Corps de l’article

The Salvadoran government and guerrilla of the Farabundo Martí National Liberation Front (FMLN) committed to eliminating impunity when they signed the Peace Accords ending El Salvador’s Civil War (1980-1992). Though the brief paragraph titled “end to impunity,” found in the first chapter of the Peace Accords on the armed forces, refers the issue to the Truth Commission (also created by the Peace Accords) for “consideration and resolution,” the parties did recognize the need to end impunity for human rights violations committed “on the part of officers of the armed forces.” They also recognized that all perpetrators, “regardless of the sector to which [they] belong” must be “the object of exemplary action by the law courts so that the punishment prescribed by law is meted out to those found responsible.”[1]

The official commitment to ending impunity was short-lived. One week after the final peace agreement was signed on 16 January 1992, the Legislative Assembly, led by the conservative Nationalist Republican Alliance (ARENA), passed the National Reconciliation Law. The Law was framed as being part of a “process of national reconciliation in which pardon plays an important role.” The Law granted amnesty to the perpetrators of political crimes and common crimes connected to them. Exceptions included kidnapping and the then undefined list of cases the Truth Commission would investigate.

The 1992 partial amnesty was extended in March 1993, days after the Truth Commission released its report damning the military for responsibility for over 80% of the gross human rights violations committed during the war. The 1993 General Amnesty Law for the Consolidation of Peace was ARENA President Alfredo Cristiani’s way to “turn this painful page of our history and seek a better future for our country.”[2] He declared that, since the report included only a “sample” of what had happened,[3] “it is time to pardon.”[4] It was, he said, important to “erase, eliminate, and forget the entirety of the past” and so proposed a “general and absolute” amnesty.[5] The timing of Cristiani’s speech, however, leaves little doubt as to what he really wanted to be forgotten. It was not “the entirety of the past,” but the State’s overwhelming responsibility for human rights violations. Even so, until it was declared unconstitutional in 2016, state institutions interpreted the 1993 Amnesty Law as legislating the forgetting of the “entirety of the past.”

This article traces the struggle between actors who do not wish to see investigations into or trials for the human rights violations committed during the war, and so support amnesty and forgetting, and actors who promote memory, truth, and justice, and so oppose amnesty. These struggles are explored through the lens of memory, which Elizabeth Jelin describes as “a process of giving meaning to the past.”[6] More particularly, the actors discussed here are seen as what Jelin calls “memory entrepreneurs.” They are social actors who aim to “establish/convince/transmit their narrative,” or memory, of the past so that other actors will embrace it rather than other narratives/memories.[7]

The decision to explore struggles about the 1993 Amnesty Law through the lens of memory might seem surprising since the actors described here as memory entrepreneurs began trying to convince others about their own narrative before the Amnesty Law was even law. It is hard to see how their declarations about the Law “giv[e] meaning to the past.”[8] Cristiani’s comment about turning the page takes on additional relevance here. Cristiani and like-minded state[9] memory entrepreneurs (i.e., various, though not all, state institutions at various points in the post-Peace[10] era, including when the FMLN was in power [2009-2019]; the military, though it rarely makes explicit declarations about past violations; members of ARENA, which controlled the state from the Peace to 2009; and often, though not always, the FMLN) see the 1993 Amnesty Law as both a “cornerstone”[11] of the peace and as the final chapter in the now-completed history of the war. With Cristiani’s declaration in favour of unconditional amnesty, they understood that the war was truly over and that Salvadorans could look to the future without ever having to look back at the past. There was no need to open up the “wounds” of the past, as Minister of Defense René Emilio Ponce declared the Truth Commission had done,[12] by, for example, complying with INTERPOL’s 2011 arrest warrant and extraditing officers named in the Jesuit Massacre to Spain[13] or by publicly naming the officers responsible for the El Mozote massacre and asking for forgiveness on the State’s behalf, as FMLN President Mauricio Funes did in 2012 (see below).[14] Rather, it was time to “look to the future with optimism.”[15] Thus, they relegated the Amnesty Law to the “past” even before it became law. This is the meaning of the amnesty that state memory entrepreneurs such as Cristiani embrace.

Salvadoran human rights and victims’ organizations are the most vocal proponents of memory, truth, and justice, and critics of amnesty. Some state institutions also sometimes echo their views. As memory entrepreneurs, they worked tirelessly to have the Law declared unconstitutional and so remove what they viewed as an obstacle to both peace and to formal investigations into past violations. They reject amnesty as “official forgetting,” as the Human Rights Commission of El Salvador (CDHES) described the amnesty shortly before it became law.[16] The CDHES viewed the amnesty as “inopportune”[17]; it had come too soon. With the war officially over, the “next logical step […] is not amnesty” but “an intermediate phase for justice and [other] transformations that guarantee” non-repetition. Human rights memory entrepreneurs like the CDHES understand that the war, its victims, and its legacies will be present in the post-Peace period, and they believe this is how it should be. Thus, they demand truth, memory, and justice.

