LOYOLA UNIVERSITY CHICAGO

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Rule of Law in Conflict Prevention and Peacebuilding (PLAW 107)

Final Essay

El Salvador: Trading Freedom For Safety

Professor: Joseph P. Saba

Student: Ksenia Tkachuk

Rome, Italy

April 30, 2024

Context:

1. Introduction

2. Background information

3. Legal pluralism in El Salvador

4. Actors, Institutions, and Structural Factors

5. Rule of law Remedy

6. Conclusions

References

II. Introduction.

El Salvador has a long and complex history of violence. Throughout history, it had many root causes that influenced the country's violence levels. The gangs, their relationship with different governments, and the government itself led to the ups and downs of the death rates and human rights violations. The recent years turned out to be a huge change for the country and its future. In this essay, the background information will be provided to show the main root causes of the violence and struggles people have, will have a closer look at the arbitrary detention issue, and offer some rule of law remedy for such issues to try to attack these human rights violations. This essay will provide some recent studies to prove the efficacy of such a rule of law remedy.

III. Background Information.

El Salvador's homicide rate plummeted in recent years, but a spate of killings has drawn attention to President Nayib Bukele's controversial approach to tackling gang violence.

Diana Roi¹

1 Diana Roi. Councils on Foreign Relations. Why Has Gang Violence Spiked in El Salvador Under Bukele? May4, 2022. Link.

The image of El Salvador now is of the country that had turned from being one of the most dangerous countries in Latin America to one of the best touristic destinations and safest places. But this image is not correct even with all of the hard work of the government of El Salvador to make it look like that. With the long history of violence from the gangs, it turned into a country with a tremendous violence force from the state. To understand what has led to this gang violence, we have to look back into the history. In the 60th and 70th El Salvador was ruled by the rich landowners, who were exploiting the people. People got organized to protect their rights, which turned into a massive killing of protesters by the government of El Salvador— which was supported by the USA due to the Cold War circumstances.² The soldiers who were suppressing the people were trained by the US. All this violence made Salvadorians flee from their home country to the US, mainly to California, where they were not welcomed. Having faced significant gang power in California, Salvadorians formed their gangs to have a response (like MS-13)³. In the 90th when the violence in the US grew, its government decided to deport the convicted criminals back to El Salvador. At that time, El Salvador was just recovering from the civil war, which was a perfect condition for the gangs to continue their business. In 2019 Nayib Bukele won elections and brought up the change. During the first year of his presidency, the homicide rates went down by 50%.

In 2022, Between March 25 and 27, El Salvador experienced extreme violence with at least 87 people murdered. Authorities attribute this surge in killings to the notorious gangs Mara Salvatrucha (MS-13) and Barrio 18. The most violent day was March 26, when over 60 individuals were killed, making it the deadliest since the end of the civil war in 1992.

According to the investigative news outlet El Faro, many victims had no ties to any gang

2 Bianca Graulau. What the World Can Learn From Bukele's War on Gangs. January 24, 2024. Link.

3 Id.

4 Id.

5 Roi, supra note 1.

activity and varied widely in their backgrounds6. In response to this, following the proposal of Niab Bukele El Salvadorian government proclaimed a 30-day long State Of Emergency7.

This state of emergency has been extended multiple times and is valid till today. “Salvadoran authorities have systematically committed grave human rights violations since a state of emergency and numerous legislative amendments were approved in March 2022, supposedly to tackle gangs”, said Amnesty International report from April 20248.

72,000 people (2% of the population) were detained by the police since the state of emergency9 alleged gang members.

Today, El Salvador has the highest incarceration rate in the world - the country with the highest murder rate now has the highest incarceration rate10. Human Rights Watch posted an article about the teenage boy, who managed not to become a gang member despite the pressure11. But he, still being 16 years old, was arrested by the police anyway:

Officers did not provide a warrant or a reason for the arrest. They said they were taking him, then 16, to a police station to “investigate him.”12 He is one of 2,800 children sent to jail since the state of emergency began.

What followed for him, as in many other cases human rights groups in El Salvador documented during the emergency, was a harrowing sequence of abuses13.

The problem of arbitrary detentions is also outlined as one of the main issues by The Amnesty International report from April 202414.

Since March 2023, over 73,000 individuals have been detained in El Salvador. They were primarily accused of "illegal associations" related to gang involvement. The detentions during this state of emergency often violate due proses and many legal norms, both local and international, lacking clear judicial directives,

6 Nelson Rauda, Jimmy Alvarado, Gabriela Cáceres, Daniel Reyes, Óscar Martínez. "Las víctimas del dia más violento del siglo." El Faro, 2022. Link.

