As I will discuss shortly, Salvadoran concepts of criminal responsibility seem fairly permissive in going after the “big fish” in cases of gross human rights and humanitarian law violations. There is, however, always a risk that the domestic courts will not give them a sufficiently broad interpretation as would correspond to that of international criminal law. To avoid this risk, the amici curiae briefs are encouraging the trial judge to accept international qualifications of the crimes and, by extension, modes of criminal responsibility defined by international criminal law. Both briefs advocate for the application of the command responsibility principle. Interestingly, neither is seeking the application of the joint criminal enterprise doctrine. Finally, the DPFL brief is proposing the application of the Roxin doctrine of perpetration by means through an organized apparatus of power, in order to overcome the limits of the Salvadoran system of criminal responsibility.
This proposal is very well informed. Besides its civil law origins, a good reception in Latin America and its endorsement by the International Criminal Court, the Roxin doctrine is particularly attractive for the El Mozote Case because it can be implemented in the existing structure of Salvadoran criminal law without much ado.
The concept of indirect perpetration is by no means a novelty for the Salvadoran moj database system (or any legal system for that matter). But Salvadoran law goes a step closer to the Roxin doctrine by explicitly contemplating indirect perpetration in hierarchical organizational settings. Art. 46, in conjunction with Art. 40(3), of the 1973 Criminal Code proscribes that those who issue an illegal order which is then obeyed by the subordinates will be considered as indirect perpetrators of the crime (autores mediatos). The indirect perpetrators will be held responsible regardless of the responsibility of the executioners.
It is immediately evident that this mode of responsibility shares some of the elements of the Roxin doctrine: it presupposes the existence of a hierarchical organization established by law; it also assumes a responsible command of the indirect perpetrator; finally, it at least accepts the possibility of replaceability of direct perpetrators. However, one significant difference is obvious – while the Roxin doctrine requires that this apparatus systematically operates outside of the boundaries of law (the detachment from law requirement), the indirect responsibility from Salvadoran law simply requires the illegality of a particular act. Consequently, it is important to identify a specific order for each criminal act in order to hold the indirect perpetrator responsible. It would take some creativity to stretch this in order to include criminal responsibility for the crimes committed by the members of the group simply on the basis of the de jure or de facto position of control over the group and, by extension, over the crime itself. But one can see how one could use the premises of the Roxin doctrine in order to secure conviction on the basis of Salvadoran indirect perpetration: if one proves a pattern of criminal behavior of the troops under the command of the accused, it becomes more difficult for the defense to deny the knowledge or direction of criminal acts by the accused. In light of the findings of the Truth Commission and the Inter-American Court (paras. 69-72 of the El Mozote Judgment), which established that targeting civilians was, indeed, a pattern of behavior within the “scorched earth” policy of Salvadoran counter-insurgency activities, the prosecution’s job seems to be relatively easy. Therefore, the Salvadoran courts might not have to introduce the Roxin doctrine as a novel principle of national criminal law (and risk objections of violation of principle of legality, however unfounded), but simply incorporate it through the evaluation of evidence.