This article explores human rights memory entrepreneurs’ over 20-year-long campaign to have the Amnesty Law revoked. Revoking the Amnesty was an end in and of itself, but also a means to an end, that of un-turning, or turning back, the page on the past. I argue that, as human rights memory entrepreneurs chipped away at the Amnesty Law in Salvadoran courts and in the Inter-American Human Rights System (IAHRS), creating a possibility for memory, state memory entrepreneurs worked to eliminate these possibilities, or at least ignore—or forgot—them.

The article begins with a history of human rights organizations’ attempts to have the Amnesty Law declared unconstitutional and state institutions responses, before turning to look at the IAHRS’ role in amnesty and remembering in El Salvador. The next two sections explore the FMLN’s two consecutive presidencies (2009-2019) and the first 18 months of Nayib Bukele’s Great Alliance for National Unity (GANA)/New Ideas presidency, each of which began hopefully for human rights memory entrepreneurs. The conclusion reminds readers of the article’s main points and points to continued challenges for human rights memory entrepreneurs despite the 2016 elimination of the Amnesty Law.

I. Amnesty

Human rights memory entrepreneurs quickly rejected Cristiani’s call for unconditional amnesty. The CDHES and other human rights organizations were not necessarily opposed to amnesty in theory, as long as investigations were conducted and the perpetrators identified and tried before amnesty was granted.[18] And the 1993 Amnesty did not explicitly prevent any of this from happening. Indeed, over 40 cases were opened between 1992 and 2013.[19] During that period, however, few “progress[ed] past the initial evidence gathering stage, in which prosecutors decide whether to take the case to trial.”[20] This lack of progress was because Attorney Generals, who have considerable weight in determining which cases will be pursued, were reluctant to investigate war-time crimes.[21] It was also certainly related to Cristiani’s framing of the Amnesty Law as forgetting, which sent a clear message as to how the Law should be interpreted.

The Law, therefore, was framed and has been used as a tool to prevent investigations into the past. This, combined with the law’s unconstitutionality, pushed human rights organizations to file suits to have the law declared unconstitutional, and allow the past to have a place in the present. In this, they too were using the law (i.e., the Constitution) as a tool to further their pro-justice and pro-truth agenda. Human rights organizations first challenged the law in May 1993. The CSJ refused to hear the case.[22] In 1998, the CSJ finally agreed to hear the suit filed by then director of the Archbishop of San Salvador’s Legal Aid Office (Tutela Legal), María Julia Hernández Chavarría, and other human rights defenders.[23] The CSJ’s 2000 ruling concluded that the 1993 Law was constitutional, but left it up to individual judges to apply the amnesty in a particular case. The CSJ also recalled that the Constitution prevents a government from granting itself amnesty. The Law was passed during the Cristiani presidency, so all crimes committed during his time in office were not covered by the Amnesty.[24]

The CSJ ruling opened the possibility of formal investigations and trials for a portion of the violations committed during the war, notably the 1989 Jesuit Massacre. However, as stated above, most Attorney Generals of the post-Peace era opted not to investigate. In the Jesuit Massacre case more specifically, a few months after the CSJ ruling, the Attorney General’s Office (FGR) requested that the case be dismissed. This request was rejected and the trial was allowed to proceed. On the first day of the trial, however, the judge ruled that the deadline for investigations had passed,[25] effectively closing the case. With these moves, the possibility for truth and justice that the CSJ’s ruling had created was quickly eliminated and state memory entrepreneurs’ memory of the 1993 Amnesty Law as turning the page was reinforced.

From 2000 until 2013, when the CSJ again agreed to examine the 1993 Law,[26] human rights memory entrepreneurs remained firm in their rejection of amnesty. In a 2004 civil trial, for example, a judge in California found Captain Álvaro Rafael Saravia liable in absentia for extrajudicial killing and crimes against humanity in the 1980 assassination of Archbishop Óscar Romero. In response to this historic ruling where the assassination of one person is considered a crime against humanity, Tutela Legal called on the Salvadoran government to revoke the 1993 Amnesty Law and argued that crimes against humanity could not be amnestied. The Salvadoran government’s response at that time is typical and points to the reasons why so many in El Salvador stand firmly behind the amnesty. In 2004, ARENA President Tony Saca said that everyone had a right to ask for justice, but that “open[ing] the wounds of the past” was not “the most convenient thing to do for a country looking to the future.”[27] The past, this implies, should stay in the past.