7 Amnesty International. Report on The State of The World's Human Rights. April, 2024. Link.

8 Amnesty International, El Salvador: One Year into State of Emergency, Authorities Are Systematically Committing Human Rights Violations. April, 2023. Link.

9 Marcos Alemán, El Salvador is gradually filling its new mega prison with alleged gang members. The Associated Press. October, 2023. Link.

10 Kejal Vyas, Santiago Peres. The Country With the Highest Murder Rate Now Has the Highest Incarceration Rate. The Wall Street Journal. July 10, 2023. Link.

11 Juanita Goertus Estrada. El Salvador’s Cycles of Violence Through a Teenager’s Eyes. The Human Rights Watch. Inter Press Service. April 9, 2024. Link.

12 Id.

13 Id.

14 Amnesty International, supra note 7.

and extending beyond legal detention periods without providing detainees or their families with sufficient information15. The identity of the judges involved was often obscured16. This emergency measure disproportionately impacted poor and marginalized communities, exacerbating their already precarious situation17. It is important to underline, that there are many other huge issues in El Salvador connected with gang and police violence, and other problems connected to poverty, lack of education, social injustice, and others. For this essay, I am concentrating on the issue of arbitrary detentions.

IV. Legal pluralism in El Salvador

Legal pluralism in El Salvador’s crisis plays an important role and needs to be understood.

There is a form of normative ordering other than the state – it is gangs. They created their own rules, procedures, system of control, and punishment. It arose due to the weakened governmental institutions and created a parallel competing system of norms and principles.

At the same time, the state of El Salvador has its legal norms and principles that recognize international legal standards which include human rights conventions. For example, as a member state of the United Nations, El Salvador is bound by the Universal Declaration of Human Rights18. Also, El Salvador has ratified the International Covenant on Civil and Political Rights, committing itself to adhere to the covenant's provisions, including those related to the presumption of innocence and the right to a fair trial19.

At the same time, President Bukele by announcing the state of exception created another order, which violates multiple human rights and international standards, many laws and

15 Id.

16 Id.

17 Amnesty International, supra note 8.

18 International Justice Resource Center. Country Factsheet Series. El Salvador. Link.

19 Id.

orders of his country. He also violated the constitution of El Salvador by registering and participating in the election for the second time20.

This three-dimensional order established different norms and resulted in different actions.

The justice system is too weak to protect the legal order, and the executive branch together with the police and military dominates in the governing of the state and causes human rights violations and other extralegal activities.

V. Actors, Institutions, and Structural Factors

Looking at the problem of arbitrary detention, it is important to recognize actors, institutions, and structural factors. The actors in this case would be (1) President Bukele, (2) leaders of gangs such as MS-13 and Barrio 18, (3) human rights defenders, (4) gangs, and (5) citizens.

The institutions are multiple, and they will be: (1) parliament, (2) judiciary, (3) military forces, (4) police, (5) detention intuitions, (6) Human Rights Ombudsman, (8) Attorney’s General office, (8) Civil society organizations, (9) international organizations (UN, Amnesty International, Human Rights Watch, Cristosal Human Rights, others), (10) El Salvador Bar Association, (11) donors.

There are different structural factors of the root cause. The main structural factors are poverty, the history of violence, lack of education, weak state intuitions, socio-economic disparities, sugar industry monopoly and fight for the control of it, gangs themselves, and overall instability in the country.

The future of El Salvador will greatly be influenced by the decisions of President Bukele and by the actions of the gangs. “But the international community, and the United States in particular, have important roles to play,” says The Lawfare Institute21. First, the international community can continue to document abuses of state power in El Salvador22. Right after the

20 Amnesty International, supra note 7.

21 Manuel Meléndez-Sánchez, What’s Behind the Spike of Violence in El Salvador?, The Lawfare Institute. April 11, 2022. Link.

22 Id.

state of emergency was declared, international observers raised concerns about potential human rights abuses23. For example, representatives of the Washington Office in Latin America and the Due Process of Law Foundation noted that the state of emergency effectively suspended some human rights, such as the right to a defense, knowing the charges against you, the right not to incriminate yourself and having access to a lawyer24. The decree also suspended the right to freedom of assembly and association and allowed the government to intercept private communications without a court order25.

V. Rule of Law Remedy

As was mentioned above, the issue of arbitrary detentions is one of the main ones in contemporary El Salvador. After proclaiming the state of exception, 74,000 people were arrested, despite the information about only 70,000 members of gangs in El Salvador overall26. The new prison was built to host around 40,000 people, which is overcrowded now. Amnesty International report says: “The Salvadoran penitentiary system faced critical levels of overcrowding, reaching a 300% occupancy rate, equivalent to more than 100,000 inmates. This accounted for 1.14% of the country’s general population and positioned El Salvador as having the highest rate of incarceration globally, according to local civil society organizations.”27, At the same time, there was a leak of the information from the President’s Office, that there are still 43,000 gang members outside the prisons28. How are the rest 47,000 people in prisons? Many relatives and close family do not even have the information about their detained relatives, their location, or the grounds for the arrests.

