The Inter-American Commission on Human Rights (IACHR) has once again demanded that the Salvadoran state reinstate all the constitutional guarantees that were suspended when the state of exception was approved in March 2022 and that, as of today, has led to the imprisonment of 81,000 Salvadorans.
On Wednesday, September 4, the IACHR, based in Washington, issued a report on El Salvador that encourages the termination of the state of exception installed in March 2022. The 155-page document makes a detailed review of all the decrees and legal reforms under the state of exception umbrella, and contrasts them with reports from Salvadoran civil society, with international standards of the respect for human rights required by the American Convention on Human Rights, and, mainly, testimonies of victims in El Salvador.
“The IACHR urges the State to repeal the state of exception, ending the suspension of rights and guarantees through the extensions to Legislative Decree No. 333 of 2022 and reiterates that they should maintain indispensable judicial guarantees in all circumstances,” states the report in one of the conclusions.
In general, the document does not demonize the state of exception, but with a technical and detailed language it shows the distance between international standards in terms of respect for human rights and what happens daily in the streets and communities of El Salvador: scenes of people held in prison despite having a letter of release, and then dying in jail due to negligence of the prisons; scenes of torture; and arbitrary detentions under the argument of looking “nervous” to police.
To support its report, the IACHR based the information on 29 testimonies of people interviewed in March 2023 who survived prisons or arbitrary detentions in El Salvador. Although they did not present those accounts as proven facts, the IACHR does give them value in exemplifying the context of the human rights crisis in the country. The Commission uses the testimonies to link them with reports obtained from the Salvadoran press and civil society.
For instance, in the section on “Illegal and arbitrary detentions,” the Commission cites reports from organizations such as Cristosal or Azul Originario, and complements them with phrases such as these: “They transferred me to the jail of Usulután. The agents were talking about how for each person they detained in the state of exception they would get an extra salary. With my capture they had finished the number of detentions they had to make.”
In the section on “Deaths, allegations of torture and ill-treatment of persons deprived of liberty”, the Commission cites the testimony of a woman who said: “In the prison it was men who did the inspection [of female detainees]. I did not know of any type of sexual violence, but male guards were the ones searching their private parts. I also saw abortions due to the lack of medical assistance. In the cell we were in, her appendix burst, they took her to the hospital, but in the middle of the surgery they did not realize she was four months pregnant. They took her out again because of some complications, then they realized she was pregnant and had to perform a curettage. I don't know how she got pregnant, given that she had been detained for a longer period of time”.
The Commission also gathered stories from people whose relatives they suspect were killed in the prisons. “There I could not see a perforation [...] until the funeral home when they were preparing him. That makes me think that something happened to him inside the prison. The forensic document states blood pressure, but it said nothing about this other ailment he had. [...] I am quite doubtful because they do not present the autopsy report performed by Medicina Forense [the coroner].”
Other report sections have similarly stoney titles, such as “illegal breaking and entering”, “abuse in the use of force”, or “aggravation of the conditions of detention.”
In a gesture that shows the extreme care with which the IACHR prepared the report, the document makes constant allusions to the drop in homicide rates as a result of the state of exception and makes numerous references to the IACHR's condemnations of the situation of gang violence that existed prior to March 2022. But these nuances fail to overshadow the true tone of the document: a condemnation of the state of exception.
Measures no longer justified
The IACHR concludes that there is a dissonance between the information presented by the government to say that the country is safer and the justification for continuing to extend the state of exception, which in September completed 29 months in force. As an example, the report states that the government has not presented “data” or “specific facts” to support the notion that there continue to be serious disturbances of public order — such as the massacre of 87 people, in a single weekend in March 2022, that was used as the pretext to begin the state of exception.
“Of the information available, right now the initial objective reasons for the emergency (...) and its extensions or the information provided by the state, which would justify maintaining the suspension of rights and guarantees protected by the American Convention on Human Rights, do not persist,” wrote the commission.
The report never explicitly condemns specific government regulations or actions, but it does include reminders, warnings, and calls for attention. For instance, it reiterates the commission’s emphasis in past statements on the illegality of suspending certain constitutional guarantees, even when states of emergency are decreed. “The IACHR considers it serious that constitutional provisions related to indispensable judicial guarantees have been suspended, given that the American Convention does not establish this under any hypothesis,” the report states. These are the basic guarantees recognized by the American Convention.
