlined in the peace agreements and in the constitutional reform should be made rapidly and transparently, under the close supervision of the civilian authorities. It is recommended that a special committee of the Legislative Assembly be appointed for that purpose, comprising the various political forces represented in the Assembly. Special attention should be paid to the subordination of the military establishment to the civilian authorities, democratic control over promotions to senior ranks and positions of command, rigorous budgetary management, greater decentralization of the military structure, application of the new doctrine and new educational system of the armed forces and steady professionalization of officers.

2. The comprehensive review of the military legislation in force should be completed without delay, in order to bring it fully into line with the new Political Constitution, the new doctrine of the armed forces and the requirements of respect for human rights.

3. Among the reforms referred to in the preceding paragraph, a simple and practical mechanism must be established to resolve the situation of subordinates who receive illegal orders, so that they are protected if they refuse to obey. The provision of article 173 of army regulations which requires a subordinate to obey, at all times and irrespective of risk, the orders he receives from a superior, should be repealed, and the pledge so to obey should be eliminated from the formula used when swearing the solemn oath of allegiance to the flag as part of military ceremonial. It must be made clear, in any case, that so-called "due obedience" does not exonerate a person who carries out an order which is clearly illegal.

4. The above-mentioned reforms should also provide that all actions whereby members of the armed forces take advantage of their status to commit abuses of power or violations of human rights are to be regarded as serious offences against the military institution, and should stipulate the administrative and legal penalties to which the perpetrators are liable, including discharge, without prejudice to the imposition of the corresponding criminal penalties, where appropriate. A strict system of discharges should not allow persons who have been discharged for the type of conduct described, or for other reasons which adversely affect the service or the institution, to be readmitted to the institution.

5. Military curricula, from the Military College to General Staff courses, should include thorough training in human rights. The assistance of a highly qualified civilian teaching staff will be required for this.

6. In selecting advanced training courses for officers of the armed forces to follow abroad, care will have to be taken to ensure that such courses are based on a doctrine of democracy and respect for human rights.

7. The armed forces Court of Honour created by the peace agreements should give priority to the eradication of any vestige of a relationship between serving and retired members of the armed forces and now-disbanded paramilitary bodies or any illegal armed group.

B. Reforms in the area of public security

One of the prominent features of the peace agreements was the decision to disband the former public security forces (CUSEP), which were organically linked to the armed forces, and to entrust civilian security to the National Civil Police, a new and absolutely civilian entity. The Commission recommends most emphatically that the guidelines for the new body be scrupulously observed. The demilitarization of the police is a big step forward in El Salvador and it must be ensured that there are no links between the National Civil Police and the former security forces or any other branch of the armed forces.

C. Investigation of illegal groups

One of the most horrendous sources of the violence which swept the country in recent years was the activity of private armed groups which operated with complete impunity. All necessary measures must be taken to ensure that they are disbanded. Given the country's history, prevention is essential in this area. There is always a risk that such groups may become active again. The Commission recommends that a thorough investigation of this issue be undertaken immediately and that, since the newly established National Civil Police is still in its early stages, assistance be sought, through channels which the confidentiality of the issue requires, from the police of friendly countries which are in a position to offer it.

III. INSTITUTIONAL REFORMS TO PREVENT THE REPETITION OF SUCH ACTS

This too is an issue which is intrinsically linked to the implementation of the reforms agreed to in all the peace agreements, which are designed to provide the country with a modern, democratic institutional framework adapted to the requirements of the rule of law.

The Commission believes, however, that there are some points which should be emphasized, either because of their importance or because they were not clearly resolved in the peace agreements.

A. Administration of justice

One of the most pressing requirements if democracy in El Salvador is to be consolidated into the genuine rule of law is the transformation of its judicial system. The judicial reform programmes currently being worked out should be intensified and put into practice as soon as possible. The effort which the Ministry of Justice is making to link judicial reform to the democratization process is highly commendable and should be carried to its conclusion.

