State of Exception continues in 2023

As El Salvador enters 2023, the exceptional is the new normal.   El Salvador has lived under an emergency State of Exception, adopted by its Legislative Assembly at the behest of president Nayib Bukele, since March 28, 2022.   That day came in the midst of a bloody weekend 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 hearing which could come in six months.

In an interview during the first week of January El Salvador's Minister of Security, Gustavo Villaltoro, provided statistics on the number of people seized under the "war on gangs" of the current emergency regime:
The Minister said that during the emergency regime, 61,300 people have been captured until January 3, 2023, but that more still need to be arrested. Also, he explained that 700 people linked to the gangs have been captured during the military siege established in Soyapango, since last December 3.
Villatoro also said that, to date, 3,313 persons detained had been set free for lack of proof of their connections to the gangs. Of those, only 450 were released by actions of prosecutors, and a thirdere minors freed by judges who handle juvenile crimes. (3313 would be 5.4% of those 61,300 arrested, but there is no reason to assume that there is proof for all of the remaining 96%).
Villatoro said he plans to ask the Legislative Assembly to extend the State of Exception for a tenth time in the coming week.

El Salvador’s new Advocate for Defense of Human Rights (“PDDH” for initials in Spanish) Raquel Caballero has not issued a pronouncement since her election concerning the status of human rights under the State of Exception. Although she tweeted that she would be visiting prisons, no visits have taken place to date.

For president Nayib Bukele, the success of the State of Exception is usually described by the reduction in the level fo daily homicides.  In a country where fewer than 10 homicides a day might be considered a good day in the past, recent weeks and months have seen scores of days without a single homicide throughout the country.

So far in 2023 El Salvador already has the lowest homicide rate
in Latin America.  Now we're on a path to have the lowest level in all the
continent, bypassing Canada.  We continue...

The reduction in the homicide rate during Bukele's term in office has been impressive.  Data from the police tabulate just 615 homicides in 2022, down 46% from the 1147 in 2021 which was already one of the lowest homicide levels since the civil war, and down more than 90% from the 6656 Salvadorans who were homicide victims in 2015.  

The State of Exception also appears to have hit hard the gangs ability to extort local neighborhoods and businesses.  A report from investigative journalist Bryan Avelar in El Pais states that extortion payments by the country's network of bus systems have fallen by as much as 70% and by informal market vendors in the capital by as much as 80%.   According to Avelar:
The newspaper also visited three communities in the San Salvador metropolitan area which have been historically controlled by MS-13. Everything suggests that MS-13 is on its last legs. But, according to these sources, members of the police and the army have filled this vacuum and are reportedly now the ones committing crimes.

Although this situation may not hold true for all communities in El Salvador, the crackdown has hurt MS-13′s influence in three key areas: extortion, territorial control and recruitment of new members. [entire article here]
Throughout the month of December, security forces enacted a "cerco" or siege of El Salvador's second most-populous city, Soyapango, which in the past had dozens of neighborhoods controlled by the gangs. Since December 3, 8,500 soldiers and 1,500 police officers have been patrolling the neighborhoods that for decades have been controlled by gangs. La Prensa Grafica reported today on the atmosphere in one of those communities, La Campanera, previously known for being controlled by factions of the Barrio 18 gang. Gang members no longer freely walk the streets in this colonia, where feelings of security are gradually returning.     

According to a recent poll by La Prensa Grafica, only 4.8% of respondents said that they or a member of their family had been a victim of a crime in the previous three months, the lowest total since the paper began asking the question in 2005. 

But the cost to achieve these reductions in homicides and extortion, in terms of human rights abuses and further abandonment of the rule of law in El Salvador, has been high.
In a report titled We Can Arrest Anyone We Want, the human rights groups Cristosal and Human Rights Watch documented their findings of violations of human rights through the end of November 2022. Their findings, based on more than 1100 interviews with affected persons, their families, and participants in the system included the following:
The authorities’ campaign of mass, indiscriminate arrests has led to the detention of hundreds of people with no apparent connections to gangs’ abusive activity. In many cases, detentions appear to be based on the appearance and social background of the detainees, or on questionable evidence, such as anonymous calls and uncorroborated allegations on social media. In these cases, police and soldiers did not show people a search or arrest warrant, and rarely informed them or their families of the reasons for their arrest. A mother who witnessed the detention of her son said that police officers told her, “We can arrest anyone we want.”

In some cases of people detained by security forces, officers refused to provide information about the detainees’ whereabouts, in what amount to enforced disappearances under international law. Authorities left such victims defenseless and caused their family members inhumane and abusive uncertainty and suffering....

This mass incarceration has aggravated historically poor conditions in detention, including extreme overcrowding, violence, and poor access to goods and services essential to rights, such as food, drinking water, and health care. Some of the few people who were released from detention reported inhumane conditions and, in some cases, torture and other forms of ill-treatment.

According to Salvadoran authorities, 90 people have died in custody during the state of emergency. Authorities have failed to meaningfully investigate these deaths. In some cases, detainees who died in prison did not receive access to the medication they needed, family members said.
In a lengthy piece in Business Insider titled The 'world's coolest dictator' rounded up 60,000 people in a supposed crackdown on MS-13. A shrimp farming community is fighting back, Danielle Mackey tells the story of the State of Exception and its impact on one community in the Bajo Lempa which has suffered from dozens of unjustified detentions. Mackey, who has written passionately about El Salvador for many years, writes of the damage to a community when sons and husbands suddenly disappear:
By the late summer, Jeremias is usually out in the fields alongside Roxana's two boys and his two nephews, planting corn for the family to eat. With them in prison, he had to forgo the crop this year, because it's too much to handle alone.  

The state of exception "has a human cost that we still can't fully see," said Noah Bullock, Executive Director of Cristosal. "There is the torture, the inhumane treatment, the more than eighty deaths in prisons, and that's only talking about the people who are detained. Life projects that people have built slowly over generations are suddenly paralyzed and collapsed. There's the loss of income and the simultaneous expenses. The social cost of being stigmatized as 'terrorists.'" 

The administration seems unperturbed by the volume of blameless people it has locked up. "There will always be victims in war," Vice President Felix Ulloa has said of the state of exception. [entire article here].
Thus as El Salvador begins 2023, the experience of the State of Exception varies widely depending on who you are and where you live.  If you live in a community which has historically been controlled, extorted and terrorized by the gangs, you are grateful that gang members have been captured, forced into hiding or fled. But you may live in a marginalized community where the police have filled arrest quotas with arbitrary arrests of young men, depriving families of support, and forcing mothers and sisters to wait outside prison walls hoping for news and justice which never seems to come. Those living in the upper class neighborhoods and suburbs to the west of San Salvador go on enjoying life as if nothing has changed.  The State of Exception does not impact them.      

The State of Exception, intended under the constitution to be a temporary response to an emergency situation, is continually renewed by the Legislative Assembly. Yet what is the emergency today? Bukele declares that El Salvador has never been safer, but refuses to give back the constitutional guarantees of due process and protection from illegal seizures and searches.   Meanwhile, a prison to hold at least 40,000 persons in the center of the country nears completion.

One thing which must be watched in coming weeks and months is the judicial process.  As the 61,000 detainees are processed through El Salvador's courts, is there any sign of a meaningful process in which the presumption of innocence found in the Salvadoran constitution is actually respected? Or do innocent persons end up confined for years, collateral damage in Bukele's war on gangs?   

Next in our series on the state of El Salvador in 2023 -- the COVID-19 pandemic.