Rights and Reconciliation: UN Strategies in El Salvador 9781685853921

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RIGHTS AND RECONCILIATION

INTERNATIONAL PEACE ACADEMY OCCASIONAL PAPER SERIES

President of the Academy Olara A. Otunnu Editorial Board Michael W. Doyle, Vice President, International Peace Academy / Professor of Politics and International Affairs, Princeton University F. T. Liu, Special Adviser, International Peace Academy / former Assistant Secretary-General for Special Political Affairs, United Nations George L. Sherry, Professor of Diplomacy and World Affairs, Occidental College / former Assistant Secretary-General for Special Political Affairs, United Nations

RIGHTS AND RECONCILIATION UN STRATEGIES IN EL SALVADOR

IAN JOHNSTONE

This book was researched and written while the author was a Program Officer and then Senior Research Associate at the International Peace Academy. The views expressed are entirely his own and should not be taken as representing the position of the United Nations.

Published in the United States of America in 1995 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com and in the United Kingdom by Lynne Rienner Publishers, Inc. Gray’s Inn House, 127 Clerkenwell Road, London EC1 5DB www.eurospanbookstore.com/rienner © 1995 by the International Peace Academy, Inc. All rights reserved Library of Congress Cataloging-in-Publication Data Johnstone, Ian, 1960– Rights and reconciliation : UN strategies in El Salvador / by Ian Johnstone. p. cm. — (International Peace Academy occasional paper series) ISBN 1-55587-615-3 (alk. paper) 1. United Nations—El Salvador. I. Title. II. Series. JX1977.2.S2J64 1995 341.23'7284—dc20 95–4614 CIP British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library. Printed and bound in the United States of America

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The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1984. 5

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CONTENTS

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Acknowledgments List of Acronyms and Abbreviations

1 Introduction

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2 San José Agreement: Human Rights and Peacemaking

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3 Human Rights Verification Structure of ONUSAL, 24 Verification Methodology, 25 Accountability and Diplomacy, 27

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4 Investigative Commissions Ad Hoc Commission, 31 Truth Commission, 34 Joint Group for the Investigation of Politically Motivated Illegal Armed Groups, 40 Uncovering the Truth: Lessons from El Salvador, 42

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5 Enhancing Participation in Public Life Political Rights and the Elections, 50 Consultative Bodies, 55 Electoral Participation and Beyond: Lessons for UN Peace Building, 59

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6 Administration of Justice Human Rights Ombudsman, 65 Supreme Court of Justice, 67

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CONTENTS

Judicial System, 69 The Challenge of Institution-building: UN Strategies, 71 7 Observations and Lessons

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8 Conclusion

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Documents Interviews About This Occasional Paper The International Peace Academy The International Peace Academy Occasional Paper Series

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ACKNOWLEDGMENTS

Research for this book included interviews with many UN officials, government officials and diplomats, and representatives of the FMLN and independent experts, in the United States and El Salvador. I would like to thank all of those people, many of whom took time out of busy schedules on more than one occasion, for their generous assistance. I would also like to express my appreciation to the people who commented on oral presentations of this paper at various conferences and seminars, including a colloquium organized by the International Peace Academy and chaired by Iqbal Riza, former Special Representative of the Secretary-General to El Salvador. I benefited enormously from collaboration with various colleagues at the International Peace Academy. Working with Mark LeVine, David McCormick, Robert Orr, and Timothy Wilkins on a larger IPA project on multidimensional peacekeeping had a major impact on the shape and content of this study. Carole Schwartz Wulff provided invaluable advice and assistance on two research trips to El Salvador. Many suggestions provided by F. T. Liu, Laurence Pearl, and David Holiday in reviewing a complete draft of the book have been incorporated. Beth Ruck’s help in managing this—along with all other IPA projects—was indispensable. Michael Doyle, former vice president of IPA, reviewed various drafts of the book and provided valuable guidance throughout the research process. Finally, without the vision and leadership of Olara Otunnu as president of IPA, this study would have never seen the light of day. I owe a special debt of gratitude to UN Assistant Secretary-General Alvaro de Soto, who commented on a complete draft of the manuscript. As the personal representative of the Secretary-General to the El Salvador peace talks and one of the senior UN officials responsible for overseeing implementation of the accords, his comments were par7

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ticularly valuable. Of course, any errors of fact or judgment are entirely my own. Finally, I would like to thank Pew Charitable Trusts, whose support for the IPA’s Issues in Peacemaking and Peacekeeping Program includes funding for the research and publication of this occasional paper. —I. J.

ACRONYMS AND ABBREVIATIONS

ARENA CD CDHES CESPAD COPAZ ERP FMLN FPL ICRC IDHUCA IEJES ILO MAC MNR MSN MU NCJ ONUSAL PCN PCS PDC PNC PRTC RN TSE UN UNDP UNHCR USAID

Nationalist Republican Alliance Democratic Convergence El Salvador Human Rights Commission (nongovernmental) Centre for the Study of Applied Law National Commission for the Consolidation of Peace People’s Revolutionary Army Frente Farabundo Martí de Liberación Nacional Popular Forces of Liberation International Committee of the Red Cross Human Rights Institute of the Central American University Institute for Juridical Study in El Salvador International Labour Organisation Authentic Christian Movement National Revolutionary Movement National Solidarity Movement Unity Movement National Council of the Judiciary United Nations Observer Mission in El Salvador National Conciliation Party Salvadoran Communist Party Christian Democratic Party National Civil Police Revolutionary Party of Central American Workers National Resistance Supreme Electoral Tribunal United Nations United Nations Development Programme United Nations High Commissioner for Refugees United States Agency for International Development 9

1 INTRODUCTION

Like many post–Cold War peacekeeping operations, the United Nations Observer Mission in El Salvador (ONUSAL) was established to support the implementation of a complex peace agreement. A step beyond traditional peacekeeping, in which the UN interposes military personnel to monitor an agreed truce, troop withdrawal, and/or buffer zone,1 multidimensional operations typically include police and civilian contingents, as well as “blue helmets.” In recent peacekeeping missions, functions performed by the UN included: demobilizing military forces and integrating ex-combatants into a unified army, or reintegrating them into civil society; establishing and training new police forces; repatriating refugees and providing humanitarian relief; monitoring electoral processes, and, in one case, actually organizing an election; verifying and promoting human rights; overseeing and assisting in judicial reforms; and coordinating economic rehabilitation. In addition to El Salvador, recent multidimensional operations have been undertaken in Namibia, Cambodia, and Mozambique, and two more are under way in Angola and Haiti. None are cases of “peace enforcement,” but the UN has been deeply involved in helping to bring about substantial political and and institutional transformations in the countries where they are deployed. Human rights are central to the El Salvador peace process, not surprising given the history of that country’s conflict. The twelve-year civil war had its roots in a struggle dating back at least to the last century.2 A program of state intervention in the economy at that time led to substantial economic growth, based mainly on the production and export of coffee. From the mid-1800s, the government decreed that an ever-increasing proportion of land should be devoted to coffee and, by the end of the century, the best land was concentrated in the hands of the wealthiest “fourteen families.” Most of the presidents of the coun11

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try during the period, who were also generals, came from that oligarchy of families. By 1931, the social cost of this concentration of wealth and power had precipitated a series of peasant and worker uprisings, culminating in an attempted insurrection led by Augustín Farabundo Martí. The uprisings were brought to a bloody end in December 1931 by a number of young military officers who seized power in a coup d’état. After 1932, the military was firmly in control. It ruled to preserve its own position and to serve the interests of the oligarchy—goals that were often but not always compatible. The years 1932 to 1979 were characterized by cycles of repression and reform, dominated by the army and the oligarchy, although after 1960 the Church and popular organizations also began to make their respective presences felt.3 These new actors wielded more influence after the election of 1972, which by all accounts was stolen from the Christian Democrat José Napoléon Duarte.4 The period of repression that ensued throughout most of the 1970s was fertile ground for the growth of socalled “political-military organizations,” who had come to believe in the necessity of armed revolution. Four of these organizations were formed in the 1970s and, joined by the Communist Party of El Salvador, they united in 1980 to become the Frente Farabundo Martí de Liberación Nacional (FMLN). By then, full-scale civil war had broken out. Meanwhile, the extreme right, under the leadership of Roberto D’Aubuisson, began to organize “death squads” to terrorize its opponents. D’Aubuisson founded the Nationalist Republican Alliance (ARENA) party in 1981 and quickly became the most powerful political figure in the country. The pattern of terror and violence against the civilian population that had been established prior to 1979 worsened during the war. Throughout the 1980s, a number of presidential, legislative, and mayoral elections were held, but political developments were determined more by what happened on the battlefield than in the ballot box. The political context was one of a highly militarized society in which civilian rule was subordinated to military will and, as Tommie Sue Montgomery argues, “the desires of the US embassy.”5 Thus in addition to the loss of 75,000 lives and displacement of more than 1 million people (almost one quarter of the population), acts of political violence by “death squads” increased dramatically and untold human rights abuses were committed.6 Although the protection and promotion of human rights was central to the peace process,7 it was part of a more comprehensive effort to transform Salvadoran society. The peace accords are a series of six agreements, the effect of which was to bring an end to the fighting, and to draw the FMLN into the political process in exchange for

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extensive legal and institutional reforms designed to “demilitarize” Salvadoran society. The overarching objectives of the negotiations were set out in the framework agreement reached in Geneva in April 1990: to end the armed conflict by political means, promote the democratization of the country, guarantee respect for human rights, and reunify Salvadoran society. One month later, an agenda and timetable for the negotiations identifying seven substantive topics for negotiation, as well as the issue of verification by the United Nations, were agreed to in Caracas. The July 1990 San José Agreement on Human Rights was the first substantive agreement reached by the parties. It set out a number of rights both sides had to respect and, most importantly, provided for the establishment of a human rights verification mission, intended to take up its responsibilities after a cease-fire was achieved. For various reasons, however, the parties subsequently requested the deployment of the verification mission in mid-1991, before negotiations on other issues were completed and the cease-fire was in place. Meanwhile, almost a year after the San José Agreement was signed, the parties in Mexico settled on a set of constitutional reforms relating to the armed forces, the justice system, and the electoral system. The reforms were approved by the outgoing National Assembly, whose term ended on April 30, 1991, and were ratified by the new assembly shortly thereafter. The Mexico Agreement also provided for the establishment of a “truth commission” to investigate “serious acts of violence” that occurred during the war “whose impact on society urgently required that the public should know the truth.” The fifth accord, the New York Agreement, was signed in September 1991. Its key elements were the creation of the National Commission for the Consolidation of Peace (COPAZ), and agreements in principle to the reduction, doctrinal reform, and “purification” of the armed forces. Because the FMLN was represented on COPAZ, the insurgent group had a channel to participate in overseeing implementation of the agreements even before it became a political party. The agreement on reform of the armed forces—the most difficult issue in the negotiations—did not cover all details, but the principle of “purification” pointed the way to a final settlement. By the time of the final round of negotiations, however, a considerable body of opinion in El Salvador was unhappy with the direction the negotiations had taken.8 It was not until December 31, 1991, at midnight—the last hour of Secretary-General Pérez de Cuéllar’s term—that the parties were able to reach agreement on all outstanding issues, including the cessation of the armed conflict. The final peace agreement was signed in Chapultepec, Mexico, on January 16, 1992.

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To summarize, the peace plan included the conversion of the FMLN from a military force to a political party, reform of the army and abolition of various public security forces, the creation of a civilian police force, substantial reforms to the administration of justice, electoral assistance and a program to transfer land to ex-combatants and others affected by the war. Military and police divisions were added to the human rights division in early 1992 to form the UN’s first-ever fully integrated peacekeeping mission. An electoral division was created later to monitor the presidential, legislative, and mayoral elections that all fell coincidentally in March 1994. ONUSAL’s final extension was granted in November 1994, and the mission is scheduled to wind up in April 1995, although a small office will remain behind to see through the implementation of the outstanding obligations. The theme of human rights runs through the peace accords: ONUSAL was initially deployed as a human rights verification mission; three unprecedented commissions were established to investigate past abuses, and a serious attempt was made to overhaul the justice system. The accords also sought to expand political participation in El Salvador, by electoral and other means. The FMLN was legitimized as a political party and some electoral reforms were made.9 COPAZ, composed of representatives of the government, the FMLN, and each political party represented in the assembly, was established so “civilian society” could participate “in the process of the changes resulting from the negotiations.”10 Similarly a forum for economic and social consultation was created to facilitate dialogue and forge a working relationship among government, labor, and business leaders. My purpose is not to analyze these aspects of the peace process per se, but rather to examine the role of ONUSAL with a view to drawing lessons for future multidimensional peace operations. Two themes run through the analysis. The first concerns the symbiotic relationship between human rights and the peace process: On the one hand, the San José Agreement (and the early deployment of ONUSAL) paved the way to the broader political settlement; on the other hand, the demands of the peace process opened the door to deeper human rights accountability than either of the parties anticipated or may even have desired. In other words, the success of the peace process was partly attributable to the emphasis on human rights, and progress on human rights was dependent on the broader peacemaking, peacekeeping, and peacebuilding efforts. The second theme concerns the complex relationship between human rights and national reconciliation. Is it possible in the aftermath of these brutal conflicts to achieve social peace and justice? The peace process in El Salvador illustrates that these goals are not mutu-

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INTRODUCTION

ally exclusive and may even be mutually reinforcing. The human rights abuses that characterized the conflict were a manifestation of the militarization of society, one of the root causes of the struggle.11 Addressing this root cause entailed subordinating the military to civilian control and creating a more participatory system of governance. Tackling the human rights problem, therefore, was the wedge that opened the door to the broader political, social, and institutional transformation that the accords were designed to bring about. This transformation, in turn, was seen as integral to reconciliation, which had to occur not only at the level of the signatories to the accords but also among all elements of society that had a stake in (or could disrupt) the peace process. This study is divided into five parts, corresponding to five aspects of the peace process: • The San José Agreement and the deployment of ONUSAL prior to the cease-fire • Human rights verification • The commissions to investigate past human rights abuses • Measures to enhance participation in public life • Reforms to the administration of justice Technically, the UN’s mandate is to “verify” implementation of all elements of the accords, but its role is more complex than that term would seem to imply. In addition to monitoring compliance, the UN engages in “good offices,” it applies direct pressure when the parties are intransigent and, when that fails, it employs less direct means of securing compliance. The following analysis assesses the various strategies employed to secure human rights and concludes with a set of observations and lessons for future UN efforts to help build the foundations for a just and stable peace.12

NOTES 1. “Traditional peacekeeping” is a shorthand term to describe many but by no means all peacekeeping operations established during the Cold War years—UNFICYP in Cyprus and the three Middle East operations (UNDOF, UNTSO, and UNIFIL) being current examples. The Congo operation is a notable exception. Spanning four years in the early 1960s, UNOC had many of the characteristics of current more complex, UN missions. In addition to military personnel, it had important civilian and police components, and its mandate included the maintenance of law and order, subsequently modified to include the territorial integrity and political independence of the Congo.

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For a cogent analysis of the types of peacekeeping operations, see Marrack Goulding, “The Evolution of United Nations Peacekeeping,” International Affairs, Vol. 69, No. 3 (July 1993). For a description of the post–Cold War qualitative changes in peacekeeping operations, see “Supplement to an Agenda for Peace: Position Paper of the Secretary-General,” in Boutros Boutros-Ghali, Agenda for Peace 2d edition (1995). For a recent discussion of the challenges posed by modern comprehensive missions, see Alvaro de Soto and Graciana del Castillo, “Obstacles to Peacebuilding,” Foreign Policy, No. 94 (Spring 1994). 2. For thorough discussions of the background of conflict in El Salvador, see Tommie Sue Montgomery, Revolution in El Salvador: From Civil Strife to Civil Peace, 2nd ed. (Boulder, CO: Westview Press, 1994); Christopher C. Coleman, The Salvadoran Peace Process: A Preliminary Inquiry, Norwegian Institute of International Affairs, Research Report No. 173 (Dec. 1993); Terry Lynn Karl, “El Salvador’s Negotiated Revolution,” Foreign Affairs, Vol. 71, No. 2 (Spring 1992), p. 147. See also Edelberto Torres Rivas, “Civil War and Insurrection in El Salvador,” in Multidimensional Peacekeeping: Lessons of Cambodia and El Salvador, Michael Doyle, Ian Johnstone, and Robert Orr, eds. (forthcoming, 1995). 3. Montgomery, Revolution in El Salvador, p. 79. 4. Ibid., pp. 62–65; Coleman, The Salvadoran Peace Process, p. 11. 5. Montgomery, Revolution in El Salvador, p. 185. 6. According to the Commission on the Truth for El Salvador—a product of the peace accords and the most authoritative source on the country’s human rights past—during the civil war, “violence became systematic, terror and distrust reigned among the civilian population. . . . The fragmentation of any opposition or dissident movement by means of arbitrary arrests, murders as well as selective and indiscriminate disappearances of leaders became common practice. Repression in the cities targeted political organizations, trade unions and organized sectors of Salvadoran society. Organized terrorism in the form of death squads became the most visible manifestation of the escalating violence with civilian and military groups engaged in a systematic murder campaign to eliminate political opponents.” “From Madness to Hope: The 12-year war in El Salvador,” Report of the Commission on the Truth for El Salvador, S/25500 (April 1, 1993), p. 27 [hereinafter cited as the Truth Commission report]. 7. In the words of Pedro Nikken, the independent expert who has been reporting on El Salvador to the UN Human Rights Commission throughout the peace process, “the objective of guaranteeing . . . unrestricted respect of human rights constitutes, as it were, the spinal column of the set of agreements reached between the Government and the FMLN with the support of the broadest sectors of Salvadoran society.” A/47/596 (Nov. 13, 1992), para. 121. 8. United Nations Department of Public Information, Introduction, El Salvador Agreements: The Path to Peace (May 1992), p. v. 9. For a good summary of the electoral reforms, see Jack Spence and George Vickers, Toward a Level Playing Field?: A Report on the Post-War Salvadoran Electoral Process (Cambridge, MA: Hemisphere Initiatives, Jan. 1994), p. 9. 10. The New York Agreement, September 25, 1991, Article I(1). For a compilation of the peace accords, see El Salvador Agreements: The Path to Peace [hereinafter cited as Path to Peace], published by the United Nations Department of Public Information in cooperation with ONUSAL, May 1992.

INTRODUCTION

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11. Although the root causes of the conflict are both economic and political, the accords themselves are more directly focused on the latter. In addition to ending the war, the accords are designed to diminish the power of military and open “political space” for disaffected sectors of the population. Interview with Abraham Rodríguez, El Salvador, August 17, 1993. See also “Impunidad y falta de administración de justicia: obstáculos al proceso de paz,” published interview with Abraham Rodríguez, Tendencias, No. 26 ( Dec. 1993–Jan. 1994), p. 15. Militarization, it should be noted, happened on both sides. When the violent conflict erupted in 1979, and throughout the war years, the power of the military establishment over civilian authorities was so complete that, in the words of the truth commission, “none of the three branches of government—judicial, legislative or executive—was capable of restraining the military’s overwhelming control of society. . . . The sad fact is that they were transformed, in practice, into mere facades with marginal governmental authority.” Truth commission report, pp. 172 and 173. Meanwhile, the opposition in El Salvador became more militant during the 1970s and 1980s, progressively abandoning political tactics in favour of military ones. 12. For a good overview of past and present UN action in the field of human rights, see Tom Farer and Felice Gaer, “The UN and Human Rights: At the End of the Beginning,” in United Nations, Divided World, A. Roberts and B. Kingsbury, eds. (Oxford: Clarendon Press, 1993), pp. 240–296. See also, Peter R. Baehr and Leon Gordenker, The United Nations in the 1990s, 2nd ed. (London: Macmillan, 1994), Chapter 5.

