WOLA: Advocacy for Human Rights in the Americas

AP Photo/Moises Castillo

6 May 2022 | Commentary

Democracy on the Brink: El Salvador’s Ongoing State of Emergency

What is happening in El Salvador? 

Despite a drop in the homicide rate in recent years, El Salvador continues to be one of the most violent countries in the world. Some of the reasons for this can be traced back to the 12-year-long civil war that ended in 1992. These include unaddressed high levels of poverty and inequality and other challenges related to the country’s weak institutions. Likewise, between 1996 and 2002, the United States deported thousands of convicted criminals back to Central America, including around 12,000 to El Salvador. Gang members that were returned at this time took advantage of the conditions in the country to ramp up their recruitment and consolidate into violent and organized groups. Multiple governments implemented short-sighted anti-crime strategies such as the uncontrolled deployment of security forces that have failed to resolve the gang problem. Instead of evaluating the effectiveness of these policies, when he took office, President Nayib Bukele built on them to give security forces more power to carry out abuses with impunity.

Between 2014 and 2018, Salvadoran police committed 116 extrajudicial killings, according to the Ombudsperson’s Office. Only two of the cases resulted in convictions. In addition, during the enforcement of pandemic lockdown measures, more than 1,600 reports of human rights violations, including over 620 related to the right to freedom of movement were filed. To make matters worse, El Salvador’s judiciary severely lacks independence, and its prison system is at breaking point. As of April 2020, the country’s prisons held more than 38,000 people behind bars, although they were built for 18,051. On April 27 2022, Bukele said that security forces had detained more than 20,000 people in just 33 days.

How has Bukele’s government been addressing insecurity? 

Since taking office in 2019, Bukele has made strong promises to reduce violence and crime, which are partly the result of decades of government failures to address, among other issues, high levels of inequality.

Soon after taking office, he launched the Plan for Territorial Control, a national security strategy, which, on paper, aimed at dismantling gangs and organized crime. In practice, however, the initiative, which is yet to be made public in full, has been criticized for not being effective and lacking community based anti-violence and gang prevention initiatives and essential proposals to reform police investigation, patrol, and oversight mechanisms, among other measures.

A drop in the homicide rate from 36 per 100,000 people in 2019 to 17.6 per 100,000 people in 2021, however, suggested his strategy was working. Nevertheless, it quickly became apparent that the drop was most likely the result of a reported negotiation and agreement between the government and leaders of the country’s gangs.

According to the U.S. Treasury Department, Bukele provided financial incentives to MS-13 and 18th Street Gang (Barrio 18) to ensure that violence and homicides remained low. This led to the issuing, in December 2021, of U.S. Global Magnitsky sanctions against two Salvadoran government officials.

What is the state of emergency and why was it put in place? 

Under El Salvador’s Constitution, a state of emergency derives from a legislative branch declaration made in response to an extraordinary situation posing a fundamental threat to the country’s national security. Article 29 states that the need to declare a state of emergency may arise from situations that could not be addressed in a different manner and includes “rebellion, sedition, catastrophe, epidemic or other general calamities, or serious disturbance of public order”.

In the early hours of March 27, after a wave of violence that left at least 80 people dead allegedly at the hands of gangs, Bukele summoned the Legislative Assembly to approve an emergency decree for 30 days.

The decree suspended essential rights guaranteed in the Constitution and international human rights conventions such as: the right to due process, the right of legal defense, and the right to free assembly. It also allows the government to intercept the communications of citizens without the need for a court order. As “complementary measures” to the state of emergency, on March 30, the Legislative Assembly approved legal reforms to the Special Law against Acts of Terrorism in order to more expeditiously prove participation in gangs and increase penalties. They also reformed the Penal Code, increasing prison sentences for individuals found to be gang members and allowing for children as young as 12 accused of being gang members to be treated as adults. Moreover, the Assembly approved $80 million in additional security spending.

Following a request from Bukele on April 25, the Legislative Assembly approved a 30-day extension of the state of emergency.

Why are these measures problematic?

Democracy is deteriorating rapidly in El Salvador.

