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Chapter 2

Making the Captured Peace

People go [to the table] to negotiate, not to sacrifice themselves.

—Rubén Zamora, 1999¹

BY LATE 1989 it appeared that El Salvador’s decade-long civil war was ripe for negotiations. A mutually hurting stalemate coincided with the end of the Cold War, which contributed to an environment conducive for negotiations. For two years, the Cristiani administration and the FMLN hammered out the details on a plan to end the war and bring peace to El Salvador. The outcome of those negotiations, the Chapúltepec Accords, provided the foundation to dramatically transform the political landscape of the country while also preserving the interests of elites. As one of the United Nations’ first forays into postwar peacebuilding, the Salvadoran peace process was unprecedented in scope. Not only did the accords dismantle and redefine the country’s most notorious security organizations, but they also addressed electoral and judicial reforms, guarantees for human rights, and some socioeconomic issues. They also provided the basis for the FMLN’s incorporation into the country’s political life, which was realized in the 1994 elections. While the peace process in El Salvador is widely considered a success, it was certainly not without its problems. As detailed below, elite control over content and implementation of the peace accords facilitated a captured peace by undermining reforms set forth in the accords. Moreover, the lack of transitional justice and a controversial amnesty law, which was designed to protect elites, undermined prospects for reconciliation and sustained a war narrative that would come to define postwar society.

The Broker of Peace: The Participation of the United Nations

The peace process in El Salvador represents one of the United Nations’ first peacebuilding missions. While the UN had little prior experience in the region, changing international conditions and a renewed regional commitment to peace made an entrée into the region more feasible. The United Nations first became involved in El Salvador in 1981 to report on the human rights situation. The installation of the UN’s first Latin American secretary general, Javier Pérez de Cuéllar in the same year brought a slow but increasing attention to the region. In 1983 the UN formally supported the actions of the Contadora Group, consisting of Colombia, Mexico, Panama, and Venezuela, in its efforts to promote peace in the region. However, it was 1989 before the UN became involved in more than a supporting role. At a summit of Central American presidents in February 1989, leaders of the five Central American countries called on the United Nations to take a more active role in the verification of the security aspects of the Esquipulas agreements.² In essence, they invited the participation of the United Nations in the region, and the UN responded favorably. In July 1989 the United Nations Security Council published Resolution 637, commending the Central American leaders for their continued commitment to the Esquipulas agreements and pledging to take any steps necessary to support the secretary general in promoting peace in the region.³ Resolution 637 opened the door for unprecedented UN involvement in Central America.

In an effort to salvage the peace process and the reputation of his administration—both of which were badly damaged following the October 1989 FENESTRAS bombings and the November 16, 1989, Jesuit murders—Cristiani personally solicited Secretary General Pérez de Cuéllar to mediate peace talks between the government of El Salvador and the FMLN following a similar request by the FMLN in late 1989.⁴ In an unprecedented decision, the secretary general agreed to aid in peace negotiations between the two parties.⁵ The Salvadoran peace process was the first in which the United Nations had acted as mediator in a civil war.

As other works have described in great detail, the United Nations played an indispensible role as mediator during the negotiations.⁶ The use of good offices and the personal commitment of Pérez de Cuéllar demonstrated the importance of third parties in resolving this seemingly intractable conflict. By most accounts, the government of El Salvador (GOES), the FMLN, and the UN worked together to resolve most disputes. That said, the UN and the United Nations Observer Mission in El Salvador (ONUSAL) occasionally experienced great difficulty in overcoming ARENA’s resistance to the implementation of various elements of the accords. This was particularly true with regard to police and judicial reform.

The Contents of the Negotiations and the Accords

As with most other UN-mediated settlements, the content of the peace accords focused on conflict resolution (moving the conflict from the battlefield to the ballot box) as opposed to conflict transformation (addressing the underlying causes of the conflict as well as changing the relationships between and attitudes of the parties).⁷ As such, negotiations focused on structural changes to formal institutions. The framework for the peace accords developed through a series of six agreements over a two-year period. The Geneva Agreement (April 1990) established the parties’ commitment to negotiations, as well as an agreement for secret, continuous negotiations with the support of the secretary general’s office. As stated in the Geneva Agreement, the purpose of the peace negotiations was “to end armed conflict by political means as speedily as possible, promote the democratization of the country, guarantee unrestricted respect for human rights and reunify Salvadoran society.”⁸ This language provides not only for the end of the war but extends to cover sociopolitical issues aimed at restructuring Salvadoran society. Although the terms of the agreement mandated that the negotiation process was confidential, there was also an acknowledgment that civil-society organizations “have an important role to play in achieving peace.”⁹ As such, the parties were permitted to consult these organizations “when it is deemed appropriate and on the basis of mutual agreement.”¹⁰ However, the agreement did not establish any official channel for consultation. This established a pattern of popular exclusion that would characterize not only the peace process but extend well beyond the implementation phase. The following month in Caracas, the parties agreed to an agenda and timetable, albeit vague, for future talks. Issues on the agenda included the armed forces, human rights, judicial and electoral reform, economic and social issues, and the reintegration of the FMLN. It also affirmed that a ceasefire would be postponed until the political agreements had been reached.¹¹ The postponement of the ceasefire was vital to the participation of the FMLN, as the FMLN (with the backing of the secretary general) claimed that they would lose any leverage if the ceasefire was imposed before the agreements.

Military reform had become a quagmire in the negotiations early on, a testament to both its controversy and its immense importance to the proceedings. In an effort to advance negotiations, the parties agreed to focus on human rights in the San José Agreement (July 1990). This agreement assured the parties’ commitment to human rights as they existed under both Salvadoran law and in accordance with international standards and treaties. The most significant agreement, however, was the verification of the accords by the UN through the creation of ONUSAL.¹² The mission’s main purpose was to verify the observance of human rights by both sides and to promote respect for human rights. It would be the first and most extensive of its kind, conducting in situ verification of human rights following the ceasefire. Furthermore, the parties agreed to the “full guarantee of the freedom and integrity of the person,” prohibiting the arrest of persons for political reasons and “torture and other cruel, inhumane or degrading treatment or punishment.”¹³ The San José Agreement also provided for support of habeas corpus and freedom of expression and association, including trade union freedom and enjoyment of labor rights.

