Crimes Against Humanity in El Salvador: The Price of Being a Minister (and Vice President)

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Executive Summary

On March 11, 2026, the International Group of Experts for the Investigation of Human Rights Violations in the Context of the State of Emergency in El Salvador (GIPES) published the report El Salvador at a Crossroads: Crimes Against Humanity in the Context of Public Security Policy. It is the first technical study to explore the probable commission of crimes against humanity under El Salvador’s state of emergency.

The GIPES report concludes that there are reasonable grounds to believe that such crimes may have been committed in El Salvador. It opens a line of inquiry for other actors to further examine additional aspects of this situation. Accordingly, building on the work carried out by GIPES, this document analyzes who some of the potential perpetrators of these alleged crimes might be.

The first section revisits the main conclusions of the GIPES report. The second provides a theoretical analysis of responsibility for crimes against humanity under the Rome Statute; in particular, it examines the participation of co-perpetrators who make an essential contribution to the commission of an objective element of the crime. The third section focuses on a specific objective element of the alleged crimes against humanity committed in El Salvador: the “violation of fundamental rules of international law” in cases of systematic or widespread imprisonment or deprivation of liberty (Article 7(1)(e) of the Rome Statute). The fourth section analyzes the role of the Council of Ministers in the state of emergency and assesses how it may have contributed to the commission of that objective element of the crime.

The study concludes that there are reasonable grounds to believe that the members of the Council of Ministers of El Salvador (President, Vice President, and Ministers) could bear responsibility for the alleged crime against humanity consisting of systematic and widespread imprisonment or deprivation of liberty in violation of fundamental rules of international law.

NAL recognizes that the significance of the GIPES report extends beyond advancing the protection of human rights and the rule of law in El Salvador. The report contributes to raising awareness and fostering further academic research at the global level and across disciplines beyond law. For this reason, we hope that other researchers, academics, and activists will engage with the GIPES report and use it as a tool to expand the boundaries of respect for, protection of, and promotion of human rights.

1. The GIPES Report

On March 27, 2022, El Salvador declared a state of exception under which certain fundamental rights were suspended for thirty days. The measure was subsequently extended on forty-seven occasions. A state of exception, which by its nature is intended to be temporary and exceptional, has remained in force in El Salvador for four years.

In 2024, the International Group of Experts for the Investigation of Human Rights Violations in the Context of the State of Emergency in El Salvador (GIPES) was established. The members of the group are jurists Susana SáCouto, Claudia Martín, Gino Costa, Santiago Cantón, and José Antonio Guevara. The group is supported by the Due Process of Law Foundation (DPLF), the International Commission of Jurists (ICJ), the International Federation for Human Rights (FIDH), InterJust, the IMPACTUM Research Project, and the Human Rights in Context Program of Ghent University (Belgium).

On March 11, 2026, GIPES published the report El Salvador en la encrucijada: Crímenes de lesa humanidad en el marco de la política de seguridad pública. The report concludes that there are reasonable grounds to believe that, under the Rome Statute, crimes against humanity have been committed during the state of emergency. Accordingly, it recommends that the Office of the Prosecutor of the International Criminal Court initiate a proprio motu investigation.

To reach this conclusion, GIPES reviewed the available information and analyzed it on the basis of international criminal law standards. The group identified reasonable grounds regarding the existence of two types of attacks:

1. Against gang members, or individuals perceived as such;

2. Against government opponents, or individuals perceived as such.

In both cases, GIPES concluded that the attacks were likely widespread and systematic. It also identified the acts that constituted these attacks. The acts common to both types of attacks are:

1. Imprisonment or other deprivation of liberty in violation of fundamental rules of international law.

2. Torture.

3. Murder.

The GIPES report focuses on conducting a technical analysis to determine whether there are reasonable grounds to establish the existence of crimes against humanity during the state of emergency in El Salvador. However, the group clarifies that its assessment is limited to the objective dimension. Accordingly, it does not address the subjective element; that is, it does not evaluate who the potential perpetrators of these crimes may be.

