UN Commission on the Truth for El Salvador, From Madness to Hope: The 12-Year War in El Salvador, Report, 15 March 1993, in UN Secretary General, Letter to the President of the Security Council (S/25500), Annex. (PDF link)
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1. International human rights law
The Commission’s mandate entrusts it with investigating serious acts of violence, but does not specify the principles of law that must be applied in order to define such acts and to determine responsibility for them. Nevertheless, the concept of serious acts of violence used in the peace agreements obviously does not exist in a normative vacuum and must therefore be analysed on the basis of certain relevant principles of law.
In defining the legal norms applicable to this task, it should be pointed out that, during the Salvadorian conflict, both Parties were under an obligation to observe a number of rules of international law, including those stipulated in international human rights law or in international humanitarian law, or in both. Furthermore, throughout the period in question, the State of El Salvador was under an obligation to adjust its domestic law to its obligations under international law.
These rules of international law must be considered as providing the basis for the criteria applicable to the functions which the peace agreements entrust to the Commission. 4/ Throughout the Salvadorian conflict, these two sets of rules were only rarely mutually exclusive.
It is true that, in theory, international human rights law is applicable only to Governments, while in some armed conflicts international humanitarian law is binding on both sides: in other words, binding on both insurgents and Government forces. However, it must be recognized that when insurgents assume government powers in territories under their control, they too can be required to observe certain human rights obligations that are binding on the State under international law. This would make them responsible for breaches of those obligations.
The official position of FMLN was that certain parts of the national territory were under its control, and it did in fact exercise that control. 5/
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4/ It is important to mention that, in the San José Agreement on Human Rights, it was the understanding of the Parties to the peace agreements that "human rights" shall mean "those rights recognized by the Salvadorian legal system, including treaties to which El Salvador is a party, and by the declarations and principles on human rights and humanitarian law adopted by the United Nations and the Organization of American States".
5/ See, for example, FMLN, La situación de los derechos humanos a la Luz de los Convenios de Ginebra, p. 5 (1983).