The Mexico Agreement (April 1991) reflected agreements on constitutional reforms to the armed forces, judiciary, and electoral system. The agreement laid the groundwork for the restructuring of the military. The reforms included the subordination of the armed forces to civilian authorities and a redefinition of mission to defend the sovereignty of the state, creation of a new civilian police force, placing the military and police under different ministries, and dismantling paramilitary forces. Building on the agreements reached in the San José Agreement, the parties also agreed to the creation of the National Counsel for the Defense of Human Rights (PDDH), whose purpose was to “promote and ensure respect for human rights” (and which was to be elected by a two-thirds majority of the Legislative Assembly), as well as to the creation of a Truth Commission to investigate “serious acts of violence that have occurred since 1980 and whose impact on society urgently requires that the public should know the truth.”¹⁴ The main element of electoral reform was the creation of the Supreme Electoral Tribunal (TSE) as the ruling administrative authority. Wary of the politicization that had characterized its predecessor, the Central Election Council (CCE), the agreement stipulated that “the composition of the Tribunal shall be determined by secondary legislation, making sure that no party or coalition of parties predominates it. It has also been agreed that the Supreme Electoral Tribunal shall include members without any party affiliation, elected by a majority of the Legislative Assembly.”¹⁵ A special commission would later suggest changes to the electoral code.

The agreement provided for the separation of the judiciary and executive through the reorganization of the Supreme Court and established a new procedure for the elections of Supreme Court judges, requiring a two-thirds majority of deputies in the Legislative Assembly. This same formula was applied to the election of the attorney general and the PDDH. The parties also agreed to a set allocation of the national budget for the judiciary at 6 percent. The restructuring of the National Judiciary Council made it responsible for nominating judges and running the judicial training school.¹⁶ The government did not agree to FMLN proposals for replacing the Supreme Court, evaluating and purging the judiciary, or a number of other reforms of criminal procedure.¹⁷ The proposed reforms were insufficient to modernize El Salvador’s judiciary, but the FMLN was not equipped to advance the agenda. As Margaret Popkin has observed, “a guerrilla insurgency with minimal experience in the legal system is not the ideal protagonist for profound judicial reform.”¹⁸

The stalemate on the reduction of the armed forces was finally broken when the FMLN agreed to drop the demand that FMLN forces be incorporated into the armed forces in exchange for its members participation in the new civilian police force and an oversight commission for the implementation of the accords. The New York Agreement (September 1991) stipulated the purification of the armed forces based on a review of personnel conducted by the Ad Hoc Commission and the reduction of the armed forces, the specifics of which were to be determined. Additionally, the agreement provided for the creation of the National Commission for the Consolidation of Peace (COPAZ) as the party responsible for ensuring the implementation of all political agreements.¹⁹ COPAZ was to be composed of two government representatives, including a member of the armed forces, two FMLN representatives, and one representative of each party or coalition in the Legislative Assembly, while the archbishop of San Salvador was given observer status. Although COPAZ was given no executive powers, the agreement did require that the commission be consulted on all matters relating to the implementation and oversight of the peace agreements. COPAZ was also given the power to draft preliminary legislation related to the agreements.

The Chapúltepec Accords were signed on January 16, 1992, in Mexico City. The accords resolved the remaining and most contentious issues of the negotiations, those concerning the armed forces, and reaffirmed agreements reached during the past two years. Chapter I upheld the agreements stipulated in the Mexico Agreement, which effectively restructured the armed forces. Among the principles addressed in the Chapúltepec Accords were adherence to democratic values, respect for human rights, subordination of the armed forces to constitutional authorities, and national defense. The language in the accords required the armed forces to be “obedient, professional, apolitical, and non-deliberative” in their service and “respect to the political order determined by the sovereign will of the people and all political or social changes generated by that will, in accordance with democratic procedures consistent with the Constitution.”²⁰ The accords also defined the role of the armed forces as one of national defense, as opposed to internal security: “National defense, the responsibility of the armed forces, is intended to safeguard sovereignty and territorial integrity against outside military threat”; they further specified that “the maintenance of internal peace, tranquility, order and public security lies outside the normal functions of the armed forces.”²¹ To that end, the parties agreed to changes to the education and training of the armed forces to focus on human rights, respect for democracy, and the subordination to civilian authorities, including the president’s authority to appoint civilians to the post of defense minister. Although the accords themselves did not specify the extent of the reduction of the armed forces agreed to in the New York Agreement, the Chapúltepec Accords did acknowledge that a plan had been submitted to the secretary general. With regard to purification, the duties and responsibilities of the Ad Hoc Commission were detailed. Finally, the National Guard, Treasury Police, National Police, Rapid-Deployment Infantry Battalions (BIRIs), and “civil defence units”—all those organizations most responsible for gross human rights violations—were to be abolished, and the National Intelligence Department was to be replaced with a State Intelligence Organization, subordinate to civilian control.