The GIPES report is pioneering in its precise technical examination of El Salvador’s state of emergency from the perspective of the Rome Statute. This work creates an opportunity for other actors to further explore the line of inquiry it has opened. To that end, this report undertakes an initial analysis of the subjective dimension of crimes against humanity in the context of El Salvador’s state of emergency.

The following section assesses whether there are reasonable grounds to identify certain potential perpetrators of the alleged crimes against humanity identified by GIPES. In particular, it examines one of the specific acts common to both types of attacks identified by the group: imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law.

2. Responsibility Under the Rome Statute

The Rome Statute of the International Criminal Court was adopted in 1998 and ratified by El Salvador in 2016. It established the International Criminal Court (ICC) as a permanent international tribunal to prosecute individuals for the most serious crimes of international concern.

The ICC has jurisdiction over cases involving the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Crimes against humanity refer to a widespread or systematic attack against a civilian population carried out through any of the following acts: murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, persecution, enforced disappearance, the crime of apartheid, or other similar inhumane acts.

Unlike other international tribunals, the parties prosecuted before the ICC are not States but individuals. Accordingly, if a natural person is found responsible for one of the crimes within the Court’s jurisdiction, they may be sentenced to a term of imprisonment of up to thirty years or, in exceptional cases, life imprisonment.

The rules on criminal responsibility before the ICC are set out in Article 25 of the Statute. Paragraph 3 establishes the modes of participation. The first mode of participation provides for three forms of perpetrating the crime:

1.  Direct or immediate perpetration.

2. Co-perpetration.

3. Perpetration through means.

Co-perpetration is not a form of complicity, but an autonomous mode of committing the crime. In this regard, the ICC has established that it entails joint control over the crime by several individuals. This is so because there is a division of essential tasks among co-perpetrators with the purpose of carrying out the crime. All of this occurs in a coordinated manner. From this, the following requirements are derived:

1. The existence of an agreement or common plan.

2. That the contribution of each co-perpetrator be essential to the realization of the objective elements of the crime.

In addition, as with any form of criminal responsibility, it must have a subjective dimension. This means that co-perpetrators must be aware of and accept that the potential outcomes of the common plan will result in the fulfillment of the objective elements of the crime.

3. The State of Emergency and an Objective Element of the Crime Against Humanity

3.1. GIPES Findings

As noted above, the purpose of this document is to provide an analysis grounded in the GIPES report, focusing on aspects that fell outside the scope of the published study. The aim is to complement the work already undertaken and to advance the line of inquiry opened by GIPES. Accordingly, the following section sets out certain conclusions reached by GIPES that are relevant to the present analysis. These conclusions are taken as established. Readers seeking a deeper understanding of these findings and the reasoning behind them are encouraged to consult the GIPES report.

According to the GIPES report, there are reasonable grounds for the Office of the Prosecutor of the ICC to initiate a proprio motu investigation into crimes against humanity committed during the state of emergency in El Salvador. GIPES identified reasonable grounds with respect to the following objective elements of this international crime:

1. The existence of attacks against: (a) the population of gang members or individuals perceived as such; and (b) the population opposed to the government or perceived as such.

2. That such attacks were widespread and systematic.

3. That acts defined under Article 7 of the Rome Statute were perpetrated.

4. That among these acts, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law was committed.

5. That these acts of imprisonment or severe deprivation of physical liberty formed part of the attacks against both populations.

6. That the state of exception constituted the structural basis upon which acts of imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law were carried out.

The following section develops the last of these points. To that end, it first examines the act defined in Article 7(1)(e) of the Rome Statute: imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. It then analyzes how the adoption and systematic extension of El Salvador’s state of exception constitute objective elements of that act.

3.2. Imprisonment or Severe Deprivation of Liberty as a Crime Against Humanity

Arbitrary imprisonment and detention have been regarded under international law both as violations of human rights treaties and as crimes against humanity. The act described in Article 7(1)(e) of the Statute is imprisonment or other severe deprivation of physical liberty. However, in order to exclude lawful forms of detention from the scope of the offense, the provision specifies that such acts must occur “in violation of fundamental rules of international law.”

