The Serrano Sisters: El Salvador in the Inter-American Court of Human Rights.
By Margaret Popkin.

Civil judgments rendered against two former Salvadoran generals found responsible for the torture of three Salvadorans in the case of Romagoza v. Garcia, and against former air force captain Alvaro Saravía for his role in the killing of Archbishop Romero, both cases brought by the Center for Justice and Accountability in U.S. federal district courts, have rekindled a glimmer of hope for the thousands of victims of human rights violations during the armed conflict in El Salvador who have watched the years go by without any possibility of attaining justice or reparations in El Salvador. Now, for the first time, the Inter-American Court of Human Rights is likely to issue a sentence in a case brought against El Salvador for the forced disappearance of children during the war. This case was also heard outside El Salvador, however, representatives of the Salvadoran government participated in the hearings and the Court’s decision will be binding on the government of El Salvador.

An unprecedented hearing took place in San José, Costa Rica, on September 7 and 8, 2004, as the Inter-American Court of Human Rights heard its first case ever brought against El Salvador. The case involves the disappearance of Ernestina and Erlinda Serrano, who were just seven and three years old when last seen by their family. The two girls were found and taken away by soldiers on June 2, 1982, during a major military operation in the department of Chalatenango, which had forced the civilian population to leave their homes and flee to escape capture or death at the hands of advancing troops.

Dozens of children were picked up by soldiers in the course of this same military operation. Instead of trying to reunite the children with their families, the military often removed the children from the areas in which they were found, taking them to army barracks and subsequently entrusting them to the Salvadoran Red Cross. Ultimately, Salvadoran orphanages or group homes cared for many of these children, but made no effort to reunite them with their families – perhaps because they had no information about their families, perhaps because it would have been unthinkable to travel to the areas from which they came, perhaps because they thought the children were better off in the relative safety of the city, and perhaps because they did not consider it to be their responsibility. Obtaining false birth certificates was a routine matter in El Salvador in the 1980s. Many babies and young children were assigned new identities and offered for adoption, often with a significant exchange of money. Others were turned over to military officers.

After the war ended through a negotiated settlement in 1992, families whose children disappeared sought to find them, turning first to the Truth Commission for El Salvador, which carried out its investigations in late 1992. With a limited time for investigation and a focus on particularly notorious cases, the Truth Commission was unable to carry out the necessary research or reach conclusions about the fate of the children who disappeared in the context of military operations.

With the help of Father Jon Cortina, a Jesuit priest working in Chalatenango, these families joined together in the Asociación Pro Busqueda, formed in 1994. During its ten years of existence, Pro Busqueda has received more than 721 cases of missing children. With virtually no state cooperation, Pro Busqueda has succeeded in locating 246 of these children, now young adults. Some have been found in group homes for children or orphanages in El Salvador, others were adopted in different European countries, in Latin America, or in the United States. Almost without exception, they have wanted to learn about their families of origin and most have chosen to meet their relatives, even if they have grown up without speaking Spanish in a completely alien middle class world. Others, who have grown up in Salvadoran institutions, discover they do, in fact, have a family.

El Salvador is proud of its peace process. Through a process of negotiations mediated by the United Nations, the Salvadoran government and the insurgent Farabundo Martí National Liberation Front (FMLN) put an end to the years of bloodshed and facilitated the re-entry of the FMLN into the political life of the country, where it has become the country’s second political force. The peace accords called for a Truth Commission to overcome military impunity through the investigation of serious acts of violence, reformed the armed forces and established a new national civilian police force charged with responsibility for public security. Constitutional reforms addressed problems with the justice system and the armed forces.

Nonetheless, and despite assertions in the Accords regarding the need for justice, none of those responsible for serious violations of human rights or crimes against humanity has been brought to justice in El Salvador since the war ended. Publication of the Truth Commission’s report in March 1993, which found the military responsible for the vast majority of human rights violations, was followed immediately by a sweeping amnesty law that has been understood to bar prosecution and civil responsibility for any crimes committed in the context of the war.

After the Truth Commission’s important but necessarily limited findings and passage of the amnesty law, the government made no effort to conduct any further investigations to determine the fate of victims, nor did it make any effort to distribute the Truth Commission’s findings. No acknowledgment of state responsibility or reparations of any kind have been provided to the thousands of victims of human rights violations. Instead, political and military leaders declared that peace and reconciliation depended on forgiving and forgetting (perdón y olvido) and have opposed any efforts to seek justice, in El Salvador or elsewhere, claiming that such efforts risk destabilizing the peace process.

