Anjali Dayal is an associate professor of international politics at Fordham University’s Lincoln Center campus. She is the author of Incredible Commitments: How UN Peacekeeping Failures Shape Peace Processes (Cambridge University Press, 2021). She can be found online at @anjalikdayal.bsky.social on bluesky.
Under the rule of President Nayib Bukele’s personalist authoritarianism, El Salvador has publicly positioned itself as above critique. Despite this posturing, El Salvador’s government is behaving as though there might be future political, legal, and social consequences for its role in jailing migrants who were kidnapped by the Trump administration, taken to El Salvador’s notorious maximum security CECOT prison, and then returned to Venezuela in violation of their rights under international law. In recently disclosed court filings, El Salvador writes to the United Nations Working Group on Enforced or Involuntary Disappearances and tries to assign the US government sole responsibility under international law for migrants detained in CECOT.
This response, complete with El Salvador’s officials shifting blame to the US, shows us we don’t yet live in a time of inevitable impunity for human rights violations. Because fears about future accountability for violating human rights remain salient concerns for some violators, they also remain critical sites of mobilization for civil resistance against a fully fascist future.
In these reports, submitted to experts working under the UN’s High Commissioner for Human Rights and then made public as part of these detainees’ litigation against the US government, El Salvador’s government asserts its own compliance with human rights law, despite what it describes as an agreement with the Trump administration to provide detention facilities for men disappeared from the United States, and carefully specifies that El Salvador itself is upholding international laws that protect people from being snatched off the street by their governments.
El Salvador’s argument in these documents is particularly striking since the Salvadoran president and other key officials have openly expressed their disdain for human rights law. Instead, claiming compliance with human rights law, as El Salvador’s government does, accords these laws importance and legitimacy even as the government of El Salvador’s actions flout them. We can infer from these documents, then, that the government of El Salvador is writing with an eye to a future where these laws might matter, where violating these laws might have consequences, and where there might be accountability for the crimes committed against migrants to the US.
As autocratic breakthrough in the US reshapes domestic and international norms and arrangements, all institutions, states, and organizations that confront the Trump administration must make a practical and moral calculation: do they expect this authoritarian period in US politics to endure, or do they anticipate future legal and political accountability for the crimes and injustices now unfolding? Analysts often distinguish between those who fold to authoritarian demands and those who fight them: those betting on a lawless future where accommodating corruption and repression offers protection, and where the future prospect of accountability or reputational damage for legitimatizing lawless behavior are unlikely to matter much, versus those betting on democratic resurgence, with the attendant accountability necessary to a peaceful, pluralist future. In these documents, El Salvador is hedging a bet against the lawless future, not assuming enduring impunity for the Trump administration’s treatment of migrants, refugees, and asylum seekers.
If the government of El Salvador believes future accountability is possible, then it sees a future world where the international laws that protect the rights of individuals matter. These laws are meaningful when people believe they matter, and they are meaningless when people don’t believe they matter. What we see in these documents, then, is the political space and possibility for other governments, for activists, for civil society groups, for international organizations, and for the families of the disappeared to help change the stakes of betting on authoritarian future—to push for accountability, to expand and reassert the norms and values that protect people from state violence, and to make it more compelling for people to behave as though the future will include justice and rights, not merely impunity and repression.
Hedging the Bet: Constructing Deniability
As Chris Geidner reported, lawyers with the ACLU and Democracy Forward presented these documents from El Salvador as support for their argument that the US government “maintains constructive custody over the people it sent to CECOT”—that, contrary to US attorneys’ claims in court, the US government, and not El Salvador, retained ultimate authority over the detention and disposition of CECOT plaintiffs.
The documents were entered into the court record as part of the original J.G.G. v. Trump litigation before Chief Judge James Boasberg at the D.C. federal court, which challenges the Trump administration’s use of the Alien Enemies Act to send migrants in the US to El Salvador with no due process, while the documents themselves originate from a specific request to El Salvador from the UN’s human rights experts. The UN’s Working Group on Enforced or Involuntary Disappearances asked El Salvador to provide information about specific individuals flown to CECOT after their families asked the working group for an inquiry.