2 SAN JOSÉ AGREEMENT: HUMAN RIGHTS AND PEACEMAKING

The San José Agreement followed preliminary agreements on the framework of negotiations (the Geneva Agreement of April 4, 1990) and timetable (the Caracas Agreement of May 21, 1990). It sets out a number of basic rights the parties must respect and calls for UN verification of both individual cases and “situations which appear to reveal the systematic practice of human rights violations.” It also empowers the UN to make recommendations to the parties on remedial measures and to “offer its support to judicial authorities” in order to strengthen the administration of justice. Neither the parties nor the UN expected to deal with human rights monitoring first in the negotiations; the armed forces headed the list of items set out in the Caracas Agenda. When early agreement on the armed forces (and most other items on the agenda) proved to be impossible, in July 1990, the UN intermediary Alvaro de Soto put the issue of human rights on the table and, after a day of intense negotiations, the San José Agreement was signed. Why, given El Salvador’s past, was it easier for the parties to agree on human rights than on other issues? The FMLN’s interest in human rights is not surprising, although UN monitoring was not a priority. In the view of at least one leader of the FMLN, the theme of human rights “impregnates all reforms” negotiated1 and the San José Agreement was a useful step toward a broader political settlement.2 The government’s position was less straightforward. It was under some pressure from the United States Congress, which threatened a cutoff of military aid until the government pursued a serious investigation of the assassinations of Jesuit priests at the Central American University.3 But there were also internal factors at play. Human rights was a “good concession” for President Alfredo Cristiani—a way for him both to show he was negotiating in good faith and to put pressure on 18

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the FMLN to make return concessions. It was also a way for the modernizing elements in El Salvador to improve the country’s international image.4 Those who would feel most threatened by international human rights monitoring—certain elements in the public security establishment and the landholding elite—were partly placated by the fact that the FMLN would also be subject to scrutiny.5 More prosaically, neither side wanted to leave that round of talks empty-handed. Unable to wring concessions from the government on the armed forces,6 the FMLN leadership wanted to show its followers some tangible outcome of the negotiations. The government, for its part, was determined to remain firm on issues it saw as critical but did not want to appear responsible for the collapse of the talks in the eyes of the international community.7 Neither saw the commitments contained in the agreement as all that onerous because, other than continuous human rights monitoring, the UN’s mandate is framed in nonbinding terms (that is, the power to make recommendations and “offer support to the judicial authorities”). As will be argued below, the UN pushed that mandate to the limit, but at the time of the negotiations it was not expected to play an activist role beyond verification. Complementing the felt need to accomplish something fast was the advance preparation on human rights undertaken by the UN intermediaries. Anticipating that human rights monitoring was a possible basis for agreement, the UN organized a “brainstorming” session in Geneva on July 16 and 17, 1990, without the parties, attended by some 20 human rights and El Salvador specialists. The group worked out a plan and, based on the discussions, a draft agreement was prepared for possible submission to the parties.8 Having arrived in San José prepared mainly to talk about the armed forces and unwilling to talk seriously about other issues on the agenda without more preparation, the parties seized on the alternative offered by de Soto when he put the draft human rights agreement on the table.9 The decision to deploy ONUSAL prior to the cease-fire was also unprecedented. The request came independently from both sides. The FMLN did so largely in response to pressure from local nongovernmental organizations. The government was less enthusiastic but probably felt that opposition to early deployment would unnecessarily damage its credibility. For the UN, the decision to deploy was not easy. It had concerns about the safety of the observers and about whether they could fulfill their mission while fighting was continuing.10 More fundamentally, the UN was worried about the impact the deployment of human rights monitors would have on the ongoing negotiations. To help answer the first set of questions, a preliminary mission headed by Iqbal Riza was sent to El Salvador in early 1991. Supported

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by a preparatory office that had been functioning since the beginning of that year, the mission concluded that the security risks were bearable and that “there was a widespread desire in all sectors of opinion . . . that the United Nations should commence verification of the agreement . . . without awaiting a cease-fire.”11 Moreover, it was decided that although the persistence of the armed conflict would make it difficult to fully implement the mandate, at least a start could be made in monitoring both human rights and “especially significant” violations of humanitarian law—the rights to life, integrity, and security of the person, and personal liberty related to the armed conflict.12 The more fundamental issue was whether the UN could function as an honest broker in the negotiations while simultaneously investigating and publicizing human rights abuses. No matter how impartial the UN sought to be, there was concern that its objectivity would be questioned in criticizing the practices of one side or the other.13 Conversely, it may also have been a worry that once human rights monitors were deployed, international pressure on the parties to negotiate seriously on other matters would dissipate. Despite these concerns, a mission composed of some 100 observers, human rights officers and military and police advisers, was deployed in July 1991. The decision to deploy proved wise for a host of reasons. First, the level of human rights abuses decreased, primarily because the UN’s presence and authority to “visit any place freely and without prior notice” had a dissuasive effect.14 Second, the level of violence decreased and was concentrated away from urban centers, primarily because the parties did not want to risk UN casualties and incur the wrath of the international community.15 Furthermore, the presence of police and military advisers within the human rights mission had a “calming effect.”16 These advisers provided security for the human rights observers and established links with the Salvadoran military and police, links that were used to minimize the impact of the conflict on civilians and that helped reassure the population that uniformed personnel could contribute to the peace process.17 Finally, the willingness of both sides to accept international human rights monitors demonstrated that they had given up on seeking a military victory. In that sense, it was an important confidence-building measure. The early deployment of ONUSAL also contributed to the broader peace process. The presence of ONUSAL significantly raised the political costs to either party of breaking the talks, impelling the process and making it seem irreversible.18 Furthermore, it facilitated negotiations by expanding the range of personal contacts between the UN and the parties. For Salvadorans more generally, the presence of ONUSAL was concrete evidence of progress in the negotiations and of

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the UN’s commitment to see the peace process through. Thus although the San José Agreement is not a revolutionary document, its adoption and the subsequent deployment of ONUSAL marked a milestone for UN peacemaking. By 1990, the parties in El Salvador were ready for peace, but were some distance from agreement on its precise terms. The administration of President Cristiani, which had come to power on a platform of peace, did not view the negotiations as a means of addressing social and economic inequalities. It was, however, prepared to open “political space” for the FMLN,19 which would necessarily entail some reordering of the civilian-military relations in the governance of El Salvador. The FMLN leadership was also interested in political and institutional reforms although, as discussed later in the section on the forum for economic and social consultation, it had not abandoned its economic and social agenda. Meanwhile, the more extreme options sought by elements on the two sides—Marxist revolution on the one hand and continued military dominance of the political system on the other—ceased to be viable in the changing international climate. The situation was therefore ripe for a negotiated solution, the broad outlines of which were a more open and pluralist political system. International human rights monitoring was a step in that direction and, for the reasons outlined above, was the issue on which agreement could most easily be reached, despite the fact that in earlier years it would surely have raised a “red flag” in a place like El Salvador. Even though human rights monitoring was not a priority of either party and in fact rose to the top of the agenda only by process of elimination, it paved the way to the broader political settlement that followed. The crucial lesson is that when a conflict is characterized by systematic human rights abuses, pressing for international accountability can be a legitimate and effective tool for peacemaking.20

NOTES 1. Interview with Schafik Handal, El Salvador, August 13, 1993. 2. While the rhetorical commitment of the FMLN to human rights is unquestioned, some Salvadoran human rights activists question how well its leaders fully understood the theme. Interview with Mirna Anaya, former Secretary-General of CODEHUCA, El Salvador, August 13, 1993. 3. See Stephen Baranyi and Liisa North, “The UN in El Salvador: The Promise and Dilemmas of an Integrated Approach to Peace” (unpublished paper, 1993), p. 12; Pamela Constable, “At War’s End in El Salvador,” Current History, Vol. 92, No. 572 (March 1993). 4. President Cristiani came from the ranks of a “new generation” of

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elites who were increasingly unhappy with a war that was weakening the economy and obstructing the introduction of market reforms. Christopher Coleman, The Salvadoran Peace Process: A Preliminary Inquiry, Norwegian Institute of International Affairs, Research Report No. 173 (Dec. 1993), p. 14. This elite was also unhappy with El Salvador’s tarnished human rights image, which was making it difficult to attract foreign trade. 5. UN Human Rights Commission representatives had been reporting on the government’s human rights record since 1981, so agreeing to ONUSAL monitoring could be presented by the Cristiani administration as imposing a new obligation on the FMLN without increasing the government’s burden. In the view of one of the negotiators of the accords, the government felt it had nothing to lose from more intense UN human rights monitoring, and something to gain by subjecting the FMLN to the same scrutiny. Interview with Dr. Oscar Santamaría, El Salvador, August 16, 1993. 6. In the initial stages of the talks, the FMLN sought complete abolition of the armed forces. Mark LeVine, “Peacemaking in El Salvador,” in Multidimensional Peacekeeping: Lessons from Cambodia and El Salvador, M. Doyle, I. Johnstone, and R. Orr, eds. (forthcoming, 1995). Sensing that this would not be possible, the FMLN nevertheless did not want to concede its position early in the talks and appear to be caving in on one of its most important demands. 7. Interview with foreign diplomat, El Salvador, August 1993. 8. The draft agreement contains many of the elements that were included in the San José Agreement, although it spells out the rights to be protected in less detail. Unofficial Draft Agreement, Derechos Humanos, July 19, 1990. 9. According to a negotiator for the government, agreement on any other issue would have been impossible without a great deal of preparation. Interview with Dr. Oscar Santamaría, El Salvador, August 16, 1993. 10. Interview with Mr. Iqbal Riza, New York, April 12, 1993. See also S/23037 (Sept. 16, 1991), Appendix, paras. 12-14. 11. S/23037 and Annex (September 16, 1991), para. 3. The concerns about safety were not unfounded—military clashes often occurred while ONUSAL personnel were performing their verification functions in the field—though no one was injured. S/23222 (Nov. 15, 1991), para. 5. 12. Since the agreement was meant to be implemented after a cease-fire, no provision was made for UN monitoring of humanitarian law and, in fact, the International Committee of the Red Cross was in El Salvador for that purpose. Not wanting to duplicate or complicate the work of the ICRC but unable to completely ignore humanitarian law, ONUSAL interpreted its mandate pragramatically to cover the most blatant violations. A/45/1055-S/23037 (Sept. 16, 1991), paras. 23–24. 13. S/23037 (Sept. 16, 1991), Appendix, para. 15. 14. ONUSAL’s earliest reports on the human rights situation were positive but qualified. In its second report, for example, ONUSAL stressed that the parties were making an effort to comply with their obligations, but the persistence of the armed conflict was a serious obstacle to the implementation of “effective lasting measures, which might significantly improve the human rights situation.” S/23222 and Annex (November 15, 1991), para. 175. 15. Interview with Salvador Sánchez-Cerén, San Salvador, August 18, 1993. Despite the dangers to which UN personnel were subjected, ONUSAL reported in November 1991 that the chiefs of the armed forces of El Salvador

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and of FMLN combatants were honoring their pledges to guarantee the safety of mission personnel. S/23222 (Nov. 15, 1991), Annex para. 6. 16. Interview with UN diplomat, New York, April 1993. 17. Interview with Iqbal Riza, New York, April 12, 1993. 18. This point was emphasized by a negotiator of the accords on the government side. Interview with General Mauricio Ernesto Vargas, El Salvador, August 17, 1993. 19. Interview with President Cristiani, El Salvador, January 25, 1994. 20. Ian Martin carries the argument a step further in his analysis of early peacemaking efforts in Haiti which failed in his view because, unlike El Salvador, the human rights situation was not treated as central to the political process. Ian Martin, “Haiti: Mangled Multilateralism,” Foreign Policy, Summer 1994, p. 87.

3 HUMAN RIGHTS VERIFICATION

STRUCTURE OF ONUSAL

ONUSAL’s initial mandate was to verify compliance with the San José Agreement, pending agreement between the government and the FMLN on other issues. Iqbal Riza was appointed the special representative and chief of the mission to provide overall political direction and to deal with political matters that arose in performance of the verification functions. Philippe Texier, as director of the human rights division was in charge of verifying the San José Agreement. By September 1991, ONUSAL personnel numbered 101: 5 senior managers; 42 human rights observers, legal advisers, educators, and political affairs officers; 15 military advisers; 16 police advisers; and 23 administrative support staff. Regional offices, each headed by a regional coordinator, were established in San Salvador, San Vicente, San Miguel, and Santa Ana, with suboffices in Chalatenango and Usulután. ONUSAL’s verification tasks included actively monitoring the human rights situation; investigating specific cases of alleged human rights violations; making recommendations; and, lastly, reporting to the Secretary-General and, through him, to the United Nations Security Council and General Assembly. The powers conferred on the Mission are very broad and include the possibility of visiting any place or establishment freely and without prior notice; receiving communications from any Salvadoran individual, group, or entity and interviewing freely any individual or group; conducting direct investigations; and using the media to the extent useful for the fulfillment of its mandate.1

Following the signing of the Chapultepec Agreement on January 16, 1992, ONUSAL was reorganized and strengthened so it could fulfill its expanded mandate of verifying all agreements between the par24

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ties. Military and police divisions were added, composed of 373 military observers and over 300 police observers. The military division was headquartered in San Salvador, with four regional offices co-located with the existing human rights offices. The police division, also headquartered in San Salvador, established six separate regional offices and four suboffices. Meanwhile, the human rights division continued to function, staffed by 51 civilian professionals. Most of its military and police advisers were absorbed by the other divisions, but 14 (later 18) police officers were loaned back to the human rights division. The regional coordinators became the representatives of the chief of mission in each region, with responsibility for coordinating the work of the three divisions, as well as continuing their human rights functions. The work of the police division overlapped with that of the human rights division. Its main task was to assist in the transfer of public security functions from the existing forces (the national guard, the treasury police, and the national police) to the new national civil police, a creation of the accords. Its mandate, never clearly spelled out, was “more than mere verification, and included . . . the monitoring of operations and conduct of the existing national police until the new national civil police was deployed throughout the country.”2 ONUSAL police monitors were deployed at national police installations and would accompany police patrols in order “to deter intimidation, reprisals or other violations of the civil rights of all sectors of the population, as well as to promote the impartial and nondiscriminatory enforcement of laws and regulations. . . .”3 Because of delays in deploying the new PNC, the police division of ONUSAL also assumed close supervisory responsibility over and logistical support for the auxiliary transit police (PAT)—recruits to the National Public Security Academy who policed the zones of former conflict prior to the deployment of the PNC.4 Once deployment of the PNC began in March 1993 (after substantial delays) the police division entered into an agreement with the government to evaluate the performance of the new police force and to provide it with technical advice and logistical support—in essence, on-the-job training.5

VERIFICATION METHODOLOGY

Early in its deployment, ONUSAL defined its human rights verification role to include: (1) the analysis of cases involving acts likely to constitute violations of human rights, and (2) the analysis of “situations which seem to reveal a multiplicity of violations of the same kinds.”6 It did not adopt a systematic methodology for investigating

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and monitoring cases until shortly after the new director of the human rights division, Diego García-Sayán, was appointed in October 1992. The guidelines adopted then contain standard operational definitions for each category of right and uniform criteria for the classification of complaints.7 When a possible violation of human rights is either reported to or observed by ONUSAL, it is first analyzed to determine whether it fits into one of the categories. If the complaint is “admissible,” ONUSAL personnel (usually police observers within the human rights or police divisions) investigate by interviewing witnesses, family members, the police, and so forth. If a human right is determined to have been violated, then the matter is taken up with the appropriate state authorities and reported to the Secretary-General. The reports of the human rights division go directly from the director to the Secretary-General. They are screened by the chief of mission, but in order to retain the autonomy of the human rights division, the director is not bound to accept the suggestions of the chief of mission. If the case is indicative of a trend or pattern of abuses, it is included in a public report by the human rights division. ONUSAL’s human rights verification methodology was elaborated in the sixth report of the human rights division, the first in eight months and the first under the directorship of García-Sayán. The elaborated methodology—called “active verification”—reflected a greater focus on structural problems in the administration of justice, in addition to individual cases. Described as a “systematic investigatory procedure,” active verification entails the three-step procedure outlined above (complaint, investigation, and recommendations) plus the use of “good offices to contribute to the transparency and efficiency of police investigations, due process, safety of witnesses, etc., and its power of initiative to assist in overcoming existing situations of human rights violations.”8 The notion of active verification, therefore, signaled a conscious decision to push more assertively for structural remedies to systematic human rights violations. To support the new approach, ONUSAL began reporting on trends over extended periods in addition to the standard analyses of the three months between reports. Thus in its ninth report, the human rights division noted that the encouraging developments in the first months of 1993 took a “regressive turn” from June to October, characterized by “an upsurge of selective violence against citizens who were openly engaged in politics, as well as death-squad style murder,” and warned that the negative turn could be aggravated during the electoral process and in the immediate postelectoral period.9 Fortunately, the regressive trend did not continue in the period leading up to the elections.

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The focus on systemic problems and the notion of active verification bring into sharp relief the impact of ONUSAL’s reporting. Through its power to make recommendations and to support judicial authorities, it can exert considerable pressure on organs of the state. The authorities, as independent human rights groups have noted, are not always cooperative and sometimes impede ONUSAL’s ability to follow the investigation of cases.10 ONUSAL officials have to be persistent in pushing cases through the system, at times virtually assuming the role of defense attorneys and prosecutors. Public pressure was stepped up in mid-1993 when ONUSAL began publicizing the parties’ records in implementing the recommendations of both the truth commission and the human rights division. Significantly, the former are binding obligations, whereas the parties pledged only “to give their earliest consideration” to the latter.11 Yet in its seventh report, the human rights division stated: international verification of the enjoyment of human rights in El Salvador should not be limited to mere observation but should promote and influence changes in the structural, legal and institutional and social conditions that had led to widespread serious violations during the armed conflict....The only viable and effective means of ensuring that active verification had an impact on the real situation, in keeping with the desire of the parties, was to have the findings of the monitoring process reflected in concrete and specific recommendations to be implemented by the parties (emphasis added).12

ONUSAL in effect argued that its power to make recommendations would be meaningless unless the parties felt some obligation to implement them. The government did not quite accept ONUSAL’s activist interpretation of its mandate, but agreed to high-level joint meetings to evaluate the recommendations, and to the establishment of “executive machinery” to implement agreements reached at the meetings.13 Setting up the machinery, of course, was no guarantee the recommendations would be implemented, but it became harder to ignore them.

ACCOUNTABILITY AND DIPLOMACY: ONUSAL’S COMPLEX DUAL ROLE

At different points throughout the mission, ONUSAL has been criticized for undue caution in pursuing its verification functions. The thrust of the criticism is that ONUSAL occasionally underplayed its role as guarantor of human rights in order not to compromise its

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diplomatic role in negotiating and implementing other aspects of the peace accords.14 As one official acknowledged, the UN’s approach at least in the early stages of the operation was essentially nonconfrontational.15 Undoubtedly there has been some tension between ONUSAL’s “finger-pointing” and “honest broker” roles. A consent-based UN peacekeeping operation must maintain the trust of the parties, but too much deference can inhibit the mission’s capacity to fulfill its mandate. Human Rights Watch claims this tension was overplayed in El Salvador and argues that it is counterproductive to soft-pedal human rights in the interest of broader political concerns.16 Like many nongovernmental organizations, it felt that, because human rights abuses were so much a part of the conflict, lasting peace would not be possible without assertive reporting on on-going violations. This argument cuts both ways, however. Jeopardizing progress on the broader political and institutional reforms would set back the cause of human rights. For both parties, the San José Agreement on human rights may have been the means to an end, but the desired “end” was a more just and therefore stable society.17 Because an important goal of the broader political process was to create institutional conditions for the effective protection of human rights, the means/end dichotomy is somewhat artificial.18 The real issue, on which opinions differ, is whether the UN could have been more assertive in denouncing human rights abuses and abusers without jeopardizing the broader peace process. Only five human rights reports were issued between July 1991 and April 1993, and none were easily accessible to the average citizen. After then, reports became more regular, but ONUSAL has never publicized its findings in the media, for example, which is within its mandate.19 The fact that its methodology became more systematic, its reports more detailed and its pressure on the parties more intense without major political ramifications is a telling indication that an overly nonconfrontational approach was not warranted. A defect in ONUSAL’s human rights verification function that has never been adequately corrected concerns the organizational structure of the mission. The effectiveness of regional coordinators is diminished by their dual roles as heads of human rights offices and political representatives of the Chief of Mission. The tension in this dual role is exacerbated by the fact that military and police personnel are unaccustomed to reporting to civilians from the human rights community. The magnitude of the problem tends to vary from region to region, depending primarily on personal relationships, but there were times in some regional offices when the coordinators could bare-

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ly “coordinate,” let alone direct. A better set-up would be to replicate in each regional office the arrangement at the center: one civilian “chief” supervising the three (later four, when the electoral division was added) division heads.20 Incidentally, this would have facilitated a clearer division of labor and more effective collaboration between the police and human rights divisions, whose overlapping mandates caused some confusion. Despite this organizational deficiency, an important lesson of the UN experience in El Salvador is that when human rights accountability is part of a broader peace process, the human rights component should be integrated in the overall mission, but with as much autonomy as possible. The two dimensions of ONUSAL are complementary and can be mutually reinforcing. Separating the functions would likely have undermined the status of the human rights observers and the moral authority of the rest of the mission by making it seem indifferent to human rights issues. Moreover, if the separate components in these multidimensional operations are seen to be working at crosspurposes, the credibility of the entire mission would be jeopardized.

NOTES 1. A/45/1055 and S/23037 (September 16, 1991), Annex, para. 1. 2. S/23642 (February 25, 1992), para. 6. A full discussion of the role of the ONUSAL Police Division is contained in David McCormick’s chapter in Multidimensional Peacekeeping, Michael Doyle, Ian Johnstone, and Robert Orr, eds. (forthcoming, 1995). 3. Ibid., para. 7. 4. S/24833 (November 23, 1992), paras. 44–46. 5. S/25812 (May 21, 1993), paras. 25 and 36. This agreement expired in October 1993 and was not renewed. 6. A/46/658 and S/23222 (November 15, 1991), para. 11. 7. ONUSAL Como Mecanismo de Verficacion Activa en Materia de Derechos Humanos, ONUSAL Human Rights Division. 8. A/47/912 and S/25521 (April 5, 1993), para. 41. 9. S/1994/47 (January 18, 1994), para. 102. Accordingly, the human rights division urged that an investigation into illegal armed groups be initiated as soon as possible, and undertook its own investigation into the death squad-style killings of three FMLN leaders. It concluded that two of the murders were probably common crimes but the third was likely to have been politically motivated. A/49/116 and S/1994/116 (April 5, 1994), para. 10. 10. Human Rights Watch, The Lost Agenda: Human Rights and U.N. Field Operations (New York: Human Rights Watch, 1993), p. 20 [hereinafter cited as the Lost Agenda]; Lawyers Committee for Human Rights, El Salvador’s Negotiated Revolution: Prospects for Legal Reform (New York: June 1993), p. 42 [hereinafter, cited as the Lawyers Committee Report].

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11. San José Agreement, Article 15 (d), Path to Peace, p. 11. For a full discussion of the truth commission recommendations, see Chapter 4. 12. A/47/968 and S/26033 (July 2, 1993), paras. 324 and 325. 13. Ibid., at para. 328. 14. As stated in a Human Rights Watch report, “senior officials of ONUSAL appear to have believed that a public assertive approach to denouncing human rights abuses—especially in a situation in which one side, the government, was largely held to be at fault—would undermine its mediating role, by making it seem to have lost its objectivity and neutrality.” The Lost Agenda, p. 24. See also Americas Watch, Peace and Human Rights: Successes and Shortcomings of the United Nations Observer Mission in El Salvador, Volume IV, Issue No. 8 (September 2, 1992), pp. 18–19. This view was shared by representatives of various human rights organizations in El Salvador. Interview with Mirna Anaya, El Salvador, August 13, 1993. It was also expressed in an open letter to the Secretary-General by a former ONUSAL employee. Letter from Dr. Reinhard Jung-Hecker to the Secretary-General of the United Nations, Dr. Boutros Boutros-Ghali, July 6, 1992 (published in Diario Latino, July 9, 1992). 15. Interview with UN official, New York, June 1993. 16. Lost Agenda, p. 33. 17. In the high-minded prose of one ONUSAL report, the El Salvador peace process aims to create the “necessary institutional and political conditions for the effective functioning of democracy in accordance with the rule of law, while at the same time, promoting changes in the relationship between the state and society with the ultimate goal of achieving national reconciliation and reunification.” S/25521 (April 5, 1993), para. 14. 18. As the human rights division reported: “the peace agreements . . . have brought constitutional, institutional and structural reforms . . . designed to establish a State based on the rule of law, and the legitimacy of the State is the best guarantee for the protection of human rights.” S/1994/47 (January 18, 1994), para. 38. 19. San José Agreement, paras. 14(j) and 9(k), Path to Peace, p. 11. 20. In some regions, joint police and human rights investigations were rare and there were incidents of duplicate investigations—one division not knowing the other had already looked into a complaint. Interview with ONUSAL official, El Salvador, August 1993.

4 INVESTIGATIVE COMMISSIONS

The aspect of the El Salvador peace process that has received the widest international attention concerns three commissions established to investigate past human rights abuses. Two were agreed to in the accords—the “ad hoc commission” and the “truth commission”—and the third, the “joint group for the investigation of politically motivated illegal armed groups,” was the product of a recommendation by the truth commission. Combined, these groups bring into sharp relief the balance between the cause of peace and the demands of justice, providing lessons for other conflicts characterized by serious human rights violations.

