On March 27, 2022, at the request of President Nayib Bukele, the Legislative Assembly passed a state of exception, limiting constitutional guarantees and granting unrestricted powers to the security forces of El Salvador. What was supposed to be a thirty-day measure has been renewed monthly by the legislative supermajority of President Bukele’s New Ideas party. There are currently more than 110,000 people in prison, with 85,000 people detained, since the state of exception was enacted in March 2022. Human rights organizations and even some senators in the United States have called for an end to this measure, which is not a solution to lasting security. Over the last three years, however, the state of exception has become a permanent policy based on mass incarceration rather than on providing justice or preventing violence.
For years, El Salvador was known as the “murder capital of the world”, with a high homicide rate that reached 106 per 100,000 inhabitants in 2015. Governments prior to Bukele had negotiated “truces” between the two major gangs that have constantly clashed: MS13 – now designated as a terrorist group by the United States – and the Barrio 18. Those agreements, however, did not achieve much. There is also evidence that President Bukele negotiated with gang leaders to reduce violence, as did some of his predecessors . As a result, the U.S. government imposed financial sanctions against Bukele’s main security advisers. For its part, the U.S. Department of Justice initiated criminal investigations against gang leaders such as Elmer Canales-Rivera, alias “Crook of Hollywood”, claiming that he “negotiated with officials of the government of El Salvador and obtained benefits and concessions”.
Since the declaration of the state of exception, the overall homicide rate has fallen by more than 80%, as reported by the National Civil Police. The government of El Salvador is emphasizing its hardline anti-gang policy and has promoted its strategy as the “Bukele Model” with the aim of extending it to other countries in the region. However, in the shadow of this model, serious human rights violations and a worrying democratic backsliding persist.
In the context of the third year of the state of exception, we answer four key questions about the broader implications of this policy on human rights in El Salvador and what this security model means for society in the long term.
What is the situation in the country three years into the state of exception?
Following the violence generated by El Salvador’s civil war (1980-1992), a new form of violence began to plague the Salvadoran population. Citizens soon became victims of extortion, homicides, and femicides by criminal youth structures originally formed by Central Americans in the U.S. who were later deported to their countries of origin known as gangs, without any access to effective justice and where multiple governments failed to develop effective programs based on human rights to guarantee the security of the population.
Under the state of exception, Bukele’s government initiated a process of change, through the control of these violent groups by security forces, but also through the suspension of several constitutional guarantees related to due process. The security situation has improved, but the situation of democracy has worsened because there are no checks and balances or independence of the three branches of the government.
For three years, President Bukele’s strategy has been one of mass incarceration using excessive force -including the military- as a method of establishing and maintaining order. The underlying problem of citizen insecurity is not being resolved because the focus has been only to control and contain the criminality of these groups through arrests in the face of a weakened justice system, now controlled by the executive branch.
Within the justice system, there have been a series of legal reforms, especially to criminal law, to create new crimes and new models of criminal prosecution. For example, the crime of illicit association is used to prosecute several people together, and “mass” trials have been introduced, which breaches international standards of justice. Through these irregular proceedings, large groups of people can be imprisoned at the same time and are not prosecuted as individuals.
Although the country is facing high rates of food insecurity, a potable water crisis, and the need to repair thousands of schools and invest in education, the government is increasing the budget for security – for the armed forces and for the construction of the new prison, the Centro de Confinamiento Contra el Terrorismo (CECOT), where Venezuelans were recently taken by the U.S. government.
What is the situation for access to information about the detainees? And what are the human rights concerns for the people detained?
El Salvador has 25 detention centers. However, there have been two or three penal centers where the mass incarceration of people has been concentrated. The CECOT has a capacity for 40,000 people, which is about 30% of the current prison population, the rest of the prison population is located in other centers, such as the one in Mariona, where torture and other human rights violations have been documented. The press and human rights organizations are denied access to these other centers. Unlike the videos edited and produced about CECOT, President Bukele is not showing the world the true reality within the other detention centers, where the Inter-American Commission on Human Rights has stated that they have committed torture and other cruel and inhuman treatment. An estimated 350 people have died in state custody since the declaration of the state of exception.
