One Year After Precedent-Setting Court Ruling, Victims of Forced Displacement Still Lack Protections

Written by Zach Goodwin

The gang members — los pandilleros — threatened them for months. Not one of the 33 family members, split across eight nuclear families living in the northern reaches of the capital city, escaped their harassment. The pandilleros knew that two members of the family were in the military, but they didn’t know which ones. They were determined to find out. 

Armed, the pandilleros would stop family members on the street, threatening to kidnap them, rob them, beat them. Then, on a brisk October night in 2016, four pandilleros entered one of the family homes. One of the family members, after being brutally beaten, managed to escape to a police station. But the mother and her 12-year-old daughter were not so lucky; the pandilleros beat and raped them both. By the time the police arrived, the pandilleros had already fled. 

As a result, all 33 family members fled the capital for the municipality of Berlín, tucked away in the mountains of eastern El Salvador. But in Berlín, things went from bad to worse. One night, the police raided their neighborhood, firing at will and killing one of the mothers. The family filed numerous reports, both about the events in Berlín and those in San Salvador. However, no investigation ever followed. 

In the space of just one year, this family suffered the worst indignities imaginable. They were forced to forfeit their entire way of life, made homeless by a gang that sought to punish them for who they were. And when the state did lift a finger, it was not to protect them; it was to add insult to injury, revictimizing the family time and time again, brutally murdering their family member right in front of them.  

The Salvadoran Supreme Court

The Salvadoran Supreme Court

This was one of six stories of forced displacement that Cristosal’s department of strategic litigation presented to the Salvadoran Constitutional Court over the course of 2017 and 2018, using a legal procedure known as a writ of amparo — an appeal that seeks redress for the violation of one’s constitutional rights.

The court has only responded to this one amparo case, postponing ruling on the other five. But in July 2018, citing this amparo case, it passed a monumental ruling. The court decreed that the family’s rights had indeed been violated, and furthermore mandated that El Salvador’s Legislative Assembly pass a law that specifically addresses forced displacement  and creates the policies and infrastructure necessary for protecting victims.

The Legislative Assembly had six months, until January 13, 2019, to fulfill this mandate. But January came and went without a law, and nearly a year after the original court decision, victims of forced displacement are still left stranded. But with several legal proposals currently in front of the legislature — including one authored by Cristosal — there is still time for the Salvadoran government to right course. 

According to Julio Magaña, Cristosal’s National Strategic Litigation Coordinator in El Salvador, passing a law specific to forced displacement is necessary not just to uphold the integrity of the judicial mandate, but in order to ensure that protections for victims cannot be threatened by a change in executive policies or presidential administrations. 

“A law has a longer lifespan,” Magaña said. “And a specialized law recognizes that victims of forced displacement face particular problems … accordingly, it is important to create specific laws and programs for these families.”

Cristosal published its first report on forced displacement in 2018, and presented the results of its second in front of media and Vice President of El Salvador Felix Ulloa in the capital of San Salvador on June 11, 2019. The report registered 1,724 cases of forced displacement in El Salvador and another 222 cases in Honduras, and pinpointed gang violence, a lack of public resources, and the systemic and historical abandonment of victims of violence as drivers of the phenomenon.

No previous Salvadoran presidential administration has recognized forced displacement, though Ulloa’s comments at the press release — which included the promise that the Salvadoran government would confront forced displacement “head on” — indicated, perhaps, a step forward. Magaña said that Cristosal’s work documenting forced displacement has helped to hold the state accountable and advance legal proceedings on behalf of victims.

“When we began to discuss the subject of forced displacement at the public level, the families began to feel empowered and began to demand their rights,” Magaña said. “We started to pressure the state and, from there, the strategic litigation area was born.”

Following the amparo decision, Cristosal was the first to propose a new law to the Legislative Assembly, in August 2018. Two state entities later proposed laws: the Executive Technical Unit of the Justice Sector (UTE) in December 2018, and the Ministry of Justice and Public Security in January 2019.

But neither of these two proposed laws center the victims of forced displacement. The Ministry’s law addresses victims of violence in general and only contains six articles. 

Julio Magaña at the presentation of a Cristosal report on strategic litigation in El Salvador.

Julio Magaña at the presentation of a Cristosal report on strategic litigation in El Salvador.

“It’s pretty evident that six articles is not enough to offer a response to the needs of victims of forced displacement,” Magaña said. “It’s not going to bring about an effective response to this problem.”

And UTE’s law is focused on investigating and combating criminality, proposing measures that seek to punish perpetrators, not help victims. 

“We believe that [the law] has to be a comprehensive response, not just concerned with combating criminality,” Magaña said. “And the proposal presented [by UTE] is not that. It’s a punitive and repressive proposal.”

“Only a law that is particular — and only Cristosal’s is — can work in favor of victims of forced displacement,” Magaña added. 

Cristosal’s law remains the most comprehensive and is the only law created in collaboration with victims of displacement. It asserts the rights of victims of forced displacement, urges the state to act, and proposes the formation of an interinstitutional commission that would develop programming focused on community development, the creation of economic opportunities, and the guarantee of human rights. Updates to the proposed law made in May 2019 incorporated more input from victims and positive elements from the other two laws, cementing the proposal as a collaborative effort between victims, state institutions, and civil society actors. 

International human rights experts have also endorsed the law. Dr. Elizabeth Ferris — a research professor at Georgetown’s Institute for the Study of International Migration who visited El Salvador at Cristosal’s invitation — affirmed that taking steps towards protecting those forcibly displaced by violence is “the responsible thing for governments to do.” She added that “it is incumbent on the government to do everything possible to ensure that its citizens are able to live in safety and dignity. Passing a law upholding the rights of [internally displaced persons] would be an important step in this regard.” 

Yet despite such consensus from both domestic and international experts on its necessity, no proposal on protecting victims of forced displacement has yet become law. 

Magaña said that Cristosal continues to work with civil society and government actors, sharing its expertise on how to effectively help victims of forced displacement and combat the phenomenon. A comprehensive and specific law remains the most essential instrument in that fight, as it is the only thing that guarantees rights for victims in the long run. 

“In the event that the state continues denying displacement and continues denying a proposal, a law on forced displacement, more victims will continue suffering from the scourge of violence and will continue running into the same problems that other families have run into.” Magaña said.

He added: “Here, we’re talking about human losses.”

Paulina P