On El Salvador’s 1981 El Mozote Massacre, President Bukele Sides With Impunity

Survivors of the largest single massacre in modern Latin American history recently asked the country’s Prosecutor General to charge President Nayib Bukele and Defense Minister René Merino Monroy with arbitrary acts, dereliction of duty, and failure to comply with a judicial order for refusing to allow the judge in the case to have access to military archives from the period. The roadblocks in the decades-long search for justice in the infamous El Mozote massacre reflect a larger pattern of increasing authoritarian actions by Bukele that have prompted unusual criticism of his regime, even from the United States.

The 1981 El Mozote massacre by army troops supported by the air force and trained by the United States left almost 1,000 people dead, more than half of them children. The defendants are the surviving members of the military high command and those officers in charge of troops during the operation, including members of the U.S.-trained Atlacatl Battalion.

The current standoff in the case began on Aug. 28, when trial court Judge Jorge Guzmán, who has been investigating the case since 2016, ordered an inspection of military archives at several barracks. He was searching for plans or other documents relating to “Operation Rescue,” the army sweep of the country’s northeast in the final months of 1981 under the guise of countering subversion. The army has for years affirmed that no such documents existed, that they were all destroyed, or, alternatively, that they cannot be divulged for reasons of national security.

Guzmán decided that the only way to determine the truth was to order an inspection of the sites to find and seize any relevant documents pertaining to the operation. The documents would then be analyzed by archival experts working with the court.

Challenging Document Withholding

On Sept. 21, the judge showed up at the entrance to the main military barracks in San Salvador. Despite his judicial warrant, soldiers barred the door, on Merino’s orders. The minister argued that, under the Salvadoran Constitution, secret military plans should not be made public as a matter of national security.

On Sept. 24, Bukele repeated this argument in a press conference at his home alongside a row of case files that he said were the only ones he could find. He contended that Judge Guzmán is a left-wing militant trying to make the armed forces and the presidency look bad for political reasons. In an interview with El Faro, a Salvadoran online newspaper, the judge responded that he was not looking for current plans, and there was no national security justification for continuing to hide 40-year-old documents. “He must not have read my judicial order,” the judge mused.

Guzmán tried again at different army and air force barracks over the next several weeks, always with the same result. Not even an Oct. 9 decision by the Constitutional Court supporting the judge led the military to back down. Finally, the judge retreated to the national archives, which are open to researchers, to search for documents.

Bukele entered office in June 2019 promising that he would turn over documents “from A to Z” in the case. Since then, however, Bukele has largely reversed his stance, part of an increasing authoritarian pattern, as the president has hobbled the Institute for Access to Public Information, limiting declassification of military information and impeding its independence. He has attacked El Faro and other independent media, ignored decisions of the country’s highest court (including in this case), and used the military and police in a dramatic move to occupy – and intimidate – the country’s legislature when it would not legislate according to his will.

In his Sept. 24 press conference, Bukele announced with great fanfare that he was turning over five boxes of papers (supposedly all that exist) to the judge, but according to both the judge and lawyers for the victms, the government has not officially turned over any documents. Bukele insists that there are no more to be found.

In the absence of military documentation, the survivors have sought to use declassified U.S. documents from the era obtained by the National Security Archive at The George Washington University in Washington D.C. to prove that the military high command had ultimate responsibility for the massacre. While U.S. President Bill Clinton declassified a tranche of those documents, others remain inaccessible.

Congress Orders State Department Disclosure

In the 2020 U.S. congressional appropriations bills, both the House and Senate ordered the State Department to search for and turn over relevant documents. In January 2020, Guzmán wrote to Secretary of State Mike Pompeo asking for specific types of documents, based on those congressional directives. So far, the State Department has not replied. Meanwhile, Guzmán has appointed Stanford University political science and Latin American studies Professor Emeritus Terry Karl as an expert witness to help the court make sense of the declassified documents and put them into context.

Justice has been slow to come after El Salvador’s civil war, which took some 75,000 lives and lasted until 1992. Until 2016, a blanket amnesty law impeded prosecutions. Once that law was annulled by the Constitutional Court on grounds that it violated the country’s constitution and its international law obligations, the El Mozote case and a handful of others were reopened.

But El Mozote is the only case that has received anything close to a full investigation within El Salvador.  A number of civil suits in the United States named individuals in the military high command. The U.S. government extradited one of the command’s members, former Colonel Inocencio Montano, to Spain to stand trial for the 1989 murder of six Spanish priests, their housekeeper and her daughter. Last month, Montano was found guilty and sentenced to 30 years in prison in a case that also featured expert testimony from Stanford’s Karl.

Guzmán has insisted that the search for documents in the El Mozote case will continue and that he wants to exhaust this avenue soon, before bringing the investigative phase of the trial to an end and deciding whether to move to a trial and sentencing phase. It is still unclear where, and under what rules, that next phase will happen. To date, the judge has used the old 1973 procedure code, supplemented where appropriate by provisions of the new, more adversarial, code. But any decision he makes on how to go forward could be challenged by the defense, prolonging the proceedings still further.

Meanwhile, both the survivors and the defendants are dying, and more delay raises the risk that “biological impunity” will prevail. Still, the judge’s increasingly public insistence that the truth be told and that the survivors have their day in court provides hope not just for the victims of El Mozote but of the dozens of other massacres committed during the civil war.

IMAGE: El Salvador’s President Nayib Bukele speaks during a press conference at the presidential home in San Salvador, El Salvador, on Sept. 24, 2020. Beside him are files that he said contained the only case information he could find. He was responding to a judge’s demand, still unfulfilled, for documents related to the 1981 massacre at El Mozote . (Photo by MARVIN RECINOS/AFP via Getty Images)

 

About the Author(s)

Naomi Roht-Arriaza

Albert Abramson ’54 Distinguished Professor of Law at the University of California, Hastings Law in San Francisco. Professor Roht-Arriaza is the author of The Pinochet Effect: Transnational Justice in the Age of Human Rights (2005) and Impunity and Human Rights in International Law and Practice (1995). Follow her on Twitter (@roht_naomi)