THE AD HOC COMMISSION

Overview After months of some of the most difficult negotiations in the entire process, the parties agreed in the September 1991 New York Agreement to the establishment of an ad hoc commission to “purify” the armed forces, although its precise mandate and structure were left to be dealt with in the Chapultepec Accords. Composed of three Salvadoran civilians chosen for their “recognized independence of judgment and unimpeachable democratic credentials,” the commission was charged with evaluating military officers, taking into account their records of observance of human rights, professional competence and capacity to function “in the new situation of peace, within the context of a democratic society.”1 Any officer found deficient in one of these criteria was subject to discharge or transfer. The origin of the ad hoc commission was the desire of the FMLN to oust the tandona class of 1966 graduates of the Salvadoran military 31

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academy, who dominated the army and public security forces. Unwilling to agree to the direct purge sought by the FMLN, the government proposed the establishment of a military commission to perform a “self-purge.”2 The ad hoc commission was proposed by the UN as a compromise, to which the government reluctantly agreed, but only on the condition that two members of the military be associated as observers.3 For its part, the FMLN would have preferred foreigners on the commission but accepted the compromise on the condition that the UN and the FMLN be involved in selecting the commissioners. As agreed, the Secretary-General proposed some 15 names, quickly whittled down to the only three on which the parties could agree: Abraham Rodríguez, a businessman, founder of the Christian Democratic Party, and adviser to former President Duarte; Reynaldo Galindo Pohl, a prominent lawyer and special representative of the UN Commission for Human Rights on Iran; and Eduardo Molina, a long-time member of the Christian Democratic Party. The commission was given three months to complete its work. Since it could not properly evaluate 2,293 active duty officers in the allotted time (especially since each had to be given a hearing),4 the records of only the 232 most senior officers were reviewed. Following a 30-day extension, the commission’s report was issued on September 22, 1992. By agreement of the recipients of the report—President Cristiani and Secretary-General Boutros-Ghali—it was kept confidential.5 The recommendations should have been implemented one month later, but after intense negotiations between Salvadoran authorities and UN envoys Marrack Goulding and Alvaro de Soto a “recalendarization” was agreed to. The president would communicate his administrative decisions to the UN by November 29 and would implement them by January 1, 1993.6 In exchange, the FMLN was allowed to delay demobilizing the last of its troops from October 15 to December 15, 1992. President Cristiani announced his decisions on removing the named officers on time, but on January 7, 1993, the Secretary-General communicated to the Security Council that the plan did not fully conform to the recommendations of the ad hoc commission.7 After two more months of negotiations and pressure, President Cristiani informed Boutros-Ghali that all officers listed in the report would be placed on leave by June 1993 and retired by the end of the year, which satisfied the Secretary-General.8 Meanwhile, the truth commission released its report on March 15, 1993, naming some of the same officers, including Minister of Defense René Emilio Ponce and Vice Minister of Defense Juan Orlando Zepeda. Ponce offered his resignation three days before the truth commission report was released,

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apparently having received information that he would be tied to the murder of the Jesuit priests in 1989. President Cristiani did not accept his resignation at that time, but Ponce officially stepped down (with full honors) on July 1, 1993, completing implementation of the ad hoc commission recommendations. Assessment of the Process Purging the military was the most sensitive aspect of the entire peace process, precisely because some feared it would provoke a serious backlash in the military if not handled carefully. These fears became acute when the commission exceeded expectations by recommending discharge of the entire senior military establishment, including officers the government viewed as having been integral to the peace process.9 Although the need for full implementation was never publicly questioned, it was clear the government hoped to make the process as painless as possible for those purged. The FMLN, for its part, was split on how hard it should insist on complete and rapid implementation. The People’s Revolutionary Party (ERP—changed to “People’s Expression of Renewal” in 1993) and National Resistance (RN) initially displayed more flexibility than the other FMLN factions, probably because they were concerned about making President Cristiani’s position vis-à-vis the military untenable.10 The Secretary-General accepted that the report should remain confidential and was flexible on the pace of implementation but drew a firm line on the need for full compliance.11 After the initial delay, he refused President Cristiani’s request to let some of the top officers remain in their posts until normal retirement, but carefully refrained from demanding action by a specific date—effectively putting the matter on hold until the truth commission reported in March. Thus the UN deftly handled the situation by insisting on compliance with the recommendations, but not in a way that would have destroyed President Cristiani’s ability to keep the military in check.12 In the Salvadoran circumstances, the decision to keep the report confidential and the delay in implementation were understandable because the risk of a reaction from the military that would jeopardize the entire peace process was real. But as a result a mixed message was sent to the population as a whole. The military officers named were removed from power, but allowing some to retire only when they were ready—and with full honors—left many in doubt about whether the peace process had really cemented civilian control over the military.

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Overview When the government and FMLN agreed in the April 1991 Mexico Agreements to establish a truth commission, “little notice was taken”13 because it was seen as secondary to the constitutional reforms agreed to at the time. The truth commission was conceived parallel to the ad hoc commission, in response to FMLN pressure to prosecute and punish human rights abusers. The government demurred, but did not object to the idea of a commission to uncover the “truth” about the worst abuses committed by both the military and the FMLN.14 The two sides then discussed the possibility of investigations of “sample” cases, leading the UN to propose a commission (composed of foreigners) to investigate past cases, but not to punish or prosecute offenders. In agreeing to the truth commission, each side saw it as a complement to the ad hoc commission and therefore compromised a little—the FMLN by accepting its nonprosecutorial character, the government by accepting foreigners. The objective of the truth commission, as set out in the Mexico Agreements, was to “investigate serious acts of violence that [had] occurred since 1980 and whose impact on society urgently require[d] that the public should know the truth.” The commission could gather information by any means deemed appropriate, interview anybody, and visit any place freely. It was authorized to recommend binding legal, political, or administrative measures that followed from the investigations, but it was expressly forbidden from functioning as a judicial body. Although the truth and ad hoc commissions operated separately, their objectives were linked by Article 5 of the Chapultepec Accords, in which the “the need to clarify and put an end to any indication of impunity on the part of officers of the armed forces” was referred to the truth commission for “consideration and resolution.” The commissioners were appointed by the Secretary-General on December 10, 1991, after some difficulty getting the parties to agree on three people who had sufficient international stature, were knowledgeable about the region, and had the acumen to pull off such a sensitive assignment. The appointees were Belisario Betancur, former president of Colombia, Reinaldo Figueredo, former foreign minister of Venezuela, and Thomas Buergenthal, U.S. law professor and former president of the Inter-American Court of Human Rights. A staff of 36—22 advisers and researchers plus 14 forensic and other experts (all foreign)—was recruited to assist the Commission. When the truth commission began its work in July 1992, its first

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challenge was to establish a methodology. To alleviate the fears of potential witnesses and consistent with its nonjudicial character, the commission decided it was neither necessary nor appropriate to grant full due process rights to each accused wrongdoer. Nevertheless, because it felt it had no alternative but to name individuals in its report—to not do so, the commission stated, “would be to reinforce the very impunity to which the parties instructed the commission to put an end”15—at least minimal procedural and evidentiary guarantees had to be provided. Thus most of the information was gathered on a confidential basis, which meant that alleged wrongdoers did not have the opportunity to confront their accusers, but no findings were based on the testimony of a single source or witness nor on secondary sources such as reports from governments.16 To gather information, paid advertisements in the media invited all Salvadoran institutions and individuals to testify and written and oral invitations were extended to the parties. A central office was established in San Salvador, followed by offices in various departmental capitals.17 Local and international nongovernmental organizations provided voluminous documentation, as did foreign governments. The commissioners operated mainly in El Salvador, but made various trips outside the country, including to the United States, to interview government officials. Truth Commission Report The commission received over 22,000 complaints of serious acts of violence that occurred between January 1980 and July 1991 (7,000 were received directly from individuals, the rest through governmental and nongovernmental institutions).18 More than 60 percent of the complaints concerned extrajudicial executions, 25 percent forced disappearances, and 20 percent included torture. The report, released on March 15, 1993, describes in detail 30 cases, chosen to illustrate the pattern of violence on both sides throughout the years of conflict. Given the short period of time for its investigations, the commission focused on (1) individual cases that “outraged Salvadoran society and/or international opinion” and (2) series of cases revealing a “systematic pattern of violence or ill-treatment.” It also took into account its special responsibility to deal with the problem of impunity of army officers. The report attributes to the government side 12 cases of extrajudicial executions, three of enforced disappearances, three massacres of peasants by armed forces, and four cases of death squad assassinations. On the FMLN side, it describes the execution of 11 mayors, plus

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eight other extrajudicial executions (although in two of the cases of executions, the commission could not reach full agreement on responsibility) and one case of kidnapping. Among the most notorious events described were, on the government side, the assassination of Archbishop Romero in 1980, the massacre of over 500 people at El Mozote in 1981, the murder of six Jesuit priests, their cook, and her daughter in 1989 and, on the FMLN side, the killing of four U.S. marines in an affluent suburb of San Salvador in 1985. Although the report did not shed much new light on these events, by giving them the stamp of official acknowledgment, debate on their veracity and who was responsible finally ended.19 More far-reaching were the numerous recommendations made by the truth commission, including: •Dismissal from the armed forces or civil service of all persons named in the report •Disqualification from holding public office for 10 years of all those named in the report •Resignation of all members of the Supreme Court •Deconcentration of the power of the Supreme Court by removing from it responsibility for appointing and removing judges, licensing and disciplining lawyers, and dismissing members of the National Council of the Judiciary (the body responsible for nominating judges) •An investigation of “private armed groups” (a euphemism for death squads) •New legislation to guarantee due process in the criminal justice system, including measures to make the remedy of habeus corpus more effective •Ratification of various international human rights instruments, including the Optional Protocol to the International Convenant on Civil and Political Rights, and acceptance of the compulsory jurisdiction of the Inter-American Court of Human Rights •A fund to compensate victims of human rights abuses The truth commission did not recommend prosecution and punishment of those named in the report because it felt that the Salvadoran judiciary was incapable of delivering justice at the time. As stated in the report: Public morality demands that those responsible for the crimes described here be punished. However, El Salvador has no system for

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the administration of justice which meets the minimum requirements of objectivity and impartiality so that justice can be rendered reliably. [A] judicial debate in the current context, far from satisfying a legitimate desire for justice, could revive old frustrations, thereby impeding the achievement of that cardinal objective, reconciliation. That being the current situation, it is clear that, for now, the only judicial system which the Commission could trust to administer justice in a full and timely manner would be one which had been restructured in the light of the peace agreements.20

The Secretary-General hoped publication of the truth commission report would be “a watershed in the process of reuniting Salvadoran society” on the theory that “Salvadorans ha[d] to go through the catharsis of facing the truth” in order to put behind them the trauma of the war.21 The Security Council, for its part, issued a statement through its President underlining the need for the parties to comply with the recommendations.22 The government’s reaction to the report, on the whole, was dismissive. Two of the principal negotiators of the accords called it biased and in excess of the commission’s mandate.23 The members of the Supreme Court denounced it and said they had no intention of resigning.24 Defense Minister Ponce called the report “insolent,” and the military high command promised to take “legal measures against those it saw as promoting the destruction of the Armed Forces as an institution.”25 President Cristiani also accused the commission of exceeding its authority and claimed the report “[did] not respond to the wishes of the majority of Salvadorans who [sought] to forgive and forget everything having to do with that very sorrowful past.”26 He called for an amnesty immediately before the report was released to foreclose any possibility of those named being prosecuted, and legislation to that effect was adopted in the Assembly five days later by a vote of 47-9 with 13 abstentions. He also stated that he would comply only with those recommendations that “fell within his competence, were consistent with the Constitution, were in harmony with the Peace Accords and contributed to national reconciliation.”27 Nor was the FMLN entirely satisfied with the report. In a letter to the Secretary-General, the coordinator-general of the FMLN stated that, notwithstanding a number of reservations, the FMLN accepted responsibility for the events reported and pledged to fulfill the recommendations in the report.28 However, the FMLN conditioned its compliance on compliance by the government, and the leader of the one FMLN faction specifically named in the report, Joaquín Villalobos of the ERP, called the 10-year ban on holding public office “absurd and ridiculous.”29 The FMLN leadership as a whole expressed dissatis-

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faction with the “politics” that went into issuance of the report, although they were less critical than the government of its findings.30 The UN’s first response to the report was the Secretary-General’s expression of displeasure with the hasty amnesty: The adoption by the Legislative Assembly of El Salvador of an amnesty law by majority vote is, strictly speaking, an internal matter. . . . [However], in the Secretary-General’s view, it would have been better if the amnesty had been taken after a broad degree of national consensus had been created in favour of it.31

As with the ad hoc commission report, the UN was in the awkward position of having to decide whether it should push for full compliance with the recommendations more assertively than the parties themselves. It moved cautiously by first conducting a detailed analysis of the recommendations and the measures needed to implement them.32 It found, among other things, that: •only 10 military officers named in the truth commission report were not also named in the ad hoc commission report; •legislative action to disqualify those named from holding public office was not possible because it would affect essential provisions of the Constitution relating to political rights and conflict with international human rights instruments. The only way of realizing this recommendation, therefore, was a political decision “possibly in the form of an undertaking adopted within COPAZ or an agreement by COPAZ itself urging the persons named to refrain from holding or applying for any public post”; •the recommendation calling on the current members of the Supreme Court to resign was not worded in such a way as to make it binding on the government of El Salvador—its implementation depended entirely on the members of the Court; and •appointment and removal of judges by the National Council of the Judiciary—the most important recommendation on deconcentrating the Supreme Court’s powers—would require a constitutional amendment. On the thorny issue of dismissal and disqualification, which raised concerns for both parties, the UN took the position that if COPAZ agreed that these recommendations should not be implemented, the Secretary-General would not treat them as violations of the accords. On matters involving constitutional reforms, he noted the need for ratification by two successive legislatures and therefore emphasized

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the importance of action during the lifetime of the sitting Legislative Assembly. Since the executive branch cannot initiate constitutional reforms (the initiative must come from 10 members of the assembly), the Secretary-General urged the president to use his leverage with ARENA deputies. On matters requiring action by organs other than the executive branch, the Secretary-General simply reiterated the commission’s admonition that the government “must take the necessary action and initiatives to ensure that the recommendations are put into practice.”33 Assessment of the Process The impact of the truth commission report has been decidedly mixed. The first and most obvious outcome was to end debate on some of the incidents it described, which were well-known but never officially acknowledged. Second, assigning “intellectual” responsibility for these acts to senior officials or leaders was a step in breaking down the wall of impunity that had developed as Salvadoran society became more militarized. The too-hasty amnesty, however, undermined the impact of the report. The “catharsis” the Secretary-General hoped the truth commission would generate was not possible with so little political or public debate about the report’s implications. The problem was exacerbated by poor dissemination of the findings. What most people know about the report comes from the media which, at least initially, were dominated by the negative reactions from the military, the government, and the judiciary. All citizens could get copies of the 250page document, but since there was no debate about the amnesty, there was no particular reason for people to seek details about its contents. ONUSAL sought to disseminate the report in an accessible form, as did several nongovernmental organizations, but its full implications are still not widely known or understood. The recommendations themselves have been implemented haltingly and only partially. Even the relatively mild personal sanctions were not implemented in all cases: The members of the Supreme Court did not resign, various named civil servants remained in their posts, and members of FMLN faction named in the report participated in the elections and won seats in the assembly. The UN belatedly began pushing hard for implementation of the structural recommendations in late 1993, but those requiring constitutional amendments were not adopted before the end of that legislative term. As a result, the deepest reforms to the justice system recommended by the truth commission, including deconcentration of the power of the Supreme Court, cannot be implemented until at least 1997, since constitution-

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al amendments require ratification by two successive legislatures.34 Even the investigation of death squads, to which the truth commission attached high priority, was not initiated until nine months after the recommendation was made, and only in response to a spate of suspicious killings in late 1993.

JOINT GROUP FOR THE INVESTIGATION OF POLITICALLY MOTIVATED ILLEGAL ARMED GROUPS

Overview The truth commission reported that “one of the most horrendous sources of the violence which swept the country in recent years was the activity of private armed groups which operated with complete impunity.”35 The nature of the phenomenon was never well understood, but it was thought that these groups had connections to El Salvador’s public security forces dating back to at least 1979. The activities of death squads peaked during the war and subsided throughout the peace process, although few doubted that the squads still existed when the truth commission issued its report. From 1991 until the middle of 1993, overt death squad activity was rare. From August to November 1993, however, ONUSAL received 47 complaints of possible political homicides, prompting it to announce in its ninth report that “illegal armed groups known as death squads had been reactivated.”36 The Secretary-General, therefore, instructed the director of the human rights division of ONUSAL to assist the government of El Salvador in carrying out the investigation recommended by the truth commission.37 Following a trip by Undersecretary-General Marrack Goulding to El Salvador, a “joint group for the investigation of politically motivated illegal groups” was established, composed of two independent nominees of President Cristiani (Dr. José Leandor Echevarría and Dr. Juan Jerónimo Castillo), the human rights ombudsman and the director of the ONUSAL’s human rights division. The group was formally established on December 8, 1993, with a mandate to investigate the activities of “illegal armed groups” from January 16, 1992 (when the peace accords were signed) to the present. It was to report its findings and recommendations by June 8, 1994.38 The group was granted a two-month extension and issued its report at the end of July. Relying heavily on documents declassified by the U.S. government in 1993, the joint group was able to uncover abundant information about the death squads throughout the 1980s and up to 1991. During those years, they were closely connected to the

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three principal police bodies—the national police, the national guard, and the treasury police—as well as to the armed forces.39 The joint group confirmed that groups still existed after 1991, but said that the connections to public security forces were much looser and that on the whole the Salvadoran state was seeking to suppress the death squads. Nevertheless, the joint group found that illegal armed groups continued to operate under the protection of some members of the armed forces and national police, and that the justice system “continued to provide the margin of impunity these structures require.” Individuals were not named publicly because the group decided the data in its possession did not “have the force of full evidence that would make it possible to point to specific responsibilities.”40 Its main recommendation was the creation of a special unit to continue the investigations within the criminal investigation division of the national civil police. It also requested that the human rights ombudsman monitor the investigation of murders in which a political motivation seemed to exist, and recommended a “purification” by the Supreme Court of all magistrates and judges who, according to the evaluations of the National Council of the Judiciary, were involved in legal infractions or professional misconduct. Assessment of the Process The fact that the group was established at all is significant given the sensitivity of the issue and the suspected links of death squads to state officials and members of the wealthy elite.41 It did seem to have a dissuasive effect, at least during the election campaign; beyond that, assessments of how “successful” it was depend on how success is defined. When the group began its work, it was generally thought that the death squad phenomenon was more manageable than it had been in the 1980s, primarily because the purge of the army and disbandment of the other security forces meant there was less “institutional cover” for these groups.42 Nevertheless, there was considerable doubt that the joint group would be able to go much further than the truth commission in rooting out the problem. Optimists hoped individuals would be named, while skeptics would have settled for an “honest effort” that succeeded in promoting “reflection and thought.”43 Skepticism about the capacity of the group to get to the heart of the problem stemmed from a number of factors. First, it was unlikely that any more information would be uncovered that was not already available to the truth commission, especially since the amnesty following the report of the latter may have made people less forthcoming.44

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Second, all decisions had to be by consensus, which ensured slow progress, given the composition of the group. The governmentappointed lawyers lacked human rights experience and, though independent, were not entirely impartial (although one of the government representatives, Echeverría, was a member of the business elite and perceived by some as an ally of Cristiani in his willingness to confront the military45). The human rights ombudsman was constrained by his position (see Chapter 6 for a full discussion of the ombudsman’s office) and the lone foreign member was in an awkward position, given his other role as director of ONUSAL’s human rights division, even though he participated in a personal capacity. In the end, the group did not meet the hopes of the optimists but exceeded the expectations of the skeptics by drawing firm conclusions about cases of death squad activity “directed, backed, covered up or tolerated by members of the military or police, the judicial organ or the municipal body.”46

UNCOVERING THE TRUTH: LESSONS FROM EL SALVADOR

The combined experience of these human rights investigative commissions in El Salvador provides a number of important lessons. First, it illustrates some of the advantages and disadvantages of delegating sensitive issues in peace negotiations to be dealt with later by ad hoc bodies. On the positive side, the decision to create the ad hoc commission broke the deadlock in the negotiations on the purge of the military. Also, empowering the truth commission to make binding recommendations opened the door to broader judicial reform than the parties specifically agreed to.47 On the other hand, these post-agreement devices can be risky if their mandate is not clear. The accords were negotiated between the FMLN leadership and the executive branch of government, but in consultation with those most affected by the terms of the peace agreement. Referring some of these details to ad hoc bodies produced awkward results; for example, the recommendations of the truth commission directed at the Supreme Court, over which the executive branch had minimal control. This is not to say that all surprises are necessarily counterproductive—a strength of the ad hoc commission process was precisely that it exceeded expectations—but that the UN may find it difficult to demand compliance with recommendations or proposals that throw off the equilibrium the parties sought to establish in their negotiations.48 A second, more fundamental issue raised by these commissions concerns the complex relationship between uncovering past human

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rights abuses and promoting future reconciliation. Some argue that the best way to promote peace and reconciliation following conflicts characterized by massive human rights violations is to avoid dwelling on the past. Others would argue that true reconciliation is not possible unless the truth about the past is revealed and the responsible individuals prosecuted and punished.49 What happened in El Salvador fell between those extremes: The truth about the past was uncovered, individuals responsible were identified—some were sanctioned, but none were prosecuted or criminally punished. Does this strike an appropriate balance? It probably would have in El Salvador if the investigative commissions had generated the “catharsis” the Secretary-General hoped they would. An argument for prosecuting human rights offenders is to reinforce the principle of accountability by demanding an official accounting for wrongs that occurred.50 Judicial proceedings are one way of achieving that goal,51 but it can be served in other ways if the wrongdoing is acknowledged— at least by those who have responsibility for ensuring it does not happen again. In some circumstances, it may be necessary to sacrifice pure justice for social peace, but the trade-off must be implemented in a way that is acceptable to society as a whole, including the victims of injustice.52 Otherwise, the social peace may prove fleeting. Thus there is no compelling reason to second-guess the judgment of the FMLN, the Catholic Church, and some human rights organizations, who criticized the haste but not the principle of the amnesty. But there is a danger in sweeping these matters under a rug, especially when they are a continuing source of tension. The main purpose of these commissions was to allow Salvadoran society as a whole to come to terms with its past. Unfortunately, given the way the processes unfolded, it is not clear that goal has been achieved. The delays in purging the military and the fact that some senior officers left on their own terms undermined the symbolic value of civilians “purifying,” and thereby asserting control over the military. The amnesty for those named in the truth commission report was too hasty and granted without any political or public debate. The Joint Group avoided assigning any individual responsibility whatsoever and, although the institutional recommendations it made are slowly being implemented, the assassinations of several FMLN leaders remain unresolved. A third lesson, related to the second, concerns the relative merits of using locals as opposed to foreigners in this type of exercise. In retrospect, staffing the ad hoc commission with Salvadoran citizens was wise because critics were unable to impugn the process as unjustified interference in sovereignty. By way of contrast, the truth commission report was attacked as the work of outsiders trying to destroy the state,

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a criticism that may have undermined the value of the report as a vehicle for reconciliation. On the other hand, a great deal of the success of the ad hoc commission is owed to the courage and integrity of the individual commissioners, who refused to censor themselves—a factor that cannot always be counted on in these very difficult situations. Selecting high-profile foreign “untouchables” is a more certain way of ensuring a serious investigation and reassuring witnesses concerned about confidentiality. Furthermore, relying on foreigners is consistent with the principle of international accountability for human rights, one of the central themes of the UN operation in El Salvador. As a mixed body, composed of locals and foreigners, the joint group may be the best model, although its experience indicates that more important than the mix are the circumstances and the individuals chosen. Finally, the experience of these commissions raises important questions about the dilemma the UN faces when neither party is pushing hard for implementation of a particular aspect of a peace agreement. The government and the FMLN were ambivalent about the merits of aggressive implementation of the recommendations contained in the ad hoc and truth commission reports. Few thought the three Salvadoran civilians on the ad hoc commission would have the courage to recommend dismissal of the entire senior staff of the Salvadoran military establishment, and many were surprised that the truth commission recommended reforms to the justice system (starting with the resignation of the entire Supreme Court) that went well beyond what was agreed in the accords. Both the government and at least some elements within the FMLN were genuinely worried that these far-reaching measures would generate a backlash and jeopardize the entire peace process. In these circumstances, should the UN insist on implementation? Normally, the UN should not second-guess the apparent will of the parties in consent-based operations. But for three reasons, there may be exceptions to the rule. First, as a peace process progresses, the bargaining power between the parties shifts. Implementation of complex agreements should not turn on which party happens to have leverage on a particular issue at a given time. In the case of El Salvador, once the FMLN disarmed, they had little bargaining power left and therefore had to rely on the UN to maintain pressure on the government to fulfill its obligations. Second, the parties themselves may change over the life of a peace process. In El Salvador, a new president and a new administration were installed before the accords were fully implemented, and the cohesiveness of the FMLN gradually eroded. Given the circumstances, whose will counts when deviations from the accords are contemplated? Third, the signatories to complex peace accords

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are not the only relevant actors in a process designed to transform a society. In El Salvador other political parties, other government organs, and civil society all had a stake in the peace process. It would be perilous for the UN to endorse deals that suited the interests of the parties narrowly defined, but which were opposed by actors on whom the success of a peace process depends. Nevertheless, the UN cannot be unduly rigid in the name of “loyalty to the mandate.” Because circumstances change, flexibility is sometimes called for. When to show this flexibility is a matter of political judgment but a good rule of thumb for the UN is to seek as broad a local consensus as possible when deviations from the letter of peace accords are contemplated or gaps need to be filled. “Deals” to that effect should be struck within representative bodies rather than between the parties narrowly defined. COPAZ was such a body in El Salvador and the UN used it to advantage in dealing with the truth commission recommendations on dismissal and disqualification from public office. The mandate and political role of COPAZ are taken up in the next section, on enhancing participation in the political and other aspects of the public life of the country.

NOTES 1. Peace Agreement, [hereinafter cited as the Chapultepec Agreement], The Path to Peace, pp. 49–50. 2. Center for International Policy, “Salvadorans Nearing Agreement on Armed Forces,” April 22, 1991, p.2. 3. Interview with senior UN official, New York, April 1993. 4. Chapultepec Agreement, Chapter I(3)(g), The Path to Peace, p. 51. 5. The accords do not stipulate whether the report should have been public, but upon reading it President Cristiani felt, and the Secretary-General agreed, that confidentiality was necessary. Interview with President Cristiani, El Salvador, January 25, 1994. Although it became an open secret that many senior members of the military establishment were named, including the minister of defense and his deputy, the full list was never publicized. 6. To drive home the importance of full compliance with the report, shortly after the agreement on the timetable was reached, U.S. Chairman of the Joint Chiefs of Staff General Colin Powell visited El Salvador to “read the riot act” to the military high command. Interview with foreign diplomat, El Salvador, August 1993. 7. S/25078 (Jan. 9, 1993). Of the 102 officers identified, 87 were properly transferred or retired, seven were appointed military attachés to embassies abroad, and eight remained in their posts pending appropriate steps in the “period of transition”—i.e., during the remainder of Cristiani’s mandate. The Secretary-General accepted the decisions on the 87, but not the other 15 and requested President Cristiani to adopt measures “to regularize the situation” as soon as possible.

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8. He reported to the Security Council that the government’s plan, when implemented, “would bring it into broad compliance with the recommendations of the ad hoc commission.” S/25516 (April 2, 1993). The decisive moment for President Cristiani may have come in February 1993 when the Clinton Administration informed him it would withhold military aid pending full compliance with the ad hoc commission report. Margaret Popkin, George Vickers, and Jack Spence, Justice Impugned (Cambridge MA: Hemisphere Initiatives, 1993), p. 14, fn. 8. 9. Negotiators on both sides and UN officials confirmed in interviews that few people expected such a far-reaching report from the ad hoc commission. Interviews with Dr. Oscar Santamaría, El Salvador, August 16, 1993; Ana Guadalupe Martinéz, El Salvador, August 16, 1993; and a senior UN official, New York, April 1993. 10. Interview with FMLN representative, El Salvador, January 1994. It should be emphasized that the Salvadoran military was not necessarily a unified bloc at the time. Some of the younger officers may have seen the purge as a welcome opportunity to supplant the tandona that had dominated the military for many years. 11. The UN, United States, and “Four Friends” all agreed that full compliance was essential but to get there, pragmatism was necessary, since it would be counterproductive to push President Cristiani to do the politically impossible. Interview with two UN diplomats, New York, 1993. 12. Even for those officers who were known to have been included on the list, the basis for their removal was never public. This face-saving device meant none were publicly accused of having committed human rights violations— they could have been removed for the lesser offenses of “unprofessionalism” or “lack of adaptability to the new situation of peace.” 13. UN Press Release, SG/SM/4942. Statement of the Secretary-General on release of truth commission report (March 15, 1993). 14. Interview with senior UN official, New York, April 1993. 15. S/25500 (April 1, 1993), p. 25. 16. S/25500 (April 1, 1993), p. 24. 17. Some human rights groups were critical of this aspect of the truth commission process, arguing that its central office was in an inaccessible part of San Salvador, its public relations efforts were inadequate, and it started working out of regional ONUSAL offices too late. Interview with representative of human rights group, El Salvador, August 1993. 18. S/25500 (April 1, 1993), p.43. 19. Americas Watch, Accountability and Human Rights: The Report of the United Nations Commission on the Truth for El Salvador, Vol. V, Issue No. 7 (August 10, 1993), p. 2 [hereinafter cited as Accountability and Human Rights]. Lawyers Committee Report, p. 67. The most important new finding of the truth commission report was the attribution of responsibility for the murder of the Jesuit priests to Colonel Réne Emilio Ponce (who became minister of defense), Colonels Zepeda and Montano (who became vice ministers of defense), General Bustillo, and Commander of the Army First Brigade Colonel Elena Fuentes. It also revealed that Colonel Manuel Antonio Rivas Mejía, the chief investigator on the case, was involved in its cover-up. 20. S/25500 (April 1, 1993), p. 178. 21. UN Press Release, SG/SM/4942 (March 15, 1993).

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22. Statement of the President of the Security Council, S/25427 (March 18, 1993). 23. Media interviews with Dr. Oscar Santamaría and General Mauricio Ernesto Vargas, quoted in Lawyers Committee Report, p. 69. 24. Statement signed by 15 Supreme Court officials on March 22, 1993, pp. 1–12 (quoted in Americas Watch, Accountability and Human Rights, p. 21). Supreme Court President Mauricio Gutierrez Castro, the most vociferous critic of the report, said “only God can remove me from my position—by taking my life.” Tracy Wilkinson, “Salvadoran Leader Blasts UN Report,” Los Angeles Times, March 19, 1993. 25. Quoted in El Rescate, “Report from El Salvador,” March 22–29, 1993. 26. Quoted in Accountability and Human Rights, p. 20. 27. S/25812 (May 21, 1993), para. 54. 28. S/25812 (May 21, 1993), para. 54. 29. Foreign Broadcast Information Service, March 22, 1993, p. 14 (quoted in Accountability and Human Rights, p. 23). 30. Interview with FMLN representative, El Salvador, January 1994. Americas Watch reports that the ERP felt it was unfairly singled out because its leaders were the most forthcoming, but that it was not clear evidence of ERP abuses came only or even primarily from “confessions” by the faction’s senior leaders, or that the ERP provided more information than the other factions. Accountability and Human Rights, p. 12. 31. UN Press Release, SG/SM 4950 (March 24, 1993). 32. The outcome of the analysis is contained in S/25812 (May 21, 1993), Add. 3 and Annex. 33. In a later report analyzing implementation of the truth commission report, the UN noted that a number of other recommendations concerning the Supreme Court would also require constitutional amendments. See S/26581 (October 14, 1993), Annex, paras. 39, 43, 44, and 56. By then, the Government had clearly stated it could not implement the recommendations involving constitutional reforms nor those that would have to be initiated and carried out by the Supreme Court. 34. For a full discussion of this issue, see Chapter 6. 35. Truth commission report, p. 180. 36. S/1994/47 (January 18, 1994), para. 97. In the human rights division’s own investigation of the phenomenon, it found no indication of state involvement in the killings. The political violence was directed at the “democratic political system” rather than at particular social sectors or political groupings, ONUSAL concluded, reflecting “the intransigence of fringe elements attacking the Salvadoran nation as a whole, all national political forces and the democracy proposed in the peace agreements.” S/1994/47 (January 18, 1994), paras. 15 and 16. 37. S/26689 (November 3, 1993), Letter from the Secretary-General to the President of the Security Council. In October, the government had created an interinstitutional commission and an interinstitutional investigation group to investigate the possible resurgence of illegal armed groups, but ONUSAL deemed it insufficiently independent. S/26790 (November 23, 1993), para. 11, and S/1994/47 (January 18, 1994), para. 21. The commission was composed of the minister and chief of staff in the office of the president, and representatives of the office of the attorney-general, the national civil police, the

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criminal investigation commission, the state intelligence agency, and the presidential commissioner for human rights. It was assisted in its investigations of some of the cases by police bodies from the United States, UK, and Spain. 38. S/26865 (December 11, 1993), Annex, para. 2. 39. Report of the joint group for the investigation of politically motivated illegal armed groups, S/1994/989 (October 22, 1994), p. 19 [hereinafter cited as the joint group report]. 40. Instead, the evidence gathered was turned over, in a restricted annex, to the competent Salvadoran authorities, the National Counsel for the Defense of Human Rights and ONUSAL. Joint group report, p. 29. 41. The ONUSAL human rights division called its establishment “a wholesome example of political transparency, commitment to law and order and an institutional will to carry out an effective and independent investigation, which should be assessed in a positive light by domestic political forces and the international community.” S/1994/47 (January 18, 1994), para. 100. 42. Interview with Salvador Samoyoa, El Salvador, 20 January 1994. Interview with ONUSAL official, El Salvador, January 1994. 43. Interview with FMLN representative, El Salvador, January 1994. 44. Interview with senior ONUSAL official, El Salvador, January 1994. 45. Interview with FMLN representative, El Salvador, January 1994. 46. Joint group report, p. 27. 47. See Chapter 6. 48. See Timothy Wilkins, “The El Salvador Peace Accords,” in Multidimensional Peacekeeping: Lessons from El Salvador and Cambodia, M. Doyle, I. Johnstone, and R. Orr, eds. (forthcoming, 1995). 49. This is part of the rationale for the establishment of a war crimes tribunal for the former Yugoslavia, a conflict characterized by summary executions, “ethnic cleansing,” torture, and rape. It also motivated calls for a war crimes tribunal in Rwanda, where the UN has leveled accusations of genocide. For an interesting discussion of the problems inherent in trying to prosecute war criminals while simultaneously negotiating a peace settlement, see A. D’Amato, “Peace versus Accountability in Bosnia,” American Journal of International Law, Vol. 88, No. 1 (July 1994), pp. 500–506. See also T. Meron, “The Case for War Crimes Trials in Yugoslavia,” Foreign Affairs (Summer 1993), pp.122–135. For legal analyses of the mandate and jurisdiction of the tribunal, see T. Meron, “War Crimes in Yugoslavia and the Development of International Law,” American Journal of International Law, Vol. 88, No.1 (January 1994), pp.78–87; J. O’Brien, “The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia,” American Journal of International Law, Vol. 87, No. 4 (October 1993), pp. 639–659. The former Yugoslavia’s situation has generated renewed interest in the establishment of a permanent international criminal court. See report of the working group on the draft statute for an international criminal court, annex to report of the international law commission on the work of its 45th session UN/GAOR, 48th Sess, Supp. No. 10 at 255, UN Doc. A/48/10 (1993). See also M. Cherif Bassiouni and Christopher L. Blakesley, “The Need for an International Criminal Court in the New International Order,” Vanderbilt Journal of Transnational Law, Vol. 25 (1992), p. 151. 50. Another reason, of course, is to deter future offenders, which is perhaps less important in the context of a peace process like El Salvador’s, where the reforms to the justice system are designed to provide that future deterrent.

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51. Amnesty International takes the position that cutting off judicial proceedings with pre-conviction amnesties undermines the goal of “healing the wounds and revealing the truth in a society.” However, it takes no position on pardons granted after a conviction, “recognizing that [postconviction pardons] may be deemed in the interests of national reconciliation after a period of violence and repression.” Amnesty International, Peace-keeping and Human Rights (January 1994), p. 25. 52. New York Times, August 4, 1994, editorial.

5 ENHANCING PARTICIPATION IN PUBLIC LIFE

Various aspects of the Salvadoran peace process were meant to expand participation in political, economic, social, and other aspects of public life.1 First and foremost was reform of the electoral system and the holding of fair elections toward the end of the peace process.2 Electoral participation, one of the rights enumerated in the Universal Declaration of Human Rights and other instruments,3 however, was not conceived as the only means of creating a more participatory system of governance.4 In addition, COPAZ was established as a mechanism for all political parties to oversee and facilitate execution of the accords, parallel to the UN. For economic matters, a forum for economic and social consultation was established, principally to include labor and other civic organizations in economic and social decisionmaking and to forge a more cooperative relationship between labor, business, and government.5 These consultative bodies, complemented by perennially active nongovernmental organizations, were designed to provide new channels for historically disaffected groups to participate in the political, social, and economic development of the country.

POLITICAL RIGHTS AND THE ELECTIONS

In reflecting on the long-term impact of the Salvadoran peace process, the significance of converting the FMLN from a military force to a legitimate political party should not be underestimated. It meant that the insurgent movement would operate within rather than outside the constitutional framework and, after a decade of bitter civil war, could legally challenge the government in an election campaign on relatively equal footing.6 50

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Because the Salvadoran Constitution prohibits “armed” political parties, the FMLN was granted the status of “political party in formation” in July 1992 pending its complete disarmament, initially scheduled for October 1992. After the recalendarization agreed to in the context of the ad hoc commission process, ONUSAL certified in December 1992 that FMLN weapons inventories had been destroyed. However, when undisclosed FMLN weapons were discovered in Nicaragua five months later, President Cristiani sent a letter to the Secretary-General threatening to decertify the FMLN as a political party.7 The Secretary-General acknowledged the gravity of the breach (the Security Council described it as the most serious to date), but cautioned against suspending the FMLN’s status since its “transformation into a political party and the full reintegration of its members . . . into the civil, political and institutional life of the country, are at the very core of the Peace Accords.”8 Subsequently, various other caches were disclosed and destroyed up until August 1993, when ONUSAL again certified that the FMLN military structure was fully dismantled, paving the way to its participation in the elections. Although not intended to be the centerpiece of the accords, the Secretary-General hoped the March 1994 elections would be the culmination of the peace process. They were called the “elections of the century,” because votes for president, the legislative assembly, municipalities, and the Central American Parliament all came (coincidentally) at a critical moment in the peace process. The UN’s mandate to verify the elections stemmed not from the accords but rather from a request by the government (supported by the FMLN) in January 1993.9 An electoral division, that later reached a peak of 900 personnel, was established to carry out the task. Conduct of the Elections In retrospect, the elections were not the “culmination of the peace process,” in part because institutional reforms called for in the accords were not completed and in part because of controversy surrounding registration, the campaign, and voting. At the heart of the controversy was the Supreme Electoral Tribunal (TSE), which replaced the Central Elections Council (CCE) as the body in charge of the electoral process. Composed of one magistrate representing each of the four main political parties represented in the assembly (ARENA, PCN, PDC, and Democratic Convergence) and one president elected by the (ARENA-dominated) assembly, the TSE was overseen by a board of vigilance, consisting of representatives from all political parties including the FMLN. In addition, departmental and municipal election boards

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were set up, composed of all political parties taking part in the elections.10 Concerns about the capacity of the TSE to conduct free and fair elections first arose in the context of the registration of voters. A study conducted by the UNDP and ONUSAL revealed that 786,000 people, or 27 percent of eligible voters, were not registered or did not have electoral cards in August 1993.11 To register, each applicant had to complete a form at a local TSE office; the forms were then transmitted to TSE headquarters in San Salvador. Unfortunately, delays in processing—either because supporting birth certificates were not sent quickly enough from mayoral offices or for other reasons—meant that the 30-day deadline required by law was often not met. Furthermore, applicants were not notified directly if their applications were accepted so many had to return to TSE offices repeatedly to determine whether they had been placed on the electoral lists.12 Thanks to a concerted—if belated—effort by the TSE, supported by (and under pressure from) USAID, UNDP, UNHCR, and other organizations, the applications of all but 74,000 people were validated and placed on the electoral lists by the close of registration on January 14, 1994. Although only 2.8 percent of registered voters, the 74,000 missing names were concentrated in the former conflict zones, where the left was expected to do better than the ruling ARENA party in the elections.13 Furthermore, not all of those on the lists received their voting cards, even though they were meant to be available in the district TSE offices from January 19. In the end, ONUSAL estimated that of the 2,700,000 names on the electoral lists, approximately 2,350,000 were in possession of voting cards on election day.14 Six parties and one coalition registered for the presidential election: Nationalist Republican Alliance (ARENA); Christian Democratic Party (PDC); the coalition composed of the Democratic Convergence (CD), the National Revolutionary Movement (MNR), and the FMLN; the National Solidarity Movement (MSN); the National Unity Movement (MU); the Authentic Christian Movement (MAC); and the National Conciliation Party (PCN). The three main presidential candidates were Armando Calderón Sol for ARENA, Rubén Zamora for the CD, and Fidel Chávez Mena for the PDC. The coalition parties ran separately in the Legislative Assembly elections, but the FMLN and CD ran together in some municipal elections. The campaign itself was reasonably violence-free, although it began badly, with the murder of two high-level FMLN members in October and a third in December 1993. Fortunately, the establishment of the joint group seemed to have had a dissuasive effect and no further political assassinations were reported. There were some incidents

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of violence at campaign rallies—though no fatalities—as well as complaints about the destruction of campaign propaganda and hostile political advertising by private groups.15 “Defamatory” statements were quite common in campaign speeches, particularly by ARENA16 and there was a notable imbalance in access to the media, due in large measure to ARENA’s huge financial advantage over the CD and FMLN.17 Nor was the voting itself problem-free. The most galling incident from the FMLN’s point of view was the decision by the TSE to relocate four polling stations from their respective municipalities to the departmental capital of Chalatenango, in contravention of the electoral code. The TSE maintained its position up to the night before the elections, when it ruled (under pressure from ONUSAL) that voting would be held simultaneously in each municipality and the department capital.18 Problems on election day reported by ONUSAL included a shortage of public transportation and confusion about where to vote at each site. The UN estimated that at least 25,000 people with voter cards were unable to vote; other observers estimated as many as 87,000.19 Taking into account the 74,000 applicants whose applications to vote were rejected, some portion of the 350,000 discrepancy between those on the electoral lists and those with voter cards and as many as 87,000 people who showed up at the polls but did not vote, a figure of 300,000 is not an unreasonable estimate of those who wanted to vote but could not.20 Moreover, of those who could have voted, a surprisingly large percentage chose not to. Voter turnout in the first round was 55 percent. Since the leading presidential candidate did not win an absolute majority (Calderón Sol received 49.03%), he squared off against Rubén Zamora (who won 24.9%) in a second round. Voter turnout in the run-off, won by Calderón Sol by a margin of approximately 68 percent to 32 percent, was 46 percent. These figures are an improvement over the 1991 elections but a lower turnout than either the 1982 or 1984 race. Of the 84 seats contested in the assembly elections, ARENA won 39, the FMLN 21, the PDC 18, the PCN four, and one each for the MU and CD. ARENA’s 39 seats combined with the PCN’s four gives the right a very slim majority in the assembly. ARENA also won 206 out of 262 mayoralties, with only 16 going to the FMLN. Impact of the Elections on the Peace Process The experience of El Salvador illustrates the danger of overemphasizing the significance of elections in a complex peace process. They did

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little to restore the confidence of the citizenry in the electoral system, confidence that had been shaken after many years of limited suffrage, electoral fraud, and violence. Nor did they did advance the peace process much, beyond providing the FMLN with its first chance to participate on relatively fair terms. The peace accords were not a major issue in the campaign;21 convincing people that the peace process would continue was a theme but not a major point of difference between the parties.22 Issues that may have divided ARENA from the left, such as the future of the police or reform of the judiciary, were too detailed to capture the imagination of voters preoccupied with the economy. Furthermore, differences among the FMLN factions made it difficult for them to mount a cohesive campaign based on fulfillment of the accords. The two main protagonists, the Popular Forces of Liberation (FPL) and the People’s Revolutionary Army (ERP), had quite disparate visions for the future of El Salvador.23 The FPL was closer to the FMLN’s radical roots, emphasizing consolidation of the left’s popular base. The ERP, on the other hand, embraced social democracy and was more willing to forge alliances with the middle class and entrepreneurs. The differences erupted in a public disagreement over the choice of presidential candidate. The ERP proposed backing the centrist Abraham Rodríguez, a businessman and member of the ad hoc commission who was vying for leadership of the PDC at the time (he lost to Chávez Mena). The FPL, on the other hand, favoured Zamora, the leader of the more leftist CD party. Eventually all five FMLN factions endorsed Zamora, but ERP and RN support was given begrudgingly.24 Additionally, the irregularities in registration and voting undermined efforts to convince a skeptical population that the system had become more fair. Suspicions of bias on the part of the TSE poisoned the atmosphere and, although the irregularities did not affect the outcome of the presidential election (ARENA’s margin of victory of more than two to one was simply too large), the UN concluded that some results in the assembly and municipal elections could have been influenced.25 ONUSAL did not help the situation by quickly endorsing the first round of elections without simultaneously pointing out the problems that had to be remedied for the second round.26 In the intervening weeks, it put substantial pressure on the TSE to solve at least some of the organizational problems, but only 15,000 names could be added to the electoral rolls in the limited time available. Despite these drawbacks, the 1994 elections were the first in which all political forces in the country participated, marking a tentative step toward true multiparty democracy. The FMLN made a strong showing despite its lack of political experience and resources, and gained a sub-

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stantial foothold in the national assembly, although it fared badly in the mayoral campaigns. Irregularities in the elections prompted the FMLN and the UN to push for more substantial reform of the electoral system, including the introduction of a single identity document and depoliticization of the Supreme Electoral Tribunal. It is critical that these reforms be implemented in time for the next legislative elections, scheduled for 1997. Meanwhile, the capacity of FMLN to function as a credible opposition force has been set back by the split in its ranks, formalized in late 1994 when the ERP and RN left the movement, later to form a new Democratic Party. To a certain extent, therefore, the onus is on the governing ARENA party to behave consistently with the more plural political system the peace process has created.27 The real test of its commitment will come after ONUSAL departs and in the lead-up to the next legislative election in 1997 and presidential contest in 1999. As a key figure in the peace process, David Escobar Galindo suggests El Salvador’s true “elections of the century” may be in 1999, when Salvadorans must vote for a new president after five years of peaceful political struggle, and when the politicians on the left and right will have caught up to the “rhythm of change” the peace process is bringing about.28

CONSULTATIVE BODIES COPAZ

The National Commission for the Consolidation of Peace (COPAZ) is a critical feature of the peace process. Composed of two representatives of the government (including one from the armed forces), two from the FMLN, and one from each of the parties represented in the national assembly, COPAZ is, in the words of one commentator, a “makeshift attempt at a transitory government.”29 Its mandate is to oversee the implementation of the accords, parallel to the UN, and it functions as a “mechanism for the monitoring of and the participation of civilian society in the process of changes resulting from the negotiations.”30 COPAZ does not have legislative or executive powers, but the parties are obliged to consult it before adopting decisions or measures relating to the relevant aspects of the peace agreements. It can also make binding recommendations relating to the accords, and it drafts legislation for adoption by the National Assembly. COPAZ served a particularly useful purpose in the negotiation of the accords. The decision to create COPAZ facilitated the talks by reas-

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suring an uncertain FMLN that it would have a channel for participating in the political process before the FMLN became a political party. Furthermore, because the parties knew unsettled matters could later be dealt with in COPAZ, not every detail of the negotiations had to be worked out in the initial talks. In the implementation phase, COPAZ provided a forum for dialogue and, on some important legislation, consensus-building. Legislation it drafted on the electoral code, the National Council of the Judiciary, the Career Judicial Service, and on private weapons and security bodies was adopted by consensus in the National Assembly. More fundamentally, COPAZ helped manage the transition period prior to the elections by serving as the only political institution that embodied the full scope of Salvadoran politics.31 Able in theory to speak for El Salvador as a whole, COPAZ was used by the UN to deal with bargains struck by the parties on matters not explicitly covered by or deviations from the letter of the accords. The decision not to insist on compliance with the truth commission’s recommendations concerning dismissal or disqualification from office of those named in the report is a good example. With the government demonstrating reluctance to dismiss its own officials and the FMLN expressing doubts about the legality of the prohibition against running in the elections,32 the UN was in a quandary. The path of least resistance would have been to ignore both recommendations, but the UN was reluctant to simply absolve those named. Instead, the Secretary-General took the position that “if the parties and Salvadoran society at large (as represented through COPAZ, for instance) was to agree that specific provisions should not be implemented” he would not treat nonimplementation as a violation of the accords (emphasis added).33 In the event, some of the named members of the FMLN ran and won seats in the election, and at least one government official named in the report retained his position. Whether this decision was wise remains to be seen, but it does provide an important lesson on how the UN can use ad hoc representative mechanisms to manage the implementation of peace accords, without automatically deferring in each case to the will of the parties narrowly defined. COPAZ continued to operate after the elections, even though the national assembly became the main representative body in El Salvador. It can dissolve itself by a two-thirds majority vote of its members, although technically not until “implementation of the peace agreements has been completed.”34 Whether COPAZ ceased to be useful after the elections was a matter of debate in El Salvador; in August 1994 there was discussion about converting it into a “peace founda-

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tion” (whose mandate was not clear). Fortunately, it survived and may even outlive ONUSAL. COPAZ can still play a consensus-building role—among the five former factions of the FMLN as well as between the parties—and, more to the point, keep implementation of the peace accords on the forefront of the political agenda. Forum for Economic and Social Consultation The relative lack of detail in the accords on economic and social issues was accepted by the FMLN partly in the expectation that the reform of political structures would open up the system and help overcome the sense of exclusion felt by large sectors of Salvadoran society. President Cristiani made it clear from the beginning that the government would focus on building democratic institutions and opening “political space” for the FMLN but that disagreements over economic and social policy would be settled in the political process, not the peace talks.35 As a concession, the government agreed to the creation of a forum on economic consultation, composed of representatives of government, labor, and business, established: for the purpose of working out a set of broad agreements on the economic and social development of the country for the benefit of all its inhabitants. The consultation process shall be a sustained effort and shall be conducted in phases, bearing in mind that the aim is to reach some agreements that are to be implemented immediately to achieve stabilization, others that are designed to tackle the economic and social problems that will ensue from the end of the conflict and still others that are geared specifically to reconstruction.36

More specifically, the forum was to deal with the revision of labor legislation, the situation of disadvantaged urban communities, and “measures to alleviate the social cost of the structural adjustment program.”37 The objectives of the forum can be summarized as follows: to deal with economic readjustment in the aftermath of the conflict; to facilitate consultation and help forge a working relationship between the government, labor, and business sectors; and to strengthen labor rights. It failed in the first goal, had some success in the second and even more success on the third. Neither the private sector nor the government was willing to entertain any discussion of structural adjustment in the forum, which probably came as no great surprise to the FMLN.38 The FMLN secured language on structural adjustment in the Chapultepec Agreement, but it seemed unlikely that the government would relent on this issue later

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when it had stood so firm during the hard bargaining of the primary negotiations. Efforts to forge a more cooperative relationship between the three sectors started badly when, for the first five months, the private sector refused to even participate in the forum. Eventually pressure from ONUSAL and COPAZ compelled business leaders to join in October 1992, but their commitment was always questionable. Downplaying expectations about what the forum could achieve, ONUSAL’s human rights division pointed out that given El Salvador’s history and the relative lack of attention devoted to broad economic and social issues in the accords, it was unrealistic “to expect a tripartite process of concerted action by the State, the society and the business world that would be free of problems, tension and even crises. Consequently, the value of any concerted economic and social action must be judged . . . in terms of the capacity to identify them, work through them and resolve them through understandings and consensus arrangements.”39 By that standard, the forum was moderately successful, despite the strained working relations and short life. If nothing else, the give-and-take of dialogue lessened antipathy to the idea of unions.40 But the Forum did not give labor a significant voice on social and economic issues in the long-term. Private sector participation ceased in late 1993 and never resumed. A Labour Council was established in April 1994, with representatives of all three sectors, but it is presided over by the Ministry of Labour and is likely to have a narrower agenda than the Forum.41 The area in which the forum had greatest success was in consolidating labor rights, an issue that by default dominated its agenda. In February 1993 it was agreed that the ratification of the International Labour Organization Conventions would be dealt with, but progress was slow because the government firmly opposed ratification of any instruments that would legitimize public sector unions.42 Eventually, ONUSAL brokered an informal agreement, by which the labor movement dropped its insistence that all conventions be ratified in exchange for the commitment of the government to accept the involvement of the ILO in revising the Labour Code and other labor laws. Thereafter, progress was made on individual rights (following a visit by the ILO Committee on Freedom of Association to El Salvador), but when the discussion moved to collective rights and trade union freedoms in October 1993, the business sector suspended its participation in the forum.43 More good offices of Special Representative Ramirez-Ocampo led to agreement on all but nine of the 49 points under discussion in the forum. The government submitted a draft law to reform the Labour Code, which included most of the agreed-on

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points plus provisions on the disputed points that were not accepted by the labor sector.44 The law was adopted in April 1994.

ELECTORAL PARTICIPATION AND BEYOND: LESSONS FOR UN PEACE BUILDING

As recent events in Haiti, Angola, and elsewhere demonstrate, one reasonably inclusive election does not guarantee peace—let alone reconciliation. Although events in El Salvador are not comparable, they do confirm the basic lesson that, while a successful election is often critical to a peace process, it should not be seen as an end in itself in the aftermath of internal conflicts. The UN has a responsibility not to become overly focused on elections to the exclusion of other peace building measures. In El Salvador, when the “electoral moment” took over, the attention of the parties turned away from the accords,45 and elements in the country began to suggest there would be less need for the UN to monitor compliance after the formation of a new government. In this era of scarce resources, it is tempting for the UN to accept this logic and use elections as a convenient exit point from peacekeeping operations. In El Salvador, the UN wisely resisted this temptation. A second lesson from El Salvador is that representative bodies like COPAZ and the forum for economic and social consultation can facilitate the negotiation and implementation of peace accords designed to bring about major social and political transformations. Agreement to create these two bodies helped induce the FMLN to sign the accords even though its leaders were uncertain about how effectively they would be able to participate in the political process and even though they had achieved few of their economic goals in the peace talks. Unfortunately, COPAZ and the forum were more successful as devices for breaking the deadlock in negotiations than in carrying through on the agendas they were assigned. Because they lacked independent legislative and executive authority, concrete results were few. ONUSAL made the most of its role as an observer in COPAZ and even lesser role in the forum (eventually it had been invited as an observer), but could not compensate for these institutional weaknesses. An important peacemaking lesson, therefore, is for the UN to seek to maximize its power of initiative within such bodies. COPAZ and the forum did succeed in opening up dialogue among groups not used to dealing with each other as counterparts. With a push from ONUSAL, one hopes the interaction has generated a habit of dialogue and shared understandings about the requirements of

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consolidating peace. To a lesser extent, these bodies also helped build consensus on matters not covered by or adjustments to the accords, providing the UN with some flexibility in brokering “deals” that suited the interests of El Salvador as a whole and not just the parties narrowly defined. Moreover, these bodies created participatory opportunities for labor unions, student and professional organizations, women’s groups, the Church, human rights organizations, and others. Stronger local organizations both help decrease dependency on the UN operation while it is underway46 and can take over the UN’s role as monitor and “agitator” when it leaves.

NOTES 1. As pointed out in a UNDP-sponsored study of El Salvador, a “lasting peace requires the elimination of causes of war, including economic, social and political exclusion.” Margaret Popkin, “Human Rights, Development and Democracy: Experience of the U.N. in Post-Conflict El Salvador” (April 15, 1993), p. 4. 2. S/1994/47 (January 18, 1994), para. 67. 3. See Universal Declaration of Human Rights, Article 21; International Covenant on Civil and Political Rights, Article 25; and American Declaration of the Rights and Duties of Man, Article XX. Thomas Franck, in making the case for an emerging right to democracy in international law, argues that the right to self-determination, at least since the adoption of the International Covenant on Civil and Political Rights, has become a “principle of inclusion”: the right of “peoples in all states to free, fair and open participation in the democratic process of governance freely chosen by each state.” T. Franck, “The Emerging Right to Democratic Governance,” American Journal of International Law, Vol. 86, No. 1 (April 1992), p. 58. He also argues that recent developments in the General Assembly, though nonbinding, strengthen “the normative requirement of a participatory electoral process” by specifying the content of the right (at pp. 64–65). See General Assembly Resolution 45/150 (February 21, 1991) and General Assembly Resolution 46/137 (December 17, 1991). See also Franck’s discussion of legislative and jurisprudential developments at the regional level in Latin America, Europe, and elsewhere (at pp. 65–77). 4. For good discussions of “the right to participate,” see Domingo Acevedo “The OAS and the Protection of Democracy,” prepared for the InterAmerican Dialogue Project on Reconstructing Sovereignty in a Democratic Age (unpublished paper, December 31, 1993); and Greg Fox, “The Right to Political Participation in International Law,” Yale Journal of International Law (1992), p. 539. 5. In addition, the government agreed to take into account the recommendations and suggestions of the FMLN and “the various sectors of national life” in formulating its national reconstruction plan. For a good critique of the development and implementation of the plan, see Kevin Murray, Ellen Coletti, and Jack Spence, Rescuing Reconstruction: The Debate on Post-War Economic Recovery in El Salvador (Cambridge, MA: Hemisphere Initiatives, May 1994).

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6. As stated in the 9th report of the ONUSAL human rights division, “for the first time in the history of El Salvador in recent decades, the social forces which previously opposed the system will now participate in it through elections.” A/49/59 and S/1994/47 (January 18, 1994), para. 67. 7. Letter dated June 11, 1993 from the President of the Republic of El Salvador to the Secretary-General, reproduced in S/26005 (June 29, 1993), Annex IV. 8. S/26005 (June 29, 1993), para. 11. 9. Initially, opposition political parties and other states approached the UN about verifying the elections; the official request from the Government came later. S/24833 (November 23, 1992), para. 74. Earlier, the UN had declined to mount an electoral observer mission for the March 1991 legislative elections, preferring to concentrate on peacemaking and preparations for its human rights observation mission. National Democratic Institute for International Affairs, Response to United Nations General Assembly Resolution 45/150: Developing a United Nations Elections Assistance Capability (1991), p. 2. 10. When three parties—the FMLN, Democratic Convergence, and National Revolutionary Movement—formed a coalition for the purpose of some of the electoral contests, the TSE decided to reduce the number of representatives of the coalition parties on the boards to one. S/1994/179 (February 16, 1994), para. 7. This caused a major dispute between the TSE and the coalition parties which was resolved in favor of the coalition only when the UN voiced its concerns publicly, calling for representation of all political parties on these boards. 11. S/26606 (October 20, 1993), para. 10. 12. To solve these registration problems in the future, the FMLN has proposed creation of a single identification document for all purposes, including the elections, which would serve for the adult life of each citizen. This electoral reform proposal enjoys considerable support and was taken up by the new TSE after the 1994 elections. In early 1995 a presidentially appointed commission recommended issuance of a single identity document, but ONUSAL worries that given the need for legislative changes and the scope of the task, the reform may not be adopted in time for the 1997 elections. S/1995/220 (March 24, 1995), para. 42. 13. S/1994/304 (March 16, 1994). Interview with FMLN representative, El Salvador, January 1994. 14. S/1994/304 (March 16, 1994), para. 7. According to one report, approximately 300,000 of the 350,000 disparity between names on the lists and holders of voting cards were people who followed all the procedures to get cards but never received them. “El Salvador Elections 1994,” New Jersey Observer Delegation Report. The figure cited in a New York Times editorial is 340,000. “El Salvador’s Messed-up Elections,” New York Times, March 23, 1994, p. A14. The remainder are deceased persons whose names were never taken off the list and people who were registered twice. 15. S/1994/304 (March 16, 1994), paras. 14–15. 16. In one presidential campaign rally I observed, FMLN members were described as “terrorists.” Apparently use of this inflammatory language, which violated the electoral code, was a regular feature of the ARENA campaign. Interview with ONUSAL official, El Salvador, January 1994. The FMLN also engaged in mud-slinging, but less than ARENA because it was determined to project an image of responsibility in its first political campaign. Jack Spence,

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David Dye, and George Vickers, El Salvador: Elections of the Century, p. 26 (Cambridge, MA: Hemisphere Initiatives, July 1994) [hereinafter cited as Elections of the Century]. 17. One measure of the financial advantage is the amount each party was allowed to borrow from the government for its campaign, based on the number of votes won in the previous election: ARENA: U.S. $1.67 million; PDC: U.S. $1.1 million; and CD: U.S. $.17 million. New parties, like the FMLN, could borrow a total of U.S. $54,000. In addition, there was no limit on the amount parties could raise from private donors, which worked to the advantage of ARENA, whose supporters made up the wealthiest people in the country. This financial advantage enabled ARENA to dominate television advertising—the most expensive and the most effective campaign media. Elections of the Century, pp. 8–10. 18. The stated reason for the decision was to guarantee security, but it would also have made ARENA victories in those municipalities more likely given the distribution of supporters. Steve Cagan, “El Salvador Tries to Vote,” The Nation (April 18, 1994), p. 523. As a result of the compromise, ARENA won two of the municipalities and the FMLN won two. 19. An Argentinean polling firm estimated that 6 percent of voters with cards, or 87,000 people, had attempted to vote and failed. This estimate is judged to be reasonably accurate by Hemisphere Initiatives, who had their own delegation of observers there and who consulted with other observers. Elections of the Century, pp. 6–7. See also Cagan, “El Salvador Tries to Vote,” p. 526. 20. Elections of the Century, p. 7. This figure represents 20 percent of those who actually voted. 21. According to polls, the main concerns of voters were—in descending order of importance—reducing crime, creating jobs, dealing with inflation, and eliminating poverty. Elections of the Century, p.11. Human rights came much further down the list and campaigners found it difficult to run on the abstract platform of social and economic peace. 22. An initiative of ONUSAL’s during the campaign was to arrange for all political parties, first at the presidential level and then in each department, to sign “gentlemen’s agreements” expressing their “commitment to peace and stability in El Salvador.” Early in the campaign ARENA candidate Calderón Sol suggested he did not feel bound by the accords, but later publicly expressed his willingness to carry through on the government’s obligations. Elections of the Century, pp. 20 and 30. 23. Elections of the Century, p. 24. The Salvadoran Communist Party (PCS) and Revolutionary Party of Central American Workers (PRTC) tended to share the views of the FPL, whereas the National Resistance faction (RN) was ideologically closer to the ERP. 24. The split within the FMLN carried over into the post-election period, when ARENA forces in the legislative assembly strengthened their hold over the executive committee of the assembly by reducing its numbers from 12 to 10 and giving the president two votes. In protest the FPL, PCS, and PRTC abstained on the voting for the committee, while the ERP and RN participated and had two top-ranking members elected to executive positions. 25. S/1994/486 (April 21, 1994), Annex, para. 2. 26. See UN Press Release, CA/86 (March 23, 1994). 27. S/1994/1000 (August 26, 1994), para. 50.

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28. Interview with David Escobar Galindo, El Salvador, January 25, 1994. 29. Interview with representative of international human rights organization, New York, 1993. 30. New York Agreement, Article 1 (September 25, 1991), The Path to Peace, p. 32. “Civilian society” does not participate directly but through representatives of each political party. Representatives of the Archbishop of El Salvador and ONUSAL attend meetings as observers. 31. M. Doyle and I. Johnstone, “United Nations Globalism and National Sovereignty” (draft paper). 32. S/25812/Add. 3 (May 25, 1993), Annex, para. 3. 33. S/26581 (October 14, 1993), para. 13. 34. New York Agreement, The Path to Peace, pp. 32–38. 35. Interview with President Cristiani, El Salvador, January 25, 1994. Initially, the FMLN wanted concrete economic agreements in the accords, but made a conscious choice not to insist on its economic agenda, perhaps realizing that the government would not bend on this issue. Kevin Murray et al., Rescuing Reconstruction: The Debate on Post-War Economic Recovery in El Salvador (Cambridge MA: Hemisphere Initiatives, May 1994), pp. 6 and 7. Thus land reform, for example, is dealt with in only a limited way and mainly as a vehicle for reintegrating ex-combatants into civilian life. For a full discussion of the land transfer program, see Graciano del Castillo’s chapter in Multidimensional Peacekeeping: Lessons of Cambodia and El Salvador, “Arms-for-Land: Lessons from El Salvador” (forthcoming, 1995). While the FMLN managed to include some language on structural adjustment and national reconstruction in the Chapultepec Agreement, the provisions are more rhetorical than operationally significant. It was hoped that real agreements could subsequently be worked out in the forum for economic and social consultation. 36. Chapultepec Agreement, Chapter 8, para. A, The Path to Peace, pp. 83–84. 37. Ibid. 38. Interview with ONUSAL official, El Salvador, January 1994. 39. S/1994/47 (January 18, 1994), para. 56. 40. In its tenth report, the human rights division stated: “It is clear that the serious problems that used to affect the exercise of trade union rights and that seriously constrained the human rights of trade union members in the past are being progressively overcome and that the situation is characterized by a process of negotiation that is intended to establish legal norms that are representative of international standards recommended by the International Labour Organization.” A/49/116 and S/1994/385 (April 5, 1994), para. 73. 41. S/1995/220 (March 24, 1995), para. 62. 42. The business sector, which had independent reasons for opposing some of the conventions, came under considerable pressure from the government to side with it. Interview with ONUSAL official, El Salvador, January 1994. 43. S/26790 (November 23, 1993), para. 60. 44. S/1994/561 (May 11, 1994), para. 90. 45. In the months before the election, the legislative assembly came to a virtual standstill while the deputies campaigned. Interview with senior government official, El Salvador, January 1994. Although not unusual in democracies, this inactivity ensured that the constitutional reforms recommended by the truth commission would not get the full attention of the assembly until

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after the elections, leaving less than one month for the sitting legislature to adopt relevant legislation before its term ended. Since constitutional reforms require ratification by two successive legislatures, reforms not voted on before the end of the old legislature’s term could not come into force until 1997. See Chapter 6 for a full discussion of this issue. 46. In confronting the organs of the state, a high proportion of the Salvadoran population had more faith in ONUSAL than in local authorities, and even the authorities had developed a habit of telling complainants to “go to the UN.” In January 1994, an ONUSAL official estimated that 75 percent of the human rights complaints went to ONUSAL rather than to the human rights ombudsman or national civil police. Interview with senior ONUSAL official, El Salvador, January 1994. For a good discussion of the problem of dependency, see D. Holiday and W. Stanley, “Building the Peace: Preliminary Lessons from El Salvador,” Journal of International Affairs, Vol. 46, No. 2 (Winter 1993), pp. 430–433.

6 ADMINISTRATION OF JUSTICE

One of the most important but least developed aspects of the peace accords concerns the administration of justice. Prior to the peace process, the judicial system in El Salvador suffered from two major defects: the judiciary’s lack of independence from organs of the state and political parties, and the overconcentration of power in the Supreme Court.1 In an effort to deal with these problems, some critical constitutional and judicial reforms were agreed to in the April 1991 Mexico Agreement. These included a new procedure for electing Supreme Court judges (by a two-thirds rather than simple majority in the Legislative Assembly), allocation of at least 6 percent of the state budget to the judiciary, creation of the post of National Counsel for the Defense of Human Rights, restructuring of the National Council of the Judiciary (the body that nominates all judicial candidates), and legislation to ensure that only qualified judicial officials obtain and retain positions.2 These reforms marked a breakthrough in the negotiations,3 but alone they were not enough. To fill in the gaps, ONUSAL’s human rights division and the truth commission made numerous supplementary recommendations and ONUSAL has continued to promote behavioural changes that will be needed if the legislative and institutional reforms are to have any impact.

HUMAN RIGHTS OMBUDSMAN

The mandate of the National Counsel for the Defense of Human Rights (the human rights ombudsman) as set out in the Mexico Agreement is to promote and ensure respect for human rights. Though lacking judicial or legislative competence, the power of the office—at least on paper—is broader than most such institutions in 65

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other countries.4 Among other things, the ombudsman can investigate cases, promote judicial or administrative remedies, monitor state organs, recommend legislation, and propose systemic reforms. Dr. Carlos Mauricio Molina Fonseca was named to the post in February 1992 in an apparent bargain between ARENA and the Christian Democratic Party.5 The office began operating in July 1992 and issued its first report, listing complaints received and cases investigated, in January 1993. Since then the ombudsman has issued periodic reports and resolutions, as well as statements to the press. Despite these signs of activity, the ombudsman’s office has struggled to live up to its broad mandate. Financial constraints meant the work was slow to get started and slow to develop. By June 1994 only five regional offices had been opened (three in the preceding two months), and the target of one office in each of El Salvador’s 14 departments was not reached until early 1995. The branches are still underfinanced and lack qualified personnel.6 To complicate matters, nongovernmental human rights groups were half-hearted in their support for Dr. Molina, concerned that he would not be able to stake out an independent role for the office.7 He, in turn, acted with “extreme caution” and tended to emphasize his mandate to promote “peace and reconciliation” as well as to protect human rights.8 Perhaps as a result, Salvadoran citizens continued to take the vast majority of their human rights complaints to ONUSAL long after the ombudsman had been installed. Apparently the situation improved as the office became more active throughout the country, and by early 1995 it was receiving more complaints than ONUSAL ever did.9 A more serious problem has been the low stature of the ombudsman’s office within governmental structures. ONUSAL reported that, as late as March 1995, most officials still felt free to ignore the National Counsel’s nonbinding recommendations.10 This is troubling since the ombudsman has primary responsibility for protecting human rights now that the independent expert appointed by the UN Commission of Human Rights is no longer reporting and ONUSAL is preparing to leave. Fortunately, as the mission nears its conclusion, the UN has been upgrading efforts to strengthen the ombudsman’s office. Relations have not always been easy, although from the beginning ONUSAL provided technical support and advice on human rights procedure, techniques of police and judicial investigation, and legal reasoning.11 More active efforts to actually transfer experience and raise the profile of the ombudsman did not begin until the summer of 1994, when UN human rights observers and staff of the National Counsel started jointly verifying complaints.12 Before then, the ombudsman’s office was concerned about appearing to be too dependent on ONUSAL.13 For

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its part, the UN was reluctant to appear too anxious to hand over its responsibilities to the ombudsman for fear of being accused of abandoning its verification mandate. Having developed an operational approach that respected the independence of both institutions,14 the beginning of joint verification may have marked a turning point for the ombudsman. With this demonstration of commitment to a more activist role, international funding became easier to secure.15 Meanwhile, the ombudsman’s participation in the joint group and continuing responsibility to investigate potential death squad activity in conjunction with the PNC thrust the office into the middle of El Salvador’s most serious human rights challenge. How effectively the ombudsman responds will be an important measure of the long-term viability of the office.

SUPREME COURT OF JUSTICE

One of the most disappointing elements of the Salvadoran peace process was the difficulty experienced in trying to depoliticize the Supreme Court and remove some of its near-total control over the administration of justice. Prior to the 1991 constitutional amendment, Supreme Court magistrates were elected by a majority vote in the Legislative Assembly for five-year terms. Because the terms of all judges started and ended on the same date and their election was by a simple majority, the composition of the Supreme Court depended on the makeup of the Legislative Assembly. The majority party could— and always did—appoint judges who were loyal to it.16 The purpose of the 1991 constitutional reform was to make the process, which is necessarily political, less partisan. Under the new system, magistrates are elected from a list of candidates drawn up by the National Council of the Judiciary for nine-year terms (with one-third of the judges coming up for renewal every three years), by a two-thirds majority of deputies.17 The new procedure was scheduled to take effect in June 1994, at the end of the term of the sitting Supreme Court. Seeking to speed up the departure of the old Court, the truth commission recommended that its members resign immediately, citing the judiciary’s “tremendous responsibility” for the impunity with which the serious acts of violence described in the report occurred.18 As noted above, the Court reacted with indignation and asserted it was not bound by the truth commission recommendations.19 Without necessarily accepting the Court’s position that the truth commission report was binding on the executive branch of government only, ONUSAL concluded that the wording of the recommendation meant it depended entirely on the

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willingness of the members of the Court to resign—which its members refused to do.20 An irony in this situation is that if the Court had resigned, the new Supreme Court would have been elected by the assembly as constituted in 1993, which was not the preference of those seeking substantial reform of the judicial system. They were hoping the March elections would produce a more representative assembly, which in turn would elect a more balanced Supreme Court. The issue crystallized in early 1994 when ARENA began pushing for appointment of the new Supreme Court magistrates after the elections but before the new assembly was installed at the end of April. Article 39 of the Constitution stipulates that the new Court should be elected within 90 days of the completion of the previous Court’s term, at the end of March. Thus legally either the old or the new assembly could elect the new Court. The issue was hotly debated for several months, with the FMLN and the Diocese of San Salvador on one side and ARENA and PDC presidential candidate Fidel Chavéz Mena (whose political fortunes were fading and who was rumored to be interested in the presidency of the Supreme Court) on the other. ONUSAL took the position that the new assembly should elect the Court, but could not push the matter very forcefully because its reading was based on the spirit rather than the letter of the accords.21 In the end, the new assembly elected the Supreme Court, but only after an intense battle within the legislature. Initially ARENA proposed David Escobar Galindo (a negotiator of the peace accords for the government) and the opposition parties proposed Abraham Rodríguez (member of the ad hoc commission) as president of the Court. A stalemate in the assembly led Escobar Galindo to withdraw his candidacy, but Rodríguez failed to get the requisite two-thirds majority when all ARENA members voted against him. After a further four-week delay in which there was no Supreme Court, José Domingo Mendez was elected by consensus. The new president is viewed as a compromise candidate, but the difficult route to his election indicates that the process remains destructively partisan. Efforts to scale back some of the power of the Supreme Court have been even less promising. Before the 1991 constitutional reforms, the Court controlled the entire administration of justice. It appointed and dismissed all judges of first and second instance, justices of the peace, forensic physicians, and court employees, and it licensed and disciplined all lawyers. The only significant dent in this concentration of power brought about by the constitutional reforms was to authorize the National Council of the Judiciary to provide the Court with three candidates from which it would make each lower court appointment.

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Dissatisfied with this minimal step, the truth commission recommended: • Granting the National Council of the Judiciary the power to appoint (not just nominate) and remove judges • Granting administrative responsibility to each judge for the court under his or her jurisdiction • Establishing a special independent body to license and discipline lawyers22 A draft law on these recommendations was submitted to the Legislative Assembly by the Christian Democratic Party but generated little interest prior to the elections. A push from the lawyers’ association and a nongovernmental organization (CESPAD) after the elections led to the adoption of a reform package in April 1994, which partly met the third recommendation by assigning power to suspend lawyers to a new National Council of Lawyers and Notaries. No action was taken on the other recommendations, however, including the first and most important, which requires amendment of the constitution and therefore ratification by two successive legislatures.23 As a result, the concentration of administrative power in the Supreme Court will remain substantially unaffected until at least 1997.

JUDICIAL SYSTEM

After the Supreme Court, the second most important body in the judicial system is the National Council of the Judiciary (NCJ). It nominates Supreme Court magistrates, lower judges, and justices of the peace; it evaluates the performance of magistrates and judges for promotion and disciplinary decisions made by the Supreme Court; and it oversees the judicial training school. Prior to the peace accords, the NCJ was effectively controlled by the Supreme Court because Court magistrates were guaranteed five of the 10 seats, one of whom was empowered to cast the deciding vote in the event of a tie. The parties agreed to restructure the NCJ “so that its composition guarantee[d] its independence from the organs of State and from political parties and its membership include[d] not only judges but also sectors of society not directly connected with the administration of justice.”24 COPAZ was meant to draft the implementing legislation but before it could do so the Supreme Court submitted its own draft to the assembly. Critical of the Court’s draft, which would have done little to increase the independence of the council,25 two Salvadoran nongovernmental organizations (IEJES and CESPAD) prepared a separate draft.

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Unfortunately, an unsatisfactory compromise was worked out in the political commission of the Legislative Assembly. In the view of most outside observers, the new Act of the National Council of the Judiciary, adopted on December 11, 1992, conflicts with the Mexico Agreement in various ways. The council is not fully independent because members are elected by the assembly, meaning political forces representing the required two-thirds majority might share the council posts between them.26 The act leaves the dismissal of some members of the council to the discretion of the Supreme Court, and none of the 11 members represent “sectors of society not directly connected to the judicial system.”27 Finally, the criteria for evaluating the performance of magistrates and judges do not include basic standards such as professional training, the quality of decisions, and concern for human rights.28 Various legislative initiatives responding to these concerns emerged from the Supreme Court, COPAZ, and the NCJ in early 1994, but because a majority of the assembly opposed discussing constitutional reforms during the electoral campaign, no serious debate occurred until after the March elections.29 The matter was taken up again with some urgency in April, before the new assembly was installed, in the hope that the first legislative step in adopting a constitutional amendment could be taken in 1994. But the legislation ultimately adopted fell short of the recommendations of the truth commission and, significantly, COPAZ. No change was made to the composition of the NCJ or the manner of selecting it, although a previously agreed-on provision that its members could only be dismissed by a two-thirds majority of the legislature was incorporated into the Constitution.30 Failure to decentralize the administration of justice means the functioning of the judicial system will depend on the quality and integrity of lower court judges and justices of the peace until at least 1997, the next opportunity to ratify constitutional reforms. Regarding the law on the books, some important new legislation on criminal justice has been enacted since the peace process began.31 But the main problem with the Salvadoran justice system, according to knowledgeable observers, is not bad laws but “bad officials.”32 To that end, ONUSAL has been encouraging less dramatic measures, designed to bring about a gradual diminution in the powers of the Supreme Court. The first is the creation of a judicial training school, under the authority of the National Council of the Judiciary, to enhance the professionalism of judges and other judicial officials. Initially, the impact of the school was minimal and ONUSAL’s efforts

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to support it were thwarted by the Supreme Court. An attempt by ONUSAL to formalize a “partnership” with the Supreme Court in a cooperation agreement stalled when the truth commission report was released, exacerbating the already tense relations between ONUSAL and the Court.33 The situation improved in late 1993, however, when the NCJ took over the judicial training school and ONUSAL was permitted to provide technical support and a guiding vision. Since then, ONUSAL has been working to improve judicial training but the School itself needs to be strengthened. This effort will have to be carried through by the UNDP and the small UN political office that will remain behind after ONUSAL leaves. The second change is that ONUSAL has been pushing implementation of the provisions in the Mexico Agreement designed to guarantee the competence, impartiality, and freedom of “the career judicial service.”34 A proposed amendment to the Career Judicial Service Act was meant to ensure that only the best-qualified judges were selected according to objective criteria, rather than on the basis of political and family ties. By the end of 1994 only minor changes to the act had been made,35 but the quality of judges had improved, partly because 70 to 80 percent of them had been appointed on the basis of the new procedure (i.e., following nomination by NCJ). As important, prodded by the recommendation of the joint group that the judiciary be “purged,” the National Council of the Judiciary had begun a credible evaluation of sitting judges for the purpose of making recommendations to the Supreme Court about promotions, discipline, and dismissal. The NCJ was relying partly on information about judicial performance provided by the human rights division of ONUSAL.36 After almost a year in office, the Court has begun to show a willingness to clean up the justice system by dismissing or suspending 11 judges for unprofessional conduct, and reducing the number of detainees awaiting trial.37 Much more progress in purifying the judiciary will be needed, however, if El Salvador is to overcome the “culture of impunity” described by the truth commission and joint group.

THE CHALLENGE OF INSTITUTION-BUILDING: UN STRATEGIES

Reforming the administration of justice has proven to be one of the most difficult challenges of the Salvadoran peace process. Even though human rights protection was central to the accords, judicial reform received relatively little attention in the negotiations. The pro-

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visions of the Mexico Agreement were nothing more than a first step. The truth commission and the human rights division of ONUSAL tried to fill the gap, but their recommendations have never been treated with the sense of urgency they deserve. Beginning in 1993, the human rights division of ONUSAL tried to increase the pressure by applying an expansive interpretation of its powers “to help improve the judicial procedures” and to make recommendations on “any situation which appears to reveal the systematic practice of human rights violations.” Specifically, ONSUAL interpreted the parties’ pledge in the San José Agreement—“to give their earliest consideration to any recommendation made to them by the Mission”—as a pledge “to implement promptly the recommendations of the ONUSAL Human Rights Division.”38 Combined with the binding commitment of the parties to implement the recommendations of the truth commission,39 this pledge gave ONUSAL substantial leverage to push for structural and legislative reforms. The mixed results reveal how difficult it is for the UN to overcome sustained resistance from the various organs of the state. Even if the executive branch, as signatory of the accords, is committed to political and institutional transformation, bringing other branches of the government along requires a sustained effort. Direct pressure from the UN sometimes works—not least because it gives the signatories to the accords (in El Salvador, the executive branch and the FMLN leadership) leverage in their internal negotiations. The UN, in effect, did the “dirty work” for the signatories who shared an interest in seeing the peace process through but who found it difficult to put direct pressure on their constituencies. When direct pressure was not tried or did not work, the UN employed less threatening techniques which produced some results, though slowly. It established “consultative mechanisms” to evaluate recommendations of the human rights division and new “executive machinery” to implement agreements reached in the consultations.40 It provided courses for judges, prosecutors, and other court officials, and cooperated with the judicial training school to enhance the competence and professionalism of judges. It escorted individuals through the justice system, putting pressure on officials to act. It provided information on the performance of judicial officials to the body responsible for evaluating their professionalism. Joint verification activities with the human rights ombudsman were employed to transfer ONUSAL’s stature and experience to the new office. On-the-jobtraining by the police division of the new PNC and, when that ended, the training of juridical advisers to the PNC by the human rights division, were ways of keeping the new police force on the right track.41

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The UN essentially made itself a factor in the administration of justice—not always appreciated by the authorities, but seen by the parties as a tolerable degree of interference with domestic processes.

NOTES 1. The weaknesses of the system are well-described in the report prepared by Pedro Nikken, independent expert of the UN Commission on Human Rights. A/47/596 (November 13, 1992), paras. 151–159. The truth commission also laid considerable blame on the judicial system for the human rights situation of El Salvador: “Since [the judiciary] had never enjoyed genuine institutional independence from the legislative and executive branches, its ineffectiveness steadily increased until it became, through its inaction or its appalling submissiveness, a factor which contributed to the tragedy suffered by the country.” Truth commission report, Part V, Recommendations, pp. 172–173. 2. Mexico Agreement, April 27, 1991, Part II, “Judicial system and human rights,” The Path to Peace, pp. 14–15. 3. President Cristiani said that the constitutional amendments enacted pursuant to the Mexico Agreement were critical because they put in place “the basic foundations for reform,” which would bind future governments as well as the signatories to the agreement. Interview with President Cristiani, El Salvador, January 25, 1994. 4. S/25521 and A/47/912 (April 5, 1993), para. 245. Its terms of reference are set out in Article 16 of the constitutional reform law (new Article 94 of the Constitution), annexed to the Mexico Agreement, The Path to Peace, p. 23. 5. Lawyers Committee for Human Rights, El Salvador’s Negotiated Revolution: Prospects for Legal Reform, June 1993, p. 35. Dr. Molina is a Christian Democrat. 6. A/49/888-S/1995/281 (18 April 1995), para 22. 7. While favorably disposed to Dr. Molina personally, some of the human rights organizations questioned whether he had adequate experience and authority for the job. Interviews with representatives of human rights organizations, El Salvador, August 1993 and January 1994. 8. Interview with Dr. Molina, El Salvador, August 17, 1993. In dealing with other organs of the state, the ombudsman said he believed in carrying out his role “discreetly” rather than through public confrontation. Second report of the independent expert of the UN Commission on Human Rights. E/CN.4/1993/11 (February 9, 1993), para. 128. See also A/49/888S/1995/281 (18 April 1995), para. 11. 9. S/1995/220 (March 24, 1995), para. 33. 10. S/1995/220 (March 24, 1995), para. 33. 11. S/1994/886 (July 28, 1994), para. 105. 12. The idea behind joint verification by the human rights division of ONUSAL and the ombudsman, according to an ONUSAL regional coordinator in San Vicente, was to replicate the successful mentor relationship the police division had established with the national civil police. By serving as a model to the staff, introducing them to the population and advising and assist-

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ing on investigations, the ombudsman would progressively acquire ONUSAL’s responsibilities and respect. Interview with Hector Contreras, El Salvador, August 14, 1993. 13. Interview with ONUSAL official, El Salvador, January 1994. 14. S/1994/886 (July 28, 1994), para. 106. 15. S/1994/1000 (August 26, 1994), para. 44. 16. Thus in 1989, the ARENA-dominated legislature elected the Supreme Court, including its President, ARENA Deputy Mauricio Gutiérrez Castro. 17. Article 186 of the Constitution. 18. Truth commission report, Section V, I.D.(a), p. 177. 19. The President of the Supreme Court enunciated the Court’s position in a statement to the press: The “Commission on the Truth for El Salvador” was created by an eminently political agreement . . . , an agreement achieved between the Executive Branch and the Farabundo Martí National Liberation Front. Consequently, this is a political agreement between two explicitly defined parties and with a specially determined objective, from which no impact whatsoever may be derived that subverts the order established by the Constitution, International Treaties and the secondary laws in effect in El Salvador. Diario Latino, 29 March 1993 (quoted in Lawyers Committee Report, p. 4).

COPAZ asked the Court to report on the legal foundations of its position, but other than the above statement, there is no public record of such a report having been prepared. 20. S/25812/Add.3 (May 21, 1993), Annex, section. I.4. 21. Interview with senior ONUSAL official, El Salvador, January 1994. 22. Truth commission report, Section V.III.A.2, 3 and 4, p. 181. These recommendations were essentially endorsed and reiterated by the human rights division of ONUSAL. S/25521 (April 5, 1993), para. 224. 23. S/1994/561 (May 11, 1994), paras. 51 and 52. 24. Mexico Agreements, II.2.a, Path to Peace, p. 15; Chapultepec Agreement, Chapter III.1.A., Path to Peace, p. 75. 25. Second report of Pedro Nikken, independent expert of the Commission on Human Rights. E/CN.4/1993/11 (February 9, 1993), para. 173. See also Lawyers Committee Report, pp. 11–12. 26. S/25521 (April 5, 1993), para 219. 27. These provisions were criticized by Pedro Nikken (E/CN.4/1993/11, February 9, 1993, paras. 170 and 222), by the truth commission (Section V.I.D.(a), p. 177), and by the human rights division of ONUSAL, (S/25521, April 5, 1993, para. 222). Some independent observers are even more critical, arguing that the manner of selecting the National Council of the Judiciary ensures that its composition will continue to be controlled by the Supreme Court. The new council has eleven members: two lawyers proposed by the Supreme Court, one appellate magistrate, one trial judge, three practicing lawyers, one law professor from the University of El Salvador, two law professors from authorized private universities, and one member of the public prosecutor’s office. Critics worry that the Supreme Court, given its hold over the entire justice system, will be able to ensure that at least six of the 11 members are loyal to it. Interview with Francisco Díaz (CESPAD), El Salvador, January 25, 1994. Interview with Benjamim Cuéllar (IDHUCA), El Salvador, January 20, 1994. ONUSAL did not draw this conclusion in its reports but expressed concern that the procedure for selecting representatives of the Supreme

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Court and public prosecutor’s office is not regulated. S/25521 (April 5, 1993), para. 223. 28. S/25521 (April 5, 1993), para. 226. 29. For a description of the legislative initiatives, see S/1994/47 (January 18, 1994), para 75. 30. S/1994/561 (May 11, 1994), paras. 51 and 56. 31. For example, important developments in the law of habeus corpus, the penal code, and the code of criminal procedure, and the act have been initiated by the ministry of justice, and are well-described in various reports of the human rights division. See, in particular, S/26033 (July 2, 1993), paras. 25058; S/26416 (September 15, 1993), paras. 76-81; S/26581 (October 14, 1993), part IIA; S/1994/385 (April 5, 1994), paras. 97-10 and 139; S/1994/886 (July 28, 1994), paras. 82 and 95. Legislation to reform the law of habeus corpus, which requires a constitutional amendment, was adopted by the last legislature, but it had not been ratified by the new legislature as of the end of 1994. For a review of legal reform efforts sponsored by USAID and the UN prior to and in the early stages of the peace process, see Lawyers Committee for Human Rights, Underwriting Injustice: AID and El Salvador’s Judicial Reform Program (New York, 1989); and Lawyers Committee for Human Rights, El Salvador’s Negotiated Revolution: Prospects for Legal Reform (New York, June 1993). An important breakthrough came in March 1995, when the Legislative Assembly ratified the Optional Protocol to the International Convenant on Civil and Political Rights and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights. It also recognized the jurisdiction of the Inter-American Court of Human Rights. 32. Interviews with representatives of human rights organizations, El Salvador, August 1993 and January 1994. 33. Interview with senior ONUSAL official, El Salvador, January 1994. The cooperation agreement was entered into in January 1993, and the truth commission report was released in March. Convenio-Marco, Corte Suprema de Justicia—ONUSAL: Sobre el Perfeccionamiento de los Medios Judiciales de Protección a los Derechos Humanos Y Respeto a las Reglas del Debido Proceso, San Salvador, January 20, 1993. 34. Mexico Agreement, Constitutional Reform Article 11 (amended Constitution Article 186), The Path to Peace, p. 21. 35. See S/1994/385 (April 5, 1994), para. 161 and S/1994/886 (July 28, 1994), para. 96. 36. Ibid. S/26581 (October 14, 1993), Annex, I.E. According to an ONUSAL official, the information is provided only if 100 percent reliable and it points to corruption or inefficiency of the judges. Interview with ONUSAL official, El Salvador, January 1994. 37. S/1995/220 (March 4, 1995), para. 30. 38. S/26033 (July 2, 1993), para. 324. ONUSAL based this claim about the bindingness of its recommendations on a broad reading of its mandate to undertake “active verification.” For a discussion of this issue, see p. 27 above. 39. Mexico Agreement, Annex, The Path to Peace, p. 31. 40. S/26033 (July 2, 1993), paras. 328 and 329. 41. After graduating from the National Public Security Academy, recruits received what amounted to on-the-job training from ONUSAL’s police division, which allowed the UN to mold the attitudes and practices of the new

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recruits without directly challenging the authority of the public security hierarchy. This was done pursuant to a six-month agreement which terminated in October 1993. From then on, the human rights division tried to pick up the slack with special courses and programs for the PNC. See S/1994/886 (July 28, 1994), paras. 121–126.

7 OBSERVATIONS AND LESSONS

As a paradigmatic multidimensional operation, many lessons can be learned from the ONUSAL experience about the evolving nature of UN peacekeeping. As a peace process with the promotion of human rights at its heart, much can also be learned about the delicate balance between the potentially conflicting goals of peace and justice. What follows is a set of observations and lessons that emerge from the foregoing analysis, designed to help the UN and other international actors develop strategies for securing a lasting peace in the aftermath of conflicts characterized by systematic human rights abuses. The Meaning of “Consent” in Multidimensional Peacekeeping The UN’s role in multidimensional peacekeeping operations, even if technically limited to verification, is necessarily more proactive and complex than that term would seem to imply. The parties consent to the UN presence, but the implications of that consent are more farreaching than for traditional peacekeeping because external actors become deeply involved in the political and institutional transformation of the state. Complex peace agreements cannot possibly provide for every contingency or completely define the scope of UN involvement. Implemented over an extended period, gaps in the accords materialize, problems of interpretation arise, and circumstances change. The original consent granted, therefore, is open-ended and in part a gesture of faith that later problems can be worked out on a consensual basis.1 In granting this open-ended consent, the parties in effect consent to significant interference in their sovereignty for the life of the UNsponsored peace process. The UN acts as an independent agent within the framework of the (often vague) terms of the accord, interna77

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tional norms, and the degree of commitment of the parties. Its task is not simply to denounce violations of a static agreement, but also to support the renovation of existing institutions and to sustain consent for the peace process over time. Building and Sustaining Consent For multidimensional peacekeeping to succeed, therefore, the UN must employ strategies for building and sustaining consent. One technique that worked in El Salvador was to draw on the support of “Friends of the Secretary-General”: Colombia, Mexico, Spain, and Venezuela, frequently joined by a “fifth friend”—the United States. They helped both to negotiate and implement the accords by providing additional channels of communication between the parties and by complementing the diplomatic efforts of the UN. Usually operating in concert, the Four Friends balanced the potentially overwhelming influence of the United States—an arrangement the United States itself was partially responsible for putting in place. The device has been employed, with variations, in Haiti, Guatemala, Georgia, Cambodia, the former Yugoslavia, Angola, and elsewhere. The value of “friends” is their capacity to offer incentives and bring influence to bear that the UN cannot muster on its own.2 The key to the success of the process in El Salvador was that the UN clearly led the effort, with the friends playing a supporting but active role. A second technique for building and sustaining consent is through continuous peacemaking. At the highest level, many of the glitches in implementing the Salvadoran peace accords were overcome through timely visits to the mission by senior UN officials Marrack Goulding and Alvaro de Soto. Meanwhile, the succession of special representatives exercised their good offices on a nearly daily basis. Lower ONUSAL officials also maintained close contacts with government officials, the FMLN commanders and their supporters, the military, police, judges, and elements of civil society. ONUSAL effectively made itself a factor in the administration of the country, despite its limited verification mandate. In so doing, the UN performed the function of “conciliator,” a third party promoting reconciliation not only between the parties but throughout society during the extended peace process. Human Rights and Peacemaking The San José Agreement is not a revolutionary document, but its adoption and the subsequent deployment of ONUSAL were a milestone for

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UN peacemaking. They paved the way to one of the most comprehensive political settlements the UN has ever negotiated. Thus a simple but important lesson of the UN experience in El Salvador is that, when the parties to a conflict are ready for peace but are struggling over its terms, the UN can advance the process by securing a limited agreement and establishing a presence, thereby increasing the costs to either side of breaking peace talks. A more significant lesson concerns the relationship between peacemaking and human rights. Ironically, an issue that would have been sure to raise red flags about sovereignty in the past and which was not a priority for either side in El Salvador was the first on which it was possible to reach agreement. That it is now a legitimate and potentially effective function of the UN to push for human rights accountability in the context of a peace process reflects important changes in global attitudes about sovereignty and intervention.3 The San José Agreement is symbolic of an evolving “normative climate” that stems back to the 1948 Universal Declaration on Human Rights and which culminated in Latin America in the 1991 Santiago Commitment to Democracy and the Renewal of the Inter-American System,4 and globally in the 1993 Vienna Conference on Human Rights. Within this evolutionary process, ONUSAL represents a breakthrough in efforts to make operational the link between international human rights and peace. Related developments in UN peacemaking since include the deployment of a joint UN-OAS human rights monitoring mission in Haiti, the U.S.-led operation to restore democratically elected President Jean Bertrand Aristide, and the UN effort to reform the corrupt military and police forces in that country. In Guatemala, the first substantive agreement between the government and guerrillas, reached in March 1994, was on human rights verification, potentially setting the stage for a broader political settlement.5 Human rights monitors have been deployed in Rwanda to facilitate national reconciliation, and a similar function is performed by a small UN human rights presence in Burundi. Human Rights and Peacekeeping Although UN Human Rights Commission rapporteurs and experts reported on human rights for years, ONUSAL marks the first time the UN has deployed a mission to engage in continuous human rights verification. Furthermore, it did this before a cease-fire was achieved, without loss of life—a precedent that has since been followed in Guatemala. Critics have accused the UN of compromising its verification functions in order to preserve its status as “honest broker,” yet

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when one considers the broad range of activities the UN has undertaken within that mandate, the criticism loses some force. In addition to investigating cases, ONUSAL’s “active verification” includes uncovering structural defects in the justice system, recommending remedies, pressuring low-level officials to do their jobs, and pressuring high-level officials to make the entire system work better. Although there can be tension between the UN’s role as human rights guarantor and its diplomatic role in peacekeeping operations, it is also true that the credibility of both can be enhanced when human rights accountability is part of a broader mission. Human rights monitors would be less effective if perceived as separate from and secondary to the political mission; and the political mission would lack credibility if it were perceived as unconcerned with human rights violations. Thus if human rights verification is part of a peace process, it should be integrated in the broader mission, but with as much autonomy as possible. The notion of “confederation” invoked by UN UndersecretaryGeneral Kofi Annan to describe the relationship between peacekeeping and humanitarian action is an apt model for the UN’s human rights verification activities as well.6 This is not to say that all UN-related human rights activity must be integrated with peace operations when the latter have been established in the theater of conflict. The ad hoc commission, truth commission, and the joint group were all structurally independent of ONUSAL—and had to be. An independent expert appointed by the UN Human Rights Commission reported on El Salvador throughout the peace process, playing a useful role in keeping watch on ONUSAL as well as on the parties and organs of the state. The post of high commissioner for human rights was established in 1993 with a mandate to promote human rights and prevent abuses and the Centre for Human Rights in Geneva provides advisory services and technical assistance, with programs around the world. In the former Yugoslavia and Rwanda commissions of inquiry were established by the Security Council to investigate allegations of grave violations of human rights and humanitarian law, including genocide. To ensure that these entitles do not work at cross-purposes, coordination among them is important, but it is not always necessary or appropriate that they be structurally integrated with the UN’s peacekeeping operations. Institution-building The extent to which the UN can or should attempt to reform governmental institutions is central to debates over the evolution of UN peacekeeping. Although the issue is sharpest in a case like Somalia, where there is no functioning state,7 it has also arisen in Mozambique,

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Haiti, Cambodia, and other places where state apparati exist but are in need of renovation. In El Salvador, the parties agreed to major overhauls of the military, police, judiciary, and other institutions, as well as the conversion of an insurgent military group into a political party. But agreement between the executive branch of the government and the guerrilla leaders did not guarantee that all those affected would automatically comply. Direct pressure by the international community was often necessary and it sometimes worked, not least because it gave the immediate signatories to the accords leverage in their internal negotiations. Even if the signatories desired the institutional changes they agreed to, they could not always publicly say so for fear of alienating important constituents and generating a backlash. The UN, in a sense, did their dirty work. But direct pressure has not always been effective. Fortunately, the San José and other agreements provided openings for the UN to employ less threatening means of reforming and strengthening institutions. Through technical support and joint verification, ONUSAL’s human rights division has been able to transfer some of its stature and experience to the ombudsman. On-the-job training by the police division and, when that ended, the training of juridical advisers to the PNC by the human rights division have helped preserve the civilian character of the new police force in the face of serious resistance from former public security bodies. Similarly, judicial training and feeding information to the body responsible for evaluating the performance of judges were a gradual way of removing some of the unfettered power of the Supreme Court without tackling the institution head on. Whether these efforts leave behind sustainable institutions remains to be seen. These nonthreatening peacebuilding efforts should continue after ONUSAL withdraws, through the small political office to be left behind, the UNDP, and other agencies, which will provide the UN with leverage to promote compliance with the accords beyond the life of the peacekeeping operation per se.8 Managing Rights and Reconciliation Related to the peacemaking, peacekeeping, and peace building roles of the UN are the three extraordinary commissions established to investigate El Salvador’s human rights past—the ad hoc commission, the truth commission, and the joint group. They have generated great interest as the international community struggles to deal with other conflicts characterized by gross human rights violations. Truth commissions have been agreed to in Guatemala, Haiti, and South Africa.9 The Security Council has established a war crimes tribunal for the former Yugoslavia, the first since the Nuremberg and Far East trials fol-

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lowing World War II, and a similar tribunal has been established to deal with acts of genocide and other grave breaches of human rights in Rwanda. These developments represent disparate efforts to balance the potentially conflicting goals of peace and justice. In El Salvador, the balance struck was to investigate and uncover the truth about the past, to identify individuals responsible and sanction some, but not to prosecute or criminally penalize anyone. The aim was not to punish but to produce a “catharsis” in which Salvadoran society as a whole would come to terms with its past. Unfortunately, given the way the process unfolded—many “purged” military officers left on their own terms, the truth commission amnesty was granted with little political or public debate, and the joint group avoided identifying individuals linked to the death squads—it is not clear that a true catharsis has taken place. Nevertheless, the El Salvador model reveals that, in circumstances where international criminal prosecution is not feasible, for political or other reasons, there are alternatives to simply burying the past. Tempting as it may be for those whose first priority is reconciliation, ignoring a history of human rights abuses poses grave dangers, especially when the systematic denial of that history is a continuing source of tension. In the context of negotiated peace agreements, commissions that investigate and publicize the truth can at least send a signal that impunity will no longer be tolerated. Though a step short of criminal accountability, they provide a measure of justice if accompanied by a public acknowledgement of the wrong-doing, removal from power of those responsible for the wrong-doing, and institutional reforms to prevent or deter a recurrence. On Being More Royalist than the King At various stages in the Salvadoran peace process, the UN has been confronted with a dilemma that goes to the heart of its role in consentbased multidimensional peacekeeping operations. How hard should it push for implementation of a particular aspect of a complex peace agreement when the parties themselves are not pushing? The dilemma arose most notably in the context of the ad hoc and truth commission recommendations, which both exceeded expectations and whose far-reaching measures generated fears of a backlash that would jeopardize the peace process. The UN chose to be quite firm on the purge called for by the ad hoc commission but, at least initially, less firm on the truth commission recommendations. Is it ever appropriate for the UN to be “more royalist than the King” by insisting on strict compliance when the parties themselves

83

OBSERVATIONS & LESSONS

strike deals (tacit or open) that contravene the accords? There is no simple answer to the question. On the one hand, it is risky for the UN to second-guess local solutions in consent-based operations, crossing the line from facilitator to protaganist. On the other hand, as a peace process unfolds, the bargaining power of the parties shifts and the “parties” themselves often change—in El Salvador the presidency changed hands and the FMLN essentially fell apart. Furthermore, actors other than the signatories often have a stake in and capacity to disrupt these complex processes. In transformed societies, new actors, institutions, and political alignments are forged to whom a responsibility is owed equal to and perhaps above the original parties. Nevertheless, “loyalty to the mandate” is too simplistic a prescription for managing the implementation of complex peace agreements. Flexibility and pragmatism are sometimes required. In exercising that flexibility, the UN should seek as broad a social and political consensus as possible. It should try to build into a peace process mechanisms that can give expression to that consensus, operating parallel to the UN.10 Moreover, the UN should seek to maximize its power of initiative within these mechanisms, to help ensure the quest for consensus does not result in paralysis. In El Salvador, COPAZ and, to a lesser extent, the forum for economic and social consultation were the only truly representative bodies in the transitional period between the signing of the peace accords and the 1994 elections. They never quite fulfilled their potential and, because the UN was never more than an observer in either, its power to activate them was limited. But prior to the elections, they were the only political institutions that could legitimately speak for El Salvador as a whole, and as such performed a vital role in helping the UN to oversee implementation of the peace agreements. Referring controversial matters to these bodies did not guarantee a consensus, but at least all relevant actors participated in the deliberations and the UN was not left with the impossible choice of either condoning questionable revisions of the accords or setting itself in opposition to the very parties who invited its intervention in the first place.

NOTES 1. See Michael Doyle and Ian Johnstone, “United Nations Globalism and State Sovereignty” (draft paper), where these issues are considered at greater length. 2. For a more thorough discussion of the functions similar groupings served in Cambodia and elsewhere, see Michael Doyle, UN Peacekeeping in Cambodia: UNTAC’s Civil Mandate (Lynne Rienner, 1995), p. 81.

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3. Interview with representative of international human rights organization, United States, 1993. Some human rights groups go further in suggesting that the UN should put human rights on the negotiating table even if the parties to a conflict do not, and should refuse to monitor an agreement that has inadequate human rights provisions. Amnesty International, Peacekeeping and Human Rights (January 1994). 4. The Santiago declaration committed the Organization of American States to hold Latin American governments accountable to the organization for the means by which they came to power. An OAS resolution accompanying the declaration commits the organization to convene a meeting and adopt decisions “deemed appropriate” to deal with “occurrences giving rise to the sudden or irregular interruption of the democratic political institutional process or of the legitimate exercise of power by the democratically elected government. . . .” General Assembly Resolution 1080 (XXI-0/91). For an interesting discussion of the significance of the Santiago Commitment, see D. Acevedo, The OAS and the Protection of Democracy, prepared for the InterAmerican Dialogue Project on Reconstructing Sovereignty in a Democratic Age (December 31, 1993). 5. Unlike in El Salvador, however, the obvious link between human rights and the broader peace process in Guatemala did not translate into a Security Council authorization for the human rights verification mission. The government, some of the “friends” of the process, and key members of the Security Council insisted that the verification mission be established by the General Assembly. A/RES/48/267. 6. Kofi Annan, “Peace-keeping and Humanitarian Action,” speech published in Conflict and Humanitarian Action: Report of a Conference at Princeton University, by Michael Doyle and Ian Johnstone (July 1994), p. 29. 7. See Gerald Helman and Stephen Ratner, “Saving Failed States,” Foreign Policy, Vol. 89, (Winter 1992). 8. For an excellent discussion of the need for sustained and coordinated peacebuilding during and after comprehensive peace operations, see Alvaro de Soto and Graciana del Castillo, “Implementation of Complex Peace Agreements: Staying the Course in El Salvador,” Global Governance, (forthcoming June 1995). See also Alvaro de Soto and Graciana del Castillo, “Obstacles to Peacebuilding,” Foreign Policy, No. 94 (Spring 1994). 9. S. Holmes, “South African Commission to Investigate Past Political Violence,” New York Times, June 8, 1994, p. A13. The South African commission would investigate political violence by all sides that occurred between the adoption of amnesty legislation in 1990 and the end of 1993. 10. Michael Doyle provides a useful analysis of the critical role played by the Supreme National Council, a construction of the paris Peace Agreements, in managing the Cambodian peace process. An “ad-hoc, semi-sovereign mechanism,” the SNC incorporated the temporary consensus of the parties in an institution that could speak and act in the name of the “nation” without the continuous or complete consent of all the factions. Michael Doyle, UN Peacekeeping in Cambodia: UNTAC’s Civil Mandate (Lynne Rienner, 1995), p. 83–84.

8 CONCLUSION

UN peacekeeping has gone through a period of profound experimentation over the last several years. As a result, important lessons have been learned about what the UN is able to do well in the post–Cold War world, and what may be beyond its capacities, at least for the time being. A consensus is emerging that large-scale peace enforcement, for example, is out of the UN’s reach.1 Limited forcible intervention for humanitarian purposes, on the other hand, remains necessary and viable, although even these operations are typically being “contracted out” to multinational coalitions led by powerful states such as France or the United States. The case of Haiti well illustrates the outer limits of peace enforcement in the current climate. The US-led multinational coalition operating under Chapter VII of the UN Charter gave way to a UN-led peacekeeping operation in which force is contemplated only in self-defense, although the peacekeepers have assertive rules of engagement. This wariness about the use of force by peacekeepers, however, does not signify a return to traditional peacekeeping. The complex, multidimensional operations in El Salvador, Cambodia, and Mozambique mark a significant step forward for the Organization, and there is reason to hope they can be emulated in Angola, Haiti (during the “peacekeeping” phase), and elsewhere. These operations, all in situations of internal conflict, are the current growth industry for the UN. The role of ONUSAL in monitoring human rights, reforming institutions, and promoting reconciliation illustrates what the UN can do to help to bring about the social and political transformations often required for the settlement of internal conflicts.2 In the El Salvador operation, firmly based on consent, the UN did not seek to impose a settlement on the parties but took an active role in trying to address 85

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some of the root causes of the conflict. The parties were ready to make peace in 1990 but on such complex terms that they needed the involvement of the UN to facilitate, support, and guarantee the agreements they reached. The UN in effect became a junior partner in the process of creating a less militarized and more open society. Human rights was central to the process because, by tackling that problem head on, it was possible to root out some of the political, social, and institutional conditions that gave rise to the conflict in the first place. While not uniformly successful and still incomplete, ONUSAL’s efforts in El Salvador provide important lessons for future operations and illustrate that the era of UN activism is far from over.

NOTES 1. The Secretary-General himself draws this conclusion in the Supplement to an Agenda for Peace, A/50/60-S/1995/1 (January 3, 1995), para. 77. 2. For an overview of the “social and political transformations” in which the UN has been involved elsewhere, see T. Farer and F. Gaer “Human Rights,” in United Nations, Divided World, 2d ed., A. Roberts and B. Kingsbury, eds. (Oxford: Clarendon Press, 1994), p. 290.

UNITED NATIONS OBSERVER MISSION IN EL SALVADOR (ONUSAL)

Agreements: A/45/706–S/21931, Annex I

A/45/706–S/21931, Annex II

A/44/971–S/21541

A/46/553–S/23130

A/46/502–S/23082

A/46/502/Add. 1– S/23082/Add. 1

Geneva Agreement between the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN). Geneva, April 4, 1990. General Agenda and Schedule. Timetable for the comprehensive negotiation process between the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN) (“Caracas Agreement”). Caracas, May 21, 1990. Agreement on Human Rights between the government of Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN). San José (Costa Rica), July 26, 1990. Mexico Agreements between the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN). Mexico City, April 27, 1991. New York Agreement between the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN). New York, September 25, 1991. Document entitled The Compressed Negotiations signed by the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN). New York, September 25, 1991. 87

88 A/46/863–S/23504, Annex I

A/46/863–S/23504, Annex II

A/46/864–S/23501

S/25812/Add. 2

S/1994/612

S/1994/1144

DOCUMENTS

Act of New York I signed by the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN). New York, December 31, 1991. Act of New York II signed by the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN). New York, January 13, 1992. Peace Agreement between the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN). Mexico City, January 16, 1992. Land Transfer Agreement. October 13, 1992. This proposal was made to the government and to the Frente Farabundo Martí para la Liberación Nacional (FMLN) and accepted separately within a few days by each of the two parties. It is a supplement to the peace accords signed in Mexico City on January 16, 1992 (see: A/46/864-S/23501, DPI/1208). Agreement on a Timetable for the Implementation of the Most Important Agreements Pending. May 19, 1994. Joint Declaration signed by the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN), San Salvador, October 4, 1994.

