IJCentral: International Justice Central

El Salvador joins Guatemala and Nicaragua as the only Central American countries that are yet not States Parties to the International Criminal Court (ICC).  These three countries not only share their refusal to become party to the Rome Statute, but also share a common history: all three experienced non-international conflicts during the 70s, 80s and 90s, where several human rights and humanitarian law violations took place.  In each country there are currently different processes of redress underway for the atrocities committed during those conflicts.

In the following article I will only refer to the Salvadorian situation. In that sense, it is important to take into consideration the historical background of this country.  El Salvador suffered one of the most violent non-international conflicts in Latin America that left 75 thousand dead, and included enforced disappearances, extrajudicial executions, and outright massacres.Having those facts as background, one can see that the ICC has a special importance in a country like El Salvador.  In that sense, the preventive and dissuasive elements of the ICC would have a strong significance for El Salvador; not only because these elements will prevent such terrible crimes taking place again in El Salvador. But also in the case of more crimes occurring, and when the state is incapable or unwilling to prosecute the authors, there will be a fair and impartial tribunal that can judge the crimes.

Since the international adoption of the Rome Statute, El Salvador has rejected the Court’s principle of international jurisdiction.  An example of this is that El Salvador was one of the Latin American countries to sign a bilateral immunity agreement with the USA in order to prevent US nationals from being sent to the ICC, even when they have committed crimes within the ICC’s jurisdiction.
In addition, during the ARENA (Alianza Republicana Nacionalista) Government (1989-2009) there was a clear opposition to the Rome Statute; ARENA claimed constitutional obstacles prevented it from ratifying.  However, the real concern of the right wing parties in El Salvador (ARENA and PCN, Partido de Conciliacion Nacional) was that the crimes committed during the Salvadorian internal armed conflict could be judged by the ICC.  Apparently these political institutions did not understand the principle of non-retroactive law (freedom from Ex Post Facto Laws) established in Article 11 of the Rome Statute.

In 2009, the Presidential Elections were won by the main left wing party (FMLN - Frente Farabundo Marti para la Liberacion Nacional).  To many sectors of Salvadorian society, particularly the human rights movement, the new political scenario is seen as conducive to the ratification process.  Thus, the Ministry of International Affairs launched a public survey regarding the pros and cons of ratification.  However, results of this survey are still pending. On the other hand, in September 2011, the President of the National Congress, and member of the FMLN, urged the President of the Republic, Mauricio Funes, to send the Statute to the National Congress for ratification.  As yet, there has been no response from the President. It remains to be seen if and when El Salvador will ratify the treaty.

Original in Spanish at Asuntos del Sur: http://www.asuntosdelsur.org/opiniones/opinion/172