The Working Group on Enforced or Involuntary Disappearances is a special procedure of the UN’s Human Rights Council, and like many of the UN’s human rights procedures, it documents and produces information about human rights violations on behalf of victims.
Enforced disappearance is a state crime: the state or agents acting on behalf of the state take someone, place them outside the law, and hide their whereabouts from their friends, families, and advocates. Victims of enforced disappearances, who include the family and loved ones of the disappeared, can contact the Working Group on Enforced or Involuntary Disappearances. The Working Group can in turn serve as a channel of communication between the state on the one hand, and families, civil society, and the legal community on the other, asking states to provide information about the whereabouts and status of disappeared persons.
The reports filed as part of the Alien Enemies cases emerge from this process, and we can accordingly understand them as the narrative the government of El Salvador wanted the UN’s working group and the victims of enforced disappearance in this case to have. The reports they submitted argue that, while the government of El Salvador did facilitate the use of its prison infrastructure by the US, “the jurisdiction and legal responsibility for these persons lie exclusively” with the US. In fact, El Salvador claims that ICE and the US Government are solely responsible for any arrest, detention, or transferring of persons in violation of international law—if enforced disappearance is a crime perpetrated by state agents, then those state agents, they say, are the US’s, not El Salvador’s. Instead of coauthoring these acts, they say, their government merely provided Salvadoran prisons for “the custody of persons detained within the scope of the justice system and law enforcement” of the US via bilateral agreements.
While legal analysts have noted these bilateral agreements are mere fig leaves on illegal arrangements, El Salvador’s argument to the UN is that it can’t be held responsible for refoulement—returning migrants to a place they fled from in fear—or for violating international law on enforced disappearance since, per these agreements, it simply provided a detention facility for people the US sent them. Because, El Salvador asserts, these persons weren’t under their jurisdiction “at the time of their alleged deprivation of liberty or when they were last seen,” there’s no basis for the working group to request information from them, and the cases should be excluded from their national statistics—in other words, they may have housed the men, but they didn’t kidnap them. The government “reiterates its commitment to complying with its international human rights obligations, including the prevention of enforced disappearances,” and claims they have solid laws and regulations that protect the “rights of persons deprived of liberty, regardless of their nationality.” These documents reveal, then, that government officials in El Salvador want to avoid blame and culpability for the fates of migrants abducted from the US: El Salvador believes it’s in its best interests to say it is complying with human rights law, even when it clearly is not.
The Purposes of Deniability
Despite these claims, the eventual release of the detainees to Venezuela in a prisoner swap has revealed the horror of their time at CECOT—their accounts of torture, sexual abuse, and cruelty in the prison indicate the government of El Salvador’s deep disregard for their rights. There were at least two other ways for El Salvador to have approached these reports: government officials could have flouted requests from the Working Group and continued to publicly boast of the torture, pain, and fear inflicted on CECOT’s detainees, or they could have returned blanket denials to the Working Group that did not try to parse their legal responsibility. Instead, they chose to treat the requests as an opportunity to try and mitigate their liability for human rights violations.
The attempt instead to assign the US sole legal responsibility is particularly notable because neither the US nor El Salvador are state parties to the International Convention for the Protection of All Persons from Enforced Disappearance, and accordingly neither has explicitly accepted the legal obligations that follow from that agreement. In fact, a different UN body, the Committee on Enforced Disappearances, would be taking the lead if El Salvador were a signatory to the convention. While this distinction may seem academic, the effect is substantive. The convention is a newer human rights agreement—adopted in 2006 and ratified in 2010, it specifically defines enforced disappearance as a crime and a crime against humanity, and today it is one of the nine core human rights instruments under the UN umbrella, with 116 signatories and 77 ratifications. It is binding on all states who have ratified it, meaning that they treat it as law. Each of the nine core instruments also has a treaty body associated with it: committees of experts who consider state parties’ reports, consider individual complaints of violations, and conduct site visits and inquiries, among other tasks. The Committee on Enforced Disappearances serves this task for states that have signed the International Convention for the Protection of All Persons from Enforced Disappearance and agreed to accord the agreement the status of law.
