Human Rights: Chapultepec Peace Agreement

AGREEMENT ON HUMAN RIGHTS (aka San Jose Agreement, 26 July 1990)

I. Respect for and Guarantee of Human Rights

The Government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (hereinafter referred to as "the Parties"),
Bearing in mind that the legal system of El Salvador provides for the recognition of human rights and the duty of the State to respect and guarantee such rights;
Considering also that the State has assumed obligations of this nature under the many international conventions to which it is a party;
Bearing in mind that the Frente Farabundo Martí­ para la Liberación Nacional has the capacity and the will and assumes the commitment to respect the inherent attributes of the human person;
Reiterating the common purpose, expressed in the Geneva Agreement, to guarantee unrestricted respect for human rights in El Salvador;
Further reiterating their willingness, also expressed in the Geneva Agreement, to submit in this matter to verification by the United Nations;
On the understanding that for the purposes of the present political agreement, "human rights" shall mean those rights recognized by the Salvadorian legal system, including treaties to which El Salvador is a party, and by the declarations and principles on human rights and humanitarian law adopted by the United Nations and the Organization of American States;
Have concluded the following agreement in pursuance of the initial objective of the Geneva Agreement:

1. All necessary steps and measures shall be taken immediately to avoid any act or practice which constitutes an attempt upon the life, integrity, security or freedom of the individual. Similarly, all necessary steps and measures shall be taken to eliminate any practice involving enforced disappearances and abductions. Priority shall be given to the investigation of any cases of this kind which may arise and to the identification and punishment of the persons found guilty.

2. The full guarantee of the freedom and the integrity of the person requires that certain immediate measures be taken in order to ensure the following:

a. No one may be arrested for the lawful exercise of his political rights;

b. An arrest may be made only if ordered by the competent authority in writing and in accordance with the law, and the arrest must be carried out by officers who are properly identified as such;

c. Anyone arrested must be informed while the arrest is being made of the reasons for the arrest and must be apprised without delay of the charge or charges against him;

d. No one shall be placed under arrest as a means of intimidation. In particular, arrests shall not be made at night, except in the case of individuals caught in flagrante delicto;

e. No one in custody shall be held incommunicado. Any person who has been arrested shall have the right to be assisted without delay by legal counsel of his own choosing and the right to communicate freely and privately with such counsel;

f. No one shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.

3. In the course of the present negotiations, appropriate legal procedures and timetables shall be determined for the release of individuals who have been imprisoned for political reasons.

4. The fullest possible support shall be given to ensuring the effectiveness of the remedies of amparo and habeas corpus. To this end, the broadest possible publicity shall be given to this Agreement among the public at large and, in particular, among authorities or officers in charge of detention centres. Anyone who hampers the operation of these remedies or provides false information to the judicial authorities shall be punished.

5. The right of all persons to associate freely with others for ideological, religious, political, economic, labour, social, cultural, sporting or other purposes shall be fully guaranteed. Trade union freedom shall be fully respected.

6. Freedom of expression and of the press, the right of reply and the activities of the press shall be fully guaranteed.

7. Displaced persons and returnees shall be provided with the identity documents required by law and shall be guaranteed freedom of movement. They shall also be guaranteed the freedom to carry on their economic activities and to exercise their political and social rights within the framework of the country's institutions.

8. All persons shall be guaranteed freedom of movement in the areas involved in conflict, and the necessary steps shall be taken to provide the inhabitants of such areas with the identity documents required by law. 9. The Parties recognize the necessity of guaranteeing the effective enjoyment of labour rights. This subject will be considered under the agenda item on economic and social problems.

II. International Verification

10. In accordance with the provisions of the Geneva Agreement and the agenda for the negotiations which was adopted in Caracas, the Parties hereby agree to the terms of reference for the United Nations human rights verification mission (hereinafter referred to as "the Mission"), as set out below.