Chapter II provided for the creation of a new civilian police force, the National Civilian Police (PNC), as a separate entity from the armed forces, placing the armed forces and police under the authority of different ministries. Under the accords, the PNC became the only armed police body with national jurisdiction. The accords further distinguished the role of the national police from that of the armed forces by defining public security as “a service provided by the State to its citizens, free from all political considerations of politics, ideology or social position or any other discrimination; respect for human rights; the effort to prevent crime; and the subordination of the force to the constitutional authorities.”²² Additionally, the PNC’s leaders were required to be civilians. In an effort to further distinguish the police from the military, the police were no longer permitted to reside in barracks and were permitted to carry only small arms. A new national public security academy was created to train recruits, and a basic level of education was established for recruits. A limited number of former members of the National Police and the FMLN were allowed to join the PNC provided they met specified criteria. Additionally, it was the designated role of the PNC to protect the right of assembly and demonstration, adding, “citizens’ exercise of their political rights may not be impaired by police activities.”²³ This provision underlined police responsibility to protect the rights of the citizenry rather than the rights of the state.

Chapters III and IV addressed judicial and electoral reform, reaffirming the agreements reached in the Mexico Agreement. The Chapúltepec Accords specifically addressed the National Judiciary Council’s independence from the state, the role of the Judicial Training School in improving the professional training judges and attorneys, and the responsibilities of the PDDH. Chapter IV, which addressed electoral reform, was a single paragraph reaffirming the Mexico Agreement. The accords did stipulate that COPAZ appoint a special commission to propose necessary electoral reforms. Both chapters lacked specificity and were the least developed sections of the accords; the former was a single page and the latter was a single paragraph. The lack of specificity and the extent to which the reforms were left to domestic actors became a serious issue during implementation.

Chapter V addressed the socioeconomic issues of the peace accords. During the negotiations, the FMLN had been primarily concerned with military and institutional reform. Although the FMLN had based its armed struggle on battling socioeconomic injustices, the social and economic aspects of the peace accords were left until the end of the negotiations and were very limited in scope. The neoliberal policies adopted by the ARENA government were not subject to negotiation.²⁴ This was the position of the Cristiani administration and the FMLN, which was far more concerned about the military and human rights issues, never contested this position. According to FMLN negotiator Rubén Zamora, “The moment the FMLN agreed that we were going to negotiate with the ARENA government, the socioeconomic model was out of the discussion. Maybe we could do something on secondary issues, but the basic thing was to get to the table. This is the basic tenet of negotiations. People go to negotiate, not to sacrifice themselves.”²⁵ According to Teresa Whitfield, it was “remarkable that socioeconomic issues even were the subject of a substantive agreement.”²⁶ Nicaragua’s experience, however, had demonstrated the danger of failing to make provisions for ex-combatants after demobilization. As such, the accords addressed five main issues: land transfer; increase and ease of loans to the agricultural sector; small business and microenterprise; reforms to permit external aid directed to community development; and measures to alleviate the social cost of structural adjustment programs. The accords also reaffirmed the commitment to privatization as a means to spread wealth to workers.²⁷ The land transfer program was intended to facilitate the reintegration of members of the FMLN and their supporters into society. Thus, the economic measures agreed to in the peace accords were specifically focused on rebuilding former conflict zones and the reintegration of FMLN forces through land transfer and improved access to credit—not on addressing fundamental issues of poverty and inequality.²⁸

The accords also created the Forum for Economic and Social Consultation (Foro) and the National Reconstruction Plan (PRN). The purpose of the Foro was to address those socioeconomic issues not discussed in the accords, including wages, labor standards, and privatization. The Foro was to be composed of high-level government officials, specifically those with the authority to make decisions, and business and labor representatives. The terms of the Foro as specified in the accords were vague, as were the structure and issues to be addressed by the Foro. The accords required the PRN to be designed by the government within thirty days of signing the agreement for submission to the FMLN for review and comment. The National Reconstruction Plan was to focus on the reintegration of the FMLN into Salvadoran society, development of former conflict zones, issues of job creation, increase in production of basic foodstuffs, promotion of agricultural development, guarantee of basic social services, and development or redevelopment of basic infrastructure.²⁹

Chapter VI specifically addressed the reintegration of the FMLN into Salvadoran society and had two main components: the reintegration of former combatants and the legalization of the FMLN as a political party. As such, the accords provided for the freedom to conduct business attributed to political parties, such as canvassing for new members, access to the media, and the right of assembly. The accords also included a special security provision for FMLN leaders following the signing of the peace accords. Political prisoners being held by the government were freed and those in exile were allowed to return. That said, the FMLN would still be required to complete the formal process of registering as a political party with the TSE.

Chapter VII, the last section of the accords, addressed the cessation of armed conflict. Accordingly, the ceasefire was to begin February 1, 1992, and to be completed on October 21, 1992. This section detailed agreements reached on the ceasefire, separation of forces, demobilization, disarmament, and reintegration of the FMLN, as well as UN verification of these processes.³⁰ These provisions were to be monitored and verified by ONUSAL. Additionally, COPAZ was charged with evaluating progress made on the implementation of the agreements.

The Implementation of the Accords

The formal ceasefire began on February 1, 1992, although there had been an unofficial ceasefire since December. The United Nations Observer Mission in El Salvador (ONUSAL) was formally established by Security Council Resolution 693 in May 1991 to verify the implementation of the accords.³¹ The ONUSAL mission had four responsibilities: human rights monitoring, demobilization, election monitoring, and compliance with the judicial and socioeconomic requirements of the accords (see table 2.1).

TABLE 2.1 Phases of the ONUSAL mission, 1991–95

Source: Adapted from Tommie Sue Montgomery, Peacemaking and Democratization in the Western Hemisphere (Miami: North-South Center Press, 2000), 144.

Throughout its work, the mission repeatedly commented on issues where it believed that the parties were not living up to the agreements established in the accords. ONUSAL’s documentation of communications with the parties, as well as its own reports, is extensive. A careful review of the communications reveals the difficulties faced by the mission with regard to the implementation process. While there were certainly some significant issues that related directly to the FMLN, most of the documented difficulties reveal the recalcitrance of governing elites. This was particularly notable in the areas of police and judicial reform.

