Practice Relating to Rule 151. Individual Responsibility
El Salvador’s Human Rights Charter of the Armed Forces provides: “Nobody shall escape the law, when a violation of human rights has been committed.” It adds: “The committed violations shall not go unpunished.”
El Salvador’s Code of Military Justice (1934) provides for the punishment of various offences committed “in time of international or civil war”, such as arson, destruction of property, plundering of inhabitants or acts of violence against persons (Article 68). It also provides for the punishment of other acts committed “in time of international war”, including offences against prisoners of war, attacks on medical units, transports or personnel, abuse of the red cross, destruction of cultural property, offences against parlementaires
(Article 69), despoliation of the wounded or prisoners (Article 70), despoliation of the dead (Article 71), and unnecessary requisition of buildings and objects (Article 72).
El Salvador’s Penal Code (1997) provides for the punishment of acts of “Genocide” (Article 361), “Violations of the laws and customs of war” committed “during an international or a civil war” (Article 362), “Violations of the duties of humanity” (Article 363), and “Enforced disappearance of persons” (Article 364).
El Salvador’s Penal Code (1997), as amended in 2008, which contains a section on the violations of the laws or customs of war, states in the general section on criminal responsibility:
Art. 32.- Authors, instigators and accomplices are criminally responsible for the offence committed.
Authors can be either direct [authors] or [authors that are] perpetrator-by-means.
Direct Authors and Co-authors
Art. 33.- Direct authors are those who commit an offence on their own or with others.
Art. 34.- Perpetrator-by-means are those committing an offence through another person that they use as an instrument. …
Art. 35.- Anyone who with intent encourages another person to commit an offence is considered an instigator.
Art. 36.- [The following] … [a]re considered accomplices:
1) Anyone cooperating, in any way necessary, with the author or authors, and without which it would not have been possible to commit the offence; and
2) Anyone cooperating in any way in the commission of an offence.
The Penal Code further states in the general section: “Criminal law will be equally applicable to all persons who at the moment of the act were over the age of eighteen. Persons under this age will be subjected to a special regime.”
El Salvador’s Penal Code (1997), as amended in 2008, and which contains a section on the violations of the laws or customs of war, states in the general section on criminal liability:
Art. 114.- The execution of an act, that is described in law as an offence or a fault, gives rise to civil liability in accordance with the provisions of this Code.
Civil Law Consequences
Art. 115.- The civil law consequences of an offence, which will be declared during sentencing, comprise:
1) Restitution of the object obtained as a result of the punishable act or payment of its respective value;
2) Reparation of the damage caused;
3) Compensation for the victim or his or her family for the material or moral damages caused; and,
4) The procedural costs.
[Persons] Directly Responsible
Art. 116.- Anyone criminally responsible for an offence or a fault is also subject to civil [action] if there are resulting damages, either material or moral.
The Penal Code further states: “The exclusion of criminal responsibility does not lead to the exclusion of civil liability, which is governed by civil law.”
In 2009, in its written replies to the Committee against Torture concerning its second periodic report, El Salvador stated:
10. Indicate if, in accordance with the obligations of the Pact [1966 International Covenant on Civil and Political Rights], the General Amnesty Law for Consolidation of Peace of 1993 has been amended so as to not bar the investigation and punishment of those responsible for torture, cruel, inhuman and degrading treatment during the armed conflict.
“In this way, the lack of a criminal offence does not exclude the [existence] of an illicit civil act and even if the criminal judge declares that the first does not exist he or she cannot prejudge on the possible presence of the second … [A]s a result, even if an accused [person] is acquitted in a criminal process he or she can be sued through the civil procedure for non-compliance with the obligation to compensate for the damages caused by an illicit civil act or for the creation of a risk. The above implies that the claim for compensation due to costs and damages should be treated independently and can be raised before the competent tribunals even when the existence of another type of responsibility over the same act has been rejected from a legal point of view … ”, that is to say that “if the acts that gave rise to the civil liability of an official or public employee have not been amnestied – as they constitute offences that cannot be amnestied – or the amnesty is contrary to the Constitution, the claim for compensation is valid before the competent tribunals … ”.