There are also some issues which are important enough to warrant a separate comment by the Commission:

1. One of the most glaring deficiencies which must be overcome in the Salvadorian judicial system is the tremendous concentration of functions in the Supreme Court of Justice, and in its President in particular, as the body which heads the judiciary. This concentration of functions seriously undermines the independence of lower court judges and lawyers, to the detriment of the system as a whole. The formal origin of this problem is constitutional, with the result that solving it requires analysing whether the relevant provisions should be amended, through the procedure provided for in the Constitution itself, so that the Court, without losing its status as the country's highest court, is not also the administrative head of the judiciary.

2. Judges should not be appointed and removed by the Supreme Court of Justice, but by an independent National Council of the Judiciary.

3. Each judge should be responsible for administering the resources of the court under his jurisdiction and should be accountable for them to the National Council of the Judiciary.

4. The functions of granting authorization to practise as a lawyer or notary and suspending or penalizing members of those professions should be attributed to a special independent body and not to the Supreme Court of Justice.

5. The budget allocation for the administration of justice provided for in the Constitution should be used to create new courts and improve judges' salaries.

6. The Commission recommends the adoption of the following measures to reinforce the application of the right to due process:

(a) Invalidate extrajudicial confessions.

(b) Ensure that accused persons, in all circumstances, exercise their right to be presumed innocent.

(c) Ensure strict compliance with the maximum time-limits for police and judicial detention, establishing immediate penalties for violators.

(d) Reinforce exercise of the right to defence starting from the very first actions in a proceeding.

7. The utmost priority should be given to the proper functioning of the Judicial Training School, conceived as a study centre not only for professional training but also to establish bonds of solidarity among judges and a coherent overall vision of the function of the judiciary in the State - to quote the peace agreements. There is also a short-term need to train new, sound human resources to staff new courts or to replace members of the judiciary who, according to the evaluation which the Commission has recommended, should not remain in the judiciary. This is an area susceptible to constructive, tangible international cooperation. The Commission calls on those in a position to offer such assistance to do so without delay, as part of an accelerated programme of implementation, and even ventures to appeal first and foremost to the European Economic Community, because of the similarities between the Salvadorian legal system and that of several of its member countries.

B. Protection of human rights

Many agreements were reached on this issue during the peace negotiations, including constitutional and legal reforms and the deployment of a United Nations human rights verification mission, something unprecedented in the history of the Organization. The Commission's first recommendation is that these agreements should be complied with strictly and that ONUSAL recommendations on human rights should be implemented.

In addition to all the proposals advanced in this area as part of the peace process, the Commission would like to make the following recommendations, fully realizing that some of them can be implemented only through a constitutional reform:

1. The Office of the National Counsel for the Defence of Human Rights must be strengthened:

(a) It would be desirable if the Counsel, with the support of ONUSAL and the participation of all governmental and non-governmental sectors concerned, made an assessment of the Office's current situation and its most immediate priorities and needs, in order to secure the means, including international cooperation, to achieve those objectives.

(b) The Office's presence should be extended throughout the country through offices in the various departments.

(c) The Office should make more frequent use of its powers to inspect any site or installation in the country, especially where places of detention are concerned.

2. Measures must be taken to make the remedies of amparo and habeas corpus truly effective. To that end, the Commission recommends the following:

(a) Competence to hear these remedies should be broadened in order to make them more accessible to the population. All judges of first instance should be competent, within their sphere of jurisdiction, to hear remedies of amparo or habeas corpus, and this competence could be extended to justices of the peace. The Supreme Court of Justice should only be the final instance in such proceedings.

(b) Express provision should be made that the remedies of amparo and habeas corpus, like the rules of due process, cannot be suspended under any circumstances, including during a state of emergency.

3. The constitutional force of human rights provisions should be reaffirmed, including those not set forth expressly in the Constitution but in other instruments such as human rights conventions binding on El Salvador.

4. The system of administrative detention also warrants a number of changes. This is a matter of prime importance, since violations of integrity of person and even disappearances can occur during such detention:

(a) The restrictions as to which officials can order administrative detention, which officials can carry it out and for what reasons should be spelled out.

(b) The duration of administrative detention should be kept to the absolute minimum.

(c) The administrative authorities should be stripped of their power to impose penalties involving deprivation of liberty. Such penalties should be imposed only by the law courts, in the context of due process.