Human Rights

Although the deployment of the ONUSAL human rights division was originally scheduled to occur after the ceasefire, both parties requested that the mission begin its work ahead of schedule. The secretary general’s office sent a small delegation to determine if the work could be conducted in the absence of a ceasefire. The division began operations in July 1991, well before any necessary reforms related to strengthening human rights had been implemented. Although the mission expanded over time, the division’s chief responsibility was to investigate and report human rights violations occurring after July 26, 1991. Violations committed before that date were entrusted to the Truth Commission. Requests for division assistance often exceeded its mandate.³² Shortly after arriving, the division expressed some concern that “vast numbers of Salvadorians right across the political spectrum believe that the Mission will be able to prevent, or at least punish, human rights violations,” although it did not have the powers to do so.³³ Reports from the division generally emphasized two challenges: the difficulty of adequately monitoring violations during conflict and failure of the judiciary to investigate or follow up on alleged violations.³⁴

The deployment of the human rights division gave the UN an entrée into El Salvador while negotiations continued. It also complicated the division’s work. There was a fundamental tension between ONUSAL’s human rights division, which was charged with monitoring and reporting abuses committed by the parties, and the UN secretary general’s office, which wanted to ensure that negotiations progressed. Should reports of violations be suppressed if they advanced the larger goal of attaining a resolution to the conflict? Would suppressing reports damage the integrity of the mission and undermine respect for human rights in the long term? On the ground, there was some sense among division staff that human rights were subservient to other aspects of the negotiations, particularly political and military concerns.³⁵ After the ceasefire, ONUSAL’s mandate expanded to include demilitarization and demobilization, civilian policing, and elections. While this helped reduce the number of human rights violations, it also shifted emphasis to other matters. As one division official relayed to the Lawyers’ Committee, “once the other divisions arrived, it was more difficult. It was clear that human rights were no longer a priority for anyone. The government had never been interested, but now not even the UN or the FMLN were interested.”³⁶

The National Counsel for the Defense of Human Rights (PDDH) was established in 1991. Its main function was to receive and investigate complaints of human rights abuses. While the institution had the power to make recommendations, it had no enforcement capabilities. The first national counsel, Carlos Fonseca Molina, was appointed in February 1992. Due to Fonseca’s own lack of experience in human rights advocacy and the general disinterest of the Cristiani administration, the institution got off to a slow start.³⁷ Relations with the human rights division and human rights organizations were strained, and it was not until 1994 that the national counsel and ONUSAL began working together to strengthen the institution. The appointment of Victoria Marina Velásquez de Avilés to the PDDH in 1995 helped to transform the institution.³⁸ Velásquez de Avilés became an outspoken defender of human rights and denounced abuses by state institutions, particularly the PNC. Public confidence in the PDDH rose considerably during her tenure, in large part due to her leadership.³⁹ She was rewarded for her efforts with a 10 percent budget cut in 1997, which reduced the capabilities of the institution at a critical time.⁴⁰

Security and Policing

The second phase of implementation was the restructuring and reduction of the armed forces, abolition of security forces, and the creation of a new civilian police force, and the demobilization of the FMLN. Within one year of the signing of the accords, the armed forces had effectively been reduced by one-half, from 63,175 to 31,000.⁴¹ Because the reduction was completed a full year ahead of schedule, some have speculated that the original number of troops had been inflated.⁴² The demobilization of the Rapid-Deployment Infantry Battalions (BIRIs) was delayed by three months, but the process was completed on March 31, 1993.⁴³ The change in the armed forces was not only notable for the reduction in forces but also for the general willingness with which the military accepted its new role in Salvadoran society. Not all aspects of demilitarization went so smoothly. The UN appointed three Salvadoran civilians to the Ad Hoc Commission, a mechanism agreed to in the accords to review military records and purge human rights offenders. It was the first time that any military in Latin America had allowed an external review of its forces.⁴⁴ Beginning in May 1992 the commission reviewed military-personnel files and documentation from human rights organizations, and met with members of the U.S. Defense Department and congressional and human rights groups in the United States.⁴⁵ Due to the three-month time constraint, the commission was able to interview only approximately 230 officers—a mere 10 percent of all officers in the armed forces. In September 1992, the commission delivered its confidential report to President Cristiani and UN Secretary General Boutros-Ghali, which called for the removal of 102 officers, including Defense Minister René Emilio Ponce. Protests from the military high command led to stalling tactics by Cristiani. Despite the agreement that named officers were to be removed with sixty days, only twenty-three had been formally dismissed by January 1993.⁴⁶ It required significant pressure from abroad and the release of the Truth Commission’s report to force the removal of remaining officers.⁴⁷

The dissolution of internal security forces accompanied the reduction of the armed forces. The National Guard and the Treasury Police were scheduled to be dismantled by March 1992. Instead, they were renamed and incorporated directly into the armed forces.⁴⁸ ONUSAL intervened in what it considered to be a violation of the accords. The security forces were officially dissolved by the end of June 1992, although there was little doubt that some members continued to function on their own. Additionally, the National Intelligence Directorate (DNI) was dissolved and replaced by a new civilian State Intelligence Organ (OIE) in June 1992.

The FMLN’s registration as a political party was dependent on certification of its demobilization. In January 1992 the Legislative Assembly passed a law on national reconciliation that permitted the return of FMLN members from abroad, including the General Command. On February 1 the FMLN began the process of establishing itself as a political party by collecting signatures and presenting them to the Supreme Electoral Tribunal. By May the FMLN began to press for its legalization as a political party, going so far as to hold a rally to mark its beginnings as a political party later that month.⁴⁹ On July 30, 1992, the FMLN was officially recognized by the government of El Salvador as a “political party in formation.” However, the government also submitted a request to the TSE that the FMLN not be formally recognized until it had fully demobilized. The TSE responded that the FMLN’s final registration would not be granted until ONUSAL verified its total disarmament and demobilization.⁵⁰ The United Nations certified on December 15, 1992, that the FMLN had successfully disarmed and it was registered as a political party.

