El Salvador / Violence

“Bukele must be investigated for torture under the state of exception”

José Orozco
José Orozco

Monday, April 8, 2024
José Luis Sanz

Leer en español

Over the last weekend in March, 2022, a secret pact between the administration of Nayib Bukele and the gangs of El Salvador violently fell apart. In the ensuing 72 hours, the MS-13 gang assassinated 87 people. The Legislative Assembly, at Bukele’s order, responded by decreeing a state of exception giving extraordinary powers to the Police and suspending procedural guarantees and constitutional rights such as freedom of association and the right to private communications. These measures, which the law prescribes to last for a month, have been extended 24 times and are still in place. In two years, at least 78,175 people have been detained and incarcerated, at times for the mere reason of appearing nervous to a police officer. Today, 2.46 percent of the Salvadoran adult population is in prison.

Juanita Goebertus, director for the Americas at Human Rights Watch (HRW), accuses the Salvadoran government of failing to guarantee liberties and human rights in its security policy: “Hundreds of people continue waiting for something as basic as knowing why a family member was arrested,” she denounces in this interview, and insists that there is documented proof of the “direct participation of guards in acts of torture.” President Bukele, she says, should one day be investigated “for his responsibility in having incited this type of conduct.”

Goebertus, a lawyer and political scientist by training, has worked for 20 years in conflict resolution. She was a human rights and transitional justice advisor to the Ministry of Defense and National Security Council of Colombia during the administrations of Álvaro Uribe and Juan Manuel Santos, and was part of the negotiating team of the peace accord with the FARC guerrillas. She was also a legislator with the Alianza Verde (Green Alliance) party before joining HRW in 2022. In her new position, she warns of a general backsliding on human rights in Central America and rising authoritarianism, “whether in its most dictatorial form, in Nicaragua, or in its most innovative version in El Salvador”.

Under the Bukele administration, she says, not even the number of detained people or the homicide statistics are verifiable and transparent, and “no citizen today is able to defend their rights from a possible attack by a public official.”

In this interview, given from Bogotá, Goebertus also references the state persecution and exile of human rights defenders, prosecutors, and journalists in the Central American isthmus: “The greatest obstacle for these regimes, what most bothers them, is an active, deliberative, critical civil society,” she says. The response, she adds, especially in contexts like El Salvador, where most of society seems to accept the loss of liberties with a mixture of normalization and resignation, should be to “resist” and win the “narrative fight” against authoritarianism by demonstrating “that human rights are not only for a privileged few.”

The state of exception in El Salvador has now been in effect for two years. What does it mean for this measure to be extended 24 times in a row?
It is a normalization of a situation that should be exceptional, meaning that the Salvadoran state is capitulating on its duty to guarantee liberties and human rights while at the same time providing security. President Bukele is trying to present us with a false dilemma, as if the only way to protect citizens were to sacrifice rights. The Salvadoran people have already lived for decades subjected to gang violence, but the alternative model must not consist of incarcerating more than 78,000 people without procedural guarantees, many of whom we have documented as not belonging to a gang.

Those detained in these two years have no way to prove their innocence. They face hearings where more than 500 people are judged simultaneously, without access to defense attorneys, and in many cases we have found that they are subjected to torture and poor treatment in the prisons. There are even disappearances and over 200 in-custody deaths. This mass incarceration has not been accompanied by a sustained strategy to dismantle organized crime.

The emergency measures are not limited to those detained: The right to private communications has been suspended for two years for the entire Salvadoran population and, while it was later reinstated, for many months the right to free association was also suspended.
It’s a common trait of countries facing rising authoritarianism: They rationalize restricting fundamental human rights under the idea that “the bad guys” deserved it, and losing rights is their punishment, but Latin American history has demonstrated that when that door is open, it affects not only those who commit crimes. Without due process rights, tomorrow anybody —their child or friend— could face the unchecked power of the state.

In El Salvador, the Nayib Bukele administration has totally co-opted state powers. There are no counterweights. No citizen today is able to defend their rights from a possible attack by a public official.

You mentioned death and torture in prison. By the volume of cases, it appears to be systematic. Do you believe there is a deliberate government policy, or is this the result of a culture of tolerance?
President Bukele and members of his cabinet have made public statements that incite torture. They have insisted that these people are not human beings, and that those who may have belonged to a gang do not have rights. They thereby have very direct responsibility for giving orders that dehumanize the detained and produce what we have documented: Hundreds of people have denounced poor treatment and torture. And we are talking about constant beatings from other detainees in the presence of guards, as well as the direct participation of guards in acts of torture. History will have to investigate Bukele for his responsibility in inciting this type of conduct with the orders that he has given.