For example, the obligation to immediately and comprehensively inform the detained person of their rights and the reasons for their detention, as well as not to be forced to self-incriminate; and to be guaranteed their legal defense.
The government responded to the IACHR that it complies with detention protocols and that they do not violate these “minimum guarantees”. However, numerous reports and testimonies denounced by the press and civil society organizations provide evidence to the contrary. On that point, the commission urged the government to adopt measures to ensure that individuals and their families are immediately informed of the reasons for their detention.
The IACHR also ruled on the exorbitant nature of preventive detention for up to 15 days. “The Inter-American Court has determined that, even under suspension of guarantees, it is not proportional for a person detained without a warrant to remain deprived of liberty for 15 days without any form of judicial control,” the report says. The Inter-American Court is distinct from the IACHR in the Inter-American System and has the power to convict or acquit member states in cases brought before it.
The report also emphasizes that preventive detention cannot be applied automatically, as seems to have been the trend since the state of exception was approved, given that Bukele's legislative bloc made legal reforms aimed at prohibiting alternatives to jail time for gang-related crimes. “It is particularly troubling that justice operators are automatically requesting and applying preventive detention for certain crimes, including “illicit groups” and membership in a “terrorist organization”, even in the absence of evidence,” the document states.
To ensure that it is not applied automatically, the IACHR suggests creating a system of periodic review of judicial cases and giving priority to the imposition of less burdensome measures.
The Commission also recognizes a huge problem of overcrowding in the prison system and therefore asserts that it is all the more necessary that measures other than pre-trial detention be prioritized. Across the country's 23 prisons, the IACHR certifies that there is overcrowding of at least 130 percent; this percentage increases if one excludes the Confinement Center for Terrorism (CECOT), which currently is the only penitentiary center with space to spare, according to the report.
The Inter-American Commission, an institution that Bukele has harshly attacked on his social networks, also made 21 recommendations to the state, including the adoption of an integral security policy going beyond the punitive framework, with transparency and accountability for the results obtained, as well as the creation of a registry of victims and an integral reparations plan to redress the damages caused, whether by criminal groups or the state.
Among the multiple pages that the government tried to counter the conclusions of the IACHR, there is a section in which the state lists the public institutions dedicated to the victims’ services. The government mentioned the existence of the Directorate of Attention to Victims of the Ministry of Justice and Public Security, the 11 Local Offices of Attention to Victims deployed throughout the country, and reported joint work with other institutions. In addition, the Bukele administration stated that it requested cooperation from the IACHR to create a policy of attention to victims. The IACHR said that it valued the effort to cooperate, although it hinted that it doubted the sincerity of the request for help, citing that the government spent less than half of the budget allocated in 2022 for victim attention: $272,000 out of $484,100.
In the recommendations are also a series of laws to be repealed: for example, removing the confidentiality of the identity of the 22 judges of the organized crime courts, as well as of related justice system operators. The IACHR also calls for the repeal of Decree 93, which modified the Penitentiary Law and has prevented family visits to inmates for several years.
Call to investigate deaths
The IACHR observation mission for this report ended in November 2023. By late October 2023, the number of deaths in prison custody, according to records of Salvadoran organizations, ranged from 189 to 200 people. The Commission cited reports from human rights organizations such as Cristosal and Human Rights Watch that revealed patterns of torture and mistreatment of the corpses they studied.
In general, the IACHR is careful not to present as proven facts the hundreds of testimonies of alleged human rights violations. But it does demand that the state investigate, determine responsibilities, and establish the circumstances that allowed them to occur.
“The Commission expresses its particular concern with deaths in state custody and allegations of torture and ill-treatment, and urges ensuring the investigation of state responsibilities when they occur,” reads one of the document's final conclusions.
In addition, the Commission asserts that in order to adequately investigate crimes in prisons, there must first be judicial independence. The report recounts the illegal dismissal of the Constitutional Chamber and the attorney general in May 2021, in addition to the approval of reforms that forcibly retired prosecutors and judges over 60 years old, supposedly to fight corruption.
