II. THE MANDATE

A. THE MANDATE

The Commission on the Truth owes its existence and authority to the El Salvador peace agreements, a set of agreements negotiated over a period of more than three years (1989-1992) between the Government of El Salvador and FMLN. The negotiating process, which took place under United Nations auspices with the special cooperation of Colombia, Mexico, Spain and Venezuela (the so-called "friends of the Secretary-General"), culminated in the Peace Agreement signed at Chapultepec, Mexico, on 16 January 1992. ¹

The decision to set up the Commission on the Truth was taken by the Parties in the Mexico Agreements, signed at Mexico City on 27 April 1991. ² These Agreements define the functions and powers of the Commission, while its authority is expanded by article 5 of the Chapultepec Peace Agreement, entitled "End to Impunity". ³ Together, these provisions constitute the Commission's "mandate".

The mandate defines the Commission's functions as follows:

"The Commission shall have the task of investigating serious acts of violence that have occurred since 1980 and whose impact on society urgently demands that the public should know the truth."

It then states that the Commission shall take the following into account:

"(a) The exceptional importance that may be attached to the acts to be investigated, their characteristics and impact, and the social unrest to which they gave rise; and

(b) The need to create confidence in the positive changes which the peace process is promoting and to assist the transition to national reconciliation."

The specific functions assigned to the Commission as regards impunity are defined, in part, in the Chapultepec Agreement, which provides as follows:

"The Parties recognize the need to clarify and put an end to any indication of impunity on the part of officers of the armed forces, particularly in cases where respect for human rights is jeopardized. To that end, the Parties refer this issue to the Commission on the Truth for consideration and resolution."

In addition to granting the Commission powers with respect to impunity and the investigation of serious acts of violence, the peace agreements entrust the Commission with making "legal, political or administrative" recommendations. Such recommendations may relate to specific cases or may be more general. In the latter case, they "may include measures to prevent the repetition of such acts, and initiatives to promote national reconciliation".

The Commission was thus given two specific powers: the power to make investigations and the power to make recommendations. The latter power is particularly important since, under the mandate, "the Parties undertake to carry out the Commission's recommendations". The Parties thus agree to be bound by the Commission's recommendations.

As regards the Commission's other task, the mandate entrusted it with investigating "serious acts of violence ... whose impact on society urgently demands that the public should know the truth". In other words, in deciding which acts to focus on, the Commission would have to take into account the particular importance of each act, its repercussions and the social unrest to which it gave rise. However, the mandate did not list or identify any specific cases for investigation; nor did it distinguish between large-scale acts of violence and acts involving only a handful of people. Instead, the mandate emphasized serious acts of violence and their impact or repercussions. On the basis of these criteria, the Commission investigated two types of cases:

(a) Individual cases or acts which, by their nature, outraged Salvadorian society and/or international opinion;

(b) A series of individual cases with similar characteristics revealing a systematic pattern of violence or ill-treatment which, taken together, equally outraged Salvadorian society, especially since their aim was to intimidate certain sectors of that society.

In investigating these acts, the Commission took into account three additional factors which have a bearing on the fulfilment of its mandate. The first was that it must investigate serious or flagrant acts committed by both sides in the Salvadorian conflict and not just by one of the Parties. Secondly, in referring the issue of the impunity "of officers of the armed forces, particularly in cases where respect for human rights is jeopardized" to the Commission, the Chapultepec Agreement urged the Commission to pay particular attention to this area and to acts of violence committed by officers of the armed forces which were never investigated or punished. Thirdly, the Commission was given six months in which to perform its task.

If we consider that the Salvadorian conflict lasted 12 years and resulted in a huge number of deaths and other serious acts of violence, it was clearly impossible for the Commission to deal with every act that could have been included within its sphere of competence. In deciding to investigate one case rather than another, it had to weigh such considerations as the representative nature of the case, the availability of sufficient evidence, the investigatory resources available to the Commission, the time needed to conduct an exhaustive investigation and the issue of impunity as defined in the mandate.