Far from providing tools to protect citizens from violence, the state of emergency has represented a threat to everybody’s human rights. The government seems to be using it as an excuse to introduce unwarranted restrictions on human rights and civil liberties, to further its campaign to  silence political opponents, civil society organizations, and independent media, taking over the judiciary, and seeking other self-serving purposes. The introduction of legal reforms such as those made to the Penal Code on April 5 to criminalize media or journalists who “reproduce and transmit messages from or presumably from gangs that could generate uneasiness or panic in the population” are a clear illustration of the lengths Bukele is prepared to go to in order to ensure nobody criticizes him.

Civil society organizations and independent media outlets have documented scores of human rights abuses involving the security forces and even the judiciary – evidence that the state of emergency poses a disproportionate threat to the protection and fulfillment of fundamental freedoms. For example:

  • Mass arrests and arbitrary detentions: Since the declaration of the state of emergency to April 27, at least 20,290 people have been arrested without any constitutional guarantees such as due process. People have been taken from their homes and off the streets without an arrest warrant and prevented from accessing legal defense. The decree allows detainees to be held for 15 days – rather than the usual three – without being charged with a crime.
  • Human rights violations: Police forces have carried out scores of arbitrary arrests, including of women and minors. Young people are being detained with no evidence of gang activity except the groundless assumption that having a decorative tattoo or the wrong kind of sneakers signifies gang membership. There have been short-term forced disappearances and at least two people have died in custody. In addition, detainees’ family members have reported that the National Police and other officials have denied information on the location and status of their loved ones and said force was being used against detainees.
  • Abuses in prison: In detention, youths without gang affiliation are at risk of violence or being forced to join gangs by gang-affiliated detainees. Bukele has shown the tough conditions in Salvadoran prisons, including people in prison sleeping on the floor in crowded cells and complaining about food rationing and a lack of sanitation.
  • Lack of transparency in public spending: Along with the extension of the state of emergency, the Legislative Assembly passed a reform that allows the government to evade legal processes that regulate public spending and contracts as long as the decree is in place. This measure is similar to a law that was approved in 2020 for pandemic spending that resulted in 66 percent of public spending being carried out with irregularities.

What has the U.S. done? 

The U.S. government was slow to respond to the extremely critical situation in El Salvador.

It was not until April 10 that the U.S. Department of State issued a statement of concern about the violence and resulting legislation that seeks to censor journalists and silence critics of the Bukele government. While welcome, there are other measures that the U.S. can take. This includes continuing to implement and improve violence and crime prevention projects, particularly those targeted towards vulnerable youth populations at high risk of turning to gangs for survival. Investment centered on prevention that steers youth away from becoming gang members by offering other opportunities is key.

Just as USAID redirected assistance from Salvadoran government institutions to civil society groups in response to the illegal takeover of the Constitutional Chamber of the Supreme Court and the Attorney General that took place on May 1, 2021, the U.S. government should send a clear message that any assistance will be conditioned on the protection of human rights, combating corruption and impunity, implementing reforms and policies to strengthen the rule of law, and accountability for security forces. Similarly, rhetoric from the U.S. government that seeks to enforce the importance of Salvadoran civil society and independent media should be accompanied by clear action that supports these groups. The U.S. should also continue to issue individual sanctions for perpetrators of serious human rights abuses and corruption and actors who undermine democracy.

How can El Salvador address its violence problem? 

El Salvador faces many complex challenges with limited resources and support to tackle them.

A country already plagued by high levels of poverty, violence, crime, and corruption finds itself in a situation in which the arbitrary use of state security forces has only escalated the problem. The steps needed to alleviate gang related violence in El Salvador do not include the suspension of constitutional rights and the mass detention of tens of thousands of people with no access to an independent and functioning justice system.

Instead, the country needs to strengthen its judiciary by allocating enough resources and personnel, particularly to prosecute complex crimes. Authorities also need to invest more time and resources in community-based programs that combat violence by providing youth with education and other opportunities as well as protection from being forced to join gangs – and intervention and rehabilitation programs for those who wish to leave them. A concerted effort should be made to truly professionalize and support the country’s police force, including by improving working conditions for staff but also ensuring that police are provided with the tools to deter and fight crime efficiently and have the trust of the population.

The solutions are not easy, or fast, but they are essential if El Salvador is truly willing to tackle its problems.