“Attorney General’s Office must investigate what Munguía Payés [Minister of Defense] did to declare that information on El Mozote is non-existent”
Attorney and ex-head of the governmental human rights office, David Morales, reiterates the significance of the authorities’ refusal to deliver military records, a key piece of understanding the role of the 18 ex-military officials identified in this case.
One of the main obstacles in the investigation of the massacre in El Mozote and surrounding areas is the lack of official information from armed forces on the military operations carried out between December 11-13, 1981, in the northern department of Morazán.
As public hearings continue, and witnesses and relatives of victims testify about what is known as the largest massacre in Latin America, the private prosecutors (representatives from Tutela Legal with lawyer David Morales) reiterate the significance of authorities’ refusal to deliver military records, which are a key part of understanding the role of the 18 ex-military officials identified in this case, including the Minister of Defense of that time, Jose Guillermo Garcia.
This historic case made a decisive breakthrough in September 2016, when Judge Jorge Guzman Urquilla of the Second Court of First Instance of San Francisco Gotera decided to reopen the proceedings after the post-war amnesty law was declared unconstitutional. This step forced the Attorney General's Office to become actively involved in the case. But a year after starting the judicial process, David Morales, lawyer and former head of the governmental human rights office, criticizes the Attorney General’s Office for failing to request the arrest of the accused or require the current Minister of Defense, David Munguía Payés, to deliver information on Operation Rescate, in which more than a thousand people were massacred in just three days.
Revista Factum: The private prosecutors in the El Mozote case say they have been requesting information about the military operation of the Armed Forces for more than 10 years, since 2006. Is Minister Munguía Payés still exemplifying the same type of concealment, or has it changed?
David Morales: The private prosecution identified people responsible for providing public information based on names that were identified by the Truth Commission’s report and by Tutela Legal’s investigations. These individuals, who were officers in the High Command of the Armed Forces or the Atlacatl Battalion, were formally accused at that time and the judge was required to request information related to the operation from the military archives. The judge at the time resolved some procedural roadblocks, but in reality, it took several years to resolve the larger issues surrounding the opening of the case. Since the case was filed while the amnesty law was in effect, the judge did not request the information, until it was reopened in 2016 and requests for information resumed. Now we have the lamentable answer that there is absolutely nothing: no record of operation, of the units that participated, of the Atlacatl Battalion; that there is not a full payroll of the military, not even the soldiers' roster.
Factum: The private prosecutors have already announced that there would be a new request for information on military operations—so what are they requesting?
Morales: Last week we made a new request to the commander-in-chief of the Armed Forces— President Salvador Sánchez Cerén—for much of the documentation of military regulations and plans that should exist, according to the law, mandated by the then-current Organic Law of the National Defense, which dates back to 1961. It is a fairly recent request, and although we are still waiting to see if it is approved, we expect the judge to rule favorably and require this information.
Factum: But a request had already been made and a response was obtained about the members of the High Command of the Armed Forces and the Atlacatl Battalion.
Morales: Yes, it was referred to the judge at the request of the prosecution and to the commander-in-chief of the Armed Forces, the President of the Republic, who responds through the Secretariat for Legislative and Legal Affairs. But the secretariat is based on the report of the Minister of National Defense, Minister David Munguía Payés. They presented the list of officers from the High Command and the Atlacatl Battalion who are still alive, but they say information about the operation is totally nonexistent and they have found absolutely nothing in the general archive of the Armed Forces or in the archives of the units involved. They create a contradiction: they have records about which units participated in operations in northern Morazán, but no records about the operations. Of course, the units that participated were public knowledge: the Air Force of El Salvador, the Artillery Brigade, the Third Infantry Brigade with headquarters in San Miguel, and the Commando Instruction Center, which was the barracks of San Francisco Gotera, then Military Detachment Number 4.
We are asking for certification of existing regulations. Let us remember that the armed forces do not act freely, or in a chaotic way; they are very disciplined bodies, very well-structured, that operate hierarchically from the decisions of the military commands. Just read the current legislation, previous legislation, or legislation from any other country. These kinds of operations that exterminated the civilian population were carried out under this logic; they were not drug-fueled hordes of soldiers traipsing about the countryside, certainly not in an area where there was a guerrilla presence.
The Atlacatl Infantry Battalion was composed of different companies, from different hamlets, within a support network of the Infantry deployment of the Third Brigade and the Commando Instruction Center with full support throughout the Air Force; their activity included a phase of what they called softening, or preliminary attacks from the artillery. A single commander of these units did not have the capacity to carry out such an operation alone; this type of operation, combining many units, was only possible through the coordination of the Armed Forces, which cannot be activated without the instructions of the Minister of Defense, which order the deployment of hundreds of men who require food, supplies, ammunition, communication capacity, etc., which is a huge administrative movement.
This is essential information: we are asking that all the regulations and plans whose existence required the full force of the law at that time are provided. Although we also consider that the court and the Attorney General’s Office should investigate what has happened to allow Minister Munguía Payés to declare that the information is non-existent, because if information has been destroyed, that may point to new crimes committed to hide the information. It is not enough for the minister to say that the information does not exist, he must demonstrate with what procedures, with what files, and with what personnel he was conducting the search, and he must inform the court.
