The Biden administration’s promise to attack the root causes of migration by strengthening the rule of law in Central America got harder to keep over the last weeks, with further moves towards authoritarianism in El Salvador and Guatemala. At the same time, emblematic human rights cases from the armed conflict in Guatemala during the 1980s advanced, while in El Salvador the equally emblematic El Mozote massacre trial faced a potential major setback. Taken together, these events show both the need to do more and the limits of U.S. influence.

El Salvador:  Alarm Over Targeted “Reforms” 

El Salvador’s popular president, Nayib Bukele, moved further towards scrapping the country’s constitution, both formally and in practice. In the name of getting rid of corrupt judges, his New Ideas party, which with its allies holds a legislative majority, voted on Aug. 31 to require all judges and prosecutors over 60 years old (or with more than 30 years of service) to resign in a so-called reform of the country’s Judicial Career Law. The rule would apply to about a third of the country’s 690 judges, including the judge in the 1981 El Mozote massacre case, which I’ve written about here and here. It’s not clear to what extent the reform of the Judicial Career Law was aimed at Judge Jorge Guzmán or whether he is collateral damage. But a few things are clear: the move is probably unconstitutional, since Article 133(3) of El Salvador’s constitution (created out of the 1992 peace accords) leaves matters related to the regulation of the judicial branch to the Supreme Court, not Congress. Unfortunately, the Constitutional Chamber of the Supreme Court seems unlikely to object, since Bukele’s government replaced its members with his political allies in May.

Bukele clashed publicly with Judge Guzman over the last year due to Bukele’s refusal to turn over military documents related to El Mozote. The military has been one of Bukele’s strongest allies, and he has reciprocated by raising military pay and doubling the size of the army. The retired military defendants in the case have repeatedly — though until now unsuccessfully — pushed for the judge’s removal. They did so again in the wake of expert testimony in May by U.S. Professor Terry Karl and a former colonel in the Peruvian army, publicly detailing how the massacre was likely organized and carried out by the high command. The new law seems to be giving them their wish.

Pushback against the Judicial Career Law was swift and extensive. Judges protested in the streets in major cities, and demonstrations against attacks on the rule of law were called for Sept. 7. The U.S. government reacted strongly. By Sept. 6, the head of the Supreme Court announced that Guzman would be exempted from the law on grounds that the El Mozote case was too extensive and far along. But Guzman has declared that he will not be singled out, insisting that the law is unconstitutional and that all the judges should be reinstated. If there was corruption in the judiciary as Bukele claimed, he added, it should be dealt with case by case.

Bukele has also proposed extensive constitutional reforms – 215 reforms of the constitution’s 274 articles, to be exact. Some of them sound progressive:  direct incorporation of human rights law, support for LGBTQ rights, and even euthanasia. Others not so much: an extension of the presidential term and expanding the power of the presidency at the expense of the electoral tribunal, comptroller’s office, and the Supreme Court. Unlike in Chile, where a constituent assembly is currently negotiating constitutional reforms, there has been no process for public participation in crafting the proposed changes, and civil society has been highly critical. The autocratic bent of the proposed Salvadoran reforms became clearer on Friday, Sept. 3, when Bukele’s hand-picked Constitutional Chamber found – in direct contradiction to the constitutional text—that he could stand for reelection in 2024.

Guatemala: Rights Cases Advance Amid Calls for Attorney General’s Resignation

The overall panorama in Guatemala is equally bleak. On July 23, the country’s less-than-crusading attorney general, Consuelo Porras, fired the head of the anti-corruption unit (FECI) in the prosecutor’s office, Juan Francisco Sandoval. Sandoval had been investigating, among other things, ties between President Alejandro Giammattei and a Russian mining syndicate that allegedly involved rolled-up rugs and suitcases full of cash in exchange for port access. Sandoval promptly fled the country. He joined two former attorneys general, the former head of the Constitutional Court (blocked in April from taking up her post on the Court), and other judges and prosecutors in exile. Sandoval was charged with obstruction of justice for leaking the shut-down investigations, making his quick return to the country impossible.

Days of demonstrations led by the country’s indigenous authorities followed, demanding the resignation of both Porras and Giammattei. With the end of the FECI, the anti-corruption architecture put in place under the aegis of the United Nations Commission Against Impunity, discussed here, has been fully dismantled. It is not clear what government or private sector allies the United States now has in its push to dismantle corrupt structures.