11. The Mission shall devote special attention to the observance of the rights to life, to the integrity and security of the person, to due process of law, to personal liberty, to freedom of expression and to freedom of association.
In this context, a special effort shall be made to clarify any situation which appears to reveal the systematic practice of human rights violations and, in such cases, to recommend appropriate measures for the elimination of the practice to the Party concerned. The foregoing shall be without prejudice to any powers granted to the Mission to consider individual cases.

12. A Director designated by the Secretary-General of the United Nations shall be in charge of the Mission. The Director shall work in close cooperation with existing human rights organizations and bodies in El Salvador. He shall also be assisted by expert advisers. In addition, the Mission shall include as many verification personnel as may be necessary.

13. The purpose of the Mission shall be to investigate the human rights situation in El Salvador as regards acts committed or situations existing as from the date of its establishment and to take any steps it deems appropriate to promote and defend such rights. Accordingly, it shall perform its functions with a view to promoting respect for human rights and their guarantee in El Salvador and helping to do away with those situations in which such respect and guarantees are not duly observed.

14. The Mission's mandate shall include the following powers:

a. To verify the observance of human rights in El Salvador;

b. To receive communications from any individual, group of individuals or body in El Salvador, containing reports of human rights violations;

c. To visit any place or establishment freely and without prior notice;

d. To hold its meetings freely anywhere in the national territory;

e. To interview freely and privately any individual, group of individuals or members of bodies or institutions;

f. To collect by any means it deems appropriate such information as it considers relevant;

g. To make recommendations to the Parties on the basis of any conclusions it has reached with respect to cases or situations it may have been called upon to consider;

h. To offer its support to the judicial authorities of El Salvador in order to help improve the judicial procedures for the protection of human rights and increase respect for the rules of due process of law;

i. To consult the Attorney-General of the Republic;

j. To plan and carry out an educational and informational campaign on human rights and on the functions of the Mission itself;

k. To use the media to the extent useful for the fulfilment of its mandate;

l. To report regularly to the Secretary-General of the United Nations and through him to the General Assembly.

15. The Parties undertake to give their full support to the Mission. To that end, they pledge:

a. To grant the Mission whatever facilities it may require for the performance of its functions;

b. To ensure the security of the members of the Mission and of such persons as may have provided it with information, testimony or evidence of any kind;

c. To provide, as expeditiously as possible, whatever information may be required by the Mission;

d. To give their earliest consideration to any recommendations made to them by the Mission;

e. Not to hinder the fulfillment of the Mission's mandate.

16. Each of the Parties shall appoint a delegate to serve as liaison with the Mission.

17. Should the Mission receive communications referring to acts or situations which occurred prior to its establishment, it may transmit them, if it deems it appropriate, to the competent authorities.

18. The fact that a case or situation has been considered by the Mission shall not preclude the application thereto of international procedures for the promotion and protection of human rights.

19. Subject to any arrangements which must be made prior to its establishment, the Mission shall take up its duties as of the cessation of the armed conflict. The Mission shall be established initially for one year and may be renewed.

MEXICO AGREEMENT (27 April 1991)

II. Judicial system and human rights

1. Agreements on constitutional reforms designed to improve significant aspects of the judicial system and establish mechanisms for safeguarding human rights, such as:

a. Reorganization of the Supreme Court of Justice and a new procedure for the election of Supreme Court judges. Henceforth, a two-thirds majority of deputies elected to the Legislative Assembly shall be required to elect judges to the Supreme Court of Justice.

b. An annual allocation from the State budget to the judiciary amounting to no less than 6 per cent of current income.

c. Creation of the post of a National Counsel for the Defence of Human Rights, whose primary function shall be to promote and ensure respect for human rights.

d. Election of the Attorney-General of the Republic, the Chief State Counsel and the National Counsel for the Defence of Human Rights by a two-thirds majority of deputies elected to the Legislative Assembly.

