On the 4th of February 2025, the President of El Salvador offered the United States of America ‘the opportunity to outsource part of its prison system’, transferring convicted U.S. criminals into the Salvadoran mega-prison (CECOT) ‘in exchange for a fee.’ Amidst an increasingly fragile rule of law, mounting carceral expansion and documented human rights abuses in Salvadoran prisons since the beginning of the country’s state of emergency, it is imperative to outline the potential human rights implications for the transferred prisoners in the likelihood that the plan will become a reality.
Carceral Expansion In El Salvador’s State Of Emergency:
Since 1992, El Salvador has routinely ranked among the most dangerous countries in the world. Gang violence throughout the country provoked punitive responses from successive Salvadoran governments on all sides of the political spectrum, with none ever managing to effectively solve the issues of violence and insecurity.
The election of El Salvador’s current president, Nayib Bukele, in 2019, broke the country’s de facto two-party system which was for years marked by ‘irreconcilable polarisation.’ Bukele is well-known internationally and lauded nationally for his almost 3 year-long state of emergency which he credits for the near reversal of homicide rates in what was formerly the ‘most violent country in the Western Hemisphere’. During this time, government action has been largely legitimised through fear-mongering and normalisation of punitiveness.
Since the beginning of the state of emergency, a number of legislative reforms have entered into force. Among other things, these have allowed for increased prison sentences, the imprisonment of children as young as twelve and collective trials of ‘terrorists’ in breach of the rights of a fair trial and due process guarantees. Overall, these changes have contributed to massive increases in arrests across the country, many arbitrarily. At present, reports from local civil society groups have indicated more than 73,000 arbitrary arrests in El Salvador since March 2022. These seem plausible figures considering that the country has imprisoned close to 2% of its entire population, now ranking as the country with the highest incarceration rate per capita in the world – 1,000 detainees per 100,000 of the national population.
The prolonged state of emergency has provided the opportunity for the government to strengthen its carceral grip. Along with the rising numbers of imprisonment, there have been concerted attempts to dehumanise suspected gang members and normalise excessive punitive responses which disregard fundamental rights and due process guarantees. In these circumstances, the proposal to transfer prisoners out of their own country to El Salvador in exchange for money is in many ways unsurprising. Treating individuals as exchangeable goods is simply the latest technique in El Salvador’s continuous process of carceral expansion.
Human Rights Law And The Transfer Of Prisoners:
There is considerable protection offered to persons deprived of liberty under several human rights instruments relevant for the transfer of US prisoners to El Salvador. I will focus on the jus cogens principle of non-refoulement and the right to humane treatment. The principle of non-refoulement prevents the transfer of persons to a state where they would ‘face a risk of violations of certain fundamental rights.’ While typically linked to refugee law, the principle is also found under human rights law. Under this body of law, once ‘the effective control over the individual changes from one state to another, the principle applies’ and human rights may effectively block the transfer. The UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has declared the principle of non-refoulement to be an ‘inherent part of the overall absolute and imperative nature of the prohibition of torture’.
The prohibition of refoulement in cases where a serious risk of irreparable harm to the individuals concerned is explicitly recognised in the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (article 3), the American Convention on Human Rights (article 22(8)) and the Inter-American Convention to Prevent and Punish Torture (article 13(4)). It is also acknowledged by the UN Human Rights Committee in relation to the International Covenant on Civil and Political Rights (ICCPR). The US and El Salvador have ratified the ICCPR and the Convention against Torture. Moreover, El Salvador has ratified both of the American Conventions.
The ‘inherently dehumanising essence of El Salvador’s prison model’ embodied by the CECOT facility has been widely publicised. The centre features overcrowding by design, as prisoners are crammed into spaces said to amount to 1/7 of the internationally recommended minimum standard. Large groups of men share bare metallic cells with no access to sunlight and no mattresses. Video evidence shows humiliating practices involving men handcuffed together and running semi-naked, demonstrating a disregard for dignity.
The policy would also potentially violate a prisoner’s right to reintegration. Article 5(6) of the American Convention on Human Rights on the right to humane treatment declares that ‘punishments consisting of deprivation of liberty shall have as an essential aim the reform and social adaptation of the prisoners.’ Moreover, the United Nations Standard Minimum Rules for Treatment of Prisoners (Nelson Mandela Rules) establish that prisoners shall be permitted to ‘communicate with their family and friends at regular intervals […] by receiving visits.’
The CECOT prison was not built for reintegration. The Salvadoran Justice and Public Security Minister himself admitted that the purpose of sending people to CECOT is to eliminate ‘this cancer from society’, ensuring that they will ‘never walk out’ of the prison again. This was confirmed by the United Nations Committee against Torture, which expressed concern over ‘the absence of social reintegration policies.’
The lack of consideration for the reintegration of Salvadorans held in CECOT sets the scene for what the lives of those transferred would look like. If there is no political will to reintegrate nationals held in CECOT, the probability of reintegration programmes being set up on behalf of non-nationals seems extremely unlikely. Even if some programmes were miraculously put in place, the difficulties in providing U.S. prisoners with regular contact with their family members against the Nelson Mandela rules, calls into serious question any possibility of social adaptation.
Measuring Safety ‘In Chains And Corpses’:
In 1971, author James Baldwin observed that Americans measure their ‘safety in chains and corpses.’ Over half a century later, little has changed in this regard. Recently, and facilitated under the state of emergency, El Salvador has continued to expand the use of prison and further legitimised punitive responses, including via the use of no-second-chances policies in relation to gang members deprived of liberty. This is the backdrop against which the proposal to transfer prisoners to the Salvadoran mega-cárcel has been made.
Bukele’s offer to the US is the latest move in the expansion of punitivism. Prisons are used as a tool of diplomacy and profit with prisoners as the currency. If carried out, the proposed plan would contravene human rights principles of non-refoulement as well as the right to reintegration for prisoners. Beyond that, it would signal a new era for carceral expansionism, legitimising the trade of people as if they were goods. The implications of this on the rule of law, democracy and core tenants of human rights law should not be underestimated.
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