International law is composed not only of treaties, but also of customary law and general principles of law. In any event, it is for the ICC to determine, within international law, which “fundamental rules” concerning imprisonment and deprivation of liberty are referred to in the Statute.

The International Criminal Tribunal for the former Yugoslavia, in assessing deprivations of liberty as crimes against humanity, held that such violations occurred where there was no “due process of law.” The importance of a fair trial in cases involving deprivation of liberty has been consistently recognized across numerous international instruments. The United Nations Working Group on Arbitrary Detention has established that detention is arbitrary and violates international standards where the rules relating to a fair trial are wholly or partially disregarded.

International law provisions that authorize states to adopt emergency measures also recognize special protections for judicial guarantees and the right to a fair trial. For example, the International Covenant on Civil and Political Rights (ICCPR) allows states, in situations of emergency, to suspend certain rights recognized under the treaty; however, it explicitly establishes certain rights that cannot be suspended under any circumstances. In this regard, the United Nations Human Rights Committee has affirmed that the guarantees of a fair trial and the presumption of innocence may never be suspended.

Similarly, the American Convention on Human Rights (ACHR) allows for the temporary suspension of certain obligations by States Parties in exceptional circumstances, but it expressly prohibits the suspension of judicial guarantees designed to protect fundamental rights. Moreover, the Inter-American Court of Human Rights (IACtHR) has held that the due process principles recognized in Article 8 of the ACHR cannot be suspended during a state of emergency. These principles include the right to be assisted by a legal defender, the right not to be compelled to testify against oneself, and the right to appeal a judgment to a higher court.

From this, one can conclude which “fundamental rules” of international law, when violated, may render acts of imprisonment or severe deprivation of liberty into crimes against humanity. At a minimum, these include the guarantees that constitute a fair trial.

3.3. The State of Exception and Fundamental Rules of International Law

Since March 27, 2022, El Salvador’s state of emergency has suspended the rights recognized in Articles 12(2), 13(2), and 24 of the Salvadoran Constitution. The rights set forth in Article 12(2) include:

1. The right to be informed of the reasons for detention and the corresponding rights;

The right not to be compelled to testify;

1. The right to legal assistance.

1. Beyond their constitutional recognition, these three rights are also protected under the ICCPR and the ACHR.

Judicial Guarantees Suspended by El Salvador’s State of Exception

Fundamental Right	Constitution of El Salvador	ICCPR	ACHR
Right to be promptly and clearly informed of one’s rights and the reasons for detention at the time of arrest.	12 (2)	14(3)(a)	7(4)
Right not to be compelled to testify.		14(3)(g)	8(2)(g)
Right to legal assistance from a defender during proceedings before auxiliary justice bodies and in judicial processes.		14(3)(d)	8(2)(d)

As discussed in the previous section, the guarantees of a fair trial cannot be suspended during a state of emergency under the ICCPR. Similarly, under the ACHR, the rights not to self-incriminate and to legal defense cannot be suspended, as they are part of the judicial guarantees protected by Article 8.

By systematically adopting and extending the state of emergency for four years, the Salvadoran authorities chose to suspend the judicial guarantees recognized in Article 12(2) of the Constitution. In doing so, El Salvador effectively abrogated rights that the ICCPR and the ACHR explicitly prohibit from suspension, even in emergency situations. Consequently, the state of emergency in El Salvador has violated fundamental rules of international law.

The main conditions and scope of the state of exception are set forth in the legislative decrees that established the measure and in the forty-seven subsequent extensions. These acts can therefore be understood as fundamental instruments of a plan of widespread and systematic imprisonment and deprivation of liberty. It is in these acts that the suspension of the judicial guarantees of Article 12(2) of the Constitution is determined. This enables such imprisonments and deprivations of liberty to occur “in violation of fundamental rules of international law,” one of the objective elements of the crime against humanity under Article 7(1)(e) of the Rome Statute.