NEW YORK AGREEMENT (25 September 1991)

IV. Doctrine of the armed forces

Agreement shall be reached on the redefinition of the doctrine of the armed forces based on the ideas that emerge from the agreements on this subject and from the constitutional reform. It is understood that the function of the armed forces is to defend the sovereignty of the State and the integrity of its territory, and that this doctrine should be based on the principle that the activities and regime of the armed forces shall be consistent with the principles deriving from the concept of the legally-constituted State governed by the rule of law, the primacy of the dignity of the human person and respect for human rights; defence of and respect for the sovereignty of the Salvadorian people; the concept of the armed forces as an institution in the service of the nation, free from all considerations of politics, ideology or social standing, and from all other forms of discrimination; and the subordination of the armed services to the constitutional authorities.

V. Training system for the armed forces

Full effect will be given in its entirety to the agreement reached in Mexico on 27 April 1991 whereby the professional training of personnel serving in the armed forces shall place emphasis on the pre-eminence of human dignity and democratic values, respect for human rights and the subordination of such forces to the constitutional authorities. The agreements reached in this respect shall comprise regulatory provisions guaranteeing the foregoing points as well as the admission and instruction systems.

Chapter II: National Civil Police

2. Doctrine

A. The legal regime, staff training, organizational lines, operational guidelines and, in general, the institutional definition and operation of the National Civil Police shall accord with democratic principles; the concept of public security as a service provided by the State to its citizens, free from all considerations of politics, ideology or social position or any other discrimination; respect for human rights; the effort to prevent crime; and the subordination of the force to the constitutional authorities. Citizens' exercise of their political rights may not be impaired by police activities.

D. In the performance of their tasks, members of the National Civil Police shall respect and protect human dignity and shall preserve and defend the human rights of all persons.

Implementation History

1992

Minimum Implementation

COPAZ and the Legislative Assembly of El Salvador approved the law establishing the Office of the National Counsel for the Defense of Human Rights. The Counsel was then appointed, but delayed in beginning operations due to financial shortages. When the Counsel began operating, it dealt with cases procedurally, but did not act on them.1

ONUSAL raised concerns about persistent anonymous death threats made against potential witnesses to unsolved violent deaths and the lack of adequate action taken by the Government to address them.2 From January to May 1992 especially, the ONUSAL Human Rights Division received dozens of complaints about arbitrary killings and deadly force perpetrated by persons with FAES escorts and former members of the civil defense. A number of attacks against and attempted murders of ex-combatants and organizations affiliated with the parties to the conflict were also reported. Human rights activists were notable subjects of death threats from clandestine groups, as well.3

The use of torture by police officers was confirmed in a few cases, and abuse of arrested persons was systematic, especially at the time of capture.4 The civil defense and territorial service apparatuses were not dismantled on schedule, and ONUSAL received hundreds of reports of unlawful, arbitrary and/or incommunicado detention by members of these institutions. Municipal police showed little respect for due process laws and detainee/prisoner rights, and the judicial system lacked sufficient capacity to investigate or protect against such violations.5 The penal system was fraught with systemic violations of the rights of prisoners and detainees. In March 1992, 4755 of the total 5286 persons held in penitentiaries and penal centers were still awaiting trial. A lack of judges and court personnel was a significant part of the problem, but more importantly, the penal code did not live up to the standards set by the international conventions El Salvador had ratified.6 Minors were detained together with adults, and the living conditions in prisons and detention centers were deplorable.7

The FAES unlawfully recruited members in over 100 cases in early 1992, and FMLN was found to have children under the age of 15 among its ranks. However, recruitment and membership violations in the armed forces of both sides gradually ceased after the signing of the Peace Agreement.8

In general, freedom of movement was restored and international humanitarian law was upheld after the cease-fire took effect. However, ONUSAL received a large number of complaints from both civilians and the Government of unlawful acts or threats of violence and land occupations perpetrated by the FMLN.9

Gender discrimination remained widespread, with systematic discrimination against women at all levels and in all locations. The leading cause of death among women was complications of pregnancy, due to inequitable access to medical care. Salvadorian women constantly faced domestic violence, street violence and sexual harassment.10