In May 2023, a big and comprehensive report was done by The Cristosal, which indicates:

23 Human Rights Watch, El Salvador, Broad 'State of Emergency' Risks Abuse. March 29, 2022. Link.

24 Carolina Jimenez, Katya Salazar Luzula. El Salvador’s President Overarches in the fight against gangs. Washington post. April 7, 2022. Link.

25 Human Rights Watch, supra note 23.

26 Bloomberg Originals. The Price of El Salvador's War on Gangs. February 2, 2024. Link.

27 Amnesty International, supra note 7.

28 Bloomberg Originals, supra note 25.

The Cristosal has received 3,275 reports of human rights violations during the first year of the regime, representing 3,403 people. Of this total, 85.5% identified as men and 13.9% as women. 55 people identified as belonging to the LGBTIQ+ community. It is an alarming fact that the largest victim age group is between 18 and 30 years old. This 58.7% of reported victims are of an age in which they are often economic providers for their families. The main perpetrators reported were the National Civil Police (PNC) and the Armed Forces of El Salvador (FAES), who have carried out arbitrary detentions and violated the rights of the families of the detained29.

Having these arbitrary detentions, the police and government of El Salvador violate multiple human rights, for example, the right to liberty and security, the right to be informed of the changes, the right to legal representation, and many others.

My rule of law remedy suggestion would be to restore CSOs and build their capacity.

The state of exception forbids the right to the assembly. Also, President Bukele has proposed a law that would require individuals and organizations (like CSOs) receiving foreign funding to register as "foreign agents"30. These two elements could destroy the existing CSOs and will prevent any new organization from forming.

As mentioned multiple times by the Bukele administration, economic prosperity is the next step for El Salvador as they accomplish security. This could be the entry point for international organizations, donors, and interested governments to interfere and ask for the turning point for CSOs. As economic legality and popularity for President Bukele play a significant part in his ruling, it could incentivize him to agree on that—CSOs will help identify the main issues that the government could attack and restore. International actors could try to economically justify the operation of CSOs that help calculate the loss of income brought by the arbitrarily detained people. Their loss - the loss for the country, underlines the problem of criminal record and official job (many people who get out of prison still cannot get a job due to the criminal record they have). 47000 people can work instead of being

29 Cristosal. "Executive Summary: One Year of Human Rights Violations." June 2023. Link.

30 Marcos Aleman, Christopher Sherman. 'Foreign' agents pitch has El Salvador civil society on edge. The Associated Press. November 17, 2017. Link.

detained and feed their families, which will lead to the economic development of the country.

The other argument would be El Salvador’s international obligations- UN membership for one. All these incentives can help donors get a good outcome and success of the projects.

Empowering CSOs to gather information on the detained people and the violation of their rights will provide “first aid” to the people suffering from the arbitrary detentions and to their families. For example, hotlines for the victims and their families could be created for a more transparent listing of the detained, providing basic consultations and figuring out the needs and main problems of the detained (dependent families, crops, cattle, etc.) This will help them realize the steps needed to be taken next, like legal aid and demands for a fair trial.

Working with media as a part of SCOs could help to show them the techniques on how to highlight the human rights violations locally—so the people understand what is going on and what is wrong with the processes in the country. It will change the starting point of understanding of the issue and give the perspective of the human rights standards. On the international level, this will help vocalize and advocate for the people who suffered from human rights violations and put pressure on and “shame” (which will be explained in the next chapter) the government.

For example, USAID already made a shift from supporting institutions in El Salvador to supporting SCOs. In their press relies, it was announced:

USAID is redirecting assistance away from these institutions, the National Civilian Police, and the Institute for Access to Public Information. This funding will now be used for promoting transparency, combating corruption, and monitoring human rights in partnership with local civil society and human rights organizations. Respect for an independent judiciary, a commitment to the separation of powers, and a strong civil society are essential components of any democracy31.