Families of victims of the state of exception have already sought out the Inter-American Commission on Human Rights (IACHR). Do you think there are grounds for their denunciations to move forward?
We have information about cases of torture that without a doubt warrant review by the Commission, and likely later by the Inter-American Court. The challenge we face is that El Salvador and Peru, together with Venezuela and Nicaragua, are attacking the Inter-American System of Human Rights and trying to weaken it because of its role as a check on the grave violations that these governments are committing. They see them as an enemy. The Bukele administration, if these denunciations proceed, will likely once again lash out at the Commission or the Court. Let’s hope that some of the countries in the region who have praised the “Bukele model” will have the courage to defend the Inter-American System, which has been so important for the defense of rights in the region.

What is your opinion of the Salvadoran government’s response to denunciations of grave human rights violations?
President Bukele said in a press conference on the day he was reelected that in any country, including in the United Kingdom, people are detained and later it is the justice system who decides if they are guilty or innocent. But what he omits is that, under the current rules in El Salvador, people are unable to defend themselves at trial. Of the 78,100 people detained —according to official reports— by August 2023, some 7,000 had been freed, but we do not know what their legal status is, nor the procedural phase of those who are still detained. We have constantly asked for the number of convictions, and the Bukele government has hidden the figure. We do not even know if any of the detained have really been convicted. There are cases where months and months, or years, have gone by without people seeing a judge. That is why Bukele’s answer was false; he talks of judicial oversight, yet it is exactly what his government has not permitted.

In fact, one of the cases presented to the IACHR was filed by relatives of up to 66 detainees who have not received a response to their petitions of habeas corpus.
Habeas corpus is the first procedural guarantee. When the coercive arm of the state captures me, as a citizen I have the right generally in the first 36 or 48 hours following my detention to be taken before a judge, in order to verify whether or not there is minimal evidence for me to remain in custody. This guarantee has been suspended de facto and hundreds of people continue waiting for something as basic as knowing why a family member was arrested. When we are willing to tolerate this because we think that only gang members will be captured, we make it possible for any citizen to go to jail without the government having to provide evidence.

Amid the murder of 87 people in three days in late March 2022, the Salvadoran Army and Police launched sweeping operations in MS-13-controlled communities. In this picture, soldiers frisk residents of the colonia San José del Pino, in Santa Tecla, on March 27, 2022, the same day that the Legislative Assembly installed the ongoing state of exception. Photo Carlos Barrera
Amid the murder of 87 people in three days in late March 2022, the Salvadoran Army and Police launched sweeping operations in MS-13-controlled communities. In this picture, soldiers frisk residents of the colonia San José del Pino, in Santa Tecla, on March 27, 2022, the same day that the Legislative Assembly installed the ongoing state of exception. Photo Carlos Barrera

One of the most concerning aspects of the state of exception is the jailing of people on the sole grounds of belonging to a gang. It is true that this judicial tool is used in other countries, like RICO charges in the United States. But the way it is constituted in El Salvador is so broad that anyone who has had any contact with a gang, even non-voluntary, can be accused of a crime. At least 2,800 minors have already been processed, and many of the cases we have documented are of young people who suffered recruiting efforts by the gangs and their families managed to shield them from it. But the mere contact with the gang has led to them being persecuted.

Those detained have spent two years without visitations, and many families do not know exactly in which prison their sons or brothers are being held. We do not even know whether the figure of 78,100 arrests is real. Have you found any way to verify that number?
None. The problem of transparency in El Salvador is so dire that, while field work has allowed us to demonstrate that there, in effect, has been a reduction in violence, not even the homicide figures are transparent. There is no data to provide any certainty.

Honduras and Ecuador have propelled their own forms of the state of exception. What do you make of the fascination with the so-called “Bukele model” in many countries in the region?
The Bukele model is quite opaque, and what we have seen, above all, is an effort to copy the propaganda mechanism — the most basic expression of which are the photos of detained people naked and crowded together, in an effort to make it look like they have been brought to heel by the state. But in that fascination is also a clear lack of comprehension or diagnosis of the distinct problems of insecurity and organized crime in the region. To see the Argentinian minister of security ask Bukele to teach her to manage security policy, when Argentina has historically had one of the lowest homicide rates in Latin America, is nonsense.

On the other hand, criticism of that model has centered on the idea that it is a strategy that works but that is morally wrong, which partly validates the narrative of the Salvadoran government.
It is fundamental that we search for proposals of an alternative security model, one that is effective and protects human rights. That means dismantling organized criminal structures, a strategic criminal prosecution of leaders to ensure that there are no new recruitment processes, generating capacity for technical judicial investigations to cut into corruption networks, money laundering, arms trafficking… It means, for example, that at the community level there should be alternatives of education for the workforce and for youth from neighborhoods on the margins to have opportunities other than being recruited by the criminal group du jour.