The FMLN’s failure to completely disarm was exposed when an arms cache belonging to the Popular Forces of Liberation (FPL) was discovered following an explosion in Managua, Nicaragua, in June 1993. In a letter to the UN secretary general, FPL leader Salvador Sánchez Cerén stated that the FPL had retained the arms only out of profound distrust for the Armed Forces of El Salvador (FAES) and had no intention of remilitarizing the conflict.⁵¹ The FMLN subsequently disclosed more than one hundred additional arms deposits in El Salvador and neighboring countries. In August 1993, ONUSAL was able to verify that all FMLN arms had been destroyed and that the FMLN no longer constituted a combatant force. Despite this transgression, the FMLN’s status as a political party was not revoked and the ceasefire was never broken.

The deployment of the new National Civil Police (PNC) began in March 1993 under the guise of ONUSAL’s police division, which was deployed in February 1992.⁵² Recruits for the new force were drawn from the existing police (20 percent), the FMLN (20 percent), and new recruits (60 percent), provided they met requirements laid out in the New York Agreement. Dismantling old policing structures, however, did not proceed as quickly or as cleanly as hoped. Funding shortfalls and delays in opening the new National Academy for Public Security (ANSP) resulted in the deferred deployment of the new police force.⁵³ Although the agreements clearly stated that the National Police would be responsible for public security until its units could be replaced by the PNC, there was also the expectation that the National Police would be phased out as the PNC was deployed. Instead, the National Police training school continued to operate and graduate students, which contributed to the growth of the National Police.⁵⁴ The continued functioning of the National Police deprived the PNC of vital resources. During the transition period (1992–94), the National Police received $77 million while the PNC received only $45 million and the ANSP received $22 million.⁵⁵ Moreover, more than one thousand personnel from the National Guard and Treasury Police, and entire BIRI units were transferred into the National Police. In December 1992, the GOES and the FMLN agreed, without consulting the UN, to the transfer of low-ranking officers from the armed forces and other units. Known as Plan 600, the agreement provided FMLN guerrillas with benefits in a time of scare resources.⁵⁶ ONUSAL complained that such transfers were “incompatible with the thrust of the accords and contravene their spirit,” which had clearly mandated the screening of PNC personnel in response to FMLN concerns about human rights records of National Police officers.⁵⁷ The government justified these actions based on growing crime rates (see chapter 5).⁵⁸

Concerns about the lack of adequate training, impunity and continuing human rights abuses were common during the transition.⁵⁹ Some members of the former security apparatuses were reluctant to submit to the new institutions and they quickly came to dominate the new police force, although cases of strife between former FMLN and former security officers were relatively few.⁶⁰ In June 1993 the government appointed former military officer Oscar Peña Durán as the PNC’s operations director. During his ten months in office, Peña transferred two units of the National Police into the PNC—the Special Investigations Unit (SIU) and the Anti-Narcotics Division (UEA), for the latter of which Peña was the former head—a clear violation of the peace accords. Peña not only flagrantly violated the peace accords through the appointments and his refusal to allow ONUSAL’s continued training of new units, but he also evaded COPAZ consultations that were mandated by the accords. ONUSAL described the refusal of its police training as “a self-defeating move,” though later evidence would suggest that the decision was, in fact, designed to preserve elite control over the new police force.⁶¹ Despite protests from ONUSAL and increasing reports of human rights violations by the PNC, the Cristiani administration exhibited little political will in enforcing these aspects of the accords. In fact, Cristiani attempted to delay the dissolution of the PN until June 1994, presumably in hopes that a new administration would be able to shirk international verification and any responsibilities of further compliance with the accords.⁶² The veil of impunity, however, was lifted in June 1994 when a dozen agents in National Police uniforms robbed a bank in broad daylight, killing six and wounding five others. The incident, which generated public outrage and exposed the extent of the ongoing impunity, was caught on video and broadcast on television and in print media.⁶³ Shortly thereafter, it was announced that the National Police would be dissolved. Despite significant delays, the PNC was fully deployed in October 1994 and had a force of seventy-two hundred officers by 1995. By then, however, the damage to the PNC had been done.⁶⁴

Socioeconomic Reforms

The final stage of the ONUSAL mission concentrated on the socioeconomic issues addressed in the Chapúltepec Accords. The three main provisions of the socioeconomic section of the accords addressed land transfer, the creation of the Foro, and a national development plan. The Land Transfer Program (PTT) was intended primarily as a process by which to reintegrate FMLN combatants and their supporters into society, not as a means to redress the serious land issue that had plagued the country for more than one hundred years.⁶⁵ The land transfer program was complicated by titling and verification problems, as well as political disputes. Determining ownership before occupation and designating proper recipients was time consuming and sometimes impossible.⁶⁶ Additionally, the process was confusing for beneficiaries. Many misunderstood the terms of the accords and were surprised to discover that they would actually have to purchase the land, albeit on favorable terms (6 percent interest and a thirty-year repayment plan). There was also significant political tension and mistrust between the FMLN and ARENA that delayed the transfers, particularly with regard to ARENA’s notion that land transfers were considered “rewards” for FMLN supporters in advance of the 1994 elections.⁶⁷ At one point, the FMLN halted demobilization and the government responded by stalling on the purification of the armed forces.⁶⁸ In October 1992 the UN developed a plan designed to distribute one hundred thousand manzanas of land to some 25,000 civilians and 22,500 ex-combatants (15,000 soldiers and 7,500 FMLN, about three manzanas (about two hectares) each.⁶⁹ The agreement did not resolve the many problems associated with the program. Some beneficiaries did not want to move, some could not be located, some died, while still others complained about the quality of the land. Landowners were not willing to sell or resented the bureaucracy of the Land Bank. Land costs, which had been depressed by the war, increased significantly after the conclusion of the conflict. Despite numerous delays and much political wrangling, the land transfer process was near completion in 1997. By the time the Land Bank was dissolved in January 1998, 36,089 beneficiaries had received some 103,300 hectares, or 10 percent of agricultural land.⁷⁰