B. APPLICABLE LAW

In defining the legal norms applicable to this task, it should be pointed out that, during the Salvadorian conflict, both Parties were under an obligation to observe a number of rules of international law, including those stipulated in international human rights law or in international humanitarian law, or in both. Furthermore, throughout the period in question, the State of El Salvador was under an obligation to adjust its domestic law to its obligations under international law.

These rules of international law must be considered as providing the basis for the criteria applicable to the functions which the peace agreements entrust to the Commission. ⁴ Throughout the Salvadorian conflict, these two sets of rules were only rarely mutually exclusive.

It is true that, in theory, international human rights law is applicable only to Governments, while in some armed conflicts international humanitarian law is binding on both sides: in other words, binding on both insurgents and Government forces. However, it must be recognized that when insurgents assume government powers in territories under their control, they too can be required to observe certain human rights obligations that are binding on the State under international law. This would make them responsible for breaches of those obligations.

The official position of FMLN was that certain parts of the national territory were under its control, and it did in fact exercise that control. ⁵

1. International human rights law

The international human rights law applicable to the present situation comprises a number of international instruments adopted within the framework of the United Nations and the Organization of American States (OAS). These instruments, which are binding on the State of El Salvador, include, in addition to the Charters of the United Nations and OAS, the following human rights treaties: the International Covenant on Civil and Political Rights and the American Convention on Human Rights. El Salvador ratified the Covenant on 30 November 1979 and the American Convention on 23 June 1978. Both instruments entered into force for El Salvador before 1980 and were thus in force throughout the conflict to which the Commission's mandate refers.

Clearly, not every violation of a right guaranteed in those instruments can be characterized as a "serious act of violence". Those instruments themselves recognize that some violations are more serious than others. This position is reflected in a provision which appears in both instruments and which distinguishes between rights from which no derogation is possible, even in time of war or other state of national emergency, and those from which derogations can be made in such circumstances. It is appropriate, therefore, that the Commission should classify the seriousness of each "act of violence" on the basis of the rights which the two instruments list as not being subject to derogation, in particular, rights related directly to the right to life and to physical integrity.

Accordingly, the following rights listed in article 4 of the Covenant as not being subject to derogation would come within the Commission's sphere of competence: the right to life ("No one shall be arbitrarily deprived of his life"); the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; and the right not to be held in slavery or any form of servitude. Article 27 of the American Convention on Human Rights provides that these same rights cannot be suspended even "in time of war, public danger, or other emergency that threatens the independence or security of a State Party".

Under international law, it is illegal for a State, or for persons acting on its behalf, to violate any of the above rights for whatever reason. Violation of these rights may even constitute an international crime in situations where acts are of a consistent type or reflect a systematic practice whose purpose is the large-scale violation of these fundamental rights of the human person.

2. International humanitarian law

The principles of international humanitarian law applicable to the Salvadorian conflict are contained in article 3 common to the four Geneva Conventions of 1949 and in Additional Protocol II thereto. El Salvador ratified these instruments before 1980.

Although the armed conflict in El Salvador was not an international conflict as defined by the Conventions, it did meet the requirements for the application of article 3 common to the four Conventions. That article defines some fundamental humanitarian rules applicable to non international armed conflicts. The same is true of Protocol II Additional to the Geneva Conventions, relating to the protection of victims of non international armed conflicts. The provisions of common article 3 and of Additional Protocol II are legally binding on both the Government and the insurgent forces.

Without going into those provisions in detail, it is clear that violations - by either of the two parties to the conflict - of common article 3 ⁶ and of the fundamental guarantees contained in Additional Protocol II, ⁷ especially if committed systematically, could be characterized as serious acts of violence for the purposes of the interpretation and application of the Commission's mandate. Such violations would include arbitrary deprivation of life; torture; cruel, inhuman or degrading treatment; taking of hostages; and denial of certain indispensable guarantees of due process before serious criminal penalties are imposed and carried out.

3. Conclusions

With few exceptions, serious acts of violence prohibited by the rules of humanitarian law applicable to the Salvadorian conflict are also violations of the non-repealable provisions of the International Covenant on Civil and Political Rights and the American Convention on Human Rights, the two human rights treaties ratified by the State of El Salvador. The two instruments also prohibit derogation from any rights guaranteed in any humanitarian law treaty to which the State is a party.

