Practice Relating to Rule 150. Reparation
El Salvador’s Decree Creating the National Commission for Tracing Missing Children (2010) states:
Art. 1.- The National Commission for Tracing Girls and Boys Missing during the Internal Armed Conflict, which will be referred to as “Commission” or “Tracing Commission” hereinafter.
Art. 3.- The Commission shall have the mandate to:
f) Promote coordination with public institutions and the participation of private, national and international, organizations, … to [contribute to] … full reparation [of missing girls and boys].”
El Salvador’s Decree Creating the National Commission for Reparation to Victims (2010) states:
The “National Commission for Reparation to Victims of Violations of Human Rights that occurred in the context of the internal armed conflict”, hereinafter referred to as the “Commission” is created. … [The Commission’s] aim is to propose to the President of the Republic, through a duly founded report, the establishment of a presidential program for reparation to victims of serious violations of human rights.
The decree further states:
In the accomplishment of its functions, the Commission will take into account:
a) The standards for reparation [to victims] established by international human rights law and the jurisprudence of the Inter-American Court of Human Rights, in particular;
b) The opinion of Salvadoran non-governmental organizations that represent the interests of the victims of serious violations of human, referred to in article 7 of this Decree;
c) That reparations must have a collective character;
d) Previously elaborated reports on the situation of human rights in the country in the context of the internal armed conflict; and,
e) The fiscal, economic and financial situation of the country.
In Article 7, the decree states: “As part of its work methodology, the Commission will hear the opinion of the organizations of victims of human rights violations through the establishment of a regular dialogue with these organizations.”
The decree also states:
The Commission will exclusively circumscribe its work to the serious violations of human rights that took place in the context of the internal armed conflict, which ended on 16 January 1992 with the signature of the “Chapultepec Agreement” [El Salvador Peace Agreement].
The reparation processes, initiated by the State in fulfilment of the reports or rulings of the competent international or national organisms, will be carried out and completed without prejudice to the fulfilment of the responsibilities that this Decree grants to the Commission.
In 2009, in its written replies to the Committee against Torture concerning its second periodic report, El Salvador stated:
c) If a reparation program for victims [persons disappeared during the armed conflict of 1980 to 1992, including children] has been implemented; and if not the reasons for this.
d) If a comprehensive program for the search of disappeared persons exists.
10. With regards to subparagraphs c) and d), there is, to date, no comprehensive program for reparation to victims, favouring disappeared children; however, in the context of the work of the Inter-institutional Tracing Commission, psychological attention has been given to the found children and to their adoptive and biological families; as well as social assistance to these children in accordance with their needs (medical care, judicial and financial assistance, family reunion workshops, communication with their families abroad, among others).
11. On this point, it should be mentioned that given the new government vision, it has included as part of its 2009–2014 Government Program in the framework of Political Reform – Human Rights – a strategic guideline on “justice, reparation and truth” … [The latter will] establish the “Promotion and guarantee of a justice, truth and reparation policy for current and past grave violations of human rights. A comprehensive reparation policy – material and moral – will be adopted for victims of these violations”, as well as a “ … State reparation program for victims of violations of human rights with a legal basis, State resources and the cooperation of the international community”. In the context of Social Reform … Policy for Childhood and Adolescence … [the government has] a commitment to … [grant] “social support to families when their sons or daughters are in a difficult situation or at risk, such as: … 3) aid to families of sons and daughters disappeared during the war, among others”; and the commitment of the government of President Mauricio Funes Cartagena to implement the above-mentioned strategic guidelines.
In 2009, in its written replies to the Committee on the Rights of the Child concerning its third and fourth periodic reports, El Salvador stated in regard to the progress made and the current situation of the search for children who disappeared during the internal armed conflict:
62. … El Salvador, through its Minister for Foreign Affairs, has established an official dialogue with the Association for the Search for Disappeared Children, in furtherance of its obligations to comply with the judgement [of the Inter-American Court of Human Rights] in the case [on the disappearance] of the Serrano Cruz sisters and with the Court’s demands in other cases of disappeared children. It should be borne in mind that the Serrano Cruz judgement, although related to a specific case, contemplates a programme of reparation for all victims of enforced disappearance in El Salvador, including the creation of the aforementioned search commission, but also a webpage and the establishment of a genetic database. In the particular case of the Serrano sisters, progress has been made in medical care and in the approval of psychosocial attention by an expert known to the Serrano Cruz family. El Salvador wishes to inform the Committee of its determination to comply with these pending obligations in good faith and to the extent of its possibilities.