Following the rules of responsibility established in the Rome Statute, as analyzed above, any person who made an essential contribution to the fulfillment of an objective element of the crime could be held responsible under Article 25 of the Statute. The following section examines some of the actors who may have made such an essential contribution, enabling the state of emergency plan to include the suspension of the judicial guarantees of Article 12(2) of the Salvadoran Constitution—and, in doing so, allowing the alleged imprisonments and deprivations of liberty during the state of emergency to occur “in violation of fundamental rules of international law".

4. Responsibility of the Members of the Council of Ministers

To examine who may be some of the potential perpetrators of an objective element of the crime against humanity during the state of emergency, certain considerations on the treatment of the state of emergency under Salvadoran constitutional law are first addressed. The role of the Council of Ministers and its members in the state of emergency in effect since March 2022 in El Salvador will then be assessed, along with an analysis of whether such participation constitutes an essential contribution to the fulfillment of an objective element of the alleged crime against humanity identified by GIPES.

4.1. The State of Exception in the Salvadoran Constitution

The Constitution of El Salvador authorizes the suspension of certain constitutional rights through a state of exception in cases of “war, invasion of territory, rebellion, sedition, catastrophe, epidemic, or other general calamity, or serious disturbances of public order". The period of suspension must not exceed thirty days, although it may be extended if the circumstances giving rise to the measure persist.

The Council of Ministers is the authority with the initiative to propose the decree establishing a state of exception. The Legislative Assembly then decrees the suspension of constitutional rights. In exceptional cases, the Council of Ministers may adopt a state of emergency on its own, but this has not occurred in the present case. The participation of both the Legislative Assembly and the Council of Ministers in the adoption of a state of emergency is intended to act as a check on the President of the Republic.

The Council of Ministers is composed of the President, the Vice President, and the Ministers. When the Council adopts a decision, all Ministers present are responsible for it, unless they resign immediately.

4.2. Role and Responsibility of the Council of Ministers

The state of exception was initially adopted through Legislative Decree No. 333, dated March 27, 2022. The proposal was adopted by the Council of Ministers in its session on March 26, 2022, and approved unanimously by its members.

The members of the Council of Ministers unanimously decided to propose to the Legislative Assembly that, among the rights to be suspended, those enshrined in Article 12(2) of the Constitution be included. These are the judicial guarantees which, according to fundamental rules of international law, cannot be suspended, even in a state of emergency. On March 27, 2022, the Legislative Assembly approved the state of exception on the terms proposed by the Council of Ministers.

Following the adoption of the state of emergency, extensions of thirty days have been authorized on forty-seven occasions. To date, the measure has thus remained in force for nearly four uninterrupted years. In each extension, the Council of Ministers has unanimously proposed the suspension of the judicial guarantees set forth in Article 12(2) of the Constitution, and the Legislative Assembly has approved it accordingly.

The members of the Council of Ministers have had direct involvement in the decision to design and propose the state of exception. They have unanimously decided that the plan should include suspending all inhabitants of El Salvador from the judicial guarantees that international law prohibits from being suspended, even during emergencies.

As noted earlier, the crime against humanity relating to imprisonment or other severe deprivation of physical liberty, described in Article 7(1)(e) of the Rome Statute and whose probable basis has been established by GIPES, includes the following objective element: “in violation of fundamental rules of international law.” The suspension of the judicial guarantees under Article 12(2) of the Salvadoran Constitution constitutes this objective element.

Accordingly, any individuals who made an essential contribution to designing the plan that enabled this objective element to be fulfilled—pursuant to Article 25 of the Rome Statute—are responsible for this crime against humanity. In this case, the members of the Council of Ministers made that essential contribution by proposing to the Legislative Assembly the suspension of judicial guarantees on March 26, 2022, and in each of the forty-seven subsequent proposals to extend the state of emergency.

For these reasons, there are reasonable grounds to believe that the members of the Council of Ministers of El Salvador are among those responsible for the alleged crime against humanity identified by GIPES.

