By: Kate Murphy
On the 9th of May 2025, several human rights groups banded together to request precautionary measures before the Inter-American Commission on Human Rights (hereafter: the Commission) on behalf of US deported Venezuelans currently held in maximum-security prisons in El Salvador. The Commission will likely first request information from El Salvador before deciding on whether the measures should be issued. If issued, the measures will constitute the first precautionary measure granted for a prisoner in El Salvador since 2015. Indeed, the request for precautionary measures represents a turning point in the efforts of legal mobilisation before the Inter-American Human Rights System (IAHRS) for prisoners in El Salvador and raises some interesting questions as to how the Commission will respond.
A Disconnect: Salvadoran Prisoners And The IAHRS
The Commission’s precautionary measures (also referred to as interim or urgent measures) is a protection mechanism which can be requested by persons in ‘serious and urgent situations’ of ‘imminent risk’ (Article 25, Commission’s Rules of Procedure). Upon fulfilling the necessary criteria elaborated in article 25, the Commission requests the State in question to adopt the necessary measures to protect the rights (generally the right to life and health) and personal integrity of those at risk. The Commission does not decide whether a violation of human rights has occurred but simply whether the situation prima facie meets the requirements of seriousness, urgency and irreparable harm. In this sense, precautionary measures operate similar to national injunctive measures by preventing harm to individuals and preserving the integrity and effectiveness of an eventual decision on the merits, if such proceedings are ongoing. Frequent beneficiaries of these measures include human rights defenders, journalists, indigenous peoples, members of the LGBTI+ community and persons deprived of liberty.
Every year, the Commission is faced with rising requests for precautionary protection. Many prisons and detention centres worldwide are facing severe overcrowding and inhumane conditions, posing significant risks to the health and well-being of those detained within them. Moreover, the de facto control of authorities over persons deprived of liberty mean that States are in a ‘special position’ of ‘guarantors’ of their rights, responsible for ensuring that minimum conditions of dignity while detained. In this context, it is rather unsurprising that the majority of precautionary measures have been requested on behalf of persons deprived of liberty.
Yet this upward trend has been scattered across the Member States, with certain countries receiving far more requests to adopt measures for protecting prisoners than others. El Salvador sits on the lower end of the scale, with only two precautionary measures ever granted for the protection of prisoners based on the publicly available information, which dates back to 1996. This is so despite the country’s former status as the most dangerous country in the Western Hemisphere and its current status as the country with the highest incarceration rate in the world.
In other words, in over three decades, only two precautionary measures have been granted by the Commission to protect Salvadoran prisoners. The first of the two was issued in 2006, and the last in 2015. The 2006 case involved a U.S. citizen who was a witness to violent events following his transfer from one prison to another. Additional measures were necessary to guarantee the physical integrity of the prisoner. The second case, granted protection to a prisoner with a chronic degenerative disease held in inadequate conditions, which failed to provide him with the necessary medical care.
To put these figures into comparison, the OAS Rapporteur for Persons Deprived of Liberty indicates that over the last five years, nineteen precautionary measures have been granted to protect Nicaraguan prisoners, eight measures for Venezuelan prisoners, and another eight for Cubans deprived of liberty. Since the beginning of El Salvador’s state of exception in March 2022, over 86,000 individuals have been arrested, many arbitrarily, with no access to the rights of a fair trial or due process guarantees. The country now has the highest incarceration rate in the world, with almost 2% of its population behind bars. Against this backdrop, it is fascinating that there has not been an increase in the measures granted to protect Salvadorans deprived of liberty.