In 2013, during the presidency of the FMLN’s Mauricio Funes, the CSJ agreed to review the 1993 Law once again. In response, former ARENA President Francisco Flores (1999-2004) described it as the cornerstone of the peace.[28] Shortly thereafter, the hierarchy of the Catholic Church in El Salvador shut Tutela Legal. Former Tutela Legal employees denounced the closure as “kidnapping historical memory,”[29] in reference to the sudden inaccessibility and uncertain future of Tutela Legal’s extensive archive of denunciations of human rights abuses committed during the war. These archives had formed the backbone of the Truth Commission’s findings[30] and, were the 1993 Law to be eliminated, would have served as key evidence. Indeed, by 2013, Tutela Legal had long been involved in cases in the IAHRS.[31] Tutela Legal’s successor, Tutela Legal “María Julia Hernández,”[32] has continued to be involved in these cases. The role of the IAHRS in struggles about the Amnesty will be explored in greater depth below.

The October 2013 closing of Tutela Legal was followed in November by an attack on the Pro-Search Association of Disappeared Girls and Boys (Pro-Búsqueda) offices. Founded in 1994, Pro-Búsqueda has since received information about approximately 1,000 children who were disappeared during the war. Pro-Búsqueda attributes responsibility for 90% of these to the military.[33] In November 2013, unknown individuals broke into the Pro-Búsqueda offices, took a security guard hostage, destroyed equipment and numerous documents, and set the offices alight.[34] As Human Rights Ombudsman David Morales declared, the aim was to “intimidate those who search for the truth.”[35] Seen from the perspective of memory and struggles over the meaning of the Amnesty Law, the attack was meant to intimidate those who refuse to let the past, and especially the State’s violations, remain in the past.

Both the closing of Tutela Legal and the attack on Pro-Búsqueda were significant setbacks for the human rights community and its struggle for truth and justice. Both events were seen as yet other examples of powerful forces (the Church hierarchy and shadowy figures assumed to be tied to the military) working against human rights memory entrepreneurs’ refusal to “turn the page.”

The CSJ followed its 2013 admission of the Amnesty Law file with a February 2014 ruling in the San Francisco Angulo case. The Court acknowledged victims’ right to truth and ordered the FRG to investigate the San Francisco Angulo massacre. The CSJ concluded that the right to truth is a “fundamental right with both individual and collective dimensions.”[36] The CSJ cited various IACHR and IACtHR decisions in the ruling, including the IACHR’s Romero report and the IACtHR’s decision in El Mozote.[37] As in the past, the state responded with inaction.

The CSJ finally declared the 1993 Amnesty Law unconstitutional on 13 July 2016. Parts of the 1992 National Reconciliation Law remain valid.[38] The human rights community celebrated this long overdue decision and the removal of what they saw as an obstacle to truth and justice. On the other hand, Mauricio Ernesto Vargas, a retired general and member of the Legislative Assembly for ARENA, repeated conservative arguments about the Amnesty as an essential element of peace. Vargas reminded Salvadorans that “without amnesty, there wouldn’t be [a Peace Accord].”[39] The governing FMLN’s immediate response to the decision was to talk about a “soft coup” and “destabilization” and to call the ruling “inopportune.”[40] President Salvador Sánchez Cerén’s official response included an affirmation of his commitment to justice and reconciliation. He then said the several resolutions the CSJ made that day “heighten[ed]” Salvadorans’ daily struggles and did not correspond to the country’s “actual and current problems.”[41] The governing FMLN, furthermore, did little to comply with the CSJ’s ruling, a situation the Human Rights Institute of the “José Simeón Cañas” Central American University (IDHUCA), Pro-Búsqueda, and other organizations denounced in June 2018.[42] This recalls the FRG’s failure to accept the recognition of victims’ right to the truth in the San Francisco Angulo ruling by initiating a series of investigations into violations committed during the war.

Attorney General Douglas Meléndez (2016-2018) seemed to distance himself from the inaction of his predecessor when he announced that a special investigative unit (staffed with six attorneys in November 2018) had been created to deal with past crimes and that the El Mozote, Romero, and Jesuit Massacre cases, among others, had all been reopened.[43] When the IACtHR visited El Salvador in December 2019, over 180 cases were open.[44] However, human rights organizations, including Tutela Legal “Maria Julia Hernández,” criticized Meléndez for moving too slowly.[45] He was perhaps unwilling to fully embrace the possibility for memory that he himself had created. His seeming reluctance to actively investigate the past was combined, as Meléndez confirmed, with minimal investigative assistance on the part of the police and the Ministry of Defense’s insistence that documents from the war no longer existed.[46] Thus, as much as opening the special unit represented a step forward, the move was hamstrung by limited resources and other state institution’s unwillingness to collaborate.

