This article intends on providing a close analysis and an opinion on the security situation currently developing in El Salvador and why it matters.
It should be understood firstly the complicated security context of El Salvador, a country that has dealt with destabilizing transnational criminal organizations for decades and that now under a new government has decided to create new measures of mass arrest of street gangs that until recently served almost as a second competing power to the state in the country.
Although the new government has been successful in ending most of its crime, there have been accusation of human rights abuses by NGO and multiple international and criminal law analysts have criticised the new government´s measures although they have been ailed and praised by the general population of the country and looked in a positive light throughout most Latin American societies.
Consequently, this article deals with the impact that such measures can have in society and ultimately how it demonstrates a regional paradigm shift in regards to dealing with international criminal organizations that have chronically destabilized central America and have been at the centre of much of the migration issues in the region that overall, also affects the security of northern American countries, mainly Mexico and the US.
With its origins in El Salvadoran poor immigrant communities in the US city of Los Angeles, the street-gang gradually morphed into a transnational criminal organization experienced in human trafficking, drug smuggling and the sale of Illegal weapons throughout the Western Hemisphere of the America as well as central America, with the US state security forces failing in stopping their growth and ultimately deporting many of its members back to El Salvador where later their organization grew in numbers and power.
This ended further destabilizing the region and making the already weak state of El Salvador gradually weaker as the criminal organization grew its power.
The Bukele administration has however in the process of dismantling the gang and doing its mass arrests dramatically undermined institutional accountability mechanisms, increasing the risk of corruption and abuse of power, with President Bukele having disbanded the Agency for Transparency and Anti-Corruption which was one of the main agencies charged with oversight of public spending and with the civil society members of the committee resigning short after due to allegedly to lack of working condition.
As a result, Bukele´s administration has accused of weakening the role of independent institutional organism in the state, undermining multiple agencies autonomy under its new Access to Public Information Law.
Under its new anti-crime measures, President Bukele managed to pass through the Legislative Assembly a law declaring a broad state of emergency” that started in March 27, 2022 and that gave the government the power to suspend for 30 days the constitutional rights to freedom of association and assembly, privacy in communication, the rights to be informed of the reason for arrest and to remain silent, the right of legal representation and the requirement to bring anyone detained before judge within 72 hours.
These strict measures were justified by President Bukele´s as a necessary step in the new national security resolution to end the spike in gang violence, after 92 civilians had been murdered in the month of March of last year by street gangs.
While promoting all of these measures, President Bukele also consistently used social media, in particular twitter, to communicate with the general population, thus making a populist use of social media to gain more support from the population, emulating thus the type of populist social media strategy of ex-US President Donald Trump which has in turn created more international criticism towards his government.
Additionally, Bukele announced “maximum emergency” measures in the country´s prisons, giving the executive order for prison authorities to keep cells closed for 24 hours a day, in a tactic to punish the already apprehended gang members for the crimes of the ones that were not yet in prison, thus initiating a series of collective punishments that have been accused of being unconstitutional.
It should be added that since March 2022, the government has extended the state of emergency eight times and since August of the last year, the National Assembly has narrowed the state of emergency, eliminating the suspensions of the rights of freedom of association and assembly.
Under internationally law, the state may temporarily derogate or suspend some of their human rights obligations only in very limited circumstances, which form the perspective of many international analysts and humanitarian NGO the Bukele government has abused such a status and ignored the special conditions that allow for the state to behave in a such a way, thus breaking the law.
It should be added that the UN Human Rights Committee, which is charged with providing authoritative interpretations of the covenant, has made clear that states of emergency may not be used as a justification to violate peremptory norms of international law, for example through arbitrary deprivations of liberty or by deviating from fundamental fair trial principles, which many NGO have accused El Salvador´s government of currently doing.
Article 27 of the American Convention on Human Rights allows governments to derogate from some obligations in times of “war, public danger, or other emergency that threatens the independence or security” of the nation, provided that such measures are strictly required by the emergency and remain consistent with international law.
Bukele´s government from the perspective of some humanitarian aid analysts is breaking these principles in an increasingly despotic manner, having added a series of sweeping Criminal Amendments, with the Legislative Assembly approving a series of gang-related criminal law amendments proposed by President Bukele that allow judges to imprison underage minor citizens as young as 12 years of age, restrict even more freedom of expression and has expanded the pretrial detention conditions.
In addition, on April 5th the government further passed legislation that allows charges against anyone who “participates in the creation, assists or creates” any type of publication, image, graffiti or other form of visual expression that “explicitly or implicitly” transmits “messages” about or that “allude to” the various types of gangs with the penalty being up to 15 years in jail and with the new legislation allowing criminal charges to be given against people who use media outlets to “reproduce or transmit messages” of gangs.
NGO´s and international analysts have made the critique that such provisions could potentially be used to target critics and journalists, adding that that they are inconsistent with international human rights protections for freedom of expression, which may only be restricted when necessary and proportionate to achieve a legitimate goal such as to protect national security or the citizen rights.
Additionally, the UN Convention on the Rights of the Child, to which the state of El Salvador is a signing member, defines a child as anyone under the age of 18, with the UN Committee on the Rights of the Child, which interprets the convention making an open plea for the government of Bukele to not set the age of criminal responsibility bellow 14 which is one of its main new measures.