5. It is recommended that the current system of information on detainees should be expanded. Through the Office of the National Counsel for the Defence of Human Rights, a centralized, up-to-date list should be kept of all persons detained for any reason, indicating their location and legal status. The competent authorities must inform the Office of any detention that is carried out and the personnel involved in the arrest.

6. Any future reform of criminal legislation should give due consideration to crimes committed with the direct or indirect support of the State apparatus, either by establishing new categories of crimes, modifying existing ones or introducing special aggravating circumstances.

7. Legislation should be passed granting a simple, swift and accessible remedy to anyone who has been a victim of a human rights violation enabling them to obtain material compensation for the harm suffered.

8. Certain decisions should also be taken at the international level to reinforce the country's adherence to global and regional systems for the protection of human rights. To that end, the Commission recommends that El Salvador:

(a) Ratify the following international instruments: Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol to the American Convention on Human Rights (Protocol of San Salvador), Conventions Nos. 87 and 98 of the International Labour Organisation, Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Inter-American Convention to Prevent and Punish Torture.

(b) Recognize the compulsory jurisdiction of the Inter American Court of Human Rights established by the American Convention on Human Rights, as all the other Central American Republics have done.

C. National Civil Police

The Commission emphasizes the importance of the establishment and functioning of the National Civil Police, in accordance with the model defined in the peace agreements, for defending the population and preventing human rights violations. In addition to making a general recommendation to this effect, it wishes to emphasize criminal investigation, an issue closely linked to the impunity which accompanied the serious acts of violence described in this report. First, it recommends that every effort be made to put into practice as soon as possible the criminal investigation mechanism decided on in the peace agreements, which entails joint action by the National Civil Police and the Office of the Attorney General of the Republic. This is also an area where international technical and financial cooperation can make a substantial contribution. Second, it recommends that the Commission for the Investigation of Criminal Acts be dissolved: it was through its omissions that serious human rights violations during the period under investigation were covered up.

IV. STEPS TOWARDS NATIONAL RECONCILIATION

The Geneva Agreement of 4 April 1990, which provided the framework for the negotiations and thus for the peace agreements, defined as objectives of the process, in addition to guaranteeing unrestricted respect for human rights and promoting the democratization of the country, the restoration of peace, national reconciliation and the reunification of Salvadorian society. These last two goals are complex and do not depend only on the cessation of hostilities but also on a process involving several stages that cannot be bypassed. We are again faced with inseparable goals. There will be no reunification of Salvadorian society without national reconciliation, and the latter will be impossible without the fraternal unity of the Salvadorian people.

The country must move on from a situation of confrontation to one of calm assimilation of all that has happened, in order banish such occurrences from a future characterized by a new relationship of solidarity, coexistence and tolerance. In order to achieve this, a process of collective reflection on the reality of the past few years is crucial, as is a universal determination to eradicate this experience forever.

One bitter but unavoidable step is to look at and acknowledge what happened and must never happen again. The Commission took on the difficult task of clarifying significant aspects of this reality, which it hopes it has fulfilled through this report. The truth is not enough, however, to achieve the goals of national reconciliation and the reunification of Salvadorian society. Pardon is essential: not a formal pardon which is limited to not imposing penalties, but one founded on a universal determination to rectify the mistakes of the past and on the certainty that this process will not be complete unless it emphasizes the future rather than a past which, no matter how abhorrent the acts which occurred, cannot now be altered.

However, in order to achieve the goal of a pardon, we must pause and weigh certain consequences which can be inferred from knowledge of the truth about the serious acts described in this report. One such consequence, perhaps the most difficult to address in the country's current situation, is that of fulfilling the twofold requirements of justice: punishing the guilty and adequately compensating the victims and their families.

The Commission has already referred in its introduction to this chapter of the report to the insurmountable difficulties it has encountered in this regard. Such difficulties, which it is beyond its power to resolve directly, can be attributed to the glaring deficiencies of the judicial system.

In this connection, the Commission would simply add that, since it is not possible to guarantee a proper trial for all those responsible for the crimes described here, it is unfair to keep some of them in prison while others who planned the crimes or also took part in them remain at liberty. It is not within the Commission's power to address this situation, which can only be resolved through a pardon after justice has been served.