The Legislative Assembly also took action and committed to writing a new National Reconciliation Law, further evidence that the Salvadoran state is fractured and that different institutions sometimes work at cross purposes. An Ad Hoc Commission was created to write the law before the new government took power on 1 June 2019. Led by Nayib Bukele, the new administration was the first non-ARENA, non-FMLN government since 1989. (Though Bukele had been elected mayor of Nuevo Cuscatlán and then San Salvador as a member of the FMLN, he was kicked out of the party and then ran for president as the GANA candidate. He later formed his own party, New Ideas. He is a populist and is increasingly dictatorial.[47]) The Ad Hoc Commission, however, failed to propose a suitable law before Bukele’s inauguration and the drafts that were made public were heavily criticized.[48]

The Special Transitional Justice, Reparations, and National Reconciliation Law was passed on 26 February 2020 without the support of Bukele’s Nuevas Ideas party. The Law includes important advances in terms of economic and non-economic reparations and historical memory. It also grants judges the authority to commute the sentences of those found guilty of war crimes and crimes against humanity and to replace jail time with other forms of punishment. Furthermore, judges can reduce a sentence significantly if the individual on trial recognizes his responsibility, asks the victims for forgiveness, helps to further clarify what happened, and helps locate the victims or where their remains might be found.[49] Victims see the law as another amnesty,[50] even though the 2020 Law does not “turn the page on the past” in the same way the 1993 Law did, and though it allows the past to be present in the form of investigations and trials.

II. The Interamerican System

With the State’s inaction when the possibility for investigations was created, human rights memory entrepreneurs were left with few options and so turned to the IAHRS. The IACHR and IACtHR’s ignored denunciations of the 1993 Amnesty Law and their recommendations to eliminate it are significant in a discussion of memory entrepreneurs’ struggles over the law and its implications for memory. Indeed, the CSJ cited much of the IAHRS jurisprudence in its 2016 decision of unconstitutionality.

In the 2010 El Mozote case, the Commission concluded

that the amnesty law can have no legal effect and cannot continue to be an obstacle to investigation […], nor to the identification and punishment of those responsible.[51]

The IACHR recommended that the Salvadoran state

[r]ender ineffective the General Amnesty Law […] as it prevents the investigation, trial and sanction of those responsible for human rights violations and the rights of victims to truth, justice, and reparation. Also, any other de jure or de facto obstacles, such as judicial or investigative practices, must be eliminated.[52]

The 1993 Law was clearly having precisely the impact Cristiani had wished — “eras[ing], eliminat[ing], and forget[ting] the entirety of the past.”[53]

As for the Court, its decisions in the El Mozote massacre case and the case of the forced disappearance of Erlinda and Ernestina Serrano Cruz, aged 3 and 7 years, respectively, are the most damning in terms of the 1993 Amnesty Law, and the most relevant in terms of memory and the presence, or absence, of the past in the post-Peace era. In its 2012 El Mozote decision, the Court declared that the approval and application of the Amnesty Law was “contrary to the letter and spirit of the Peace Accords”[54] and “incompatible” with the American Convention.[55] The Salvadoran state, therefore, was responsible for ensuring that the Amnesty Law did not prevent investigations or prosecution.[56] The IACtHR reached a similar conclusion in the 2005 Serrano Cruz case, and can also be seen as affirming that the past must not be forgotten as Cristiani had wished. The Court declared that the State must not use amnesty or any other mechanism to avoid its obligation to investigate and identify perpetrators.[57]

With these conclusions, the IACHR and IACtHR were clearly rejecting Salvadoran state institutions’ use of amnesty as a tool for forgetting and the narrative of the amnesty as closing the book on the past. The same is true of their recommendations and measures related to reparations. As with conclusions about the Amnesty Law, questions related to reparations support human rights memory entrepreneurs’ work against forgetting and provide weight to their view that the past has a place in contemporary El Salvador, for it is still present. The language in the IACHR’s El Mozote report is striking and leaves little doubt as whether or not El Salvador has “turned the page.” The IACHR recognized the impact the massacre had had on society as a whole, declaring that

[t]he State of El Salvador has an urgent duty to pay its historic debt to the memory of the victims, their surviving relatives, and the people of the country who, nearly 30 years after the events, are still unable to heal the wounds through acknowledgment of the truth and punishment of those responsible for these crimes against humanity.[58]

With this introduction, the Commission recommended material and moral reparations, including making the truth known, commemoration projects, and guaranteeing psychosocial care for relatives.[59] It is worth highlighting that, while ARENA president Saca declared in 2004 that revoking the Amnesty would open wounds of the past,[60] meaning they had healed, here the IACHR affirms in no uncertain terms that these same wounds are still open after 30 years because of the Amnesty and a broader failure to investigate the past.

