Leonor Arteaga and Hannah Ahern*

This op-ed was first published in The Dallas Morning News.

Salvadoran President Nayib Bukele, reelected in a landslide last February, is set to begin his second term on June 1. Critics of the Bukele regime, ourselves included, have noted that his consecutive candidacy and reelection violated the Salvadoran constitution, and have repeatedly sounded the alarm about his draconian security policies. 

It is undeniable that Bukele’s fight against gangs has led to a dramatic decline in homicides and won him immense public support in El Salvador. However, it is also clear that his security crackdown, in the form of an indefinite “state of exception” where civil rights and constitutional guarantees are suspended, has generated horrific human rights violations against those who have been swept up in its mass arrests and detained under brutal conditions.

The country’s security crisis has urgently needed a serious response for many years, and Salvadorans have the right to live without fear of extortion or violence. However, eliminating human rights for some people in order to protect others should not be the solution. While the state of exception has been in place over the past two years, Salvadoran and international organizations have documented, extensively, the human rights violations being committed against those detained under this rule. It is fair to ask if these are crimes against humanity.

Held in overcrowded prisons, denied access to counsel or family visitation, and with inconsistent access to food or medicine, many detainees have also been subjected to torture and ill-treatment, according to our reports. Furthermore,  local nonprofits report over 200 people have died in custody, some from direct violence (including beatings and electrocution), others because they weren’t given necessary medical care. It is likely that at least some of these deaths can be classified as extrajudicial killings under international law, that is, the ‘deliberate killing of individuals outside of any legal framework.’ There are also reports of people being forcibly disappeared.

Torture, disappearances, and extrajudicial executions are all serious human rights abuses. But crimes against humanity imply not only individual violations but the existence of a plan or a policy, or systematic campaign, to commit them, involving a chain of command of government actors. As such, the accused are usually commanders or high-level officials, rather than low level officers; in El Salvador, if crimes against humanity are being committed, they most likely would have been 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 by the 1998 Rome Statute, we should 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 a few considerations in the case of El Salvador for each of the above.

First, to determine if the abuses are “widespread,” we might consider the sheer number and scale of arrests being made – over 77,000 in two years per official numbers- and their often legally baseless nature. It seems that security forces have been given carte blanche to detain people en masse and indiscriminately, with no checks on their authority and no due process for those being detained: in one case, police officers told the mother of a young man who was detained, “we can arrest anyone we want.” 

Second, it is obvious that those being detained under the state of exception are civilians: While the government claims they are only targeting gang members, in practice, people are being detained because of things like physical appearance (like having tattoos) and social background (being from a poor area). So far there is no real evidence to support the government’s claim that most of those detained belong to gangs; even if they did, it would not make their treatment any more legal.

Lastly, for the abuses in El Salvador to be pursuant to a state policy, there does not need to be a written order or directive from Salvadoran authorities; it’s enough to show that the government encouraged, promoted, or tolerated those acts. The Bukele administration’s public discourse on their security crusade, coupled with Congress repeatedly renewing the state of exception, and then a pattern of similar human rights violations being committed under that policy, could show us that the abuses are not isolated events but part of a plan that the government has not only consented to but actively promoted.

So, what can be done? First, there needs to be a thorough, independent investigation into the human rights abuses in El Salvador to see whether they meet the criteria laid out above. Should it be found that they do, the next task would be to determine who is responsible, and then identify a legal forum to investigate and adjudicate their crimes. Salvadoran courts, the International Criminal Court and third-country tribunals under universal jurisdiction are all technically options, but each presents significant practical and political challenges.

Regardless of where a case might ultimately end up being tried, 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 El Salvador’s democracy. While the current target of repressive policies is 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, it opens the door to violating the human rights of anyone. Today there are alleged “gang members.” Who will it be tomorrow? 

Leonor Arteaga is Program Director for the Due Process of Law Foundation (DPLF). Hannah Ahern is Program Officer for DPLF.

Photo credit: AP Photo/Salvador Melendez