The Foro, which was intended as a forum for government, business, and labor to address issues such as labor rights, wages, privatization and other issues, died shortly after its creation, in September 1992. The business sector initially refused to participate because of land invasions by peasants in connection with the land transfer program. During its brief tenure, the Foro reached agreement on the ratification of the ILO conventions, twelve of which were ratified by the Legislative Assembly by 1995.⁷¹ The business sector halted participation in late 1993 due to the upcoming March 1994 elections. The Foro was reestablished as the Consejo Superior del Trabajo, although it never met. One UN report laid the blame squarely on the shoulders of the business community: “the Forum did not fulfill its original mandate.”⁷²

The failure of the Foro was demonstrative of the unwillingness of the Cristiani government to allow open discussion of its economic policies. Neither the Cristiani administration nor the private sector favored labor’s participation in the policymaking process and made no effort to promote or sustain the Foro. According to Miguel Sáenz, “The private sector understood that it was the instrument that could start the debate, which would lead to agreements for the economic and social transformation [of the country], so it killed it.”⁷³ Rubén Zamora called the Foro “a disaster” and suggested that the FMLN might have been naive to believe that the Foro would be able to address significant socioeconomic issues, given Cristiani’s opposition to it.⁷⁴ Thus, not only was the neoliberal model off the table at the peace accords, but the one mechanism created by the peace accords to address socioeconomic issues was quickly abolished. As such, there was little if any opportunity for labor to participate in policymaking. This failure to incorporate labor into the policymaking process relegated labor to the same position that it was in before the peace accords—outside the system, gaining attention for its demands through strike activity.

The government launched the National Reconstruction Plan (PRN) in 1992 after the inclusion of recommendations from the FMLN and the United Nations Development Program (UNDP). The FMLN and the UNDP were critical of the PRN to the extent that project development lay largely in the hands of the government and marginalized other participants; infrastructure was given priority over other needs of the former conflict zones; and the target area of the PRN was geographically too small.⁷⁵ The government responded to these criticisms by easing potential participation for NGOs, increasing the number of targeted municipalities from 84 to 115 (of a total 262), and redefining some programs to give a greater emphasis to the development of human capital over infrastructure.⁷⁶ While the government changes to the PRN marked some improvement, the problem of NGO participation was never fully resolved. NGOs were required to apply to the National Reconstruction Secretariat for funding, and those associated with the Left were often excluded.⁷⁷

The PRN had three main areas: investment projects (infrastructure, ex-combatant programs), technical assistance (small UNDP projects), and democratic institutions (National Civilian Police, Human Rights Ombudsman).⁷⁸ Of those, investment projects received the most donor funding, giving the PRN a focus on the reconstruction of the infrastructure of the former conflict zones. The government established the Secretariat for National Reconstruction (SRN) to oversee the reconstruction process, which was designated as the distributor of funds to those projects. Additionally, the UNDP was instrumental in the reconstruction process. The UNDP, which was specifically included in the accords as a third party at the insistence of the FMLN, was responsible for the development of reinsertion and reconstruction programs.⁷⁹ The government hoped to raise $800 million for the reconstruction effort, and by 1994 it had succeeded in raising more than $900 million.⁸⁰

The Ministry of Planning (MIPLAN), the government agency in charge of the PRN, estimated that the war cost $1.5 billion in infrastructure alone, with a replacement cost of $1.63 billion. In addition, the 1986 earthquake caused $1.2 billion in damages.⁸¹ During the peace process, El Salvador received assurances from many countries, including the United States, that funding for reconstruction would be forthcoming. Indeed, many believed that the bulk of the funding responsibility would fall on the United States. Of the $698.9 million in external assistance from individual country donors, $535.9 million was from the United States. The Inter-American Development Bank was the single largest multilateral donor, providing $558.8 million of the $929.4 million donated by those groups.⁸² Despite the significant amount of aid available to the reconstruction process, some areas were prone to significant shortfalls, especially “high-priority” programs. High-priority programs—such as the demobilization of the National Police, the creation of the PNC, and democratic and judicial reform—experienced significant shortfalls, as donors considered them too problematic. While the United States allotted more than 75 percent of its funding to these programs, other donors contributed 78 percent of their funding to lower-priority programs.⁸³ Non-U.S. donors contributed a mere $21 million to the PNC, land transfer, and democratic and judicial institutional programs, while contributing $261 million to physical infrastructure programs.⁸⁴ This resulted in an anticipated shortfall of $311 million.⁸⁵

As a result of such donor funding discrepancies, many programs that were the cornerstones of the peace accords suffered serious funding shortfalls. The impact of these shortfalls was significant and was particularly evident in the case of the PNC, where funding shortfalls resulted in woefully inadequate resources for the deployment of the new police force. According to Tommie Sue Montgomery, in one department 230 police officers shared seven vehicles and two motorcycles to serve an area the size of metropolitan Atlanta, Georgia. Other police precincts had no phones, radios, or vehicles.⁸⁶ Similarly, funding shortfalls impeded the work of the public ministry’s office (including the attorney general) and delayed the land transfer program and judicial reform. Thus, funding shortfalls of high-priority programs jeopardized the peace process by neglecting the very programs that were mandated by the accords.