5. Conclusions

1. The State of El Salvador has maintained a state of exception for four years, during which certain constitutional rights have been suspended.

2. GIPES has determined that there are reasonable grounds to believe that, during this state of emergency, crimes against humanity were committed under Article 7 of the Rome Statute. One of the acts allegedly committed is “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” (Article 7(1)(e) of the Rome Statute).

3. An objective element of this crime is the violation of fundamental rules of international law. In cases of systematic or widespread imprisonment or deprivation of liberty, one way in which this element is fulfilled is through the suspension of judicial guarantees.

4. Under the Rome Statute, individual responsibility for crimes against humanity can arise through co-perpetration, meaning that the crime is committed together with others (Article 25(3)(a) of the Rome Statute). For this to occur, there must be a common plan or agreement, and each co-perpetrator must play an essential role in bringing about an objective element of the crime.

5. The Council of Ministers is a body established under the Constitution of El Salvador, composed of the President, the Vice President, and the Ministers. Each member present is responsible for decisions adopted, unless they immediately resign. One of the Council’s functions is to propose to the Legislative Assembly the adoption of a state of emergency that suspends certain fundamental rights.

6. The Council of Ministers proposed the adoption of the state of exception on March 27, 2022, and the forty-seven subsequent extensions to date. In each case, the Council proposed the suspension of the judicial guarantees set forth in Article 12(2) of the Constitution. Both the ICCPR and the ACHR prohibit the suspension of these rights, even in a state of emergency. On each occasion, the Legislative Assembly approved the suspension of fundamental rights precisely as proposed by the Council of Ministers.

7. The proposal to suspend the judicial guarantees provided for in Article 12(2) of the Constitution constitutes an objective element of the crime against humanity, which GIPES has reasonably considered to have been committed in El Salvador during the state of emergency.

8. There are reasonable grounds to believe that, by proposing the suspension of judicial guarantees during the state of exception, the members of the Council of Ministers played an essential role in fulfilling the objective element of the crime against humanity identified by GIPES. Accordingly, they could be considered part of the group responsible for this alleged crime.

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Websites

• Legislative Assembly of El Salvador, 'Decreto Legislativo No. 333' (27 de marzo de 2022) < https://www.asamblea.gob.sv/sites/default/files/documents/decretos/F06D0120-5ACB-4269-B35E-0E76E1C07BDA.pdf > (accessed on 15 March, 2026).

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• Grupo Internacional de Expertas y Expertos para la Investigación de Violaciones de Derechos Humanos en el marco del Estado de Excepción en El Salvador, 'El Salvador en la encrucijada: Crímenes de lesa humanidad en el marco de la política de seguridad pública' (marzo de 2026) < https://dplf.org/wp-content/uploads/2026/03/GIPES-El-Salvador-en-la-encrucijada-crimenes-de-lesa-humanidad-bajo-la-politica-de-seguridad-publica-Informe-2026.pdf > (accessed on 15 March, 2026).

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Salvadoran Legislation

• Constitution of the Republic of El Salvador

• Legislative Decree No. 333. Legislative Assembly.

International Law

• American Convention of Human Rights.

• Human Rights Committee. General Comment No. 29 on States of Emergency.

• International Covenant of Civil and Political Rights.

Rome Statute.

• Report of the Working Group on Arbitrary Detention, UN Doc. E/CN.4/1998/44.

Case Law

• Inter-American Court of Human Rights, Opinión Consultiva OC-9/87, 6 de octubre de 1987.

• International Criminal Court, Prosecutor v. Lubanga, No. ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, PTC I, 29 de enero de 2007.

• Constitutional Chamber of the Supreme Court of Justice of El Salvador, Inconstitucionalidad 21-2020/23-2020/24-2020/25-2020, 8 de junio de 2020.

• International Criminal Tribunal for the former Yugoslavia, Kordic and Cerkez, IT-95-14/2-T, 26 de febrero de 2001.