The IACtHR’s discourse surrounding reparations is similar. In the Serrano Cruz case, the IACtHR ordered “Measures of Satisfaction and Guarantees of Nonrepetition.”[61] Investigating the girls’ disappearance and searching for them are included in this broad category because the girls’ relatives

have lived with feelings of family disintegration, uncertainty, frustration, anguish and impotence, given the failure of the judicial authorities to investigate the reported facts diligently, and also the State’s lack of interest in tracing them by adopting other measures.[62]

The IACtHR’s recommendations about how to search for the girls and other children who had been disappeared included recommendations about the operation of the newly created “Inter-institutional Commission to Trace Children Who Disappeared as a Result of the Armed Conflict in El Salvador,” the creation of an online database of missing children, and the creation of a DNA database.[63] The IACtHR also ordered the state to “organize a public act acknowledging its responsibility […] and to make amends to the victims and their next of kin”[64] and create a national day dedicated to the children who disappeared during the war.[65] These measures leave no doubt that the Amnesty, as legislated forgetting, was an obstacle to many things, and not the cornerstone of the peace.

Just over one year after the IACtHR issued the Serrano Cruz ruling giving the Salvadoran State one year to organize a “public act acknowledging its responsibility,”[66] the government did more or less just that. Minister of the Exterior Francisco Laínez, accompanied by the president of the CSJ and the Human Rights Ombudsman, represented the state at this “public act.” Laínez declared that

[t]he State of El Salvador deeply laments all the events which took place during the armed conflict […] and that directly affected all Salvadoran families, and first and foremost those [cases] that involved our youth. The state especially laments the events related to Erlinda and Ernestina Serrano Cruz.[67]

Laínez then announced the reunion of the Hernández family, reunited by the government’s Inter-institutional Commission.

Pro-Búsqueda pointed out that, as happy as the reunion was, it was the Commission’s only success story and that celebrating it made the Serrano Cruz family “invisible.”[68] Pro-Búsqueda also criticized the language used to describe the work of the Inter-institutional Commission, that is, reuniting children who had been “involuntarily separated” from their families, as the Executive Decree creating the Commission declared.[69] The criticism was paired with a criticism of “laments.” In a paid ad, Pro-Búsqueda and IDHUCA affirmed that “[t]o lament something does not mean that any kind of responsibility has been recognized.”[70] Much like “laments,” “involuntarily separated” silences responsibility—the State’s responsibility in the vast majority of the cases. In this, Laínez’s declarations continue Cristiani’s campaign of forgetting imposed from above.

The State’s disappointing declaration in the Serrano Cruz case was matched by the disappointing language of the initial Decree 829 of 2005 declaring March 29 to be “Family reunion day for girls and boys who for various reasons went astray during the armed conflict,” a move made in response to another of the IACtHR’s orders. In Decree 829, the Legislative Assembly confirmed the State’s “wish that families that were involuntarily separated during the Salvadoran armed conflict, reunite.”[71] As ProBúsqueda had already pointed out, speaking of “involuntary separation” does little to recognize that someone was responsible for separating families. The IACtHR agreed in a 2006 resolution that Decree 829 fell short[72] and the Legislative Assembly responded with Decree 197 of 2007. Citing the Court’s dissatisfaction with the wording of Decree 829 and its failure to mention disappearances, the Assembly renamed March 29 the “Day dedicated to the boys and girls who disappeared during the armed conflict.”[73]

The Salvadoran State’s only responded to the Serrano Cruz ruling in part, as seen above. As well, the DNA database and a database of missing children have not been created and medical and psychological care have not been provided to relatives.[74] The Inter-institutional Commission to trace children who disappeared as a result of the armed conflict in El Salvador also proved disappointing, prompting the IACtHR to express concern in both 2006 and 2007.[75] The Serrano Cruz case is clear evidence of the State’s reluctance to allow the past into the present, and the State’s attempts to use language that forgets the State’s responsibility for human rights violations.