“For the Commission it is very worrying that, a few months after the occurrence of serious events that deteriorated the independence of justice system operators, complaints about massive violations of rights and guarantees related to access to justice emerged,” the document says. “The backdrop of measures that weaken the rule of law, with impacts on the separation of powers and the independence of the judicial branch and the prosecution, acquire special relevance in the face of the installation of a state of exception that suspends rights and guarantees protected by the American Convention for a long period of time.”
Finally, the IACHR complained to the state for its passivity in the protection of the journalists in the context of the state of exception. The Office of the Special Rapporteur for Freedom of Expression of the IACHR listed several cases that occurred between 2022 and 2023 of threats and attacks against journalists. Among these, the gag-order law approved in the first days of the state of exception, which appeared to censor journalistic coverage of violent phenomena. It also mentioned the case of journalists from El Faro, such as Óscar Martínez and Gabriela Cáceres, who after the approval of the reform received legal threats.
The IACHR “calls on the state to guarantee that journalists and communicators who carry out their reporting in the context of the state of exception are not detained, threatened, assaulted, or limited in any way for the exercise of their profession,” the report reads. “In particular, to refrain from intimidating and disqualifying the work of journalists and to reject, investigate, and punish any type of violence against them.”
Government delayed the report
The document was scheduled to be published in May, but the Salvadoran government, which had access to the final document in January, presented numerous discrepancies, asked twice for an extension to send a response, and held face-to-face meetings last July with the IACHR in Washington. According to sources from the commission in Washington, the government's effort was aimed at “bogging down and complicating” the publication of the report, which indeed came out four months later than planned.
The IACHR report was approved by the full panel of seven commissioners on Dec. 21, 2023, and on January 8 the draft was shared with the Salvadoran state.
Thereafter, Andrés Guzman, Bukele's presidential commissioner for human rights and freedom of expression, provided a huge amount of documentation and information to attempt to counter the report’s findings. One of the responses was a report of more than 130 pages, called “A New El Salvador,” which was sent to the IACHR on Apr. 8, 2024. El Faro revealed the contents of that report at the end of August.
A source at the IACHR in Washington, who requested anonymity due to lack of authorization to make statements to the press, described the government’s attitude as “an exchange that the Salvadoran state took to an overwhelming, exhausting level (for the Commission).”
Guzmán was appointed in mid-2023 and since then he has been the face representing the state in the monitoring sessions of the IACHR when El Salvador is being evaluated. He has consistently denied the state of exception’s human rights violations, both in those hearings and in the interviews he has given.
Guzmán, as part of a government delegation, met wth the plenary of the IACHR last July. “It is highly unusual for the plenary to receive someone like this during the week of internal sessions, because the agenda is prepared in advance. It is unusual for an official of his profile to have come to Washington at least three times in the last year,” states the source.
Guzmán's efforts did not fall on deaf ears. Three of the seven commissioners, who in December had approved the report without complaint, ended up voting against the report after hearing and reading all the documents submitted by El Salvador. The four-three split vote is one of Guzmán's achievements.
“With his visits, with meetings like the one in June, Guzmán managed to influence the pace of the Commission's work on El Salvador, and his great success was probably to ensure that the report did not come out under the previous composition of the Commission,” says the source in Washington.
The source is referring to the composition of the plenary of the IACHR. Until last December, Julissa Mantilla Falcón and Margarite May Macaulay, two lawyers known for their progressive views, were members of the Commission. In their place, as of January, came two of the three commissioners who voted against: Édgar Stuardo Ralón and Gloria Monique de Mees. The third dissenting vote was that of Carlos Bernal Pulido, vice-president of the IACHR who also serves as the Commission's rapporteur for El Salvador.
Commissioners Bernal and Ralón explained their reasons for voting against the report in a dissenting opinion after hearing and reading the Government's response reports. Although they agree on the substance and the importance of issuing the document, Pulido and Ralón explained that the methodology in the report “lacked precision” and raised doubts as to whether the Commission was issuing conclusions that should be done through another procedure.
Their arguments, however, were challenged by Commissioners Andrea Pochak and José Luis Caballero, who voted in favor. They pointed out that the methodology used is the same that has been used in the IACHR to issue dozens of reports on other countries and noted that the thematic report does not imply that they are weighing in on the possible responsibility of the state in the situations of rights violations identified in the report.
*Fragments of the report quoted in this article were translated by El Faro English from the original Spanish version. Additional reporting from José Luis Sanz.
