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El Salvador-Military Justice

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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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