As a result, neither the Salvadorian State nor persons acting on its behalf or in its place can claim that the existence of an armed conflict justified the commission of serious acts of violence in contravention of one or other of the human rights treaties mentioned above or of the applicable instruments of humanitarian law binding on the State.

C. METHODOLOGY

In determining the methodology that would govern the conduct of the investigations essential to the preparation of this report, the Commission took a number of factors into account.

The text of its mandate was a binding condition and a starting-point for the Commission, in that it stated the Parties' intentions in this connection. The preamble to the mandate indicates that the Commission was established because the Parties recognized "the need to clear up without delay those exceptionally important acts of violence whose characteristics and impact ... urgently require that the complete truth be made known ...".

In establishing the procedure that the Commission was to follow in performing its functions, paragraph 7 of the mandate provided that the Commission would conduct its activities "on a confidential basis". Paragraph 5 established that "The Commission shall not function in the manner of a judicial body". Paragraph 8 (a) stipulated that "The Commission shall be completely free to use whatever sources of information it deems useful and reliable", while paragraph 8 (b) gave the Commission the power to "Interview, freely and in private, any individuals, groups or members of organizations or institutions". Lastly, in the fourth preambular paragraph of the mandate, the Parties agreed that the task entrusted to the Commission should be fulfilled "through a procedure which is both reliable and expeditious and may yield results in the short term, without prejudice to the obligations incumbent on the Salvadorian courts to solve such cases and impose the appropriate penalties on the culprits".

In analysing these provisions of the mandate, the Commission thought it important that the Parties had emphasized that "the Commission shall not function in the manner of a judicial body". In other words, not only did the Parties not establish a court or tribunal, but they made it very clear that the Commission should not function as if it were a judicial body. They wanted to make sure that the Commission was able to act on a confidential basis and receive information from any sources, public or private, that it deemed useful and reliable. It was given these powers so that it could conduct an investigation procedure that was both expeditious and, in its view, reliable in order to "clear up without delay those exceptionally important acts of violence whose characteristics and impact ... urgently require that the complete truth be made known ...".

So it is clear that the Parties opted for an investigation procedure that, within the short period of time allotted, would be best fitted to establishing the truth about acts of violence falling within the Commission's sphere of competence, without requiring the Commission to observe the procedures and rules that normally govern the activities of any judicial or quasi-judicial body. Any judicial function that had to be performed would be reserved expressly for the courts of El Salvador. For the Parties, the paramount concern was to find out the truth without delay.

Another important overall consideration which influenced the Commission's methodology was the reality of the situation in El Salvador today. Not only was this reflected in the Commission's mandate, but it also had a profound impact on the Commission's investigation process and modus operandi. It forced the Commission to gather its most valuable information in exchange for assurances of confidentiality.

It was not just that the Parties authorized the Commission, in the peace agreements, to act on a confidential basis and to receive information in private; the reality of the situation in El Salvador forced it to do so for two reasons: first, to protect the lives of witnesses and, secondly, to obtain information from witnesses who, because of the climate of terror in which they continue to live, would not have provided such information if the Commission had not guaranteed them absolute confidentiality.

The situation in El Salvador is such that the population at large continues to believe that many military and police officers in active service or in retirement, Government officials, judges, members of FMLN and people who at one time or another were connected with the death squads are in a position to cause serious physical and material injury to any person or institution that shows a readiness to testify about acts of violence committed between 1980 and 1991. The Commission believes that this suspicion is not unreasonable, given El Salvador's recent history and the power still wielded or, in many cases, wielded until recently by people whose direct involvement in serious acts of violence or in covering up such acts is well known but who have not been required to account for their actions or omissions.

Even though the fears expressed by some potential witnesses may have been exaggerated, the fact is that in their minds the danger is real. As a result, they were not prepared to testify unless they were guaranteed absolute secrecy. It should be pointed out that many witnesses refused to give information to other investigatory bodies in the past precisely because they were afraid that their identity would be divulged.