None of these characteristics, which make a [security] process sustainable, are part of the ill-named “Bukele model.” Where are the gang leaders? What capacity is there for judicialization and clarification of what has occurred? We have to be realistic, and in local communities, many people say they feel safer. That is true. They say that the gangs who had operated in those territories have been weakened. But we are not seeing a sustainable dismantling of those organized crime structures.

Some consider the long duration of the state of exception to be a tactic of social control — that, even if it were formally terminated in the coming months, its routines and effects in society would continue unabated.
Our first recommendation, of course, is for the state of exception to end as soon as possible. But once we get to that scenario, which seems to be no time in the near future, there will be a need for each of the more than 78,000 cases of people detained without due process to be examined one by one. And a large portion of them, in cases where there is no evidence of gang membership or criminal action, will have to be freed. Otherwise, even if there is no state of exception they will continue permanently violating their rights.

These measures are also more broadly framed by the decision to remove the attorney general who was investigating corruption in the Bukele administration; the changed composition of the Constitutional Chamber, in order to permit presidential reelection despite an explicit constitutional prohibition; and last year’s electoral reforms. These are pieces of a process to weaken institutions while imposing a discourse that stigmatizes civil society and sends the leaders of social organizations and journalists into exile to avoid prosecution.

Does the fact that El Salvador held elections in a context of suspended guarantees in a way call into question the legitimacy of the result?
Without a doubt. That legitimacy was put into doubt above all by the fact that reelection is constitutionally prohibited. And under a state of exception the rule of law is weakened. The best example of how this played out was the clearly illegal arrest on election day of a university professor for reading the constitution over a megaphone in a voting center.

What is your diagnosis of the state of human rights in Central America as a whole?
2023 was not a positive year for human rights in Latin America in general, and that is no different in Central America. On one hand there are restrictions on the rights to political participation and to vote, which clearly also happened in Guatemala, but also to a great extent in El Salvador. I think it has been understated that the reforms that the Bukele administration introduced to the municipal districts, the number of legislators, and the vote count method to elect the Legislative Assembly had a direct impact on the electoral results. They thus affected the right to vote and participate. In El Salvador the right to vote was violated.

In the region we have also seen severe restrictions on civic space, on the work of journalists and NGOs, persecution of leaders… And without a doubt there has been a rise in different forms of authoritarianism, whether in its most dictatorial form, in Nicaragua, or in its most innovative version in El Salvador.

In the last three years the exile of opposition members, prosecutors and judges, journalists, and even businessmen, something we thought we left behind decades ago, has become widespread. It would even seem that the space for pluralism in apparently democratic contexts is dwindling.
The greatest obstacle for these regimes, what most bothers them, is an active, deliberative, critical civil society, with access to information that is uncomfortable for the governments. The most radical example is Nicaragua, which began the year having stripped 317 people of their nationality, and which one year ago expelled 222 political prisoners to the United States. Those are phenomena we have not seen since Pinochet. Nicaragua ended last year with more than 2,500 non-governmental organizations shuttered, which is more than half of the NGOs that existed in the country.

In a more subtle fashion, in Guatemala the persecution exerted by Attorney General Consuelo Porras against anti-corruption judges and prosecutors, especially since the expulsion of the CICIG, has spurred a mass exile that sends a message that anyone fighting against impunity will face judicial persecution. And there is, of course, the case of El Salvador, where President Bukele’s public criticism of critical journalists has generated a wave of exile in the country with the highest-quality journalism in the region, in a clear attempt to stifle their work as a check on power. But he has not been successful, because journalists are resisting even from exile.

In the case of Honduras, despite having a democratic government, we have seen dramatic cases of assassinations of community leaders and human rights defenders. From January to August of last year almost 150 defenders were attacked and there were at least 13 homicides, 90 percent of which were related to environmental issues. In Honduras, 75 percent of defenders say they have been attacked in some way. In different ways, the governments of Central America see civil society as their main enemy.

With the exception of Nicaragua, it does not appear that these countries have faced severe consequences in the international arena.
Last year, the international community demonstrated in Guatemala that it can have an effect when it is willing to act. The United States, the European Union, and countries of Latin America made the decision to defend the electoral results, and there were real consequences. It was a triumph of civil society, particularly the Indigenous communities who mobilized in the final months of the year, but it also shows the success of the organized international community that was willing to criticize what Porras and President Giammattei were doing.

Paradoxically, that same international community has been incoherent in other countries in the region. U.S. officials traveled to Guatemala, where they defended democracy and the election results, and then crossed the border into El Salvador, where it appears they have forgotten about the rule of law and human rights. The United States falls into an enormous contradiction due to how it prioritizes migration. When a country is willing to cooperate on migration, Washington reduces its pressure.