On March 15, the Trump administration sent a plane to El Salvador carrying Venezuelan and Salvadoran nationals, including Salvadoran gang members. The Trump administration paid 6 million dollars to the Bukele government to house these people in the CECOT, allegedly for a year, although the U.S. government has admitted that many of the Venezuelans have no criminal record in the United States During her visit to CECOT on March 26, U.S. Secretary of Homeland Security, Kristi Noem, said they would continue to work with Bukele and seek to increase the number of migrants sent to El Salvador (although more flights are currently blocked by a U.S. court). Thus, it would appear that the Bukele government has turned migration into a business, receiving around $20,000 USD per person.
In addition to the prison situation, another element to consider is the lack of access to accurate information, as it is unclear how, for example, the National Police reports homicides. Official police data claims that as of March 19, there were 64 days without any homicides in El Salvador and 861 murder-free days during the Bukele administration, however, the causes of deaths in prison, for example, are not reported.
It is also important to emphasize that the “Bukele Model” has not dismantled nor disarticulated the gangs because these structures continue to operate in other countries. The “model” is also not providing effective justice. There is a need for strong criminal justice institutions that can actually investigate these gangs and begin prosecutions in order to dismantle these groups.
The United States recently designated MS-13 as a foreign terrorist organization. How would you characterize this criminal group?
Violence in El Salvador has been reduced, but it is important to bear in mind that groups like Mara Salvatrucha (MS 13) are transnational networks with operations in the countries of northern Central America. Over time they have spread and have a lot of power in countries like Guatemala and Honduras and a presence in their country of origin, the United States.
Being designated as a terrorist organization opens up the possibility of combating this group and the people who support it in a more aggressive way. However, the category of “terrorist” used by the United States is normally applied to organizations that use violence for political and ideological purposes, and there is not necessarily evidence that the gangs are like that, as they use violence more for economic ends.
Likewise, the argument of “terrorism” was also used by the United States and the government of El Salvador to reach an agreement to imprison, without due process or evidence, Venezuelan migrants who are supposedly linked to the Tren de Aragua – an organization also designated on the list of foreign terrorist organizations. 23 Salvadoran gang leaders from El Salvador were on the March 15 flights. One case that attracted attention is that of César López Larios, known as “El Greñas” of the MS 13, who is believed to have revealed information to the U.S. justice system about Bukele’s links with the gang leadership.
What are WOLA’s recommendations for improving the human rights situation?
The international community, especially the human rights protection bodies of both the United Nations and the Inter-American System, as well as multilateral bodies such as the Organization of American States, must call on the government of El Salvador to end the state of exception. It is also important that a review be made of the humanitarian situation of those who are detained and that those who have no connection with the gangs, minors and, for humanitarian reasons, women and the elderly, be released. The president himself has stated that innocent people have been detained.
On the other hand, it is important to highlight that the state of exception has ceased to be a security policy to contain the violence caused by the gangs, and has become an authoritarian instrument to repress, persecute, and silence critical and dissident voices, as has been documented in several cases, such as that of the human rights defender Fidel Zavala and other human rights defenders.
There must be a comprehensive reform of the prison and justice systems, especially so that there is a judicial solution for all the people who are being prosecuted. Due to the number of cases, adequate criminal investigations are not being carried out and justice is not being served. The justice system is unable to meet the demand for people to receive a fair trial. A person cannot receive a fair trial in mass trials with 900 people and a judge cannot review the evidence when they are judging groups and not individuals. To achieve justice and uphold due process, what has to be judged are individuals.
The U.S. should evaluate its security assistance. There are certain measures available, such as the Leahy Law which prohibits providing support to security agents or units involved in human rights violations. In the case of El Salvador, these kinds of violations have been sufficiently documented. Furthermore, the U.S. should focus its cooperation on projects to strengthen the justice system, to improve criminal investigation mechanisms in the Public Prosecutor’s Office, on violence prevention projects, among other areas that are aimed at solving the root of the problem of insecurity.
Support for civil society and independent journalism is also fundamental, as they have played an important role in documenting, denouncing, and providing support to victims and their families. With the freeze and subsequent cancellation of many programs funded by the United States, the work of these groups has been impacted and this only further deteriorates the state of democracy in the country.
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