Unable to attain justice through the Salvadoran courts, representatives of victims, aided by the Center for Justice and International Law (CEJIL) have sought redress in the Inter-American system of human rights protection, which permits presentation to the Inter-American Commission on Human Rights of cases alleging violations of the American Convention on Human Rights. Salvadoran authorities have ignored the conclusions and recommendations of the Inter-American Commission on Human Rights, which have found, for example, that the sweeping 1993 amnesty law violates the American Convention and called for renewed investigations to identify those responsible for ordering the murder of six Jesuit priests and two women who worked with them (in November 1989) and the murder of Archbishop Oscar Arnulfo Romero (1980). Salvadoran authorities have dismissed the recommendations of the Inter-American Commission as “mere recommendations,” not binding on El Salvador.

Faced with reports of hundreds of missing children taken in similar circumstances, the Salvadoran government could have avoided litigation before the Inter-American Court. After the case of the Serrano sisters was presented to the Inter-American Commission on Human Rights in 1999, the Salvadoran government could have chosen to accept its responsibility to assist in reuniting families, particularly when government agents were responsible for dividing them, and worked with relatives of the missing children to establish their whereabouts.

In other countries in the region, cases and decisions in the Inter-American system of human rights have led to changes in laws and policies at the domestic level. Countries have embraced decisions emanating from the Inter-American system as a way to bring about change in their own institutions, policies and laws. In Peru, the Inter-American Court’s ruling in the Barrios Altos case has invalidated the effects of the 1995 amnesty law passed during the Fujimori administration. Investigations have been reopened. Following decisions from the Inter-American Commission and Court, judges arbitrarily dismissed during Fujimori’s reign were reinstated. The Guatemalan government has recently accepted responsibility in several high profile cases before the Inter-American Court, and has held public ceremonies to recognize the victims and the wrong they suffered at the hands of the State. Inter-American Court decisions have also ordered substantial damage awards to victims, which these states have paid. Decisions of the Inter-American Court are binding on the states that have accepted its jurisdiction, and the Latin American countries understand that they must comply.

Over the past ten years, Salvadoran authorities have shown no willingness to move forward with investigations in the cases of missing children. The legislature has not acted on Pro Busqueda´s proposal to form a national search commission. Although Pro Busqueda´s success in locating other children has shown the likelihood that missing children will be found alive, the Salvadoran government argues that the state has no responsibility in these cases. The government’s representative at the Inter-American Court repeated what Salvadoran officials have long proclaimed: the importance of not reopening the wounds of the past. The reality, of course, is that for families of disappeared children, these wounds remain open, as the children’s fate remains unknown. A political “reconciliation” between the parties to the conflict cannot be a substitute for the rights of victims and their relatives to truth and justice. Engaging seriously in the effort to find these young people would constitute an affirmative step towards reconciliation and healing the wounds left over from the war. Given the experience of Pro-Busqueda, there is a real likelihood of a happy outcome – finding the young women alive.

Instead the Salvadoran government used its resources to discredit the victims, suggesting that the sisters never existed and that their mother might have had a pecuniary motivation -- and using a combination of intimidation and promises to persuade a distant relative to testify to that effect. As the Inter-American Commission’s representative pointed out in his closing argument, the girls’ mother, a campesina from one of the poorest areas of the country, would have had to be prescient in 1994 to know that the case would eventually end up in the Inter-American Court where monetary damages may be awarded, as El Salvador had yet to accept its jurisdiction.

Government representatives argued that because the girls´ disappearance dated to 1982, years before El Salvador accepted the compulsory jurisdiction of the Inter-American Court, the Court should find that the case falls outside its jurisdiction. When it finally agreed to Court jurisdiction in 1995, El Salvador sought to ensure that cases from the period of the armed conflict could not be presented to the Court, trying to limit jurisdiction to cases which had begun after its acceptance of jurisdiction. International law, however, considers forced disappearances a continuing crime, until the victims´ whereabouts have been established.

Whatever the Court’s decision turns out to be, the Salvadoran government should use this experience as an opportunity for learning, both about the role and functioning of the Inter-American system and about how it might contribute to healing and reconciliation by working with survivors and their representatives to discover the truth by determining the fate and whereabouts of the missing children and acknowledging State responsibility. El Salvador committed substantial financial and human resources to defending itself in this case. In the future, its resources could be far more usefully applied to working in conjunction with groups such as Pro Busqueda, so that the survivors of human rights violations could finally discover the truth, seek justice, and obtain reparations, having their rights recognized and upheld in El Salvador.

[Source: Center for Justice and Accountability, San Francisco, Usa, 30sep04. Margaret Popkin, Executive Director, Due Process of Law Foundation, Washington, DC.]

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small logoThis document has been published on 14oct04 by the Equipo Nizkor and Derechos Human Rights.