Thursday, October 14, 2021 marked a milestone in the history of El Salvador: a former guerrilla asked forgiveness from one of his victims, whom he kidnapped 35 years ago during the civil war. It’s not just a symbolic act. It’s the closing of a judicial process, endorsed by the Juvenile Court in San Miguel, and the culmination of a trial for the kidnapping of Armando Durán, who was held by the FMLN for 37 days in Jiquilisco, Usulután in 1987.
It’s the first trial of crimes perpetrated during the armed conflict to be resolved since the Supreme Court's Constitutional Chamber ruled the Amnesty Law unconstitutional in 2016, and it ended with a kidnapper and a victim embracing.
“I apologize for what happened and I apologize for my participation in that event that caused so much damage and suffering to you and your family,” reads the letter the perpetrator delivered to Duran and read aloud during the hearing by a defense attorney.
When Hernández finished reading the letter, Armando Durán received a copy from his kidnapper and they hugged a second time. Subsequently, Durán stepped down from the podium after explaining his position and offering some acknowledgements. “I thank the defenders and the accused,” said Durán, “for assuming historical responsibility in this process of national reconciliation.”
The perpetrator did not read the letter himself, because one of the characteristics that makes this case special is its prosecution under juvenile criminal law. The perpetrator was 17 years old when he participated in Durán's kidnapping. Despite the fact that he’s now 52, the judicial system offered him the protection of his image and identity — assurance normally given to adolescents. In addition to the apology, the letter details what happened to Armando Durán.
“I recognize what happened to him from December 1986 to January 1987, when he was deprived of his liberty in the rural area of Jiquilisco, by a guerrilla unit belonging to the People’s Revolutionary Army (ERP),” the letter reads. The ERP was one of the factions within the FMLN. “I recognize it because I was sometimes there.”
“I turned 17 on November 1, 1986. In my childhood, 1980–1984 I was a collaborator of the ERP. I was part of the group that deprived you of your freedom,” the confession reads. “My job was to provide security to the group that carried out the kidnapping operation, as well as help escort you from one place to another, and participate in surveillance.”
In the letter, the perpetrator details the command structure of the ERP. In the negotiation for the kidnapping, Armando's family contacted a guerrilla leader identified as Chungo. “Commander Chungo died in Morazán, due to kidney failure, after the Peace Accords,” reveals the confession. He then names other middle managers. “Commander Óscar became chief of the Chaparrastique Volcano area and died in combat in 1988. Commander Pedro, whose legal name was Antonio Rodríguez, graduated as an engineer, taught at the University of El Salvador, and died around the year 2000.”
Three people made up “the superior command of the southeastern front,” which operated in the Jiquilisco area. “Commander Javier, whose legal name was Rodolfo N, was assassinated by gang members in approximately 2015 in San Francisco Javier. Commander Carmelo, whose legal name was Eleno Castro, was assassinated by a death squad on the Litoral highway, near Zacatecoluca, just after the Peace Accords were signed. I have no information on Commander Jerónimo.”
The letter adds that the perpetrator knew it was a kidnapping, that Durán's family handed over objects and a cash payment. The initial requirement was 200,000 colones, two Pelican-brand mimeographs, two Honda-brand electricity generators, 15 bales of olive green cloth, 300 tetanus vaccines, and a fertilizer that the guerrilla forces used to make explosives. The amount of money was finally boiled down to 50,000 colones.
Durán thanked the Attorney General’s Office, the Supreme Court of Justice, the Human Rights Ombudsman, and “the digital, written, and other media for bringing this event to light.” He added: “I thank the judge for protecting my constitutional right of access to justice and for giving me the possibility of achieving truth, justice, comprehensive reparation and the promise of non-repetition. The victims of the armed conflict do not want revenge, only justice.”
At the end of the hearing, Durán and the perpetrator signed an accord of the Juvenile Court of San Miguel. 35 years after the kidnapping and 29 years after El Salvador signed the Peace Accords, the agreement stands as their own personal truce.
After Durán signed, Judge Víctor Meléndez told him: “We would hardly have gotten here without you.”
'Creativity' from the Bench
Armando Durán, born in Jiquilisco in 1954, was the first complainant for a war case in July 2016, when the Constitutional Chamber determined that the Amnesty Law, negotiated during the Peace Accords to prevent the investigation of war crimes, was unconstitutional. The sentence was published on July 13. Durán arrived at the Attorney General’s Office on July 28, 2016 and filed a complaint for kidnapping against the high command of the guerrilla, the FMLN, including former President Salvador Sánchez Cerén.