However, the Commission fervently hopes that knowledge of the truth, and the immediate implementation of the above recommendations which can be inferred directly from the investigation, will be an adequate starting-point for national reconciliation and for the desired reunification of Salvadorian society.

But justice does not stop at punishment; it also demands reparation. The victims and, in most cases, their families, are entitled to moral and material compensation. FMLN must provide such compensation where it is found to have been responsible, while this obligation devolves on the State in cases where the actions or omissions of the public authorities or their agencies were among the causes of the acts of violence described, or in cases where the persons responsible enjoyed impunity. However, since the country's financial constraints and national reconstruction needs cannot be ignored complementary mechanisms along the lines recommended below should be envisaged.

A. Material compensation

1. It is recommended that a special fund be established, as an autonomous body with the necessary legal and administrative powers, to award appropriate material compensation to the victims of violence in the shortest time possible. The fund should take into account the information on the victims reported to the Commission on the Truth contained in the annexes to this report.

2. The fund should receive an appropriate contribution from the State but, in view of prevailing economic conditions, should receive a substantial contribution from the international community. Therefore, without prejudice to the obligations of the State and of FMLN, the Commission urgently appeals to the international community, especially the wealthier countries and those that showed most interest in the conflict and its settlement, to establish a fund for that purpose. It also suggests that the United Nations Secretariat promote and coordinate this initiative. It further recommends that not less than 1 per cent of all international assistance that reaches El Salvador be set aside for this purpose.

3. The fund could be managed by a board of directors consisting of three members: one appointed by the Government of El Salvador, one appointed by the Secretary-General of the United Nations and a third chosen by mutual agreement between the two appointed members.

4. The fund must be free to establish its own rules of procedure and to act in accordance with the Commission's recommendations, Salvadorian law, international law and general legal principles.

B. Moral compensation

The Commission recommends:

1. The construction of a national monument in El Salvador bearing the names of all the victims of the conflict.

2. Recognition of the good name of the victims and of the serious crimes of which they were victims.

3. The institution of a national holiday in memory of the victims of the conflict and to serve as a symbol of national reconciliation.

C. Forum for Truth and Reconciliation

The Commission feels it would be useful if this report and its conclusions and recommendations and progress towards national reconciliation were analysed not only by the Salvadorian people as a whole but also by a special forum comprising the most representative sectors of society which, in addition to the above-mentioned objectives, should strive to monitor strict compliance with the recommendations.

It is not for the Commission to indicate how such a forum should be established. However, a National Commission for the Consolidation of Peace (COPAZ) was established under the peace agreements as "a mechanism for the monitoring of and the participation of civilian society in the process of change resulting from the negotiations". It therefore seems appropriate that the task referred to by the Commission should be entrusted primarily to COPAZ. However, given the scope the importance of the subject-matter dealt with in this report, the Commission would like to suggest to COPAZ that, to this end, it consider expanding its membership so that sectors of civilian society that are not directly represented in COPAZ can participate in this analysis.

Moreover, COPAZ is the body entrusted by the agreements with preparing preliminary legislative drafts related to the peace process. In this sphere, it has a crucial role to play in the implementation of the recommendations in the present report that call for legal reforms.

D. International follow-up

The Commission has carried out its mandate as part of an extraordinary process which is a milestone in the history of United Nations operations for the maintenance of international peace and security. The tragedy in El Salvador absorbed the attention of the international community. As a result, the current peace process continues to arouse expectations throughout the world. The United Nations is also responsible for verifying all the agreements, which includes ensuring that the recommendations of the Commission on the Truth, which the Parties undertook to carry out, are implemented.

The Commission requests the Independent Expert for El Salvador of the United Nations Commission on Human Rights, in the report he is to submit to the Commission on Human Rights pursuant to his mandate and to the extent allowed by that mandate, to make corresponding evaluation of the implementation of the recommendations of the Commission on the Truth.

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Posted by USIP Library on: January 26, 2001
Source: UN Security Council, Annex, From Madness to Hope: the 12-year war in El Salvador: Report of the Commission on the Truth for El Salvador, S/25500, 1993, 172-187.