  • 1. “Report of the Secretary-General on the United Nations Observer Mission in El Salvador,” United Nations Security Council (S/23999), May 26, 1992; “Situation of human rights in El Salvador,” United Nations General Assembly (A/47/596), November 13, 1992.
  • 2. “Report of the Secretary-General on the United Nations Observer Mission in El Salvador,” United Nations Security Council (S/24833), November 23, 1992.
  • 3. “Situation of human rights in El Salvador,” United Nations General Assembly (A/47/596), November 13, 1992.
  • 4. “Report of the Director of the Human Rights Division,” United Nations Security Council (S/24375), August 12, 1992.
  • 5. United Nations General Assembly, (A/47/596).
  • 6. “Report of the Director of the Human Rights Division of ONUSAL,” United Nations Security Council (S/24066), June 5, 1992).
  • 7. “Report of the Director of the Human Rights Division,” United Nations Security Council (S/24375), August 12, 1992.
  • 8. “Situation of human rights in El Salvador,” United Nations General Assembly (A/47/596), November 13, 1992.
  • 9. ibid.
  • 10. ibid.
1993

Intermediate Implementation

The National Counsel for the Defense of Human Rights opened regional offices and established itself as an autonomous protector of the peace agreements and burgeoning democracy.11

On 20 May 1993, Salvadorian riot police opened fire on a group of disabled FMLN war veterans demonstrating in Sal Salvador. At least three persons were killed. It was marked as the worst outbreak of violence since the cease-fire took effect.12

ONUSAL saw the report of the Commission on the Truth as one of the most importation human rights developments during its mission. It was clear that it viewed the recommendations of the Commission on the Truth as mandatory for the parties to the conflict.13

Serious concerns persisted regarding the continued trend of violations of the right to life and the right to integrity of person during the mid-year months.14 At the end of October 1993, two FMLN leaders were assassinated, raising political tension further around the issue of extrajudicial killings.15 Of particular concern was the number of these cases that seemed to involved death squads committing murders and making threats of a political nature.16 UN Secretary-General Boutros Boutros-Ghali and the Security Council pressed upon ONUSAL and the parties to the Peace Agreement to take decisive action to curb the continuing trend of political murders. A Joint Group consisting of representatives from the Government, the National Counsel for the Defense of Human Rights and the ONUSAL Human Rights Division formed to investigate politically motivated illegal armed groups.17 The Government also created the Inter-institutional Investigation Commission to respond to the many reports of extralegal executions, especially those of FMLN ex-combatants. ONUSAL still criticized the Government for its inability to guarantee proper criminal investigations and due process procedures.18

ONUSAL observed that the overall human rights situation improved at the end of the year, after several tenuous months during the middle months of the year. Concerns about politically motivated violence persisted, as details about the violent acts emerged. The total number of complaints deemed admissible by the Human Rights Division during 1993 was 1618, with the greatest proportions regarding violations of the right to life (23.3%), due process (22.7%) and personal freedom (22%). The persons most responsible (presumably) for the violations were members of the National Police (32.5%), the judiciary (19%) and persons unknown (15.1%).19

  • 11. “Report of the Secretary-General on the United Nations Observer Mission in El Salvador,” United Nations Security Council (S/25812), May 21, 1993; “Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador up to 30 April 1993,” United Nations General Assembly / Security Council (A/47/968 S/26033), July 2, 1993.
  • 12. “Killings at demonstration,” Keesing’s Record of World Events Volume 39, El Salvador, p. 39456.
  • 13. “Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador up to 30 April 1993,” United Nations General Assembly / Security Council (A/47/968 S/26033), July 2, 1993.
  • 14. ibid.
  • 15. “Letter Dated 3 November 1993 from the Secretary-General Addressed to the President of the Security Council,” United Nations Security Council (S/26689), November 3, 1993).
  • 16. “Further Report of the Secretary-General on the United Nations Observer Mission in El Salvador,” United Nations Security Council (S/26790), November 23, 1993.
  • 17. “Letter Dated 7 December 1993 from the Secretary-General Addressed to the President of the Security Council,” United Nations Security Council (S/26865), December 11, 1993).
  • 18. “Ninth report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL),” United Nations General Assembly / Security Council (A/49/59 S/1994/47), January 18, 1994.
  • 19. “Tenth report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador,” United Nations General Assembly / Security Council (A/49/116 S/1994/385), April 5, 1994.
1994