III. The FMLN Years

In 2009, after 20 years in power, ARENA lost the presidential elections to the FMLN. The FMLN’s new president, Mauricio Funes, was a former TV host who had an often-conflictual relationship with the party, and with his own vice president, former guerrilla commander Salvador Sánchez Cerén. The FMLN has distanced itself from Funes since he fled El Salvador to Nicaragua to avoid standing trial for corruption.[76]

Funes took a different approach to the violations of the past than had ARENA. His administration’s initiatives went further in meeting the human rights community’s wish for justice, truth, and memory, which had inspired these organizations to file numerous suits with the CSJ to review the 1993 Amnesty Law, to bring cases to the IAHRS, and to build their own monument to the victims. Replacing the Interinstitutional Commission was among Funes’ first actions to address past violations. With Executive Decree No. 5, dated 15 January 2010, Funes created the National Search Commission for Girls and Boys Disappeared during the Internal Armed Conflict. The decree cited the Serrano Cruz decision and the IACtHR’s subsequent concerns with the Inter-institutional Commission as reasons for the creation of the new Commission. From the perspective of the human rights community, the new Commission was more promising than its predecessor, at the very least because its members could not be former or current members of the military or any other armed group. Pro-Búsqueda could also recommend an individual to form part of it.[77]

The Funes administration brought the past into the present as never before, reimagining the Amnesty Law as not turning the page on the past in the process. Framed as a break with past denial,[78] these initiatives included honoring the massacred Jesuits’ and their legacy; recognizing and requesting forgiveness for the State’s responsibility for serious human rights violations and abuses of power committed during the war; and fulfilling the IACHR’s 2000 recommendation by requesting forgiveness for Romero’s assassination and constructing a mural at San Salvador’s international airport in his honor.[79] As well, the site of the massacre of Las Aradas was declared part of El Salvador’s cultural heritage, as the survivors wished[80]; the Monument for Memory and Truth, an initiative of human rights organizations, was declared a protected heritage site[81]; and María Julia Hernández was posthumously honored for her work recovering historical memory.[82]

Funes’ request for forgiveness at El Mozote on the 20th anniversary of the Peace deserves special attention.

As head of State, I recognize that in the villages of El Mozote, El Pinalito, Ranchería, Los Toriles, Jocote Amarillo, Cerro Pando, La Joya, and Cerro Ortiz, during the days and nights of 11, 12, and 13 December 1981, soldiers from the Atlacatl Immediate Reaction Infantry Battalion, part of the Armed Forces of El Salvador, assassinated close to 1000 people, the majority boys and girls. Endless acts of barbarity and human rights violations were committed here: innocents were tortured and executed; women and girls suffered sexual abuses and hundreds of male and female Salvadorans are now part of a long list of disappeared, while others were forces to emigrate and lose everything to save their lives. In the name of the Salvadoran state, I ask the victims’ families and nearby communities for forgiveness for this massacre, for the aberrant human rights violations, and for the abuses committed.[83]

Funes named Domingo Monterrosa, José Azmitia, and Natividad de Jesús Cáceres as responsible for the massacre and instructed the Armed Forces to “revise their interpretation of history” accordingly. He also instructed the military to stop honoring those who could be tied to the commission of gross human rights violations.[84] This was widely understood to mean that the names of the military barracks at San Miguel, named after Monterrosa, and La Unión, named after Azmitia, would be changed. Funes also asked the Attorney General’s Office and the CSJ to investigate the crimes of the past for, as he said, the Amnesty Law did not prevent this.[85]

Former officers responded to Funes by reminding Salvadorans of the FMLN’s crimes. Sigifredo Ochoa Pérez, a former colonel who also served in the Legislative Assembly for several years,[86] declared that Funes should “also [ask for forgiveness] for the massacres and criminal acts the FMLN, his own party, committed.”[87] This view was shared by another retired colonel, Antonio Almendáriz.[88] Both men are named as responsible for human rights violations in the Truth Commission report. Minister of Security, David Munguía Payés, on the other hand, repeated Cristiani and state memory entrepreneurs’ refrain about the past being past. He was, he said, “focused on the future, instead of looking toward the past.”[89]

Almost two years after Funes’ speech at El Mozote, the San Miguel and La Unión barracks had still not been renamed. When asked why not, Funes responded

I never promised to remove the names of the barracks. I requested that the Ministry of Defense investigate […] [and the results] are being examined […] When this has been completed, we, as the government of the Republic, will decide to keep the names […] or not.[90]

In the end, the Commission to Review Military History and Education limited itself to determining if naming processes had been followed.[91] The Commission, which did not mention Monterrosa, Azmitia, or Cáceres by name, concluded that, since those procedures had indeed been followed, “it is convenient to maintain [these units and installations’] names.”[92] The military’s response reveals the very real limits of Funes’ power, and the very real power of the military. Despite being commander-in-chief of the armed forces, Funes could not tell the military to do something it did not want to do. The military certainly did not want to rename the barracks and it seems that Funes did not want to insist.