Among Central American countries, there has also been an evident pact of silence toward Nicaragua. The notion of non-interference is gaining ground, as if human rights were an affront to sovereignty. And Europe and many Latin American countries are prioritizing other strategic agendas.
In the case of the European Union and United States, we have seen the weight of the idea that China is winning the battle for influence in Latin America by not insisting on human rights or the rule of law. The recent summit of the E.U. and CELAC demonstrated that Europe was willing to prioritize commercial networks —due, also, to the effects of the war in Ukraine— above human rights and democracy.

Juanita Goebertus, Director for the Americas at Human Rights Watch. Photo José Orozco
Juanita Goebertus, Director for the Americas at Human Rights Watch. Photo José Orozco

Among Latin American countries, there is an acknowledgement that the isolation of regimes has not been effective. The cases of Nicaragua and Cuba show that cutting diplomatic ties does not lead dictatorships to collapse. But perhaps the most coherent country in the region has been Chile, with a spirit of dialogue but not wavering in criticizing the grave violations of governments of both the Left and Right.

Central America operates as a fraternity. The CABEI [Central American Bank of Economic Integration] is the best example. In 2023 there was finally a change of leadership at the bank, but we came from a scenario where not even democratic countries like Costa Rica or Panama were willing to question the multimillion-dollar loans to Nicaragua or El Salvador, including some credit lines directly tied to possible human rights violations.

In terms of diplomacy, it is a tacit acceptance of the idea that Bukele has tried to make viral: that human rights are an obstacle.
Bukele’s thesis is not new. Fujimori in Peru and Álvaro Uribe in Colombia used it before him, as well as the dictatorships of the Southern Cone. It is the idea that order and security have a price, and that we citizens must pay it. Latin America has already lived through that history, and we know that sacrificing human rights in favor of a proposed security policy can lead to small results in the short term, but in the long term has a dramatic cost for human lives and state legitimacy.

That is why the challenge is to demonstrate that it is possible to have effective security policies that protect human rights. We have seen it before: In Guatemala, in the same years of CICIG, the Public Prosecutor’s Office effectively reduced the homicide rate through a process of strengthening investigation and forensic capacity. The supposed rivalry between security and human rights does not exist.

Networks of human rights defenders seem to be losing ground in society. What is happening?
The challenge is to keep pushing, to not give in, and to find the way to win, as civil society, this narrative and deliberative fight surrounding the idea that human rights are our last line of defense. And for that we need to demonstrate that human rights are not only for a privileged few.

In our region, reality appears to contradict that discourse.
Yes and no. We lack memory. Maybe today there are sectors who think that human rights are only the banner of the LGBT population, or of the feminist movement that has defended the right to abortion, but that same banner has defended private liberties and those in Nicaragua who have been stripped of their properties, which is something that governments on the right would probably support. Human rights were a global consensus precisely because they allowed, independently of ideology, for a minimum consensus. Today there is a new global polarization that undoubtedly affects Central America, and has led us to believe that there is no point of agreement.

The fact is that there are leaders who, whether it is true or not, are positioning the idea that the majorities have not been protected, and that human rights have been for a privileged few.
The Salvadoran population has suffered very grave human rights violations as a result of the gangs’ actions —like the extortion of communities or murder of young people in forgotten neighborhoods— and of the lack of response from successive governments. But that does not strip us of legitimacy to say today, under the state of exception, that President Bukele has also committed severe violations. What we cannot do, yesterday or today, is denounce some violations and not others. In Colombia, for example, the human rights movement has been very effective in denouncing abuses committed by state agents, but perhaps they could be much more proactive. It is legitimate for citizens to wonder, ‘Where were you when they were extorting me?’ We need to do more to put ideas for concrete solutions on the table.

Has the reaction to authoritarianism been too slow?
It is difficult to measure that speed in the moment of things. What I see across Latin America, and undoubtedly in Central America, is a very active civil society, one that does not give in and, despite the worst circumstances, even from exile, is organizing and making moves. Civil society is acting as fast as it can. Of course, we must always hold space for self-criticism, but we are facing direct attacks from governments and what we must do is resist, put the data and the facts on the table, and raise our voice.

Support Independent Journalism in Central America
For the price of a coffee per month, help fund independent Central American journalism that monitors the powerful, exposes wrongdoing, and explains the most complex social phenomena, with the goal of building a better-informed public square.
Support Central American journalism.Cancel anytime.

Edificio Centro Colón, 5to Piso, Oficina 5-7, San José, Costa Rica.
El Faro is supported by:
FUNDACIÓN PERIÓDICA (San José, Costa Rica). All rights reserved. Copyright © 1998 - 2023. Founded on April 25, 1998.