Factum: So they will expect the same Attorney General’s Office, which they recently called out before the IACHR for not taking an active role in this case, to carry the burden of requiring information on the destruction or non-existence of military archives?
Morales: As the private prosecution, we have a strategy that we cannot share publicly. We will do everything we can to procure all the evidence within our reach; but no particular accusation can instigate the Attorney General’s investigative capacity to collect information. Historically, the Attorney General's Office and prosecutors have actively obstructed and blocked investigations, intimidated witnesses, and opposed the reopening of the El Mozote case and others.
As of the ruling of the Constitutional Chamber [of the Supreme Court] in 2016, there are no legal excuses. The current public prosecutor lives in a new reality; he cannot invoke any legal excuse for not acting, he has the obligation to act and has recognized it. Now it may seem positive that they are not blocking the investigation, that the Attorney General has designated a minimum team to carry it forward and that this team of three prosecutors is acting in the hearings in a positive way. These prosecutors have had an active role in the hearings, favorable to obtaining information from testimonies, but have not yet made any formal request to further the investigation, have not required military information. This inactivity must be overcome; the role of the Prosecutor cannot be replaced by the judge. It is not enough to argue that they have no resources. Besides, forensic evidence is incorporated into the process; no investment in forensic scientific research is required because it is already done and is very strong.
Factum: What credibility can the Minister of Defense have in maintaining that he has no information on operations that were so crucial during the internal armed conflict?
Morales: In this case and other similar cases, the minister has argued that the information was destroyed or does not exist. It is a thesis that previous defense ministers applied in similar situations, that evidence does not exist. We can think of the Armed Forces as an organized apparatus of criminal power, one that had the capacity to perpetrate these crimes. After the massacre, officers who played a role were promoted to high positions. In fact, one of these same officers, Natividad Cáceres Cabrera, was part of the infamous Tandona, which perpetrated the slaughter of the Jesuits, Elba, and Celina and other crimes. So if this criminal organization within the Armed Forces perpetrated the crimes, it could have certain capacities to destroy the proof. This could have happened, but it is unlikely; there is no indication of such activity. It was a major operation, with hundreds of people murdered and thousands of victims, between those who were displaced and the relatives of those who were murdered. This demonstrates one of two things: that the Armed Forces has not had the will after 25 years of the Peace Accords to investigate these crimes against humanity, or that they were involved in the disappearance or concealment of this information.
Factum: The defense lawyers said that there have been massacres against the military—they are supposed to have those files, those records. So they do have records of the military slaughtered by the guerrillas, but not the massacres of civilians?
Morales: Yes, these are the contradictions. If there were crimes against humanity committed by the guerrillas, there is also an obligation of the State to investigate them. This has been dictated by the Constitutional Chamber [of the Supreme Court], and the Attorney General’s Office has the obligation to advance these cases. And I understand that some organizations have asked for investigations of people linked to the FMLN guerrillas. Speaking of these cases at no time invalidates the petitions for justice for victims of El Mozote; on the contrary, it reinforces them. The goal is not to think that all the crimes from the war can be investigated. Despite the fact that it does not even process a significant percentage of today's homicides, the criminal system does have the capacity to carry these cases forward—at least in a number of exemplary cases from the civil war, regardless of which side may have been at fault—and to allow a process of so-delayed transitional justice to open doors to reconciliation with the past.
Factum: Has the prosecution considered the possibility of a similar decision to the San Blas estate, where it was acknowledged that the execution was committed by the police, but the perpetrator could not be identified? Or as in the ruling in the truce, where the judge acknowledged that it was a plan orchestrated by the government of former president Mauricio Funes, but was not even raised by the public prosecutor’s investigation?
Morales: It would be a very regrettable situation, not least because it would re-victimize people whose suffering has impacted international experts who have seen examples of serious crimes in other places. I remember some experts from the Argentinean Forensic Anthropology Team told us: yes, we have seen very tough situations, like people who have lost two or three close relatives; but here we are told about 16, 20, 25 close relatives. Last week, we heard testimony from a survivor who had lost more than 30 members of her family: all her siblings with their family groups, her parents... And this is not a crime perpetrated by individuals, but by state authorities whose mandate was to protect the population. That a State does not investigate this type of case, as already established in the IACHR judgment, is a serious violation of human rights. That this happens 25 years after the signing of the Peace Accords, with more than two decades of million-dollar investments in the judicial body and the Attorney General... is unheard of. What message are we sending to today’s victims if the extermination of more than a thousand people, and the murder of more than 500 children, is ignored? As a state, we continue declaring the hero status of the commander who perpetrated this massacre, Lieutenant Colonel Domingo Monterrosa. And we continue to treat with deference, even when he must appear before the court, the top official who coordinated the massacre: José Guillermo García, the former Minister of Defense, who has not even been provisionally arrested, nor has he been requested by the Public Prosecutor's Office. What message would we be giving if this was the same attitude of the 1981 government that exercised terrorism, of the 1993 government that issued the amnesty?
Translated from Kiernan, M. C. (October 13, 2017). Fiscalía debe investigar qué hizo Munguía Payés para declarar que la información sobre El Mozote es inexistente. Revista Factum. Retrieved from revistafactum.com/fiscalia-debe-investigar-que-hizo-munguia-payes-para-declarar-que-la-informacion-sobre-el-mozote-es-inexistente