63. At the previously mentioned hearing of 6 November 2009 [on five cases of disappeared children, held in Washington, D.C.] before the Inter-American Commission on Human Rights, El Salvador radically altered its former positions regarding the problem of children who disappeared during the armed conflict. It recognized the existence of a pattern of child disappearances during that period, fully acknowledged the rights of victims to truth, justice and reparation, and promised to endeavour to discharge in good faith its international human rights obligations in this matter.
64. In connection with that hearing, the Office of the Public Prosecutor of the Republic officially informed the Ministry of Foreign Affairs of its decision to conduct a criminal investigation into five cases of disappeared children which had not been adequately dealt with in the past …
65. These changes hold out the prospect of a historic breakthrough … in honouring and providing redress to the victims.
In 2010, in its written replies to the Human Rights Committee concerning its sixth periodic report, El Salvador stated in response to a question on the recommendation to review the General Amnesty for Consolidation of Peace Act of 1993:
As the State has already mentioned to the Committee against Torture, since the new Government assumed its functions on 1 June 2009, … the State of El Salvador has recognized the rights of victims of violations of human rights to know the truth, to have access to justice and to receive adequate reparations.
El Salvador also stated:
11. With regard to the reparation of victims of serious violations of human rights that occurred in the context of internal armed conflict [1980–1992], the State recognizes that this obligation has not been fulfilled despite the recommendations that have been emitted by several international bodies. As a result of the above, in the context of the new Government of the Republic, … the State has decided to advance in the process of implementation of this obligation. In this sense, Executive Decree No. 57 of 5 May 2010, creating the “National Commission for Reparation to Victims of Grave Violations of Human Rights that occurred in the context of the internal armed conflict”, was approved.
12. This Commission, composed of high officials of the current Government, will have the mandate of designing a comprehensive collective reparations program with a working procedure that will necessarily include the participation of victims of serious violations of human rights that occurred during the internal armed conflict through civil society organizations representing them.
On the question of the search for persons, El Salvador further stated:
61. … [I]n the context of the current Government of El Salvador (which assumed its functions on 1 June 2009), the state has recognized that practices such as the enforced disappearance of persons took place in the context of the internal armed conflict, causing profound suffering to the affected families.
In addition, it has recognized the right of the families of victims of enforced disappearance to know the truth on the whereabouts of their loved ones, to have access to a judicial remedy and to obtain reparations in accordance with the standards of International Human Rights Law applicable to El Salvador.
62. This recognition of state responsibility materialized in a public act of reparation that met the internationally recognized standards for this type of state act. It was presided by the head of the Executive Branch, …, Constitutional President of El Salvador, on the occasion of the 18th Anniversary of the Peace Agreement on 16 January 2010. In this event, the President, on behalf of the Salvadoran State, asked for forgiveness to those who were victims of grave violations of human rights during the past internal conflict, due to acts like the enforced disappearance of persons. This act of pardon was extended to the families that have not been able to finish their grieving process due to the unknown whereabouts of their loved ones and to not having had the protection of the [State’s] institutions. During the same event, the President of El Salvador signed an Executive Decree for the creation of the “National Commission for Tracing Boys and Girls Missing during the internal armed conflict” in accordance with the standards required by the Inter-American Court of Human Rights; he also announced the creation of a “National Commission for Reparation to victims of grave violations of human rights that occurred in the context of the internal armed conflict”, which has been recently established by an Executive Decree in May 2010.
On the issue of the search for children, El Salvador also stated:
[O]n 18 January 2010, Executive Decree No. 5, giving legal validity to the current “National Commission for Tracing Boys and Girls Missing during the internal armed conflict”, was published in the Official Journal. … This Commission, … which will be instituted in July 2010, will have within its functions … promoting the right of victims to have access to justice, among others.
In 1979, a special committee set up by the Government of El Salvador to investigate the whereabouts of missing persons recommended that action be taken to compensate the families of missing political prisoners whose deaths could be either confirmed or presumed. The Ministry of the Presidency consequently announced that the families would be compensated.