Despite these setbacks, two emblematic human rights cases from the 30-year armed conflict have recently made headway. On June 9, Judge Miguel Angel Gálvez opened criminal proceedings against six former military officers in the Military Diary Case. The case name refers to a collection of military intelligence and police files showing the clandestine detention, torture, and often death of dozens of perceived government opponents. Many of the bodies of disappeared victims were never found. The case had been pending for years, with few indications that it would move forward.

On Aug. 30, the same Judge Gálvez opened proceedings against former Army Chief of Staff Benedicto Lucas and ex-army intelligence chief Manuel Callejas y Callejas for crimes committed in the northern Ixil area during the Lucas García regime (1978-82). Both defendants are already in custody after being convicted in 2018 of enforced disappearance, rape, and torture. The current case originated in the early 2000s when complainants divided the Ixil genocide case into two. The case involving Efraín Rios Montt (Guatemala’s dictator from 1982-83) and his intelligence head José Mauricio Rodríguez was tried in 2013, leading to conviction, annulment on technical grounds, and a second partial trial in 2018.  At both trials, despite a finding of genocide, the then-head of intelligence was acquitted.

In the new cases, Benedicto Lucas and Callejas are accused of 31 massacres constituting crimes against humanity and genocide. The two, along with co-defendants now deceased, laid the groundwork for the army’s scorched earth policies against the indigenous Ixils and other groups, including defining them as the internal enemy and creating paramilitary civil patrols that indigenous men were forced to participate in. The trial of Callejas, especially, may lead to a different result from the earlier trials on the role of the intelligence service, because he played a central role earlier in the conflict, when basic policies were being set; he is also known as a key leader in corruption networks.

How can these complex and controversial cases move forward in such adverse circumstances? Much of the investigation was done under Attorney General Porras’ predecessor, and until now she has not openly interfered with the Human Rights unit in the prosecutors’ office, focusing on shutting down anti-corruption investigations. Victims and civil society groups, participating as private prosecutors, have provided much of the evidence. And Judge Gálvez is one of a handful of members of Guatemala’s High Risk courts who has consistently upheld high judicial standards and defended the rule of law. Naturally, he has been attacked and threatened for doing so. His colleagues have faced potential disbarment and repeated lawsuits. As I wrote a few months ago, these judges who stand up for the rule of law are an endangered species.

What Can the United States Do?

At first glance, U.S. options to respond to the deteriorating rule of law situation in El Salvador and Guatemala are limited. The Biden administration could, of course, threaten to freeze remittances (as Trump did to Mexico) or end Temporary Protected Status for Salvadorans, but those measures would hurt the population in general and be counterproductive. Bukele, especially, has struck a defiant, nationalist tone likely to resonate among Salvadorans after many years of unhappy U.S. intervention in the country’s affairs. He has also reached out to China for economic backing. Giammattei in Guatemala, while more circumspect, has been equally unresponsive to U.S. concerns despite photo-ops with Vice President Kamala Harris. With his clear links to corrupt actors, he is part of the problem, not the solution.

The United States could take another look at Bukele’s family and friends, who are his closest advisors, as well as legislators from his party, to assess whether they could be sanctioned under the Global Magnitsky Act or other sanctions laws; ditto regarding Guatemala. The Department of Justice could look at ties between powerful actors in both countries and money laundering or other wrongdoing in the United States. El Salvador is negotiating a new debt agreement with the International Monetary Fund; the United States could use its leverage to insist that the IMF, World Bank, and other multilaterals not lend to a country with rapidly deteriorating rule of law. It could also support civil society groups in both countries, including in their efforts to create region-wide anti-corruption coordination.

And it could better support the few remaining judges in both countries who support the rule of law, especially those who have taken on high-profile human rights or corruption cases. Otherwise, these few remaining islands fighting a tidal wave of impunity may well end up swamped.

IMAGE: Police officers stand guard in front of the Supreme Court of Justice in San Salvador, on May 2, 2021. El Salvador’s new Congress, dominated by President Nayib Bukele’s allies, took office on May 1, 2021 and dismissed judges opposed to the president and the attorney general, in a decision considered by the international community as an attempt to concentrate power. (Photo by STANLEY ESTRADA/AFP via Getty Images)