IJCentral: International Justice Central

Like many Latin American countries, El Salvador has had a history of human right violations and the issue of dealing with the past is a conflictive topic which continues to divide Salvadorian society. The Central America country was ravaged by a 12 year-civil war which concluded with the adoption of a peace agreement in 1992 “Chapultepec Peace Accords”. It is estimated that 80,000 people were killed during the Salvadoran civil war.

The adoption of the Rome Statute of the International Criminal Court (ICC) was described in 1998 by the former Secretary General, Kofi Annan, as a gift of hope to future generations and a giant step forward in the march towards universal human rights and the rule of law. The Rome Statute sets up a new system of international law, constitutes one of the most important instruments in the fight against impunity and an effective deterrent for future crimes. 

As of July 1, 2011, 116 States have ratified the Statute, including 15 out of 19 Latin American countries. There is an explicit degree of commitment and participation at the ICC from high level officials from Latin America: the ICC Chief Prosecutor, Luis Moreno-Ocampo, comes from Argentina and Judges Elizabeth Odio Benito from Costa Rica, Rene Blattmann from Bolivia, Sylvia Steiner from Brazil and Silvia Fernández de Gurmendi from Argentina.

South America is one of the most represented regions in the Court. From Central America: Honduras, Costa Rica and Panamá are parties to the ICC. However, Cuba, El Salvador, Guatemala and Nicaragua are not yet members. Therefore, we can state that the non-ratification of the Rome Statute by these countries is an exception to the practice of the continent.

With the ICC fully operational and conducting investigations in Uganda, Darfur, Libya and the Democratic Republic of Congo, what is delaying El Salvador’s ratification? Political factors that make passing of such legislation difficult, as well as fears of legal persecution among an influential sector of society, play a major role.

The fear in parts of Salvadorian society that the ICC could investigate the crimes committed during the war remains as one of the most important obstacles to overcome in the ICC process. Although these political motivations are unfounded and there are no grounds for such international proceeding to take place, the distrust towards the system persists.

Another matter of constant debate in El Salvador has been the internal procedure for the ratification of the treaty, namely if a constitutional amendment was required or not. If the Executive was to consider such reform necessary, due to the lengthy procedure along with the high-number of votes required to amend the Constitution in a strongly fragmented parliament, in practice it would mean that El Salvador will not join the ICC in the foreseeable future.

The other option would be for the Executive to include interpretative clauses in the ratification bill, addressing constitutional controversies such as life in prison and the surrender of nationals to the ICC, among others. Although the final decision on what the internal ratification process will be remains to be seen, what looks to be clear is the political will of the government to file a draft bill before Congress this year.
A Hope for the Future

High ranking ICC officials visited El Salvador more than once in 2010. Those visits provided a boost in the process, which has been stalled for the past 2 years. The Minister of Foreign Affairs highlighted that these activities would set the course “to pursue the phase of consultations and technical support by experts, organizations and national institutions interested and specialized on the topic, with a view to enrichening the discussion and paving the way for a more fruitful phase of legislative debates […] on the accession or non-accession of El Salvador to this important instrument which guarantees human rights at a planetary level”. This was the most important sign of political will expressed publicly by any Salvadorian official. Naturally, political willingness from the government will play a very important role in the ICC process.

Another difficulty in the drive towards ratification in El Salvador relates to the application of clauses such as the non-statutory limitations of international crimes, the legal validity of amnesties and the restriction of immunities of high-ranking government officials.

On this issue, it is important to be very clear. As stated above, the Rome Statute is an instrument for the future and it is legally impossible for the ICC to assume jurisdiction over crimes perpetrated in the Salvadorian civil war. The human rights violations perpetrated in the 1980’s and early 1990’s are issues that must be addressed by Salvadorian society and its judiciary, if it applies.

Despite the lack of comprehensive legislation on International Criminal Law in the country, many of its core principles are already binding on the State through the 1969 American Convention on Human Rights and the rulings of the Inter-American Court of Human Rights. This regional tribunal has significantly contributed to the prosecution of crimes against humanity, especially enforced disappearances and torture. Although the cases examined by the Inter-American Court are different from those that fall within the jurisdiction of the ICC, the Rome Statute has been a valid interpretative tool to determine State duties regarding the protection of human rights. Therefore, many of the legal concerns that certain sectors fear are legally and judicial binding upon States, including El Salvador. 

In conclusion, many of the constitutional and legal controversies regarding the Rome Statute in El Salvador have been already addressed by other Latin American countries - most of them already ICC member states.

In the end, the entry into force of the ICC consolidated the incorporation of International Law and the enforcement of human rights.

The Rome Statute system is an exceptional mechanism that will only act against the most serious crimes and it’s the duty of the national courts to address crimes committed within their territory. The Court will only act, if national courts are unwilling or unable.

The ratification of the Statute contributes to strengthen the judicial system and the rule of law, and it is benefit that we should all strive together. In conclusion, the Rome Statute is not perfect, but it is in fact the most effective instrument to prevent atrocities from the past to happen again: it’s the nunca más instrument.

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Original article in Spanish for Asuntos del Sur
Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe
Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe