The Absence of Adequate International Crime Provisions in Salvadoran Law
Posted: Tue Feb 18, 2025 5:31 am
As it stands now, the Act of Indictment introduced at the hearings of 29 and 30 March 2017 qualifies the acts of the El Mozote Massacre as ordinary crimes as they were proscribed by the national Criminal Code in force at the time. The defendants are charged with murder, aggravated rape, unlawful imprisonment, search without warrant, robbery, creating mayhem (estragos), aggravated assault, preparatory acts of terrorism and acts of terrorism.
The two amici curiae briefs, on the other hand, advocate for the introduction of double charges – those based on national law and those based on international criminal law and customs. The amici proposals seek to address the major practical concerns of the “ordinary crimes” approach: emphasizing the gravity of the crimes; overcoming the pitfalls of the statute of limitations; and expanding the reach of criminal responsibility.
The 1998 Criminal Code currently in force in El Salvador contains a general prohibition on war crimes and crimes against humanity (Arts. 362 and 363). Unfortunately, these provisions cannot be applied to El Mozote Massacre due to the prohibition on retroactivity in criminal law. The law that is applicable – the 1973 Criminal Code – also contains a prohibition on war crimes and crimes against humanity, but this prohibition is far from a general one. It is formulated in a way that shields military personnel from criminal prosecution before the ordinary courts for these specific crimes:
Article 488 – Crimes Against the Laws of War
A civilian who is not subject to military jurisdiction, and who during an international or civil war violates international laws or customs of war, with acts such as psychological or corporal damage, deportation for forced labor of civilian population in occupied territories, ill-treatment of prisoners of war, death of hostages, plundering of private or public property, unnecessary destruction of cities or towns not justified by military necessity, will be sanctioned with imprisonment from five to twenty years.
Article 489 – Crimes Against Humanity
A civilian who is not subject to military jurisdiction, that violates the moj database duties of humanity against prisoners or hostages of war, wounded during war actions in hospitals or places intended for the wounded, and whoever commits any inhuman act against the civilian population before, during or after war, will be punished with imprisonment from five to twenty years.
In the El Mozote Case, all of the indicted are retired military officers. They do not fit the above description, since they were active servicemen at the time of the commission of the crime. One could argue that they are civilians now, so that these provisions could apply to them just as any other provision of the Criminal Code, but that would be a stretch. First, their status at the time of the commission should be relevant. In addition, Salvadoran Military Career Law follows the doctrine of “once a soldier, always a soldier”. Therefore, even if retired, the men on trial are still military officers. The next best chance, therefore, is to look at the criminal laws regulating the Salvadoran military justice system at the relevant time. The 1964 Code of Military Justice in its Art. 68 proscribes:
A member of the Armed Forces who, during international or civil war, burns or destroys ships, aircraft, buildings or other property, or loots the inhabitants of villages or the countryside, or commits acts of violence on people, without military necessity required by the international war operations, will incur the penalty of imprisonment from fifteen to twenty years.
The two amici curiae briefs, on the other hand, advocate for the introduction of double charges – those based on national law and those based on international criminal law and customs. The amici proposals seek to address the major practical concerns of the “ordinary crimes” approach: emphasizing the gravity of the crimes; overcoming the pitfalls of the statute of limitations; and expanding the reach of criminal responsibility.
The 1998 Criminal Code currently in force in El Salvador contains a general prohibition on war crimes and crimes against humanity (Arts. 362 and 363). Unfortunately, these provisions cannot be applied to El Mozote Massacre due to the prohibition on retroactivity in criminal law. The law that is applicable – the 1973 Criminal Code – also contains a prohibition on war crimes and crimes against humanity, but this prohibition is far from a general one. It is formulated in a way that shields military personnel from criminal prosecution before the ordinary courts for these specific crimes:
Article 488 – Crimes Against the Laws of War
A civilian who is not subject to military jurisdiction, and who during an international or civil war violates international laws or customs of war, with acts such as psychological or corporal damage, deportation for forced labor of civilian population in occupied territories, ill-treatment of prisoners of war, death of hostages, plundering of private or public property, unnecessary destruction of cities or towns not justified by military necessity, will be sanctioned with imprisonment from five to twenty years.
Article 489 – Crimes Against Humanity
A civilian who is not subject to military jurisdiction, that violates the moj database duties of humanity against prisoners or hostages of war, wounded during war actions in hospitals or places intended for the wounded, and whoever commits any inhuman act against the civilian population before, during or after war, will be punished with imprisonment from five to twenty years.
In the El Mozote Case, all of the indicted are retired military officers. They do not fit the above description, since they were active servicemen at the time of the commission of the crime. One could argue that they are civilians now, so that these provisions could apply to them just as any other provision of the Criminal Code, but that would be a stretch. First, their status at the time of the commission should be relevant. In addition, Salvadoran Military Career Law follows the doctrine of “once a soldier, always a soldier”. Therefore, even if retired, the men on trial are still military officers. The next best chance, therefore, is to look at the criminal laws regulating the Salvadoran military justice system at the relevant time. The 1964 Code of Military Justice in its Art. 68 proscribes:
A member of the Armed Forces who, during international or civil war, burns or destroys ships, aircraft, buildings or other property, or loots the inhabitants of villages or the countryside, or commits acts of violence on people, without military necessity required by the international war operations, will incur the penalty of imprisonment from fifteen to twenty years.