The Commission can itself testify to the extreme fear of reprisals frequently expressed, both verbally and through their behaviour, by many of the witnesses it interviewed. It is also important to emphasize that the Commission was not in a position to offer any significant protection to witnesses apart from this guarantee of confidentiality. Unlike the national courts, for instance, the Commission did not have the authority to order precautionary measures; neither, of course, did it have police powers. Besides, it is the perception of the public at large that the Salvadorian judicial system is unable to offer the necessary guarantees.

The Commission also received reports from some Governments and international bodies, on condition that the source was not revealed. This information was subjected to the same test of reliability as the other information received and was used principally to confirm or verify personal testimony and to guide the Commission in its search for other areas of investigation.

From the outset, the Commission was aware that accusations made and evidence received in secret run a far greater risk of being considered less trustworthy than those which are subjected to the normal judicial tests for determining the truth and to other related requirements of due process of law, including the right of the accused to confront and examine witnesses brought against him. Accordingly, the Commission felt that it had a special obligation to take all possible steps to ensure the reliability of the evidence used to arrive at a finding. In cases where it had to identify specific individuals as having committed, ordered or tolerated specific acts of violence, it applied a stricter test of reliability.

The Commission decided that, in each of the cases described in this report, it would specify the degree of certainty on which its ultimate finding was based. The different degrees of certainty were as follows:

1. Overwhelming evidence - conclusive or highly convincing evidence to support the Commission's finding;

2. Substantial evidence - very solid evidence to support the Commission's finding;

3. Sufficient evidence - more evidence to support the Commission's finding than to contradict it.

In order to guarantee the reliability of the evidence it gathered, the Commission insisted on verifying, substantiating and reviewing all statements as to facts, checking them against a large number of sources whose veracity had already been established. It was decided that no single source or witness would be considered sufficiently reliable to establish the truth on any issue of fact needed for the Commission to arrive at a finding. It was also decided that secondary sources, for instance, reports from national or international governmental or private bodies and assertions by people without first-hand knowledge of the facts they reported, did not on their own constitute a sufficient basis for arriving at findings. However, these secondary sources were used, along with circumstantial evidence, to verify findings based on primary sources.

It could be argued that, since the Commission's investigation methodology does not meet the normal requirements of due process, the report should not name the people whom the Commission considers to be implicated in specific acts of violence. The Commission believes that it had no alternative but to do so.

In the peace agreements, the Parties made it quite clear that it was necessary that the "complete truth be made known", and that was why the Commission was established. Now, the whole truth cannot be told without naming names. After all, the Commission was not asked to write an academic report on El Salvador, it was asked to investigate and describe exceptionally important acts of violence and to recommend measures to prevent the repetition of such acts. This task cannot be performed in the abstract, suppressing information (for instance, the names of persons responsible for such acts) where there is reliable testimony available, especially when the persons identified occupy senior positions and perform official functions directly related to violations or the cover-up of violations. Not to name names would be to reinforce the very impunity to which the Parties instructed the Commission to put an end.

In weighing aspects related to the need to protect the lives of witnesses against the interests of people who might be adversely affected in some way by the publication of their names in the report, the Commission also took into consideration the fact that the report is not a judicial or quasijudicial determination as to the rights or obligations of certain individuals under the law. As a result, the Commission is not, in theory, subject to the requirements of due process which normally apply, in proceedings which produce these consequences.

Furthermore, the Commission's application of strict criteria to determine the degree of reliability of the evidence in situations where people have been identified by name, and the fact that it named names only when it was absolutely convinced by the evidence, were additional factors which influenced the Commission when it came to take a decision on this analysis. As a result, the Commission is satisfied that the criteria of impartiality and reliability which it applied throughout the process were fully compatible with the functions entrusted to it and with the interests it had to balance.

The considerations which prompted the Commission to receive confidential information without revealing the source also forced it to omit references from both the body and the footnotes of the reports on individual cases, with the exception of references to certain public, official sources. As a result, reference is made to official trial proceedings and other similar sources, but not to testimony or other information gathered by the Commission. The Commission took this approach in order to reduce the likelihood that those responsible for the acts of violence described herein, or their defenders, would be able to identify the confidential sources of information used by the Commission. In some of the reports on individual cases, the Commission also omitted details that might reveal the identity of certain witnesses.

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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, 18-25.