El Salvador is holding Abrego García in violation of international law and binding provisions of the American Convention on Human Rights

BACKGROUND

UPDATE

1)Le Monde avec AFP, “Migrants expulsés des Etats-Unis : quatre organisations américaines saisissent la CIDH contre la détention massive au Salvador; Donald Trump avait utilisé une loi de 1798 pour expulser vers le Salvador des personnes soupçonnées d’appartenir à des gangs. Par ailleurs, une délégation du Congrès américain a visité sur place, vendredi, une prison de haute sécurité et rencontré le président salvadorien, Nayib Bukele,” Le Monde, le 10 mai 2025 (modifié le 10 mai 2025 modifié à07h52).

2)Le Monde with AFP, “Migrants expelled from the United States: four American organizations seize the IACHR against mass detention in El Salvador; Donald Trump had used a law of 1798 to expel people suspected of belonging to gangs to El Salvador. In addition, a delegation from the U.S. Congress visited a high-security prison on Friday and met Salvadoran President Nayib Bukele, Le Monde, May 10, 2025 (updated at 7:52 am),

Background sources in original article

1) Jonathan Chait, “A Loophole That Would Swallow the Constitution; If Donald Trump can disappear people to El Salvador without due process, he can do anything, The Atlantic, April 17, 2025 (10:40 am ET).

2) Adam Liptak and Alan Feuer, “‘This Should Be Shocking:’ Read a Federal Appeals Panel’s Sharp Rebuke of the Trump Administration,” New York Times, April 17, 2025.

3) James Rowles, “El Salvador’s Prisons are Our Prisons; The case of the deported Venezuelan immigrants” Trenchant Observations, .March 23, 2025.

4) Alan Feuer, “Judge Accuses Government of ‘Willful and Bad Faith’ Stonewalling in Deportation Case; The sharp rebuke by a federal judge in Maryland suggested that she had lost her patience with the Trump administration’s recalcitrance in the case. New York Times, April 23, 2025 (updated 9:11 pm ET).

El Salvador is holding Kilmar Abrego García in violation of international law and provisions of the American Convention on Human Rights.

Under the American Convention on Human Rights, Abrego García may take his case to the Inter-American Commission on Human Rights (IACHR).

The IACHR may then after an investigation prosecute the case before the Inter-American Court of Human Rights (IACtHR) in San José, Costa Rica. In addition, any other country which has accepted the compulsory jurisdiction of the Court, as has El Salvador, may file a state party complaint against El Salvador for its violations of the Convention in the Abrego García case.

While these proceedings will take time, and Abrego Garcia may be released pursuant to U.S. Supreme Court decisions prior to any decision by the IACtHR, the Court is likely to condemn El Salvador’s violations of the Convention.

The American Convention in Article 7 establishes basic rights to due process and a fair trial equivalent to those found in the U.S. Constitution.¹

Abrego García’s attorneys should file a writ of habeas corpus in El Salvador, in order to satisfy the exhaustion of domestic remedies requirement for the IACHR to take up the case (and save time), and then submit their complaint to the IACHR with a copy of their habeas corpus petition and an explanation of why domestic remedies have been exhausted. They should publicize these actions broadly in El Salvador, and throughout Central America and Latin America. They might also look for a country willing to file a state party complaint against El Salvador.

Given the inhumane conditions in which Abrego García is being held, in a prison notorious for its human right abuses, his attorneys might also file an emergency appeal to the Court for an order of interim protection (like a TRO or preliminary injunction), ordering the release or special protection of Abrego García, who may be at risk of being attacked by gang members in the prison.

It is important that flagrant violations of international law be called out and prosecuted vigorously before international human rights bodies such as the IACHR and the IACtHR.

These abuses must be called out whenever they occur. A decision against El Salvador by the Inter-American Court of Human Rights could have a significant impact on EU and other countries’ trade preferences for El Salvador, or even the imposition of sanctions.

1. The American Convention on Human Rights (1969) provides as follows:

Article 7. Right to Personal Liberty
1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons and
under the conditions established beforehand by the constitution of the State
Party concerned or by a law established pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and
shall be promptly notified of the charge or charges against him.
5. Any person detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to be released without prejudice to the continuation of the
proceedings. His release may be subject to guarantees to assure his appearance
for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse to a
competent court, in order that the court may decide without delay on the
lawfulness of his arrest or detention and order his release if the arrest or
detention is unlawful. In States Parties whose laws provide that anyone who
believes himself to be threatened with deprivation of his liberty is entitled to
recourse to a competent court in order that it may decide on the lawfulness of
such threat, this remedy may not be restricted or abolished. The interested party
or another person in his behalf is entitled to seek these remedies.
7. No one shall be detained for debt. This principle shall not limit the orders of a
competent judicial authority issued for nonfulfillment of duties of support.

***

James Rowles is a former Lecturer on Law at Harvard Law School and professor of international law at other universities.

He studied the history of Nazi Germany at Stanford, and has studied and worked on human rights, judicial reform, and access to justice projects in many countries in Latin America, Africa, the Middle East, and in Afghanistan and Russia. At Harvard Law School, he taught a course on “Law, Human Rights, and the Struggle for Democracy in Latin America”.

At the Inter-American Commission on Human Rights (IACHR) of the OAS, he worked on human rights cases involving forced disappearances, executions, and torture in a number of authoritarian countries in Latin America and the Caribbean.

Recent Books by the Author

James P. Rowles, The Rape of American Democracy: Republican Actions and Democratic Failures, 2016-2021 (2024). Available on Amazon, and from IngramSpark by clicking on a link here.

James P. Rowles, Don’t Be Stupid. Pay Attention, Damn It! Advice for Undecided Voters and Voters Leaning Toward Trump (2024). Available on Amazon,and from IngramSpark by clicking on a link here.

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