“The Executive and legislature in El Salvador have not shown a genuine interest in truth and justice”
On Thursday, February 3, Jesuit priest and rector of the José Simeón Cañas University of Central America (UCA), Andreu Oliva, testified before a special legislative commission purportedly created to investigate the granting of public funds to non-governmental organizations. For more than two hours, representatives from President’s Bukele’s ruling Nuevas Ideas party, along with their allies from the Grand Alliance for National Unity (GANA), questioned Oliva about past donations allegedly received by the UCA, El Salvador’s top university.
With documents in hand, Oliva repeatedly reiterated that the funds in question were not donations from prior administrations, but were for projects commissioned by the Ministry of Education. “Let’s not continue to confuse the public,” Oliva told Nuevas Ideas legislator Caleb Navarro. “You’re making a serious mistake, because the government never donated anything to the UCA.” The accusations continued, and the rector resorted to simpler language. “Explain that in plain Salvadoran,” GANA legislator Romeo Auerbach asked. Toward the end of the questioning, and visibly fed up, Oliva snapped: “It seems to me that you are all biased,” he told the legislators. “You are obligated to tell the truth, just as I am.”
The scene reflected the tense relationship between the university and the government since Bukele came to power in June 2019. The UCA has criticized the administration for lack of accountability and transparency, above all in the management of public funds for the pandemic, while the president and others in the government have accused the university of betraying the legacy of Ignacio Ellacuría, the former UCA rector who was murdered on campus by the Salvadoran military in November 1989, along with five other Jesuit priests, their housekeeper, and her 16-year-old daughter.
The Bukele administration has used the massacre as a weapon in its ongoing attacks against the university. On Nov. 16, 2021, the 32nd anniversary of the atrocity, de facto Attorney General Rodolfo Delgado requested that the judiciary reopen the case. President Bukele, whose ruling bloc in the Legislative Assembly installed Delgado as top prosecutor eight months ago, seized the moment to launch accusations against the institution. “The UCA asked for [the case to be reopened] for 3 years… 3 years. With vigils, declarations, at conferences, in the press, in books, media statements, interviews, petitions, and a long list of etceteras,” Bukele tweeted. “I imagine they will be very happy to know that their demands for justice are finally becoming a reality.”
That the tweet was a provocation is obvious to Oliva, as he explains in this interview with El Faro: “The decision comes from higher up, and is being pushed along by the Attorney General’s Office, most likely in an attempt to lend legitimacy to the attorney general and the Constitutional Chamber of the Supreme Court, both of which were installed by the ruling party through their majority in the Legislative Assembly, and in violation of the constitution.”
The reopening of the Jesuit massacre case is something of a paradox, says Oliva. On one hand, it’s good to see the Constitutional Chamber reverse the Criminal Chamber’s illegal decision to close the case. On the other, he caveats, the larger context is far from ideal. “The Constitutional Chamber, despite being composed of illegally appointed judges, is acting legally in the case of the UCA massacre,” says Oliva, who this January completed his 11th year as head of the UCA.
The massacre was never fully investigated in El Salvador. There have been attempts at seeking justice, but only now does it seem that the pieces are falling into place for the case to go to trial. The Attorney General’s Office, with the power to bring cases before the judiciary, and the Supreme Court, which last year appointed new judges to the country’s lower courts in yet another irregular maneuver. “This is why we need to be vigilant throughout this whole process,” says Oliva.
The rector also warns that the case could end up being politicized. “We have not seen the executive or legislative branch show a genuine interest in truth and justice, nor in providing reparations and guarantees of non-repetition,” Oliva says.
If the case is finally reopened, it will be thanks to an old petition from the UCA’s Institute for Human Rights that, in April 2018, convinced a San Salvador court to revive the indictment of seven alleged intellectual authors of the massacre. Then-attorney general, Douglas Meléndez, said that he was in favor of reopening the case, but the trial was stonewalled by repeated appeals from three of the defendants until the Criminal Chamber closed it altogether. In November, Attorney General Delgado asked for that decision to be reversed, and at the beginning of January, the Constitutional Chamber reopened the case. The first hearing in the landmark UCA massacre trial could take place as early as mid-February.