Intermediate Implementation

The Office of the National Counsel for the Defense of Human Rights (NCDHR) released a report at the beginning of the year concluding that progress on human rights in El Salvador is hindered by contradictions. Instruments and institutions were forming, but international human rights norms were far from standardized and compliance was lacking in the country.20 Later in the year, the NCDHR joined with the National Counsel to establish a authentication apparatus for reports of human rights violations in the country.21

The overall human rights situation improved after the regression during the middle of 1993, evidenced by lower numbers of complaints to the Human Rights Division of ONUSAL. However, reports of the involvement of FAES and National Police personnel in criminal activity, ongoing organized crime and political violence, and the systemic deficiencies in the rule of law tempered the relative improvements and marred the reputation of the new Government. A survey conducted during March 1994 revealed that crime is of greatest concern among the public, with 25% of persons reporting being a victim of assault during the prior three months. ONUSAL contended that the main source of human rights abuses was impunity, which stems from a weak justice system. The Legislative Assembly passed some constitutional amendments to incorporate some, but not all, of the recommendations from the Human Rights Division and the Commission on the Truth.22

The recommendations from the Commission on the Truth regarding recognition and ratification of international human rights treaties and instruments went on unheeded.23

On 10 November 1994, David Fausto Merino Ramirez, FMLN leader, was murdered along with other former revolutionaries, in an apparently politically motivated attack.24

  • 20. “Tenth report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador,” United Nations General Assembly / Security Council (A/49/116 S/1994/385), April 5, 1994.
  • 21. “Report of the Secretary-General on the United Nations Observer Mission in El Salvador,” United Nations Security Council (S/1994/1212), October 31, 1994.
  • 22. “Eleventh Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (1 March – 30 June 1994),” United Nations General Assembly / Security Council (A/49/281 S/1994/886), July 28, 1994.
  • 23. United Nations Security Council, (S/1994/1212).
  • 24. “Thirteenth Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL),” United Nations Security Council / General Assembly (A/49/888 S/1995/281), April 18, 1995.
1995

Intermediate Implementation

The general trend of improvement in human rights since 1993 continued into 1995. Disappearances ceased and murders of a political nature became rare. The Government’s enforcement institutions were improving on a similar trajectory, but still fell short of fulfilling all the recommendations from the Commission on the Truth.25 The office of the National Counsel for Human Rights elected a new ombudswoman in March 1995, and the profile of the Counsel rose thereafter.26

In its final report, the ONUSAL Human Rights Division reiterated that the primary source of human rights violations in the country was impunity. So long as the judiciary and National Civil Police continued to fall short of the ideals established by the Peace Accords and the Commission on the Truth Recommendations, impunity would persist.27

In compliance with the recommendations from the Commission on the Truth, on 30 March 1995, the Legislative Assembly ratified the Optional Protocol to the International Covenant 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. The Government also formally recognized the authority of the Inter-American Court of Human Rights.28

As of 6 October 1995, the Legislative Assembly had not approved most of the legal and constitutional reforms it was required to approve by the Commission on the Truth recommendations and the 18 May 1995 revised work plan. The deadline for these reforms was set for 31 October 1995, but the Legislative Assembly was on track to approve some of them no sooner than the end of November 1995, and others not before mid-1996.29

  • 25. “Report of the Secretary-General on the United Nations Observer Mission in El Salvador,” United Nations Security Council (S/1995/220), March 24, 1995.
  • 26. “The Situation in Central America: Procedures for the Establishment of a Firm and Lasting Peace and Progress in Fashioning a Region of Peace, Freedom, Democracy and Development,” United Nations General Assembly (A/50/517), October 6, 1995.
  • 27. “Thirteenth Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL),” United Nations Security Council / General Assembly (A/49/888 S/1995/281), April 18, 1995.
  • 28. “ Thirteenth Report of the Director of the Human Rights Division of the United Nations Observer Mission in El Salvador (ONUSAL),” United Nations General Assembly / Security Council (A/49/888 S/1995/281), April 18, 1995.
  • 29. “The Situation in Central America: Procedures for the Establishment of a Firm and Lasting Peace and Progress in Fashioning a Region of Peace, Freedom, Democracy and Development,” United Nations General Assembly (A/50/517), October 6, 1995.
1996

