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El Salvador Military Justice
Military justice traditionally adhered to a standard Western
pattern, providing for special and general courts martial. Unit
or post commanders had considerable leeway to dispense punishment
without resorting to formal trial; their disciplinary powers
served the functions of a summary court. The average Salvadoran
soldier traditionally respected authority and accepted discipline
as a normal condition of military life. Although the officer
corps had a history of staging coups against unpopular military
leaders, military commanders rarely mutinied. Ochoa's rebellion
in 1983 was a glaring exception
(see
The Military in Power, 1931- 84
, this ch.). Discipline was not usually a major problem in the
armed forces, and most offenses and infractions were dealt with
by administrative penalties.
The armed forces code of military justice, signed by Defense
Minister Vides on May 13, 1983, was loosely enforced. It
pertained only to military offenses and stressed the military's
constitutional obligations, the proper treatment of civilians,
respect for human rights, and the use of only the minimum force
necessary to achieve an objective. A special section of the 1983
code of conduct was devoted to procedures for handling members of
the armed forces arrested for criminal activities or human rights
violations. Commanders of such personnel were required to notify
the Joint General Staff immediately and to conduct a thorough
investigation. Results of the investigation were then to be
furnished to the general staff and the Ministry of Defense and
Public Security. During the investigation, commanders were
authorized to place the suspected service member under arrest. If
sufficient proof of guilt was available, the suspect was to be
turned over to the proper judicial authority.
Article 216 of the Constitution establishes military
jurisdiction for special tribunals and proceedings
(procedimientos) to try purely military felonies
(delitos) and misdemeanors (faltas). The verdicts
of these courts martial may be appealed in the ultimate instance
to the general commander of the armed forces or to the respective
chief of field operations. Civilian felonies (delitos
comunes) committed by military personnel must be prosecuted
in the civil judicial system, but intimidation and lack of
cooperation have rendered military personnel essentially immune
from prosecution in the civil courts. This reflected the
generally accepted military ethos according to which one never
subjected a fellow officer to punishment by civilians. Some army
officers considered Lopez Nuila's steps to investigate human
rights abuses and other crimes by some senior army officers to
have violated this unwritten code, the intent of which was to
prevent any real or perceived loss of military power and
influence.
In 1986 the directors of each of the three security forces
created internal investigatory units responsible for inquiring
into all accusations made against members of those forces. If the
investigators found "probable cause" that a member of the
military had committed a crime, the member was to be released
from the force and turned over to the proper civilian judicial
authorities for follow-up. If it was found that a crime had not
been committed but that authority had been abused, the member was
to be fined, disciplined, or released from the service. During
the period from June 1985 to May 1986, over 200 members of the
public security forces were remanded to the civilian courts for
prosecution. Because of deficiencies in the Salvadoran judicial
system's record-keeping, it was not known how many of those were
convicted. Nevertheless, in 1987 the United States embassy in San
Salvador conducted a study on the disposition of 905 cases of
military and public security forces members who had been
dismissed from the armed forces for misconduct and abuse of
authority and whose cases had been remanded to the civilian
courts for adjudication. The investigation found that few were
convicted, a situation largely attributable to the inadequacies
of the judicial system, although military intimidation was also
presumed to be a strong factor.
Resistance to investigation was particularly strong within
the officer corps, where tanda ties traditionally kept
officers from being arrested or prosecuted for alleged crimes.
For example, when Lieutenant Colonel Roberto Mauricio Staben
Perla, a leading tandona member, was detained in 1987
under suspicion of being part of a kidnapping ring involving
several military officers, his classmates demanded that Duarte
permit him to return to duty. Consequently, Staben was released
without ever having to submit to a formal investigation of the
charges made against him by two witnesses, and he resumed his
post as commander of the Arce Battalion. By 1987 the government
was known to have prosecuted only two cases involving abuses
against Salvadoran citizens by members of the armed forces; no
member of the regular officer corps had been convicted of
involvement in the many murders of civilians since 1979.
Data as of November 1988
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