With his requests for forgiveness and acknowledgement of the State’s responsibility, Funes supported human right memory entrepreneurs’ efforts to keep the past present and so reinforced their more general narrative that the Amnesty Law had not condemned the past to oblivion. However, he did little to broaden the possibility for justice (in terms of trials and sentences) beyond the limits of the CSJ’s 2000 ruling. Indeed, he had promised not to make any efforts to have the Amnesty Law revoked during his campaign, declaring that the Law did not prevent investigations from being undertaken.[93] As president, he insisted that the executive did not have the power to do anything about revoking the Amnesty Law. It was, he said, the Legislative Assembly and courts’ responsibility. And, he repeated, the Law did not prevent investigations into past violations. Rather, “the only obstacle is the court’s political will.”[94] Funes rejected state’s memory entrepreneurs view of the past as a closed book, and of the Amnesty Law as the final chapter in that book. Yet, as much as he embraced human rights memory entrepreneurs’ call for memory, truth, and justice, he also rejected their view of amnesty as an obstacle to peace. Rather, he saw political will as the obstacle to peace. While this is certainly true, the continued validity of the Amnesty Law gave those who did not want to open investigations into the past a legal foundation on which to base their position. As human rights memory entrepreneurs knew, with the legal foundation for forgetting eliminated, forgetting would be a far more difficult position to support.

Vice President Sánchez Cerén succeeded Funes in 2014. The Sánchez Cerén administration created the National Search Commission for Persons Disappeared during the Armed Conflict in El Salvador (CONABUSQUEDA) by Executive Decree 33 in 2017.[95] The creation of the commission was celebrated by the UN and human rights organizations,[96] but these have since expressed concerns about CONABUSQUEDA. For example, in the final days of the Sánchez Cerén presidency, Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-recurrence, Fabián Salvioli, expressed concerns about the Commission and made several recommendations as to how to move forward.[97] One of these was to grant the commission the power to search for individuals disappeared by either the State or the former guerrilla.[98] Decree 33 described the forcibly disappeared as “deprived of liberty” by “an agent of the State or a third party who acted with the authorization, support, or acquiescence of the State,”[99] effectively forgetting the FMLN’s responsibility for forced disappearances, albeit a far fewer number of them.

Any steps Sánchez Cerén and his administration made to promote truth and justice and to invite the past into the present via CONABUSQUEDA were undone with their reaction to the CSJ’s 2016 ruling that the 1993 Amnesty Law was unconstitutional, discussed above, and the FMLN’s quick and wholehearted embrace of a new amnesty. As Elvira Espinoza, a member of a victims’ organization, said

[w]hen president Sánchez Cerén won the presidency, he called all the victims, all the mothers…he told us that he was going to help, but he is leaving [office] now and we victims are maybe worse than we were before.

In the final days of the second FMLN government, Elvira wondered why he had invited them to the Presidential Palace. She asked, “[w]as it to make fun of us?”[100]

Presumably, this was not Sánchez Cerén’s intention. A more likely explanation is that consistently high levels of crime meant that, as with Funes, whatever Sánchez Céren meant when he said he would “help” victims’ organizations was subordinated to public security concerns. In El Salvador, as elsewhere in Latin America, the military plays a key role in public security and policing. Dependent on the military, it might have become impossible for Sánchez Cerén to “help” victims’ organizations, especially in terms of their search for justice, truth, and memory. Not “helping” these organizations too much may have been the price Sánchez Cerén had to pay, despite being commander-in-chief, to prevent the military from becoming disloyal.

IV. “Violence always begins with words”[101]

Salvadoran human rights memory entrepreneurs have spent over a quarter century struggling against forgetting with the goal of securing access to justice. While they have celebrated some successes in these years, their main prize—the elimination of the 1993 Amnesty Law—eluded them until 2016. Yet simply revoking the Amnesty Law is not enough, for the Salvadoran State’s various institutions often work at cross purposes. As seen above, while the CSJ’s ruling created the possibility for justice, the Legislate Assembly passed a new amnesty law.

Nayib Bukele’s 1 June 2019 inauguration marked the beginning of a new era. His term in office began on a high note for the victims when he ordered that Monterrosa’s name be removed from the military base in San Miguel.[102] Unlike the past, the military complied. As well, when Bukele met with relatives of the victims of El Mozote in his first month in office, he promised that he would continue to fulfill the IACtHR’s recommendations in terms of reparations programs.[103] Yet this opening up to the past is balanced by Bukele’s other actions. For example, when the state apparatus was reorganized, many of the institutions responsible for programs for the victims were eliminated. As well, human rights organizations that help coordinate reparations programs reported that the Bukele administration’s initial responsiveness had turned to silence by the end of August.[104] By September, dozens of human rights organizations denounced both the lack of political will and the Attorney General’s “passivity” in investigating violations committed during the war, and they called on the government to improve the capacity of the unit dedicated to investigating these crimes.[105] In November, in response to the order issued by the judge presiding over the El Mozote trial, Judge Jorge Guzmán, Bukele said he would open the military’s archives. Following human rights memory entrepreneurs’ discourse, he declared that the “only way to heal the wounds of the past is to know the truth.”[106] Two weeks later, the Bukele administration said that the military had informed him that archives related to the military’s counterinsurgency campaigns did not exist.[107] On 16 January 2020, the government did not celebrate the 28th anniversary of the signing of the Peace Accords.[108]