Other amendments have also dramatically increased sentences for alleged gang members in ways that human rights critics have pointed to being a measure that leads to disproportionate punishment.
These criticism however ignores the gravity of the security situation of the country and the brutality of the gang and drug cartel members in organizations such as MS-13, with Bukele administration classifying, and rightfully so MS-13 and other gangs as “terrorist organizations”, that use “violent or inhumane methods with the express purpose of instilling terror, insecurity, or alarm within the population”.
These new measures that define gangs as terrorist groups ultimately represent a paradigm shift in the legal system, since now the sentences have been increased from previously 10-15 years to 30 or 40 years in prison.
The amendments that were additionally put on last March have increase even more the penalties for gang related crimes, regardless of whether an alleged member committed any other crime.
The legislative changes also allow criminal courts to conceal the names of judges to protect their safety and to “use necessary measures to make impossible their visual identification”.
Many critics point to the legal fact that the Inter-American Court of Human Rights has ruled that “faceless judges” make it impossible for defendants to assess whether judicial authorities have a conflict of interest and are independent and impartial, making the argument that such a measure violates the due process under the American Convention on Human Rights.
The new legislature changes in the national Code of Criminal Procedure now allows for indefinite pretrial detention which constitutes under the UN Human Rights Committee has noted as it being “extremely prolonged pretrial detention may also jeopardize the presumption of innocence”[1].
The last major violation of human rights accusation in the new legislation that has been pointed out by Human Rights NGO´s is the fact that the state of El Salvador now allows for prosecutors and judges to give trials to citizens in absentia which in specific cases is permitted but currently is also being used too much.
This is a legitimately right criticism given the fact that such a measure ultimately puts at risk accountability mechanism in the legal system of the state and put at risk the very democracy of the country, and consequently the governments
While all these measures have been seen as polemical, the crack down on street crime has been quite effective and the government has managed to efficiently make El Salvador´s society more stable and safer for its women, children, and men to live which has been greatly appreciated by the majority of El Salvador´s society.
For the first time there is the necessary peace in the country for the economy to grow and its citizens feel safe in its major cities, with this also having a positive impact for the region since the gangs also promoted insecurity and instability the surrounding countries and were one of the central reasons for a lot of its citizens fleeing their societies for north America, often through migrant smugglers controlled by the same criminal groups.
Consequently, another positive aspect of the new anti-organized gang crime laws is that once the crime goes down regionally, the human trafficking crime will consequently decrease as well.
These positive outcomes however do not take away the importance of the human rights violations accusation made towards El Salvador, although it must be noted that some regarding the battle of the state against gang crime do seem somewhat exaggerated in the sense that it seems that they do not fully comprehend the situation of El Salvador and the reason why many states in Latin America are looking up to its anti-crime policies.
The strategic context is that ultimately the state has had its institutions and its legitimacy and power were for years actively being challenged by organized crime, and that for all effects Bukele´s government was caught up in the middle of a civil war that up until Bukele came to power the state was losing, with entire parts of the country being for all immediate effects under the control of organized crime instead of the state.
The unconstitutional and undemocratic aspect of some of its measures as well as the shut down of freedom of speech and the enormous amount of power that was given to the police by being able to arrest any citizen or individual without a warrant, as well as the institutional asphyxiation of independent organizations in the state are all measures that are legitimately a cause of worry for the rest of the region since Bukele´s government seems to be increasingly more authoritarian as time passes.
Consequently, international diplomatic pressure by other democratic states such as Colombia, Canada and the US should pressure the government to in the least review some of its measures that clearly break human rights.
An open international regional dialogue must be added that considers that although there has been a great progress in fighting crime in EL Salvador, some of its measures are putting in an increasing fashion to risk the democratic character of its society.
Although the state´s sovereignty must be respected and not every policy is necessarily wrong, one must ask what exactly is bothering international observers, that their liberal perspective of reality is simply at odds with Bukele´s approach, which has proven to be effective and has the general support of the population, or the “well-being” of the El Salvador´s democracy?
One must comprehend that the current measures are a result of a civil war between the state and organized crime and that ultimately the current situation posses a greater question regarding the challenge that democratic societies and national security face in today’s world.
Such a question is that when society is already in a critical state of deep insecurity and instability and its institutions fail to have the power, is an increasingly more authoritarian state that ultimately regains power and stabilizes society but that in the process takes increasingly more freedoms from its citizens an inevitable outcome in order to end terrorism and crime?
The situation in El Salvador posses such a question which can also be seen in other regions of the world such as in the Middle East with the Israeli-Palestinian conflict and the increasingly more authoritarian character that the Israeli state has taken in order to maintain control and supress Palestinian resistance to its expansion which is increasingly more supported by its citizens.
It will be interesting to see the developments in the region as more countries replicate such measures given the success that it has had, they have had in ending most of the crime and organized crime related terrorism, and what ultimately will be the response from the US.
The prevailing fact is that in spite of the controversy, the nation dropped from being of the most dangerous and unstable societies in the world to the safest in the Americas, with date demonstrating that as recently as 2015 there were 103 homicides per 100,000 people and that as of last year, that rate dropped to eight, which is lower than 20 US American states.
[1] “We Can Arrest Anyone We Want”: Widespread Human Rights Violations Under El Salvador’s “State of Emergency” | HRW
By The European Institute for International Law and International Relations.
