Broad ‘State of Emergency’ Risks Abuse in El Salvador

Human Rights Watch

A broad state of emergency adopted in El Salvador in the name of security suspends a range of basic rights, opening the door to abuse, Human Rights Watch said today.

On March 27, 2022, the Legislative Assembly passed a law declaring a “state of emergency” that suspends for 30 days the rights to freedom of association and assembly, and privacy in communications, as well as some due process protections. President Nayib Bukele requested the suspension to address a spike in alleged gang violence. The government followed the vote with a series of announcements that threaten multiple human rights, including to liberty, due process, and to be free from cruel, inhuman, and degrading treatment.

“The government of President Bukele should take serious and rights-respecting steps to address heinous gang violence in El Salvador,” said Tamara Taraciuk Broner, acting Americas director at Human Rights Watch. “Instead of protecting Salvadorans, this broad state of emergency is a recipe for disaster that puts their rights at risk.”

In recent months, the pro-Bukele majority in the Legislative Assembly has packed the Supreme Court, replaced the attorney general with a Bukele administration ally, and dismissed hundreds of low-level judges and prosecutors. El Salvador has virtually no independent institutions left as a check on executive power, Human Rights Watch said.

The emergency law is based on article 29 of the Salvadoran Constitution, which allows the Legislative Assembly to suspend certain constitutional rights in extreme circumstances, such as a foreign invasion or “serious disturbances of public order.” The 30-day period can be extended once for the same period.

Sixty-two people were killed, seemingly by gangs, on March 26 in El Salvador, the highest daily homicide rate in several years, according to official records. That night and the next morning, Bukele responded by asking the Legislative Assembly to declare a state of emergency and by ordering a lockdown in prisons.

The assembly suspended the constitutional rights to freedom of association and assembly, privacy in communication, the right to be informed about the reason of arrest, to remain silent, and to legal representation, and the requirement to take anyone detained before a judge within 72 hours.

Salvadoran authorities have not detailed what measures they will take in connection with the “state of emergency.” President Bukele tweeted that the measures “will be adopted by the relevant institutions” and “informed only when necessary.” His government and allies in the Legislative Assembly have previously taken other measures to undermine access to official information.

Bukele later said that people could continue studying and attending religious and sport events, “unless you are a gang member or authorities consider you to be suspicious,” without specifying what they would consider “suspicious” behavior or evidence of gang membership.

Bukele also announced “maximum emergency” measures in the country’s prisons, ordering them to keep cells closed 24 hours a day. “Nobody is allowed out, not even to the patio,” he tweeted, while also sending “a message to the gangs” suggesting that the detainees were being punished for the conduct of gang members outside of prison.

On March 28, Bukele tweeted that “We have 16,000 ‘homeboys’ in our power. Aside from the 1,000 arrested these days. We seized everything they had, even their mattresses, we’ve rationed their food, and now they won’t see the sun. STOP KILLING NOW or they will pay too.” He was referring to the 16,000 gang members allegedly in the country’s prisons and more than 1,000 arrests since the recent killings.”

Punishing detainees for the actions of people outside prison is a form of collective punishment that violates multiple human rights, and the harsh treatment of detainees described by Bukele may amount to cruel, inhuman or degrading treatment or punishment, Human Rights Watch said. Depriving detainees of adequate clothing, light, bedding, access to the outdoors, food, and water is also inconsistent with international standards on the treatment of detainees.

Attorney General Rodolfo Delgado has tweeted that his office is on a “hunt” and the police have reported arresting over 1,400 alleged gang members who they have said were responsible for recent homicides.

The police tweeted photos of dozens of detained people accusing them unequivocally of committing crimes, even before many of them have been taken before a court. The Legislative Assembly has said that the state of emergency allows the police to extend the time limit to take a detainee before a judge so that prosecutors can “collect evidence.”

“The Bukele strategy government seems to be ‘first arrest, then tweet, and investigate later,'” Taraciuk said.

Bukele also tweeted that the police and military forces should “allow agents and soldiers to do their work and defend them from accusations by those who protect gang members.” He also tweeted, “We will be monitoring the judges who favor criminals.” Such messages send a dangerous signal to security forces that they will be shielded from accountability if they engage in abuses, and appear designed to intimidate independent judges, Human Rights Watch said.

The spike in gang violence comes after a substantial decrease in homicide rates during the Bukele government. El Faro, a media outlet, reported in September 2020 that the government had negotiated with gangs to grant members prison privileges in exchange for a commitment to lower the homicide rate and support the president’s political party in the February 2021 legislative elections. In December 2021, the US government accused the Bukele government of carrying out “covert negotiations” with MS-13, the biggest gang in the country, and sanctioned two Salvadoran officials who it said had taken part in the talks.

Bukele denied the allegations and, shortly after the El Faro report, announced an investigation, which he did not support with evidence, against El Faro for alleged “money laundering.” Attorney General Delgado, who took office in May 2021, dismantled a unit that was investigating the alleged negotiations and, months later, his office raided the offices of prosecutors who had conducted the investigations.

International law allows countries to temporarily derogate or suspend some of their human rights obligations in very limited circumstances, which do not appear to apply in this case, Human Rights Watch said.

Under article 4 of the International Covenant on Civil and Political Rights, which El Salvador has ratified, governments may derogate from some of their obligations under the covenant “in time of public emergency which threatens the life of the nation.” Derogations should be only those “strictly required by the exigencies of the situation.” 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.

Similarly, 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,” provided that such measures are strictly required by the emergency and consistent with other obligations under international law.

The United Nations Standard Minimum Rules for the Treatment of Prisoners (the “Nelson Mandela Rules”) provide basic standards for the treatment of prisoners, including minimum requirements with regard to access to the outdoors for exercise, and adequate clothing, food, and bedding. They note that prisoners’ clothing shall not be degrading or humiliating. Several treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prohibit cruel, inhuman or degrading treatment or punishment.

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