by Mariana Rodriguez Pareja and Belissa Guerrero Rivas on 10 May 2012 | Comments
El Salvador did not sign the International Criminal Court (ICC) Statute, but participated actively in the Rome Conference in 1998. Since the ICC came into effect, El Salvador has not participated in the meetings and has adopted a negligent attitude towards the Court, including the adoption of a bilateral agreement with the U.S. by which both parties agreed that their nationals would not be transferred to the ICC if they commit crimes under the Court’s jurisdiction.
But, in 2010, things began to change: mid and high level officials of the Salvadorian government participated in official meetings, a number of events were organized within the country and ICC officials paid several visits. This provoked such remarks from the Salvadorian Minister of Foreign Affairs, who stated that the visits of ICC officials served “to continue the phase of consultation and technical input from experts, interested organizations and institutions that specialize in the subject in order to enrich the discussion and allow a period of more fruitful legislative discussions and with stronger evidence to establish the necessary consensus concerning membership or non-membership of El Salvador to this important instrument in guaranteeing human rights worldwide.”
Salvadorian officials argued that in order to become party to the ICC, the National Constitution had to be amended. NGOs and academics worked on different proposals and submitted them to the government. The most important challenge identified by NGOs was related to the statute of limitations for international crimes, the amnesties and immunities.
However, a few weeks ago, the Minister of Foreign Affairs stated that the ratification bill- currently at the Executive Branch- was going to be sent to the Legislative branch for vote. The Minister said that the country would join the ICC, but will make some “reservations”. What the Minister did not know is that the Statute does not accept reservations: states must accede ‘entirely’ to the Statute. He highlighted that the ‘reservations’ that will be made are related to the retroactivity of the ICC statute and to life imprisonment. Another mistake: the ICC Statute is crystal clear on article 24. The ICC jurisdiction is non-retroactive. In terms of life imprisonment, that punishment is currently being discussed by the judicial branch, because, although it is not legal under the Salvadorian system, people do spend their lives in prison.
Therefore, the reservations highlighted by the Minister are not legally accurate.
We aknowledge the willingness of the government to become party to the Rome Statute and the momentum: a few years back, it would be been unthinkable to see a Salvadorian official speaking highly of the ICC. It was simply ignored. Still, education and training on the Rome Statute is a must- do in the country.
The Rome Statute system is an exceptional mechanism. The Court 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 can serve as a step and a contribution to strengthen the judicial system and the Rule of Law.
Hopes are high, and 2012 will be remembered as the twentieth anniversary of the adoption of the peace agreements, which ended the 12-year long armed conflict. It also marks the first time a Salvadorian president asked for forgiveness for the crimes committed in the Mozote Massacre.
Belissa Guerrero Rivas is a Salvadorean Lawyer.
Mariana Rodriguez Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS) Twitter handle: @maritaerrepe