Two years later, in October 2018, the Prosecutor's Office ordered the capture of the perpetrator and presented the request for criminal action. Durán told El Faro that he felt dissatisfied because his complaint is against the intellectual authors, the FMLN high command.
The trial ultimately took place in April 2021 in the Usulután juvenile court. On April 16, the juvenile judge decided to acquit, but Durán persisted. The prosecution appealed the ruling, and in June the San Miguel Chamber of Minors annulled the trial, considering that the crime was against humanity, and ordered a retrial. This is how the case came to the docket of Judge Víctor Meléndez.
On July 6, 2021, Meléndez issued a resolution in which he laid out the possibility of settling the crime. Currently, Salvadoran law does not allow conciliation for the crime of kidnapping. However, Meléndez invoked a clause of the Law of the Minor Offender that was in force until 1994 and allowed for “the reconciliation of all crimes or misdemeanors.”
“We opted for the hard way. Holding the hearing for two or three days and deciding if he was guilty or innocent was the easy part,” said Judge Meléndez. But Meléndez considered that the categories of “guilty or innocent could not satisfy the expectations of victim and perpetrator,” opting for a “creative effort to give a better, more comprehensive response.”
As the perpetrator was a minor, Meléndez also considered him a victim. “It would be wrong if, in these proceedings, the punitive power of the State were used to punish the person (the perpetrator), because it would ignore the fact that since he was an adolescent (...) his hierarchy and role within the belligerent side of which he was a member was far from relevant,” reads a resolution by Meléndez from August 12. “It is unreasonable that the investigation and prosecution of the complaint fail to address those who have truly had the power to control, dominate, and make decisions about the facts.”
Judge Meléndez was inspired by the Amnesty ruling of unconstitutionality and the “flexibility of the juvenile criminal process” to craft the best possible response. Although the ruling forced the Legislative Assembly to issue new regulations to process war cases, the deputies have not complied for five years, leaving the judges alone in search of answers.
“We don’t want to create the impression that any case can be settled with transitional justice, but this case can,” Meléndez told El Faro.
“The Beginning of a Promising Future for El Salvador”
“This event is of utmost importance for the country,” said human rights attorney Apolonio Tobar during the hearing. “It marks the beginning of a promising future for El Salvador in truth, justice, and reparation.”
Attorney Tobar is one of the few survivors of Nayib Bukele's institutional takeover. In May, the ruling Assembly dismissed the magistrates of the Constitutional Chamber and the attorney general, and replaced them with people loyal to Bukele. A congresswoman announced on Twitter that Tobar's post was next in line for those replacements, something that ultimately did not happen. Tobar, a fierce critic of the Bukele government's actions during the pandemic, has since lowered the tone and confrontation of his public discourse.
Sitting next to Tobar was Rodolfo Delgado, the attorney general illegally appointed by Nayib Bukele on May 1. His participation was minimal: he did not speak at the event, kept his gaze down during most of the speeches for 45 minutes, briefly greeted Armando Durán, and refused to answer questions from a journalist before leaving. Óscar López Jérez, illegally appointed president of the Supreme Court, did not even attend the event, despite a previous agenda stating that he would participate and give welcoming remarks.
In September, the Bukele-controlled Assembly ordered a purge of a third of the country's judges including Judge Jorge Guzmán, who was the driving force behind the most symbolic case of civil war impunity: the El Mozote massacre. One would have to ignore all of this context to see the promising future for justice of which Prosecutor Tobar speaks.
The resolution of Armando Durán seems, rather, an exception prompted by Judge Meléndez. The judge accepted that his creativity to solve the case is based on a personal story in which he is also a victim of the guerrillas.
Judge Meléndez's father was part of the municipal council of Cacaopera, Morazán and was executed by the guerrillas in 1984, when mayors and other local officials became political targets. “They kidnapped and executed him. We recovered his body, but that's as far as it went. We don't know how it happened or why,” Meléndez said.
Judge Meléndez revealed this to the defenders and accusers in the Durán case but says he always felt free to process the case. The lawyers agreed.
“Salvador Armando and (the perpetrator) represent many victims who have not yet achieved access to the human right to truth, reparation, and justice,” said the judge. “There are many victims who still have not received an answer, and I include myself within that group still waiting for an answer.”
*Translated by Sophia Diez-Zhang