Truth, Justice, and Reconciliation in El Salvador’s Captured Peace

The importance of transitional justice to the peacebuilding process has been increasingly recognized by the international and scholarly communities. The purpose of transitional justice, which may include judicial and nonjudicial mechanisms, is to provide recognition to the victims of human rights abuses committed during war. The most common transitional justice mechanisms are truth commissions, prosecutions, reparations, institutional reforms, and memorialization.⁸⁷ Transitional justice also necessarily entails confronting and reconciling the past. While some of the institutional reforms created by the peace accords may ultimately contribute to transitional justice, the process in El Salvador has been quite limited. To date, the most significant state-sanctioned element of transitional justice was the truth commission and its report. As demonstrated below, even that was undermined by the Salvadoran government.

The Truth Commission

The Commission on Truth for El Salvador, agreed to in the Mexico Agreement, was overseen by the United Nations. The commission, chaired by former Colombian president Belisario Betancur, began its work in July 1992 and published its report in March 1993, two months later than the original mandate. During the course of its investigation, the commission received more than seven thousand complaints from victims and witnesses and collected additional evidence from human rights organizations. The commission also conducted forensic investigations, including an exhumation at the site of the 1981 El Mozote massacre. In all, more than twenty-two thousand complaints were documented. The overwhelming majority (95 percent) of those accused in the complaints were classified as “agents of the State, paramilitary groups allied to them, and the death squads.”⁸⁸ Some 60 percent of complaints involved extrajudicial killings, more than 25 percent involved disappearances, and more than 20 percent included torture. More than 75 percent of the complaints received by the commission pertained to events that occurred from 1980 to 1983, with approximately 50 percent of those occurring in 1980 and 1981. The commission also noted that 95 percent of complaints involved incidents in rural areas.⁸⁹

The report, From Madness to Hope, identified both patterns of violence and specific cases attributed to State agents and death squads, the most prominent of which included the assassinations of Archbishop Óscar Romero, the Jesuits, the FDR leadership, Attorney General Mario Zamora, the American churchwomen, the murder of four Dutch journalists, and numerous civilian massacres. The report also documented the FMLN’s execution of mayors from 1985 to 1988 and other extrajudicial killings, including the murders of U.S. marines in the Zona Rosa in 1985. Most of the report, however, focused on the abuses and violence committed with impunity by state agencies and their affiliates. Among the report’s findings in individual cases, the commission concluded that Roberto D’Aubuisson ordered the assassination of Archbishop Romero; that the murder of the American churchwomen was planned before their arrival at the airport and that high-ranking officials impeded the investigation; and that Col. René Emilio Ponce gave the order to kill Father Ignacio Ellacuría and “to leave no witnesses,” which was followed by a widespread cover-up. In its investigation of civilian massacres, such as those at El Mozote, Río Sumpul, and El Calabozo, the commission determined that the armed forces had engaged in a systematic policy of targeting civilians:

Everything points to the fact that these deaths formed part of a pattern of conduct, a deliberate strategy of eliminating or terrifying the peasant population in areas where the guerrillas were active, the purpose being to deprive the guerrilla forces of this source of supplies and information and of the possibility of hiding or concealing themselves among that population.

It is impossible to blame this pattern of conduct on local commanders and to claim that senior commanders did not know anything about it. As we have described, massacres of the peasant population were reported repeatedly. There is no evidence that any effort was made to investigate them. The authorities dismissed these reports as enemy propaganda. Were it not for the childrens skeletons at El Mozote, some people would still be disputing that such massacres took place.

[. . .]

No action was taken to avoid incidents such as this. On the contrary, the deliberate, systematic and indiscriminate violence against the peasant population in areas of military operations went on for years.⁹⁰

The Cristiani administration initially attempted to prevent the findings of the commission from being publicized but was unsuccessful in its attempts to persuade the FMLN to support that position.⁹¹ Unlike many truth commissions, the Salvadoran report named individual actors allegedly responsible for human rights violations. Although the Cristiani government initially supported identifying those guilty of committing abuses, its position changed once it became clear that high-ranking officials would be implicated.⁹² Threats of coups and retaliations, which had occurred during negotiations, soon resurfaced. Cristiani asked that the publication of the report be delayed until after the 1994 elections. The commissioners held firm in their decision, arguing that telling the “complete truth” meant naming names.⁹³ As a result, more than forty individuals were named. Defense Minister René Emilio Ponce, himself named in the report in connection with the Jesuit murders, and other members of the high command called the report, “unfair, incomplete, illegal, unethical, biased and insolent.”⁹⁴ Other members of the military high command directed their anger toward Cristiani, who, they suggested, had been “irresponsible” in having agreed to the commission.⁹⁵

There were numerous other criticisms of the report. First, at the behest of the FMLN, there were no Salvadorans on the commission. The organization argued that the high levels of polarization and distrust between the government and FMLN would make it difficult to find mutually acceptable, neutral Salvadoran investigators and that using Salvadorans to take testimony would reduce the number of victims and witnesses willing to provide testimony.⁹⁶ Indeed, many Salvadorans feared retribution if they were to testify about government abuses. But as Ana Guardado and others have noted, this decision not only prevented Salvadoran citizens from becoming full participants in the process but also meant that there was no government ownership of the report.⁹⁷ Not only did the Cristiani administration refuse to accept the findings of the commission, but no effort was made to distribute the report, as had become common practice in other cases.⁹⁸ Instead, Cristiani urged Salvadorans to forget the past. As described below, the refusal to acknowledge the report’s findings or assign responsibility for acts of violence seriously impeded reconciliation by perpetuating two very distinct narratives of the war.

Second, the context in which the commission conducted its work constrained not only the collection of testimony but limited the prospects for meaningful reform. The truth commission was the result of the negotiations between the Salvadoran government and the FMLN, which is somewhat unusual in the establishment of truth commissions.⁹⁹ One of the chief purposes of truth commissions, as opposed to trials, is to focus on the victims rather than the perpetrators. However, as observed by Popkin, “neither the UN nor the parties to the conflict made any systematic effort to consult with Salvadoran civil society, victims and their relatives, or even Salvadoran human rights groups. Nor did the parties recognize that the right to truth and justice could not be foreclosed by their negotiations.”¹⁰⁰ This undermined the victim-centered approach supposedly afforded by truth commissions.

