Author: Sarisha Harikrishna
October 3, 2024
Background of the issue
Over the years, El Salvador has become a country mired in a staggering number of gang-related killings, a problem that has been at the forefront of governmental efforts to curb it. To prevent the issue from escalating, the Salvadoran government declared a state of emergency as per the request of President Nayib Bukele on March 27, 2022. Although the intention behind the creation of the state of emergency was a noble one,—to mitigate the worrying increase in crime rates—it has also become the “perfect recipe for abuse”, according to Juan Pappier, senior researcher at Human Rights Watch (HRW). However, there have been some improvements in the homicide rates, dropping from a high 6,656 cases in 2015 to only 214 in 2023.
The state of emergency has been acknowledged as being incredibly stringent. However, in the bid to eradicate gang problems in low-income communities, children have been arbitrarily detained, tortured and forced to live in inhumane conditions as a result of “indiscriminate sweepings”. Amnesty International reported that over 66,000 people have been arbitrarily detained without being afforded the basic human right of safeguards to protect them such as the presumption of innocence and the right to defend themselves in court.
Mass Arrests: Human Rights Violations or a Necessary Measure?
Initially intended to last for only 30 days, the state of emergency has since been shockingly extended 20 times, leading to a more than two-year war being waged on vulnerable communities. The detainment of “suspects” is very abhorrent, with the “suspects” being detained solely based on anonymous phone calls and their social backgrounds. The number of prisoners that have been arbitrarily arrested is estimated to be around 104,000, which is about 30,000 more than the prisons’ capacity.
Overcrowding in the prisons used to hold detainees and convicted criminals is a problem that has yet to be addressed. Images circulated by journalists that were taken at Cecot (Centre for the Confinement of Terrorism) showed thousands of people forced to sit together with minimal space on cold, concrete floors. To further rub salt into the wound, inmates are often subjected to inhumane methods of degradation and torture, leading to a spike in the death toll of inmates in custody. The brutal treatment of the detainees through torture is a clear violation of Article 2(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This article clearly outlines the prohibition of any public emergency being used as a valid reason to impose torture. The act of torturing individuals is also prohibited under Article 7 of the International Covenant on Civil and Political Rights (ICCPR), an article that has been violated evidently by El Salvadoran authorities.
El Salvador-based human rights organization Cristosal had reported that 139 detainees had died in the first year of the implementation of the state emergency measure, none of whom were actually found guilty of the crimes that they were accused of. El Salvador’s ruthless policy of imprisoning individuals first and then trying them later has been condemned as being an unequivocal violation of international law. Even in the rare event that detainees are permitted to see that their case would be tried under the law, they would be tried in massive groups that diminish their own individual voices. This method has been propagated by supporters of the “state emergency” as the solution to increase efficiency in trying large numbers of detainees. However, mass trials have proven to be counterintuitive as the unique circumstances of each individual simply fade into the background.
Irene Cuellar of Amnesty International attested that the massive trials often include 200-900 people being tried in just one trial. The unfair nature of the hearings is in contravention of Article 14(1) of the ICCPR which stipulates that everyone faced with a criminal charge shall be given a just trial. Article 9(1) of the ICCPR has also been violated since there is a clear prohibition on arbitrarily detaining individuals. In addition, the Inter-American Commission on Human Rights argued that the lack of evidence presented to implicate those arrested along with minimal access to defense lawyers has further aggravated the presently bleak future for human rights in the country.
Public Support for Bukele's Policies: Populism or Effective Governance?
It is undeniable that President Bukele’s policies have garnered significant criticism from countries worldwide. However, in a shocking turn of events, Bukele was reelected as President of El Salvador for a second term, an action that would further prolong the state of emergency and lead to a huge dismantling of the human rights framework in El Salvador. It is also worthy to note that his recent win in the elections was by a huge majority, underscoring the massive amount of support that he has garnered from his fellow countrymen.
Surprisingly, Bukele's policies have been credited by Salvadorans for helping to significantly reduce the rampant gang-related violence. It also has led to him being able to consolidate power, as his party now has full control over the legislative and judicial branches in the country. This can be seen further when his approval rating was at 90%, four years after he first took office.
However, it seems that his actions of storming the National Assembly back in 2020, and his unconstitutional move of removing the attorney general and ten magistrates in the Constitutional Court, did not seem to be a worrying point for El Salvadorans. In short, it appears the massive support that he had garnered can be attributed to his iron fist crackdown on the decades-long gang clashes in the country.
Long-Term Implications for Salvadoran Democracy and Civil Liberties
The lack of legal and procedural safeguards available for individuals seeking refuge from the unfair allegations thrown against them has led to a drop in confidence levels about the country’s commitment in safeguarding the rights of its citizens. The erosion of fundamental human rights in the country due to what was only meant to be a temporary measure to cut down on the number of gang-related incidents has served as a reminder of the state of democracy in the country.
It is recommended that individuals should only be detained after a thorough assessment of their crimes and not imprisoned based on mere suspicion of gang membership or association. In the event that solid evidence has been adduced to support that an individual does have legitimate ties to a gang, the individual should be tried on his own and not in mass trials. Detainees in a prison also should not be packed tightly together under unsanitary living conditions. Violent methods of torture such as assault should be avoided at all costs in order to ensure that their fundamental rights are not violated.
Glossary
Abhorrent: An action that is morally very bad or disgusting.
Allegations: Statements made without giving proof that someone has done something wrong or illegal.
Arbitrarily detained: An individual being detained in a case in which there is no likelihood or evidence that they committed a crime against legal statute.
Article 2(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
Article 7 of the International Covenant on Civil and Political Rights (ICCPR): No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Article 14(1) of the ICCPR: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
Article 9(1) of the ICCPR: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Contravention: The act of doing something that a law or rule does not allow.
Degradation: The process in which the quality of something is destroyed or spoiled.
Judicial branch: The system of courts that deals with legal disputes and interprets, defends and applies the law in legal cases.
Legislative branch: The branch of government having the power to make laws, in most countries this is Parliament.
Mitigate: To make something less harmful, unpleasant or bad.
Stringent: Laws, rules or conditions that are very severe or are strictly controlled.
Unequivocal: Expressed in a clear and certain manner.
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