Crimes against humanity in El Salvador?

Salvadoran President Nayib Bukele, who was re-elected in a landslide in February, will begin his second term in office on June 1. Critics of the Bukele regime, including ourselves, have noted that his successive candidacies and re-election violated the Salvadoran Constitution, and have repeatedly warned of concern over his draconian security policies.

There’s no denying that Bukele’s fight against gangs has led to a dramatic drop in homicide rates and won him enormous public support in El Salvador. However, it is also clear that his crackdown on security, in the form of an indefinite ‘state of exception’ in which civil rights and constitutional guarantees are suspended, has led to horrific human rights abuses against those caught up in the mass arrests and detentions. under cruel conditions.

The country’s security crisis has been in dire need of a serious response for years, and Salvadorans have the right to live without fear of extortion or violence. However, abolishing human rights for some people to protect others should not be the solution. Although the state of exception has been in effect for the past two years, Salvadoran and international organizations have extensively documented the human rights violations committed against those detained under the rule. The question is right whether these are crimes against humanity.

Many detainees are held in overcrowded prisons, denied access to counselors or family visits, and without access to food or medicine. According to our reports, many detainees have also been subjected to torture and ill-treatment. Additionally, local nonprofits report more than 200 people have died during their captivity, some due to direct violence (including assault and electrocution), others because they did not receive the necessary medical care. It is likely that at least some of these deaths can be classified under international law as extrajudicial killings, that is, the intentional killing of individuals outside any legal framework. There are also reports of people being forcibly disappeared.

Torture, disappearances and extrajudicial killings are all serious violations of human rights. But crimes against humanity imply not only individual violations, but also the existence of a plan or policy, or a systematic campaign, to commit them, involving a chain of command of state actors. In such cases, the suspects are usually commanders or high-ranking officials, rather than lower-ranking officers; If crimes against humanity are committed in El Salvador, they would most likely be ordered by those at the highest levels of government: the president and his inner circle.

When considering whether the abuses committed under the state of exception are crimes against humanity as defined in the 1998 Rome Statute, we must examine each of the criteria: whether they are 1) widespread or systematic; 2) committed against a civilian population; and 3) part of a state policy. Let’s look at each of the above considerations in the case of El Salvador.

First, to determine whether the abuses are “widespread,” we can look at the sheer number and scale of arrests made – more than 77,000 in two years, according to official figures – and their often legally baseless nature. It appears that security forces have been given carte blanche to detain people en masse and indiscriminately, without checking their authority and without due process for those detained. In one case, police officers told the mother of a young man being detained: “we can arrest anyone we want,” according to a Human Rights Watch report.

Secondly, it is clear that those detained under the state of exception are citizens: although the government claims it is only targeting gang members, in practice people are detained for things such as their physical appearance (having tattoos) and their social background (the fact that they are from a poor area). So far, there is no real evidence to support the government’s claim that most of those arrested belong to gangs; Even if they did, it would not make their treatment any more legal.

Finally, for the abuses in El Salvador to be the result of state policy, there does not need to be a written order or directive from the Salvadoran authorities; it is sufficient to show that the government encouraged, promoted or tolerated these acts. The Bukele administration’s public debate about its security crusade, coupled with Congress’s repeated renewal of the state of emergency, and subsequent pattern of similar human rights abuses committed under that policy, may show us that the abuses are not are isolated events, but part of a plan. which the government has not only agreed to, but also actively promoted.

What can be done? First, there must be a thorough, independent investigation into El Salvador’s human rights violations to see whether they meet the criteria set out above. Should this prove to be the case, the next task would be to determine who is responsible, and then identify a legal forum to investigate and bring their crimes to justice. Salvadoran courts, the International Criminal Court, and third-country tribunals under universal jurisdiction are all technically options, but each pose significant practical and political challenges.

Regardless of where a case ultimately goes to trial, the necessary first step is to investigate and analyze the abuses being committed, and this is something that the international community can and should push for and support. The longer the state of exception continues, the greater the dangers to democracy in El Salvador. Although the current targets of repressive policies are alleged gang members, as we have seen time and time again in Latin America, once it becomes acceptable to violate the human rights of some, this opens the door to violating the human rights of those then. Nowadays there are so-called ‘gang members’. Who will it be tomorrow?

Leonor Arteaga is program director of the Due Process of Law Foundation. Hannah Ahern is a program officer for the foundation.

Part of our series Unraveling Latin America. This essay focuses on El Salvador’s crackdown on gangs and the associated threats to civil liberties.

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