The massive trials that Nayib Bukele announced in El Salvador have historical precedents, but some of them represent clear violations of human rights, according to experts.
The measure approved by the Salvadoran Congress on July 26, 2023 will enable collective trials of groups of imprisoned gang members, detained since the government of Nayib Bukele decreed a state of emergency, in March 2022.
According to the Justice of El Salvador, this is a “transitory provision” that “seeks to solve the collapse of the judicial system due to the thousands of captures during the emergency regime.”
Several human rights organizations condemned these collective trials because they imply a “violation of the rights to defense”, as Amnesty International (AI) points out, for example. United Nations experts point out that this practice “undermines the exercise of the right to defense and the presumption of innocence of detainees.”
But what does the concept of ‘mass trials’ imply? “On a legal level, we should know exactly what is being talked about. To desist from an individualization of the description of the facts by the accused? Or that the accused will not be heard? If they really only have four or five minutes to speak, as was said, surely they will not be able to testify about what they are accused of. That also seems questionable to me,” Professor Luis Greco, professor of International Criminal Law at the Humboldt University of Berlin, told DW. “In the trials of large numbers of people, for example, for crimes against humanity, Justice has taken time.”
Collective trials for crimes against humanity
“This type of trial of a large number of people has already taken place in other contexts,” says Greco. At the International Criminal Tribunal for the former Yugoslavia, or the International Criminal Tribunal for Rwanda, for war crimes and crimes against humanity. “The legal doctrine of the ‘Joint Criminal Enterprise’ has also been used in international courts, which justified prosecuting the members of a group for all the actions of that group together,” says the Criminal Law expert. International. “I consider that this legal figure is questionable, because, criminally, the individual always responds with his personal freedom. Therefore, a person should always be held responsible for their own mistakes ”, he emphasizes.
In retrospect, the Nuremberg Trials, against the leaders of the Nazi regime, between 1945 and 1946, set the first precedent for an international collective trial and were an advance in the classification of crimes against humanity. And, more recently, in 1985, the Trials of the military Juntas in Argentina for crimes against humanity and State terrorism during the dictatorship (1976-1983), marked a milestone in Latin America in the clarification and end of impunity. However, although groups of people were tried in both, each of those responsible was prosecuted and sentenced individually. Likewise, mass trials against organized criminal networks and against terrorist or guerrilla organizations are a common legal practice around the globe.
Photograph of the Nuremberg Trials, against the main leaders of the Nazi German regime. Image: Keystone/Hulton Archive/Getty Images
Mass trials in dictatorships and autocratic regimes
“The Stalinist processes in the Soviet Union in the late 1930s should not be forgotten,” says Sabine Kurtenbach, director of the Institute for Latin American Studies at the GIGA Institute in Hamburg, in an interview with DW.
Starting in 1937, the summary trials during the Francisco Franco dictatorship in Spain, after the coup d’état, were characterized, according to the historian Jorge Marco, “by their brevity, the absence of rights and the predominance of the prosecution over the defending”.
However, “we do not have to go very far back in history, if we remember the massive processes in Egypt (2014, 2018, 2022), in Cambodia (2020, 2022), and in Cuba (2021, 2022),” he says. , for his part, to DW Désirée Reder, political scientist and researcher specializing in Central America at the GIGA Institute. In addition, the Nicaraguan government prosecuted in February 2022 government critics and opposition leaders arbitrarily imprisoned since June 2021.
“In El Salvador, what the Bukele government’s Justice is going to do is not within what we consider a rule of law,” warns Sabine Kurtenbach. “This is in line with all the deterioration that the Salvadoran judicial system has experienced since Bukele was president,” she underlines.
“The maras are criminal gangs that have committed hundreds of crimes and homicides in recent years in El Salvador. Proving individual guilt is always complicated and can be expensive”, says Luis Greco. “Respect for individual responsibility is not always maintained, especially in situations of massive crimes or great social crises.” Is that what happens in El Salvador? “It is understandable that they want to cut resources in El Salvador with these trials. Of course there are problems of legitimation, but also the European and American Justice have followed the path of the pragmatic”.
Relatives of gang members detained in prisons in El Salvador ask for their release. (07.07.2023).Image: Jose Cabezas/REUTERS
According to the jurist, both in the European Convention on Human Rights and in the American Convention on Human Rights, which was ratified by El Salvador, there is a rule on fair trial, which contemplates the right of the accused to be informed about the content of the accusation, as well as their right to fully defend themselves, explains Greco. “Whether that will be possible in four or five minutes, we don’t know. We would have to know more details about exactly what those trials will be like.”
“According to human rights organizations, 30 percent of the nearly 72,000 detainees are gang members, but in these trials, all detainees will be criminalized, and there will be no chance to prove who is guilty of crimes and who is not,” he says. Desiree Reder. “Slightly more than two percent of the country’s adult male population is in prison, and among the detainees there are adolescents and minors who do not enjoy any special protection,” he stresses, warning that the detainees could remain in prison for up to 24 months. preventive detention, before being brought before a court. “These mass trials are another element of Bukele’s politics, and another attempt to broaden his support among the population, which is part of his plan to be re-elected,” says the expert in Central American politics.
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Impunity in El Salvador
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