On 9 February 2020, Bukele entered the Legislative Assembly surrounded with soldiers and police, told the representatives present in the chamber “now you know who is in control,” and informed them that they had one week to approve funding for Phase III of his anti-gang/anti-crime plan. He threatened to dissolve the Assembly if they did not. He explained that only a message from God telling him to be patient prevented him from carrying out a self-coup at that time. Minutes before, outside the Assembly building, Bukele had spoken to a few thousand supporters, reminding them that the Constitution gives “the Salvadoran people”—and not him—the right to rise up when government officials “break the constitutional order.”[109]

The CSJ resolved on 10 February that Bukele had put democracy at risk the day before by using the armed forces for political ends. This is both unconstitutional and opposite to the Peace Accords. Bukele responded by urging the CSJ to interpret the Constitution according to contemporary “realities.”[110]

In one day, Bukele had re-politicized the security forces, potentially un-doing over 25 years of post-Peace progress toward reversing what had, until 1992, been the State’s overtly politicized use of those security forces to silence opponents. The UCA responded that, while the Constitution does protect the people's right to rise up, “no one in their right mind would want an insurrection that reminds us of the Civil War and that leads to the establishment of an authoritarian regime.” The authors went on, “[v]iolence always begins with words. And the Executive is supposed to limit violence, not promote it.”[111]

By October 2020, months into the Covid-19 pandemic, Bukele had ignored a CSJ ruling declaring that all Salvadorans, and not only those who are Covid-negative, have the right to return home and attacked the press by initiating a fiscal investigation into the internationally-acclaimed El Faro, which has been highly critical of Bukele. As a handful of Republican senators told Bukele, the country had strayed from the rule of law and democracy.[112]

Human rights organizations’ initial appreciation for Bukele’s actions in favor of the victims of human rights violations has evaporated. They are left with the image of Judge Guzmán, armed with a judicial order, being refused access to the military archives by a uniformed colonel who interpreted the Constitution for the judge as soldiers filmed the journalists who had accompanied him.[113] With the Presidential Palace occupied with a man who uses security forces to achieve his own political ends and who allows the military to interpret the Constitution, knowing the truth about the violations committed by those same security forces seems further away than ever.

***

State and human rights memory entrepreneurs have been struggling over the meaning of the Amnesty Law and over what place the past has in the present for decades. As human rights memory entrepreneurs have worked tirelessly to create the possibility for memory, truth, and justice, state memory entrepreneurs have insisted on forgetting. The situation continues to evolve. On 16 January 2021, Bukele continued his denunciation of the “farce” of the Peace Accords and declared the day to be Victims of the Armed Conflict Day. In a series of tweets announcing this change, he reminded his followers that “THEY,” on both the right and the left, had killed, tortured, raped, and dismembered.[114] Bukele was presumably referring to the FMLN and ARENA with this comment about “THEY.” Rather than celebrate a “pact of the corrupt,” it was time to commemorate the victims.[115]

Human rights organizations rejected this as an attempt to “erase what the [Peace] Accords established,” as Ovidio Maurico of Tutela Legal “María Julia Hernández” said.[116] Human rights memory entrepreneurs also pointed out that Bukele had not consulted victims’ organizations and, as David Ortíz of the Foundation for the Study of the Application of Law (Fespad) said, continued to protect the perpetrators.[117] This included, for example, not allowing Judge Guzmán to inspect military archives himself. In March 2021, the FRG also challenged Guzmán’s decision to allow an expert witness on sexual violence to testify, stating that she did not meet the necessary criteria.[118] The FRG, which had previously paid very little attention to the El Mozote and other cases, then attempted to have Guzmán removed from the case. Neither move was successful, but they reveal the State’s attempts to create obstacles in the El Mozote trial, as former human rights ombudsman and current prosecutor in the El Mozote case, David Morales, commented.[119] Since then, however, Decree No. 144 has forced all judges over 60 years of age or with 30 or more years of serive to retire, including Guzmán. In April 2022, the judge was the victim of threats and harrassment.[120]

Since 2016, state memory entrepreneurs have identified new ways to impose forgetting from above (i.e., creating obstacles to trials) to combine with long-standing strategies (i.e., inaction). All evidence suggests, however, that human rights memory entrepreneurs, and Judge Guzmán, will continue to fight for memory, truth, and justice, despite the State’s persistence.