Three years under the State of Exception in El Salvador

 

March 27 is the three year anniversary of the State of Exception in El Salvador. This suspension of constitutional due process protections as part of a war on gangs was adopted by the Salvadoran Legislative Assembly in the midst of a bloody weekend in March 2022 in which gangs murdered at least 87 people around the country. Under the State of Exception, security forces of the police and military can arrest anyone without a warrant or observing them commit a crime, can hold them for 15 days before appearing before a judge and without telling them the charges, and can freely intercept communications without a judicial order. Those detained receive initial hearings, before judges with their identities masked, in groups that often number in the hundreds where the charges are simply gang affiliation. Judges routinely order defendants into El Salvador's hellishly overcrowded prisons without bail, to await for their next preliminary hearing which could come in six months.  Even for people arrested in 2022 in the early days of the State of Exception, they have not been sent to trial.

Some 85,000 persons have been rounded up and thrown in prison under the State of Exception.  The group Socorro Jurídico says that it has documented the deaths of 380 prisoners who have died during this period.  According their investigations, 40% died as a result of acts of violence and 30% through medical neglect. The group worries the actual number of deaths could be much higher.

In December 2024, Amnesty International wrote about the conditions in prisons under the State of Exception:

[There is] a crisis of extreme overcrowding in most penitentiary centres, some of which, according to civil society organizations, have been running at over 300% capacity since the state of emergency was instituted. Victims have described conditions as “hellish”, characterised by a lack of medical care, substandard basic services such as food and water, and the cruel, degrading and inhumane treatment frequently meted out, including torture. According to local organisations, more than 300 deaths under state custody have been recorded. Amnesty International has documented cases of deaths due to beatings, torture and a lack of proper medical care.

I asked four persons who have written and thought deeply about the State of Exception "What does the third anniversary of the State of Exception mean for El Salvador?"   Here were their answers.

César Fagoaga is a Salvadoran journalist and Director of the online periodical Revista Factum.

Three years of the state of exception have transformed El Salvador into a country where the absence of rights is the norm, and fear is the strategy of control. Because the regime was never a security strategy; it was a strategy of social domination. The regime has caused society—I believe without knowing it or openly acknowledging it—to resign itself to injustice and to rely on silence as its only protection. The regime not only incarcerates without due process, but also shows off its model as a triumph of authoritarianism, demonstrating that power can be bought and sold without limitation.

Ingrid Escobar is a Salvadoran human rights lawyer and Director of Socorro Jurídico Humanitario.

Three years of the state of exception signifies the loss of constitutional guarantees and a tremendous amount of human rights for the entire population. Because this measure, to start with, is unconstitutional, as it is only authorized for 60 days, and we have already had three years of it.

It does not pass conventional scrutiny because it violates human rights, meaning the entire international human rights framework. In the specific case of people who have been direct victims of the regime, the "margin of error" is not 1 or 3 percent, as the government claims, but more than 30 percent, meaning thousands of innocent people have been unfairly prosecuted. Of this number, there are more than 1,000 deaths, of which we have confirmed 379 with documented proof.  These are people who did not survive until their second court hearing but died earlier under state custody.

In that sense, we classify the State of Exception as a huge setback for human rights. The institutional weakness in our country is enormous and, therefore, does not guarantee that gang members are really being prosecuted and sought out. This has allowed many people to suffer cruel, inhuman, and degrading treatment and other serious human rights violations, such as forced disappearances under the State of Exception and extrajudicial killings within the prisons. 

Worst of all, will be the upcoming mass trials where there will be another tremendous loss of rights.  With the many people who have already died and whom the state wants to cover up, to avoid taking responsibility, it will judge and condemn them posthumously. More seriously, people will practically remain disappeared forever, because their families will never be able to see them again.

There are so many things, right? And now this state of exception has even become a way to transact with people's freedom internationally, as is the case with the Venezuelans deported [by the US]. Because El Salvador now demands money for each person who will be transferred to the confinement center against terrorism, CECOT.

Noah Bullock is Executive Director of Cristosal, a leading Central American human rights organization.

Through the three years, the state of exception is no longer an emergency decree, but rather the bedrock of an authoritarian form of governance, in which Salvadoran security forces can arrest whomever they want with no evidence, no previous investigations. People can be detained indefinitely, and the courts, rather than protect the rights of the citizens, rubber stamp illegal detentions and ignore abuses.

The loss of rights was proposed to combat gangs, and to be targeted, the president said, so that only the terrorists were going to suffer the loss of rights. But I think now it's pretty clear for almost everybody in El Salvador that we've all lost rights.

Celia Medrano is a Salvadoran human rights defender and journalist.

Many of us who experienced the Salvadoran armed conflict and witnessed the grave human rights violations experienced during the years of political repression in El Salvador quickly recognized that the State of Exception, which began three years ago, was not exceptional in any way, nor was its purpose intended to eradicate crime. 

From the outset, several human rights organizations clearly stated that a measure of this nature requires guarantees to ensure that it is truly used only with maximum resources in an extreme situation and that its application lasts only as long as necessary, as would be an exceptional measure. 

From the outset, the state of emergency was conceived as a weapon of social control, which could be applied to anyone who poses a risk or challenges the powers that currently control the Presidential House. They have even wielded it against individuals who inconvenience them by denouncing arbitrary actions during the eviction of street vendors under the pretext that the vendors "pollute the landscape," by challenging depredation and environmental pollution from mineral extraction activities, or by protesting against layoffs or late payments of wages owed to workers. 

It is precisely in this context of fear that an authoritarian regime is rapidly consolidating, one that has militarized politics and increasingly closes civic space. It is this context of fear that decreases the public awareness of various investigations that point to evidence that far from eradicating criminal groups, government officials have become involved in understandings with them. It was precisely the breakdown of these understandings that created the conditions for imposing a regime that is no longer exceptional, but rather a permanent regime of suspension of civil guarantees in El Salvador.

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You can review my coverage of the past three years of the suspension of due process and human rights in the country by following the State of Exception topic on posts at El Salvador Perspectives.