The relative absence of calls for protection before the Inter-American Human Rights System likely stems from a complex interplay of factors that merit further exploration. One possible explanation might be a lack of awareness of the Inter-American protection mechanisms or insufficient legal expertise of human rights groups to engage with the human rights system. Another possible explanation could stem from reliance on different avenues for mobilising to protect prisoners’ rights. Perhaps representatives of prisoners have sought an action of amparo or habeas corpus before the Constitutional Chamber of the Supreme Court or brought their cases to the attention of domestic human rights actors like the Human Rights Ombudsman (PDDH). The stigmatisation of suspected gang members may also be hampering efforts of collective action across communities and organisations. For three decades, Salvadoran society was deeply affected by gang violence, living in fear of being harmed, kidnapped or extorted. At a time where homicide and crime rates have plummeted, with people finally feeling safe in their neighbourhoods, it would not be unusual that defending detainees – whether innocent or not – is not a priority for human rights organisations attempting to avoid repercussions or maintain their funding nor for citizens who are now experiencing their newly ‘quite streets.’
Changing Course: New Possibilities For Legal Mobilisation
Mobilisation, including legal mobilisation before regional and international human rights systems, is often precipitated by a catalysing event. For instance, the mobilisation around the issue of abortion before the Inter-American Human Rights System was fuelled by the case of Beatriz, a twenty-two year old woman whose high-risk pregnancy put her life in danger. Defago and Cánaves describe the case as a ‘turning point’ in the (legal) mobilisation around the legalisation of abortion in El Salvador. This case highlighted the multitude of harms that could come about due to a total ban on abortion. The nature of human rights mobilisation often means that the most serious affronts to human dignity remain invisible, so long as there is no ‘spark’ to kickstart legal action.
Even though inhumane conditions of detention, violence, and incredibly high levels of overcrowding have existed for years in El Salvador, prisoners’ voices have not made it to the Commission’s precautionary measures mechanism. Rupert Knox explains how morally shocking events require actors to ‘articulate a shared sense of grievance’, interpreting particular moments as reflective of wider ‘social, judicial and political crisis.’ For example, the murder of George Floyd triggered global protests, with people demanding not only accountability for accountability for the officers who killed him, as well as demanding broader systemic change to address the racism and exploitation embedded in our societies.
El Salvador’s widely publicised state of exception helped to put the treatment of prisoners on the agenda of human rights bodies, with multiple UN experts and the Inter-American Human Rights System expressing concern over the numerous allegations of rights violations. Yet these concerns did not trickle down into concrete calls for protection via the Commission’s precautionary measures mechanism. That is, until the 9th of May 2025, when a request for precautionary measures was filed. The Commission was asked to request that El Salvador releases the Venezuelans deported from the United States and currently held at the Terrorism Confinement Centre (CECOT).
The request was submitted by several human rights organisations, including the Boston University School of Law International Human Rights Clinic, the Centre for Gender & Refugee Studies and Robert F. Kennedy Human Rights. The groups called on the Commission to grant a range of precautionary measures, including permitting communication with their families, allowing adequate access to legal counsel, and demanding a return to the United States. Given the widespread publicity around the deportations, particularly following the abusive transfer of Kilmar Abrego Garcia, it is possible that this request will serve as the necessary ‘trigger’ for sparking an increase in legal efforts to protect the rights of Salvadoran prisoners.
Until the Commission responds to the request, little information about the content of the potential precautionary measures is available. Generally, precautionary measures order national authorities to ‘adopt the necessary measures to protect the rights to life, personal integrity and health’, leaving it to the State’s discretion how it chooses to do so. Similarly, the Commission is very cautious with requesting releases, instead asking the State to ‘consider alternatives to deprivation of liberty’ in particular cases. States of exception are far from uncontroversial. It remains to be seen whether the Commission will grant the measures, and if so, how it will tackle the particularities of the requests in this critical context.
Bio:
Kate Murphy is a PhD Researcher at the University of Ghent and KU Leuven in Belgium, funded by the Research Foundation Flanders (FWO). Her research focuses on the effects of interim measures granted by the Inter-American Human Rights System. Kate holds an LLM in Public International Law from the University of Groningen (the Netherlands). In 2021, she won the Hanneke Steenbergen Scriptieprijs for the best master’s thesis in the Netherlands in the field of migration law. Her research interests include the effective implementation of human rights treaties, the prevention of ill-treatment of prisoners and the interactions between States and human rights bodies.