A different story has played out in Madrid, Spain, where the Audiencia Nacional spent 12 years investigating and trying the UCA massacre case leading up to the 2020 conviction the only officer from the Salvadoran military’s high command to ever stand trial: Colonel Inocente Orlando Montano, vice minister of public security from 1989 to 1992. The UCA agreed to this interview on the condition that it be in writing.
What is your assessment of the Constitutional Chamber's recent decision to reopen the UCA massacre case?
We need to distinguish between the juridical and the political. The decision opens up the possibility for what the UCA has always wanted, and what we called for in a recent statement, to become a reality: That the case be tried in Salvadoran courts. From a juridical perspective, the decision of the Constitutional Chamber is proper and legal. It is a recognition of the rights to truth and justice entitled to the victims, and to Salvadoran society in general. The ruling validates what the UCA has claimed for decades: That in the case of the 1989 massacre, as in the vast majority of cases involving massacres and other crimes against humanity committed during the armed conflict, there has been a constant violation of due process. Access to justice has been systematically obstructed, and knowledge of the truth has been denied through the use of various tricks and maneuvers by judicial officials involved in the case.
From a political perspective, it is clear that the decision comes from higher up, and is being pushed along by the Attorney General’s Office, most likely in an attempt to legitimize the attorney general and the Constitutional Chamber of the Supreme Court, both of which were unconstitutionally installed by the ruling party through their majority in the Legislative Assembly. From this perspective, we can see that a political interest behind the decision outweighs any interest in the law or human rights.
What influence might the Madrid ruling have on the case in El Salvador?
The efforts of the Audiencia Nacional were arduous and thorough and established sufficient evidence not only to convict Colonel Inocente Montano, but also to show that the massacre constituted an act of state terrorism that was planned at the highest level of the Salvadoran military. The logical thing would be for the Salvadoran authorities to request the case file, and to take it into account. [Editor's Note: On Apr. 6, 2021, Spanish human rights lawyers delivered the case file and associated evidence to both the Constitutional Chamber and the Attorney General’s Office.]
But the opposite could also happen: Salvadoran authorities could ignore the Madrid case, and could distance themselves from the work that has already been done, in service of a nationalist conception of justice that rejects principles of universal justice. Spain's Supreme Court upheld Montano’s conviction, confirming that the trial was conducted in strict accordance with the law and that there was sufficient evidence to convict not only Montano, but other military personnel who, according to the court, were involved in the decision to kill Father Ellacuría.
What do you think of the assertion that the current Constitutional Chamber is a product of the illegal replacement of magistrates on May 1, 2021?
We at the UCA have already expressed our opinion on this matter. The magistrates of the current Constitutional Chamber were imposed, in that they were appointed without following constitutional procedure. This was one of several illegitimate actions taken by the new Legislative Assembly on its first day in session. The current court is not independent, and is under the control of the President of the Republic, which means that the integrity of the constitutional justice system is at risk.
Can the attempt to seek justice in the case of the Jesuit massacre be reconciled with a respect for the rule of law, taking into account that, in practice, separation of powers no longer exists in El Salvador?
This is the central problem. We are faced with a court that, despite being presided over by illegally appointed judges, is acting legally in the case of the UCA massacre. Legal experts maintain that any judicial act enjoys a presumption of legality as long as the relevant authority does not declare its illegality — a presumption that in this case is ethically reinforced by the fact that the court’s ruling looks to broaden the scope of constitutional justice. In principle, the decision purports to have a just and righteous purpose, despite having been issued by authorities who were appointed unconstitutionally. This is why we need to be vigilant throughout the whole process. If the petition submitted by Attorney General Rodolfo Delgado had not been made in accordance with the rule of law — if it had been illegal, fraudulent, or unjust — then it would be unacceptable.