Third, the commission’s work was carried out in the midst of the transition rather than following the transition, as El Salvador’s elections weren’t scheduled until March 1994. Thus, ARENA’s incumbency meant that the “old regime” and the “new regime” were one and the same.¹⁰¹ For obvious reasons, truth commission investigations and the release of their reports generally occur after regime change or transitional elections, as was the case in Argentina, Chile, Guatemala, Peru, and South Africa. Those responsible for the abuses in El Salvador were still in power. As such, it should be of little surprise that the Cristiani administration did not endorse the commission’s findings.

Fourth, there was general dissatisfaction with the investigation of cases related to the FMLN. The Lawyers’ Committee on Human Rights referred to it as being one of the “weakest” sections of the report.¹⁰² The vast majority of the cases in the report were those attributed to the armed forces and state security agencies, which was a reflection of both the commission’s mandate and the disproportionate number of abuses committed by the state.¹⁰³ However, the commission erroneously assumed that documentation of FMLN abuses could be provided by the Salvadoran and U.S. governments and conducted little investigation in this regard.¹⁰⁴ For example, there was no investigation of summary executions within FMLN ranks, which many considered to be one of the chief offenses by the FMLN. As such, the report offered little new information about FMLN abuses. Additionally, those abuses that were included in the report, most of which the FMLN had already acknowledged, were attributed to a single group within the FMLN, the People’s Revolutionary Army (ERP).¹⁰⁵ The government and its supporters used this lack of an adequate investigation into FMLN abuses to delegitimize the report.

Finally, the commissioners considered it beyond the scope of the mandate to investigate the role that the United States played in the conflict. This was particularly disconcerting since several of the cases of abuse presented in the report were committed by U.S.-trained units, such as the Atlacatl Battalion. Former U.S. ambassador to El Salvador Robert White was particularly critical of the omission: “The whole backdrop to the report that is missing is the U.S. role in not only tolerating violence in El Salvador but also encouraging it.”¹⁰⁶

The Commission’s Recommendations

The recommendations made by the commission involved punitive measures, institutional reforms, and societal reparations to promote reconciliation. While the truth commission had no prosecutorial powers, the parties had agreed that its recommendations would be binding. Many of the commission’s recommendations reaffirmed changes agreed to in the peace accords, but most were never implemented. In the absence of the judicial capacity to punish those responsible for the violations in the report, the commission made a number of punitive recommendations. First, the commission recommended the dismissal of military officers and civil servants named in report. Second, the commission recommended that all those named in the report, including members of the FMLN, be disqualified from holding public office for at least ten years and be barred permanently from serving in any capacity related to public security or national defense. Finally, the commission called for the resignation of the entire Supreme Court of Justice.¹⁰⁷ With respect to purging members of the armed forces, the Truth Commission succeeded where the Ad Hoc Commission had failed. Several officers were removed as a result of being named, although they were allowed to retire with full honors and benefits.¹⁰⁸ A new Supreme Court was elected in 1994, but the former president of the Supreme Court was appointed to the Inter-American Juridical Committee of the Organization of American States.

The commission also made recommendations regarding structural problems related to the violence. Of particular concern was the strengthening of civilian control of the military and the promotion of training in democracy and human rights among the armed forces. The commission also recommended that Article 173 of army regulations, which requires a subordinate to obey all orders (even illegal ones) from a superior, be repealed. Additionally, the commission urged the strengthening of the National Counsel for the Defense of Human Rights (PDDH) by increasing the number of offices and its powers of inspection at detention sites. The rights of detainees, particularly with regard to extrajudicial confessions and the criminal code, were also addressed. The commission also called for the investigation of death squads, which threatened to undermine the peace process. A series of political assassinations of ARENA and FMLN leaders in 1993 led to the establishment of the Joint Group for the Investigation of Politically Motivated Illegal Armed Groups, in December 1993. In its report, published in July 1994, the joint group identified a connection between current activity and groups active during the war and stated that “political destabilization of the peace process appears . . . to be the direct objective. The perpetrators of the attacks proceed in security, showing signs of considerable organization and planning.”¹⁰⁹ The report also highlighted the relationship between death squads and organized crime (see chapter 5).

Also of particular importance were the recommendations for judicial reforms that addressed the excessive powers and politicization of the courts. The commission recommended that judges be appointed by the independent National Council of the Judiciary agreed to in the peace accords instead of the Supreme Court of Justice, and that judges be responsible to the new council. The commission also recognized the need to strengthen the judicial system through improved training and resources. The commission’s assessment of the judiciary and of the slow pace of judicial reform was particularly pointed:

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.¹¹⁰

Supreme Court President Mauricio Gutiérrez Castro, a member of ARENA with connections to ARENA deputies, was a major impediment to judicial reform. His steadfast defense of the separation of powers, particularly that the judiciary was not required to implement orders given by the executive branch, slowed the pace of judicial reform. Of course, he also had less “principled” reasons for stalling reform. Gutiérrez Castro had been named in the Truth Commission’s report for unprofessional behavior and his refusal to cooperate with the commission’s investigations.¹¹¹ There was a clear unwillingness to accept technical assistance offered by international organizations to improve the functioning and independence of the judiciary. As noted by Popkin, “the institutional reluctance to accept foreign technical and professional assistance seemed to reflect a widespread resistance to changing the status quo.”¹¹² The implementation of judicial reforms was greatly improved by the election of an entirely new Supreme Court of Justice in 1994. In 1996 the Legislative Assembly passed a new Criminal Procedures Code, and extrajudicial confessions were invalidated in 1997 by a constitutional amendment. It was progress, but many other pressing issues, particularly judicial incompetence and corruption, remained.