Reports and other UN documents: S/22031

Report of the Secretary-General on efforts to find a negotiated political solution to the conflict in El Salvador (December 21, 1990). S/22494 + Corr. 1 Report of the Secretary-General on the + Add. 1 recommendations of the preliminary mission to El Salvador and the proposed structure of ONUSAL April 16 and 17 and May 20, 1991). A/45/1055–S/23037 1st report of the United Nations Observer Mission in El Salvador; 1st report of the Director of the Human Rights Division appended (September 16, 1991). A/46/658–S/23222 2nd report of the United Nations Observer + Corr. 1 Mission in El Salvador; 2nd report of the

DOCUMENTS

A/46/713–S/23256

S/23402 + Add. 1

A/46/876–S/23580 S/23642

S/23999 + Add. 1

A/46/935–S/24066

A/46/955–S/24375

S/24731

S/24805

S/24833 + Add. 1

A/47/739–S/24871 S/25006

89 Director of the Human Rights Division appended (November 15 and 29, 1991). Report of the Secretary-General on the situation in Central America (December 2, 1991). Report of the Secretary-General recommending an enlargement of ONUSAL’s mandate (January 10 and 13, 1992). Annex: Act of New York 1, signed by the government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN), New York December 31, 1991. 3rd report of the Director of the Human Rights Division of ONUSAL (February 19, 1992). Report of the Secretary-General on the United Nations Observer Mission in El Salvador (February 25, 1992). Report of the Secretary-General on the United Nations Observer Mission in El Salvador (May 26 and June 19, 1992). [4th] report of the Director of the Human Rights Division of ONUSAL for the period from January 1, to April 30, 1992 (June 5, 1992). [5th] report of the Director of the Human Rights Division of ONUSAL transmitting information on the implementation of the San José Agreement (August 12, 1992). Letter from the Secretary-General dated October 28, 1992, recommending the extension of the current ONUSAL mandate for an interim period of one month, until November 30, 1992 (October 29, 1992). Letter from the Secretary-General dated November 11, 1992, concerning the implementation of the Peace Accord for El Salvador (November 13, 1992). Report of the Secretary-General on the United Nations Observer Mission in El Salvador (November 23 and 30, 1992). Report of the Secretary-General on the situation in Central America (November 30, 1992). Report of the Secretary-General on the

90

S/25078

S/25200

S/25241

E/CN.4/1993/96

S/25500

S/25516

A/47/912–S/25521

DOCUMENTS

United Nations Observer Mission in El Salvador (December 23, 1992). Annex I: Statement of the Secretary General at the ceremony marking the end of the armed conflict in El Salvador, December 15, 1992). Letter from the Secretary-General dated January 7, 1993, on the developments relating to the implementation of the provisions of the Peace Accords for El Salvador concerning the purification of the Armed Forces [S/23501, Annex, chap. I, sect. 3] (January 9, 1993). Letter from the Secretary-General dated January 29, 1993, reporting to the Security Council that the FMLN, despite prior assurances, did not complete the destruction of its weapons by the agreed deadline and that it is therefore not yet in compliance with its undertakings under the Peace Accords (January 29, 1993). Letter from the Secretary-General dated January 26, 1993 recommending acceptance of the request of the government of El Salvador to verify the next presidential, legislative, and municipal elections in El Salvador in March 1994 (February 4, 1993). Note by the Secretary-General transmitting the ONUSAL report entitled “United Nations Observer Mission in El Salvador as a mechanism for active verification in the field of human rights” (February 22, 1993). “From madness to hope: the 12-year war in El Salvador.” Report of the commission on the truth for El Salvador (April 1, 1993) [without the annexes]. Letter from the Secretary-General dated April 2, 1993 on the latest developments relating to the implementation of the provisions of the peace accords for El Salvador concerning the purification of the armed forces [S/23501, Annex, chap. I, sect. III] (April 2, 1993). [6th] report of the Director of the Human Rights Division of the United Nations Observer

DOCUMENTS

S/25812 + Add. 1–3

S/25901

S/26005

91 Mission in El Salvador up to January 31, 1993 (April 5, 1993). Report of the Secretary-General on the United Nations Observer Mission in El Salvador proposing to enlarge ONUSAL to include an electoral component (May 21, 24, and 25, 1993). Add. 1: Cost estimates of the expansion of ONUSAL from June 1, 1993, to April 30, 1994. Add. 2: Land Transfer Agreement of October 13, 1992. Add. 3: Analysis of the recommendations contained in the report of the commission on the truth. Letter from the Secretary-General dated June 8, 1993, transmitting information about the existence in Nicaragua of FMLN clandestine deposits containing considerable amounts of weapons (June 8, 1993). Further report of the Secretary-General on the United Nations Observer Mission in El Salvador (ONUSAL) concerning the recent discovery of illegal arms deposits belonging to the FMLN (June 29, 1993). Annex I: Letter dated June 12, 1993, from the Secretary-General addressed to the Coordinator-General of the FMLN. Annex II (A): Letter dated June 16, 1993, from the Coordinator-General of the FMLN addressed to the Secretary-General. Annex II (B): Letter dated June 11, 1993, from the Secretary-General of the Fuerzas Populares de Liberación (FPL) addressed to the Secretary-General. Annex III: Letter dated June 19, 1993, from the Coordinator-General of the FMLN addressed to the Secretary-General. Annex IV: Letter dated June 11, 1993, from the President of the Republic of El Salvador addressed to the Secretary-General. SC response: S/26071 (July 12, 1993).

92 S/26052

DOCUMENTS

Letter from the Secretary-General dated July 7, 1993, concerning the implementation of the provisions of the peace accords for El Salvador relating to the ad hoc commission’s recommendations regarding the Armed Forces (July 8, 1993). SC response: S/26077 (July 13, 1993). A/47/968–S/26033 [7th] report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador up to April 30, 1993 (July 2, 1993). S/26371 Further report of the Secretary-General on the United Nations Observer Mission in El Salvador transmitting information concerning the identification and destruction of clandestine FMLN arms deposits (August 30, 1993). Annex I: FMLN certification of the destruction of the arms deposits. Annex I: FMLN communiqué of August 16, 1993. A/47/1012–S/26416 [8th] report of the Director of the Human + Add. 1 Rights Division of the United Nations Observer Mission in El Salvador up to July 31, 1993 (September 15, and October 27, 1993). Add. 1: Spanish only. S/26581 Further report of the Secretary-General on the United Nations Observer Mission in El Salvador transmitting information on the implementation of the recommendations of the Commission on the Truth (October 14, 1993). S/26606 [1st] report of the Secretary-General on the United Nations Observer Mission in El Salvador transmitting information on the activities of the Electoral Division (October 20, 1993). S/26689 Letter from the Secretary-General dated November 3, 1993, concerning recent developments in El Salvador, in particular cases of arbitrary execution (November 3, 1993). A/48/586 Report of the Secretary-General on the situation in Central America (November 11, 1993). S/26790 Further report of the Secretary-General on

DOCUMENTS

93

the United Nations Observer Mission in El Salvador transmitting information on the activities of the Mission for the period May 22–November 20, 1993 (November 23, 1993). S/26865 Letter from the Secretary-General dated December 7, 1993, concerning the investigation of illegal armed groups in El Salvador December 11, 1993). Annex: Principles for the establishment of a Joint Group for the Investigation of Politically Motivated Illegal Armed Groups. SC response: S/26866 (December 11, 1993). A/49/59–S/1994/47 [9th] report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL) up to October 31, 1993 (January 18, 1994). S/1994/179 [2nd] report of the Secretary-General on the United Nations Observer Mission in El Salvador transmitting information on the activities of the Electoral Division (February 16, 1994). S/1994/304 [3rd] report of the Secretary-General on the United Nations Observer Mission in El Salvador transmitting information on the activities of the Electoral Division (March 16, 1994). CA/86 Press release transmitting a statement by the Chief of Mission of ONUSAL on the conduct of the elections on March 20, 1994 (March 23, 1994). S/1994/361 Letter from the Secretary-General dated March 28, 1994, stating that little progress has been achieved in the implementation of the provisions of the peace accords (March 30, 1994) S/1994/375 [4th] report of the Secretary-General on the United Nations Observer Mission in El Salvador transmitting information on the activities of the Electoral Division [includes an assessment of the elections held on March 20, 1994] (March 31, 1994). A/49/116– 10th report of the Director of the Human Rights S/1994/385 Division of the United Nations Observer

94

DOCUMENTS

Mission in El Salvador up to February 28, 1994 (April 5, 1994). S/1994/486 Progress report on the pre-electoral situation in El Salvador as of April 20, 1994, prepared by the Electoral Division of ONUSAL (April 21, 1994). CA/89 Press release transmitting a statement by the Chief of Mission of ONUSAL on the conduct of the elections on April 24, 1994 (April 27, 1994). S/1994/536 [5th] report of the Secretary-General on the United Nations Observer Mission in El Salvador transmitting information on the activities of the Electoral Division [includes an assessment of the elections held on April 24, 1994] (May 4, 1994). S/1994/561 + Add. 1 Report of the Secretary-General on the United Nations Observer Mission in El Salvador [covering the period from November 21, 1993–April 30, 1994] recommending that the ONUSAL mandate be extended for a further six months (May 11 and 25, 1994). S/1994/612 Letter from the Secretary-General dated May 24, 1994 transmitting the “Agreement on a Timetable for the Implementation of the Most Important Agreements Pending” (May 24, 1994). A/49/281– 11th report of the Director of the Human Rights S/1994/886 Division of the United Nations Observer Mission in El Salvador up to June 30, 1994 (July 28, 1994). S/1994/989 + Corr. 1 Final report of the Joint Group for the Investigation of Politically Motivated Illegal Armed Groups in El Salvador, San Salvador, July 28, 1994 (October 22 and November 2, 1994). S/1994/1000 Report of the Secretary-General on the United Nations Observer Mission in El Salvador (August 6, 1994); Security Council response: S/PRST/1994/54 (September 16, 1994). A/49/562 Report of the Secretary-General on assistance

DOCUMENTS

95

for the reconstruction and development of El Salvador (October 21, 1994). S/1994/1212 + Add.1 Report of the Secretary-General recommending that ONUSAL be extended until April 30, 1995 (October 31, 1994). A/49/585– 12th report of the Director of the Human S/1994/1220 Rights Division of ONUSAL up to September 30, 1994 (October 31, 1994). S/1995/220 Report of the Secretary-General on the United Nations Observer Mission in El Salvador (March 24, 1995). A/49/88813th report of the Director of the Human S/1995/281 Rights Division of ONUSAL up to March 31, 1995 (April 18, 1995). Resolutions: S/RES/693 (1991)

S/RES/714 (1991)

S/RES/729 (1992)

S/RES/784 (1992)

S/RES/791 (1992)

S/RES/832 (1993)

Adopted at the 2988th meeting, May 20, 1991 (establishes ONUSAL, the United Nations Observer Mission in El Salvador). Adopted at the 3010th meeting, September 30, 1991 (welcomes the New York Agreement between the government of El Salvador and the FMLN). Adopted at the 3030th meeting, January 14, 1992 (approves the report of the SecretaryGeneral contained in S/23402 and decides to enlarge the mandate of ONUSAL to include the verification and monitoring of the implementation of the El Salvador Agreements). Adopted at the 3129th meeting, October 30, 1992 (approves the proposal of the SecretaryGeneral to extend the mandate of ONUSAL). Adopted at the 3142nd meeting, November 30, 1992 (approves the report of the Secretary-General [S/24833 + Add. 1] and decides to extend the mandate of ONUSAL as defined in resolutions 693 (1991) and 729 (1992), for a further period of six months ending on May 31, 1992). Adopted at the 3223rd meeting, May 27, 1993 (decides to enlarge the mandate of ONUSAL

96

S/RES/888 (1993)

S/RES/920 (1994)

S/RES/961

DOCUMENTS

to include the observation of the electoral process due to conclude with the general elections in El Salvador in March 1994 and also decides that the mandate of ONUSAL, enlarged in accordance with this resolution, will be extended until November 30, 1993). Adopted at the 3321st meeting, November 30, 1993 (decides to extend the mandate of ONUSAL until May 31, 1994 and requests the Secretary-General to report by May 1, 1994 on the operations of ONUSAL so that the council may review the mission’s size and scope for the period after May 31, 1994). Adopted at the 3381st meeting, May 26, 1994 (decides to extend the mandate of ONUSAL until November 30, 1994). Extending mandate of ONUSAL for one final period until April 30, 1995 (November 23, 1994).

INTERVIEWS

Interviews for this study were conducted between January 1993 and February 1994 in New York, Washington, D.C., and El Salvador. Some of the interviews were conducted by the author alone, others were conducted with Michael Doyle (former vice president of the International Peace Academy), Mark LeVine, or David McCormick (IPA research fellows), who are collaborating on a forthcoming book on multidimensional peacekeeping. The titles of the interviewees are those held at the time of the interview unless otherwise indicated. New York and Washington D.C. Mr. Francis Aguilar, Minister Counsellor, Mission of Guatemala to the UN, February 23, 1993 Ms. Cynthia Arnson and Mr. Clifford Rohde, Americas Watch, April 15, 1993 Father Timothy Berne, May 11, 1993 Amb. Ricardo Castañeda, Permanent Representative of El Salvador to the UN, June 4, 1993, and January 10, 1994 Ms. Martha Doggett, Lawyers Committee for Human Rights, January 21 and August 20, 1993 Col. Douglas Fraser and Mr. Peter Taylor, Mission of Canada to the UN, April 5, 1993 Mr. Javier Garrigues, Minister Plenipotentiary, Mission of Spain to the UN, February 2, 1993 Mr. Marrack Goulding, Undersecretary-General, UN Department of Political Affairs, April 10, 1993 Mr. David Holiday, Americas Watch, August 4, 1993 (telephone interview) 97

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Amb. Luis Jaramillo, Permanent Representative of Colombia to the UN, March 16, 1993 Ms. Angela Kane, UN Executive Office of the Secretary-General, February 16, 1993 Mr. Joseph Manso, Mission of the United States to the UN, March 9, 1993 Amb. Jorge Montaño, Ambassador of Mexico to the United States, April 15, 1993 Mr. Dong Nguyen, UN Electoral Assistance Unit, June 28, 1993 Mr. Robert Orr, April 1994 Mr. Michel Pelletier, UN Department of Peacekeeping Operations, June 30, 1993 Mr. Iqbal Riza, UN Assistant Secretary-General for Peacekeeping Operations and former Special Representative of the SecretaryGeneral for El Salvador, April 12, 1993 Amb. Miguel Salaverría, Ambassador of El Salvador to the United States, April 15, 1993 Mr. Alvaro de Soto, Special Adviser to the Secretary-General, UN, April 7, 1993 Mr. Marco Antonio Suazo, Counsellor, Mission of Honduras to the UN, June 3, 1993 Ms. Laura Vaccari, Department of Political Affairs, UN, June 11, 1993 Mr. Francesc Vendrell, Director, UN Department of Political Affairs, April 1993. Mr. George Vickers, Hemisphere Initiatives, February 3, 1993 Mr. Erich Vilchez-Asher, Minister Counsellor, Mission of Nicaragua to the UN, March 5, 1993 Amb. Antonio Villegas, Deputy Permanent Representative of Mexico to the UN, February 19, 1993 El Salvador: August 11–18, 1993 Ms. Mirna Anaya, former Secretary-General, CODEHUCA, August 13, 1993 Mr. Walter Araujo, government representative on the National Commission for the Consolidation of Peace (COPAZ), August 16, 1993 Ms. Blanca Antonini, ONUSAL Principal Political Officer, August 11, 1993 Mr. Peter Barwick, ONUSAL Political Officer, August 14, 1993 Lt. Carro, ONUSAL Police Division, August 14, 1993 Mr. Héctor Contreras, ONUSAL Regional Coordinator, August 14, 1993

INTERVIEWS

99

Dr. David Escobar Galindo, Rector of José Matías Delgado University, former member of government negotiating team, August 18, 1993 Ms. Linda Garrett, El Rescate, August 17, 1993 Dr. Romeo Meara Granillo, Attorney-General of El Salvador, August 17, 1993 Ms. Ana Guadalupe Martínez, FMLN representative, August 16, 1993 Mr. Schafik Jorge Handal, FMLN Coordinator-General, August 13, 1993 Ms. Helen Hobbs, ONUSAL Human Rights Division, August 14, 1993 Mr. Fritz Krebs, ONUSAL Acting Regional Coordinator, August 14, 1993 Ms. Leala Lima Santos, ONUSAL Regional Coordinator, August 18, 1993 Mr. Francesco Manca, Officer-in-charge, ONUSAL Electoral Division, August 12, 1993 Ms. Sabine Manigat, ONUSAL Political Officer, August 12, 1993 Dr. Carlos Mauricio Molina Fonseca, National Counsel for the Defense of Human Rights, August 17, 1993 Mr. José María Monterrey, Director-General of National Civil Police, August 17, 1993 Mr. José Morales and Mr. Gustavo Pineda Nolasco, Comisión de Derechos Humanos en El Salvador (CDHES), August 13, 1993 Col. Henry Morris, ONUSAL Mission Coordinator, August 11, 1993 Dr. Augusto Ramírez-Ocampo, Special Representative of the Secretary-General to El Salvador, August 12, 1993 Dr. Abraham Rodríguez, Vice President of Sigma Corporation, former member of Ad Hoc Commission, August 17, 1993 Mr. Manuel Rodríguez Cuadros, Principal Officer, ONUSAL Human Rights Division, August 12, 1993 Mr. Peter Romero (Chargé d’Affaires), Mr. Jim Carragher, and Mr. Michael Khan, Embassy of the United States to El Salvador, August 16, 1993 Mr. Salvador Sánchez-Ceren, FMLN representative, August 18, 1993 Mr. Eduardo Sancho, FMLN representative, August 12, 1993 Dr. Oscar Alfredo Santamaría, Minister of the Presidency, former member of government negotiating team, August 16, 1993 Mr. Juan Ignacio Sell Sanz, Embassy of Spain to El Salvador, August 18, 1993 Mr. Antonio Tapia, ONUSAL Senior Political Officer, August 12, 1993 Mr. Félix Ulloa, Instituto de Estudios Jurídicos de El Salvador (IEJES), August 18, 1993 General Mauricio Ernesto Vargas, Advisor to the President, former member of government negotiating team, August 17, 1993

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INTERVIEWS

General Homero Vaz Bresque, ONUSAL Chief of Police Division, August 12, 1993 El Salvador: January 16–26, 1994 Ambassador Benito Andion, Embassy of Mexico to El Salvador, January 20, 1994 Ms. Blanca Antonini, ONUSAL Principal Political Officer, January 18, 1994 Dr. José María Bolaños, Director, National Public Security Academy, January 24, 1994 Mr. Gino Costa, ONUSAL Political Officer, January 17, 1994 President Alfredo Cristiani, President of El Salvador, January 25, 1994 Mr. Benjamín Cuéllar, Human Rights Institute of the Central American University, January 20, 1994 Mr. Francisco Díaz Rodríguez, Director, Centro de estudios para la aplicación del derecho (CESPAD), January 25, 1994 Mr. Ronald Dreyer, Ms. Christine Cervenek, and Mr. Frederic Vacheron, ONUSAL Electoral Officers, January 22, 1994 Dr. David Escobar Galindo, Rector of José Matías Delgado University, former member of the government negotiation team, January 25, 1994 Amb. Alan Flanigan and Mr. Jim Carragher, Embassy of the United States to El Salvador, January 19, 1994 Dr. Diego García-Sayán, Director, ONUSAL Human Rights Division, January 25, 1994 Mr. Michael Gucovsky, ONUSAL Deputy Chief of Mission, January 18, 1994 Ms. Leala Lima Santos, ONUSAL Regional Coordinator, January 18, 1994 Mr. Robert B. Loosle, Project Manager, International Criminal Investigative Training Assistance Program (ICITAP), January 25, 1994 Amb. Luís Rodríguez Malaspina, Embassy of Venezuela to El Salvador, January 19, 1994 Mr. Francesco Manca, ONUSAL Electoral Division, January 17, 1994 Ms. Sabine Manigat, ONUSAL Political Officer, January 17, 1994 Dr. Carlos Mauricio Molina Fonseca, National Counsel for the Defense of Human Rights, January 24, 1994 Dr. Rubén Antonio Mejía Peña, Vice-Minister for Justice of El Salvador, January 24, 1994 Father Rafael Moreno, FMLN representative, January 20 and 24, 1994

INTERVIEWS

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Colonel Henry Morris, ONUSAL Mission Coordinator, January 17, 1994 Mr. Bruno Moro, Deputy Resident Representative, United Nations Development Program, and Colleen Dugan, UNDP, January 19, 1994 Dr. Augusto Ramírez-Ocampo, Special Representative of the Secretary-General to El Salvador, January 21, 1994 Mr. Manuel Rodríguez Cuadros, Principal Officer, ONUSAL Human Rights Division, January 18, 1994 Dr. Miguel Angel Salaverría, Foreign Minister of El Salvador, January 25, 1994 Mr. Salvador Samoyoa, FMLN representative, January 20, 1994 Mr. Juan Ignacio Sell Sanz, Embassy of Spain to El Salvador, January 20, 1994 Ms. Susan Soux, ONUSAL Electoral Division, January 17 and 22, 1994 Mr. Antonio Tapia, ONUSAL Political Affairs Officer, January 18, 1994 Ms. Adele Taylor, ONUSAL Electoral Officer, January 21, 1994 Mr. Roberto Turcios and Ms. Breny Cuencas, Tendencias magazine, January 20, 1994 General Homero Vaz Bresque, ONUSAL Chief of Police Division, January 17, 1994 Mr. Joaquín Villalobos, FMLN representative, January 19, 1994 Dr. Rubén Zamora, Presidential candidate, Democratic Convergence/FMLN, January 24, 1994 (Michael Doyle conducted this interview alone and provided notes to the author)

ABOUT THIS OCCASIONAL PAPER

Using El Salvador as an example of the UN’s recent multidimensional peacekeeping operations, Johnstone explores the delicate balance between the potentially conflicting goals of peace and justice. Johnstone challenges the view that these twin goals are incompatible, attributing the relative (though still incomplete) success of the Salvadoran peace process to the mutually reinforcing relationship between them. He argues that ONUSAL’s verification of the existing human rights situation, as well as investigations of past violations and support for institutional reforms, are breakthroughs for UN peacemaking, peacekeeping, and peacebuilding. Finally, he highlights lessons from the strategies employed in managing the political and institutional transformations that ended in El Salvador's brutal twelve-year conflict.

IAN JOHNSTONE is an official in the Executive Office of the SecretaryGeneral of the United Nations. Formerly, he was program officer and then senior associate for research at the International Peace Academy. He is author of Aftermath of the Gulf War: An Assessment of UN Action.

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THE INTERNATIONAL PEACE ACADEMY

The International Peace Academy is an independent, nonpartisan, international institution devoted to the promotion of peaceful and multilateral approaches to the resolution of international as well as internal conflicts. IPA plays a facilitating role in efforts to settle conflicts, providing a middle ground where the options for settling particular conflicts are explored and promoted in an informal setting. Other activities of the organization include public forums; training seminars on conflict resolution and peacekeeping; and research and workshops on collective security, regional and internal conflicts, peacemaking, peacekeeping, and nonmilitary aspects of security. In fulfilling its mission, IPA works closely with the United Nations, regional and other international organizations, governments, and parties to conflicts. The work of IPA is further enhanced by its ability to draw on a worldwide network of eminent persons comprising government leaders, statesmen, business leaders, diplomats, military officers, and scholars. In the aftermath of the Cold War, there is a general awakening to the enormous potential of peaceful and multilateral approaches to resolving conflicts. This has given renewed impetus to the role of IPA. IPA is governed by an international board of directors. Financial support for the work of the organization is provided primarily by philanthropic foundations, as well as individual donors.

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INTERNATIONAL PEACE ACADEMY OCCASIONAL PAPER SERIES

Available from the International Peace Academy, 777 United Nations Plaza, New York, New York 10017 (212-949-8480): The Future of Peacekeeping, Indar Jit Rikhye Paths to Peace in Afghanistan: The Geneva Accords and After, Selig S. Harrison The Financing of United Nations Peacekeeping Operations: The Need for a Sound Financial Basis, Susan R. Mills United Nations Peacekeeping: Management and Operations, F. T. Liu Negotiations Before Peacekeeping, Cameron R. Hume Available from Lynne Rienner Publishers, 1800 30th Street, Boulder, Colorado 80301 (303-444-6684): The United Nations in a Turbulent World, James N. Rousenau United Nations Peacekeeping and the Non-Use of Force, F. T. Liu The Wave of the Future: The United Nations and Naval Peacekeeping, Robert Stephens Staley II Political Order in Post-Communist Afghanistan, William Maley and Fazel Haq Saikal Seeking Peace from Chaos: Humanitarian Intervention in Somalia, Samuel M. Makinda Aftermath of the Gulf War: An Assessment of UN Action, Ian Johnstone Presiding Over a Divided World: Changing UN Roles, 1945–1993, Adam Roberts and Benedict Kingsbury UN Peacekeeping in Cambodia, Michael W. Doyle Rights and Reconciliation: UN Strategies in El Salvador, Ian Johnstone

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