The president has made public statements of opinion on various judicial decisions — in the case of former San Salvador mayor Ernesto Muyhshondt, for example, or regarding the arrests of former FMLN officials. Has President Bukele maintained a coherent position on questions of historical memory and the right to truth?
The president has assumed a role that is not his, acting as judge and making statements about various court rulings. The president issuing public opinions regarding judicial decisions does not help to strengthen the rule of law, but rather gives the impression that he is the one deciding verdicts and sentences, and not the courts. It’s the same with the Constitutional Chamber’s ruling in the UCA massacre case. In a state governed by the rule of law, separation of powers must be respected, and the judicial branch must remain independent from the executive. Indeed, in certain cases, it must be called on to act as a counterweight to presidential powers.
How might we reconcile the president’s stance of impeding a judge from accessing military archives on the El Mozote massacre with the fact that Bukele is effectively seeking justice in the UCA massacre case?
This type of incoherent behavior is typical of the president. He rejected the Law for Transitional Justice as unconstitutional, rather than making the necessary improvements to the law so that it might promote justice for war crimes and crimes against humanity committed during the armed conflict. He has refused to support a law that would offer reparations for damages suffered by victims, as well as a law that would provide protection for human rights defenders. We are also concerned about the increasing support for the Armed Forces of El Salvador, their high-level involvement in the political life of the country, their increasingly large budget, the growing number of troops, the pro-military discourse, the awarding of decorations to soldiers accused of human rights violations, etc.
These actions do not seem to indicate a genuine interest in seeking justice for the UCA massacre, nor for other massacres attributed to members of the military. Words need to be backed up by actions. In addition to dedicating a day to the victims of the armed conflict, the state must commit to seeking justice in all cases of grave human rights violations committed during the war, and provide the resources necessary to accomplish that goal. The UCA case is not the most important, nor the most consequential. The El Mozote massacre, the Sumpul River massacre, the Lempa River massacre — these were atrocities of unspeakable scale, more severe and more painful due to the great number of lives lost.
Do you fear the UCA case will be manipulated to serve a political or partisan agenda?
Yes, that fear exists, because of the many incoherencies in the government’s approach to these cases. You mentioned the case of the El Mozote massacre, which has not received support from the executive branch, as it should have. We have not seen the executive or legislative branches show a genuine interest in truth and justice, nor in seeking reparations and guarantees of non-repetition. We are not convinced that in reopening the UCA massacre case, the administration is seeking true justice; rather, it seems that the goal is to strengthen the public perception of the attorney general and the Constitutional Chamber, and to legitimize those institutions. It is very possible that Bukele simply wants to use the trial to present himself to the world as a defender of human rights, and as the leader of a government committed to combating impunity.
What is the UCA’s position on former Salvadoran president Alfredo Cristiani’s potential involvement in the case?
The involvement of ex-president Cristiani, like the involvement of all accused perpetrators, should be clarified during the legal proceedings. The Spanish court dismissed Crisitiani as a potential defendant, so he was not able to shed any light on the matter. Perhaps in El Salvador it will be possible to more deeply examine what happened, and to learn more about his participation in the crime. The UCA is interested in seeking the truth, through a trial conducted with respect for due process, regardless of who is found responsible.
Salvador Samayoa, one of the signatories of the Peace Accords, told the Legislative Assembly that he and several others traveled to Madrid in 2009 in an attempt to stop ex-president Cristiani from facing criminal prosecution. Samayoa said that it would be very dangerous for the country if Cristiani was criminally charged, because it could lead to other FMLN officials facing prosecution. What is your opinion on this lobbying effort? [Editor's note: El Faro requested an interview with Samayoa but he declined to comment.]
I don’t have in-depth knowledge on the issue. That said, if there was an effort to conduct political lobbying for the purposes you point out, it should be considered as an attempt to interfere with the justice system, and therefore an attempt to obstruct full access to truth and the right to a fair trial. The courts should treat all people equally and should be free from political influence. True justice must be totally independent from political power, and must not discriminate.