Intermediate Implementation

At the conclusion of ONUSAL’s mandate, UN Secretary-General Boutros Boutros-Ghali commented that the Government’s emergency actions to fight crime contradicted some components of the Peace Accords and set back improvements in human rights.30

  • 30. “International News, Associated Press Worldstream,” Associated Press, April 30, 1996.
1997

Intermediate Implementation

UN Secretary-General Kofi Annan proclaimed in 1997, “Massive human rights violations no longer occur [in El Salvador]. The systematic practice of forced disappearances, torture, the holding of prisoners incommunicado, acts of terrorism and summary and arbitrary executions on political grounds is a thing of the past.” The Government still had not ratified some important international treaties recommended by the Commission on the Truth, such as the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. The budget of the National Counsel for the Defense of Human Rights was cut significantly, hindering its ability to fulfill the role given it by the Peace Agreements.31

Despite continued promises by the Government to improve the rule of law, rates of violent crime spiked, with 8,281 homicides—compared to an average of 6,330 annual deaths during the civil war.32

  • 31. “Assessment of the Peace Process in El Salvador: Report of the Secretary-General," United Nations General Assembly (A/51/917), July 1, 1997, p. 5, para. 16.
  • 32. “C. America violence tarnishes peace,” Associated Press Online, June 13, 1998.
1998

Intermediate Implementation

According to a report, the Salvadoran government’s human rights record improved somewhat in 1998. There was no report of political killings. However, there were two cases of suspected extrajudicial killings. There were no confirmed politically motivated disappearances. Torture, other cruel treatment and arbitrary arrests were constitutionally prohibited but the PNC continued to use excessive force and otherwise mistreat detainees as well as arbitrary arrests.33 Organized crimes were on the rise.

1999

Intermediate Implementation

According to the U.S. State Department Human Rights Report, the government of El Salvador had some problems on issues related to its human rights record. However, the there was some improvement in the government’s performance. It was reported that there were several extrajudicial killings by police, use of excessive police force, mistreatment, arbitrary detention etc. Nevertheless, the new Civilian National Police was said to be improving its procedures.34 The report also suggests high organized crime, which increased after the signing of the accord in 1992.

2000

Intermediate Implementation

Organized crimes continued to rise and had some implication on human rights record of government of El Salvador. According to a report, the Salvadoran government’s human rights record improved somewhat in 2000. There was no report of political killings. However, there were two cases of suspected extrajudicial killings by police officers. There were no confirmed politically motivated disappearances. Torture, other cruel treatment and arbitrary arrests were constitutionally prohibited but the PNC continued to use excessive force and otherwise mistreat detainees as well as arbitrary arrests.35 According to the same report, impunity for the rich and powerful remained a problem.

2001

Intermediate Implementation

Organized crimes continued to rise and had some implication on human rights record of government of El Salvador. According to a report, the Salvadoran government’s human rights record improved somewhat in 2001. There was no report of political killings. However, there were two cases of suspected extrajudicial killings by police officers. There were no confirmed politically motivated disappearances. Torture, other cruel treatment and arbitrary arrests were constitutionally prohibited but the PNC continued to use excessive force and otherwise mistreat detainees as well as arbitrary arrests.36 According to the same report, impunity for the rich and powerful remained a problem. Police kidnapped persons for profit.

2012: The Salvadoran government generally respected human rights, but there were some areas of violation. According to the same report, impunity for the rich and powerful remained a problem. Police kidnapped persons for profit. Gender related violence and discrimination remained a serious problem. Some police officers committed killings, and used excessive force and mistreated detainees. Prison conditions remained poor, and overcrowding was a continuing problem.37