There has been research conducted by Amanda M. Murdie and David R. Davis in 2012, that provides the first global data-based evidence of the efficiency of “shaming” of states for

31 U.S. Agency for International Development, USAID Redirects Assistance for Salvadoran Government Institutions to Civil Society Groups. Press Releases. May 21, 2021. Link.

human rights violations, and under what conditions we see a better result and actual positive

shift inside the countries32. Under this research, the data from the shaming events of more

than 400 human rights international non-governmental organizations (HRO) was collected

and analyzed33. In the article by Murdie and Davis, "shaming" refers to the activities

conducted by HROs to publicly criticize and draw attention to poor human rights practices by

governments. This public criticism aims to pressure these governments into improving their

human rights records. The effectiveness of these tactics increases notably when supported by

a substantial presence of domestic HROs within the state and external pressure from third-party

states or organizations. This dual approach leverages both local advocacy and

international pressure, enhancing the ability of HROs to influence human rights

improvements effectively. This finding justifies the empowerment and capacity-building of

CSOs within El Salvador as they can work synergistically with international pressures to

create a more significant impact on human rights practices.

VI. Conclusions

In conclusion, El Salvador faced the need to balance between improving safety and

maintaining individual freedom. Even though the ongoing state of emergency proclaimed by

the government managed to decrease gang violence, it has also resulted in severe human

rights violations, notably arbitrary detentions. These actions weaken democratic principles

and the rule of law in the country.

This essay advocates for empowering CSOs as a crucial remedy to these issues. CSOs can

serve as watchdogs, holding the government accountable while also providing support and

legal aid to those unjustly detained. Additionally, international collaboration should be

increased to pressure the Salvadoran government to adhere to international human rights

standards.

_________________________

32 Amanda M. Murdie, David R. Davis, Shaming and Blaming: Using Events Data to Assess the Impact of

Human Rights INGOs. International Studies Quarterly, Vol. 56, No. 2017. Link.

33 Id.

Further, leveraging international aid and attention can provide both resources and external pressure necessary to reform El Salvador’s approach to law enforcement. For instance, redirecting aid to support local CSOs, as done by USAID, helps build a more transparent and accountable system. Moreover, global advocacy and shaming strategies, as evidenced by the research of Murdie and Davis, can be effective in combination with the acting local CSOs. This strategy could make state actors reconsider their tactics and align more closely with international human rights norms.

The essay outlines strategies for gaining government support for reestablishing CSOs by offering economic legality incentives. It also explores options for empowering CSOs and the media, which could serve as a starting point for future changes. Additionally, it discusses creating government accountability by collecting evidence of crimes and violations committed. This approach will also provide immediate support or redress mechanisms for the people of El Salvador.

References:

1. Alemán, Marcos. El Salvador is gradually filling its new mega-prison with alleged gang members. The Associated Press. October, 2023.

2. Alemán, Marcos, Sherman, Christopher. 'Foreign' agents pitch has El Salvador civil society on edge. The Associated Press. November 17, 2017.

3. Amnesty International. Report on The State of the World's Human Rights. April, 2024.

4. Amnesty International. El Salvador: One Year into State of Emergency, Authorities Are Systematically Committing Human Rights Violations. April, 2023.

5. Bloomberg Originals. The Price of El Salvador's War on Gangs. February 2, 2024.

6. Cristosal. 'Executive Summary: One Year of Human Rights Violations.' June 2023.

7. Goeburts Estrada, Juanita. El Salvador’s Cycles of Violence Through a Teenager’s Eyes. The Human Rights Watch. Inter Press Service. April 9, 2024.

8. Graulau, Bianca. What the World Can Learn From Bukele's War on Gangs. January 24, 2024.

9. Human Rights Watch. El Salvador: Broad 'State of Emergency' Risks Abuse. March 29, 2022.

10. International Justice Resource Center. Country Factsheet Series. El Salvador.

11. Jimenez, Carolina, Salazar Luzula, Katya. El Salvador’s President Overarches in the fight against gangs. Washington Post. April 7, 2022.

12. Meléndez-Sánchez, Manuel. What’s Behind the Spike of Violence in El Salvador? The Lawfare Institute. April 11, 2022.

13. Murdie, Amanda M., Davis, David R. Shaming and Blaming: Using Events Data to Assess the Impact of Human Rights INGOs. International Studies Quarterly, Vol. 56, No. 1, 2017.

14. Rauda, Nelson, Alvarado, Jimmy, Cáceres, Gabriela, Reyes, Daniel, Martínez, Óscar. "Las víctimas del día más violento del siglo." El Faro, 2022.

15. Roi, Diana. Councils on Foreign Relations. Why Has Gang Violence Spiked in El Salvador Under Bukele? May 4, 2022.

16. U.S. Agency for International Development. USAID Redirects Assistance for Salvadoran Government Institutions to Civil Society Groups. Press Releases. May 21, 2021.

17. Vyas, Kejal, Peres, Santiago. The Country With the Highest Murder Rate Now Has the Highest Incarceration Rate. The Wall Street Journal. July 10, 2023.