The body involved in the El Salvador case, the UN’s Working Group on Enforced or Involuntary Disappearances, on the other hand, was established in 1980, and is one of the older procedures of the Human Rights Council. Its origins date to a time when disappearing people was a calling card of modern dictatorship, but before the adoption of a formal agreement defined explicit state obligations for protecting people against enforced disappearance. Instead, the Working Group has a monitoring and humanitarian mandate anchored in the Declaration on the Protection of All Persons from Enforced Disappearance, which the UN General Assembly adopted in 1992. This makes the Working Group part of an apparatus of “soft law”—it provides guidance to states without the necessity of formal ratification or accession to a treaty. In the specific case of the Working Group, its humanitarian mandate means it assists families in “determining the fate and whereabouts of disappeared relatives” by serving as a channel between victims and states, while its monitoring mandate means it may send urgent appeals to the relevant minister of foreign affairs when they receive credible allegations that someone has been “arrested, detained, abducted, or otherwise deprived of liberty and has been forcibly disappeared or is at risk of being disappeared,” or whenever it deems it necessary.
Put another way, the Working Group can involve itself in the affairs of any state primarily by offering guidance, or by appealing to states for information on behalf of victims; it has taken the lead in this case because neither El Salvador nor the US have signed the International Convention for the Protection of All Persons from Enforced Disappearance.
But the Convention, like many human rights agreements, is to some extent redundant—it defines a crime that was already prohibited by broader and overlapping treaties, agreements, and shared norms, and establishes more specific obligations for the states that ratify it. In the case of enforced disappearance, the three core elements of the crime—the deprivation of a person’s liberty, the involvement of the state, and the concealment of the person’s fate and whereabouts—are also prohibited by other bodies of international law.
Under the Rome Statute that underpins the International Criminal Court, and to which El Salvador is a party, enforced disappearance qualifies as a crime against humanity. The cruel treatment of the disappeared is barred under the Convention Against Torture, which specifies torture as a crime that can be prosecuted with universal jurisdiction. And under customary international law, as embodied in the Universal Declaration of Human Rights and understood as a baseline for state behavior, no state can abrogate a person’s right to enjoy liberty, security, legal representation, a fair trial, and equal protection under the law, and every person should enjoy freedom from torture. The Refugee Convention’s prohibition against refoulement—returning refugees and asylum seekers to the place they are fleeing from—also applies to the CECOT detainees. With its efforts to minimize its own transgressions of these laws, agreements, and norms, El Salvador is therefore behaving as though it is bound by the nested, overlapping web of norms, laws, and obligations that regulate state treatment of individuals, even as it is clearly violating these norms, laws, and obligations.
El Salvador is far from the first state to comply with the formal procedures of human rights law while flagrantly violating its core principles. Human rights law is practically weak but rhetorically powerful: it’s enforced by states via their domestic legal codes, and if states violate the rights of people living under their jurisdiction—as they often do—then other states, organizations, groups, and individuals can mostly only try to make them stop via indirect mechanisms, like sanctions, social pressure, boycotts, or slow-moving international litigation. States adopt all international legal obligations voluntarily, and there are no direct or automatic penalties for non-compliance with human rights law; there are also few easy ways to stop a state committed to violating the rights of people who live within its border. But the prevailing norms of the post-WWII international order have framed human rights violations as moral and legal atrocities; the investigative and information-producing powers of multilateral and non-governmental organizations have subjected abusive states to historically unprecedented levels of international scrutiny; and states have until very recently been reluctant to openly own their human rights violations—preferring instead to cloak their deeds in the language of counterterrorism, or issuing denials. This duality incentivizes states to pay lip service to the underlying values of human rights law while facing few consequences for transgressing them, and these efforts have often been understood as a strategy of buying political cover for human rights violations—a strategy that allows allies to frame box-checking as actual compliance. But lip service is still an acknowledgement that the law is meaningful in some way, and that acknowledgment is also an opportunity.
Changing the Stakes
In this case, El Salvador is voluntarily claiming it’s in compliance with international laws, even though, technically speaking, nothing will happen to El Salvador if it isn’t in compliance with international law, absent significant effort from other states. Paradoxically, this means international law can serve as a critical tool in confronting the global wave of far-right autocracies bent on breaking already-fragile human rights norms: it can serve as a way to change the stakes of violating human rights.