Could the reopening of the case by the Salvadoran judicial system violate due process or proper procedure?
I don’t think so, because the Constitutional Court’s ruling corrected the errors from the ruling issued by the previous Criminal Chamber. The illegality was the product of a Sep. 8, 2020 resolution, and a complaint has been filed against the magistrates who issued that sentence, judges Argueta and Bolaños, for breach of duty. The Attorney General’s Office has not moved this complaint forward, despite the fact that it was filed over a year ago.
Salvadoran democracy continues to erode under the pressures of an increasingly authoritarian regime. Is there a risk that this trial will fall victim to procedural errors, as happened with the 1991 trial against the perpetrators of the massacre?
That’s always a possibility, especially when there is no independent judicial system and the courts face pressure from other branches of state power. This is why we must stay vigilant and ensure that the process is not manipulated, and that everything is done in accordance with the law.
How should we interpret the fact that, to this point, a truly objective and transparent investigation of the massacre has only been carried out by Spain's Audiencia Nacional, and that every time El Salvador has attempted to seek justice in the case, it has only been possible under autocratic or quasi-autocratic regimes, such as the current one?
We need to keep in mind that the accused perpetrators are men who occupied the highest positions of civil and military authority in that historical moment. We need to remember that the military has, and continues to have, a huge amount of power, and that they protect each other as members of a corporation. We’re talking about La Tandona, a large and very powerful faction of the army that still wields significant influence over the Armed Forces. We’re talking about officers who orchestrated the war efforts and who are responsible for not just this one crime, but for many. For them, this case would be like opening a pandora’s box. We must also keep in mind that there was always a strong link between the army and the oligarchy, and they also protected each other mutually. And so neither sector has had any interest in justice, and they have protected each other using the full power of the state.
The UCA has been criticized for allegedly favoring individuals who were implicated in the UCA massacre case, such as Colonel Benavides. Government spokespeople have used that accusation to claim that the university is not in favor of seeking truth in this case. What is your response to these accusations?
It is completely baseless and shows how little they know about the case and that they don’t understand what is being requested with regards to Benavides, nor why. On the other hand, they also don’t understand that from a Chrisitan perspective, the cycle of truth, justice, and reparation must end with reconciliation and forgiveness. Colonel Benavides is the only military officer of his rank to receive a sentence of 30 years for giving the orders to a group of Atlacatl Battalion soldiers to enter the UCA and commit the massacre. The Armed Forces have used him as a scapegoat, trying to sell the idea that Benavides is the only one responsible for the massacre, by claiming that it was his idea, and that he was also the one in charge of carrying it out. And so he must remain in prison until he finishes serving the 30-year sentence he received in 1991.
Had it not been for the suspension of the amnesty law, he would have been released last year. Now he is a very old man who suffers from chronic illness, and who has demonstrated good behavior in prison. Out of compassion, and because the truth of his involvement is already known and justice has been achieved, since he has already been convicted and served a long sentence, it seems only fair that as victims we ask for his compassionate release, so that he can regain his freedom through a commutation of his sentence. The UCA never asked the Assembly to issue a full pardon, as has been erroneously insinuated.
What would be the ideal way for this judicial process to end?
With a transparent trial, following due process, considering all the evidence and allowing all parties to participate in accordance with the law, without interference or manipulation on the part of other branches of state power. An ideal scenario would be for the defendants to be inclined to cooperate, and to share true accounts of what happened. For the corresponding punishments to be applied to anyone found guilty of participating in this atrocious crime. For those responsible to admit their responsibility and to ask the Salvadoran people to forgive them for the harm they have caused. For the military, as an institution in the service of the nation, to also ask for forgiveness for past actions. For the victims, if they see fit, to offer their forgiveness. The ideal scenario is that we progress in all areas that a process like this requires: Clarifying the truth, administering justice, making reparations for harms caused, establishing guarantees of non-repetition, and advancing the process of national reconciliation.
*Translated by Max Granger
FI name: February 2022