Pointing to international law as an aide can seem naive at best and maliciously impotent at worst, particularly when stacked against the horror of human rights violations. And framing international law as a pathway to redress harms can seem particularly obtuse when the misplaced faith that legal institutions would serve as the primary bulwark against authoritarianism is, after all, one way we got to the point where an open authoritarian could win the US presidency a second time and build a lawless government. In the domestic context, law is backed by the enforcement of state power, and people often view the existence of laws as automatically regulating behavior or guarding against impunity—but international law is very clearly a specific set of arguments about appropriate, tolerable behavior, with no expectation of automaticity attached to it. In this context, human rights law is a tool, not a weapon—not the sole sword of restitution, but a way to change the calculus people make when they weigh future consequences.
Without the backing of state power or any straightforward paths to enforcement, ironically, human rights law shows us how all law has to be backed by political power and pressure to be meaningful—less an ideal than a straightforward deal.
El Salvador’s effort to minimize its culpability will not necessarily help its government officials avoid legal culpability for enforced disappearance (since accomplices to enforced disappearance can still be legally responsible for the crime), nor for its crimes against humanity, its torture of detainees, or its refoulment of refugees—if there is political will to hold them accountable. Human rights have usually been indirectly enforced by social mechanisms; prosecutions or threatened prosecutions; and, rarely and at the extreme, military action. Social mechanisms work by trying to place countries outside the community of “good” states via naming-and-shaming tactics, grassroots pressure and activism from groups inside and outside the offending state. They can escalate to boycotts and sanctions—more coercive measures that strive to cut states off from economic and military benefits in order to shape their behavior.
These mechanisms work hand-in-hand with the international legal working groups and committees that produce knowledge about human rights violations and direct international scrutiny at violators. International justice can proceed via prosecutions in domestic courts that have ratified human rights agreements; regional courts, like the European Court of Justice or the Inter-American Court of Justice; or via international courts including the International Court of Justice, where states attempt to hold other states to account for violations of international law, and the International Criminal Court, where individuals can be prosecuted for genocide, war crimes, crimes against humanity, and the crime of aggression. And rarely and controversially, human rights violations can produce joint military action under the Responsibility to Protect. Each one of these responses requires sustained political pressure and mobilization to hold violators accountable. In this context, there are political pathways forward for people who want to uphold human rights, reject impunity, and build accountability—not just for El Salvador’s government (which thinks it might experience consequences), but also for the Trump administration, which is proceeding as though there will never be justice for its crimes against refugees, migrants, and dissidents. International advocates for human rights can build social pressure by building and sustaining pressure on their own governments to sanction or isolate El Salvador, the US, or both. They can work with international experts to open investigations in multilateral human rights bodies, building a body of evidence that might later help move the levers of international justice. And states that believe in human rights can refer El Salvador to the International Criminal Court—El Salvador is a member, so the court has jurisdiction over its crimes against humanity.
US domestic opposition to the Trump administration can also work to build grassroots pressure on the government via activism—indeed, both the administration’s move to return Kilmar Abrego Garcia to the US and the prisoner swap that ultimately sent the CECOT detainees to Venezuela reveal that the administration is susceptible to domestic political pressure. Critically, American opposition leaders can and should credibly signal that there will be accountability and consequences for the Trump administration’s human rights abuses—that, should they ever return to power, they will not paper over past abuses, as the Obama administration did despite their evidence that the Bush administration “tortured some folks”. One way for leaders to make these promises of accountability credible is to promise they will join the ICC if they come to power, following the lead of other states that have joined the ICC after a period of violence as a way to externalize punishment for abuses, reassuring both international allies and nervous domestic populations that there will be justice even if domestic courts aren’t up to the task.
None of these measures would be a guarantee, but each one of them would help make a future commitment to justice more plausible, changing the stakes of the decisions that other states, groups, and individuals make in the face of autocratic breakthrough. Actors looking at the current landscape and foreseeing a future of impunity for the Trump administration’s crimes may be tempted to throw their lot in with the administration’s abuses, or at least to implicitly legitimize them. Actors looking at a landscape where pressure for future accountability comes from many directions may instead look at this period in American history as a chapter with an eventual end that will require an answer and an account for abuse. In this sense, El Salvador’s hedged bet shows us how we can stack the deck toward justice.
