State of Exception in El Salvador: From a Security Measure to a Government Policy

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November 16 marked the 35th anniversary of the killing of six Jesuit priests of the Central American University ( Universidad Centroamericana , UCA), their housekeeper, and her daughter. Congressman Jim McGovern traveled to El Salvador to commemorate the legacy of these martyrs, and WOLA had the opportunity to accompany him during his visit and gather information on the current context of human rights and democracy in the country.

El Salvador faces a high concentration of power, lack of judicial independence, and a deterioration of democratic institutions, with the recent election of Donald Trump as president of the United States gaining importance in the country due to Bukele’s strong ties to the Republican Party and close circles of the president-elect.

Below we highlight some major findings from the visit:

1. The possibility of a constitutional reform presented amidst a context of erosion and co-optation of the legislative and judicial branches of government.

Recently, the Legislative Assembly elected two thirds of the magistrates, plus two vacancies in the Supreme Court of Justice in a process that lacked transparency, citizen participation, or technical evaluations, as required by national and international standards. The Legislative Assembly is controlled by President Nayib Bukele’s Nuevas Ideas party with a supermajority of 54 seats out of 60. The legislative process, in general, as well as the election of public officials, takes place without any debate, discussion, or citizen participation, which is a serious threat to the standards of a democratic state.

In this same context, in January 2025 the Legislative Assembly must elect a new Attorney General, whose role is indispensable for criminal investigation and access to justice, which has not been fulfilled due to the overflow of the system under the state of exception. Only two people have presented themselves as candidates, and it is likely that the current Attorney General, Rodolfo Delgado, will remain in office.

There is no certainty about the type of constitutional reforms Nayib Bukele will propose. There is fear that these possible reforms may seek to institutionalize the security measures taken under the state of exception, which violate human rights and/or a reform to the republican system of separation of powers and a modification to the organizational structure of the State, eliminating part of the institutional framework and replacing it with another scheme. The rule of law has been broken, with neither respect for nor full compliance with the constitution.

2. At least one out of every ten persons deprived of liberty under the state of exception are innocent.

President Bukele recently acknowledged that 8,000 people detained under the state of emergency are innocent and have been released. To date, according to official data, there are 80,000 people deprived of liberty as a result of the exception, which means that at least one out of every ten people detained are innocent. The release of these people is difficult to corroborate because the lack of transparency, reliable data and access to information is a serious problem. The state security forces, the prosecutor’s office, and the judiciary, act without any control or counterweight, with confidentiality being the rule. On the one hand, the recognition made by President Bukele should be subject to international scrutiny, including crimes under international criminal law, since there is an explicit acceptance of violations to human rights, access to justice, and due process. On the other hand, the documentation work of human rights organizations and complaints from many relatives of those detained indicate that there are probably many other innocent people who have been detained under the state of emergency.

3. Independent press and civil society are under attack.

A hostile environment continues to hinder journalists, social activists, and civil society leaders in fulfilling their oversight, monitoring, and accountability work. The detention of journalist Víctor Barahona in 2023, among other arrests, generated fear and revealed that the state of emergency regime was not only designed to pursue and dismantle the maras and gangs, but also as an instrument of repression of critical voices. According to the organization Cristosal, at least 24 activists have been detained. The Association of Journalists of El Salvador (APES) has registered 136 attacks on journalists from March to August of this year. The organizations with which WOLA had the opportunity to speak with during the visit condemned the censorship, closure of civic space, and persecution they are subjected to. Many people reported being victims of digital harassment, which has led to self-censorship and anxiety. WOLA also notes a widespread fear that civic space will continue to shrink gradually until an authoritarian regime such as the one in Nicaragua is consolidated: a single couple controls the three branches of government, criminalizing critical voices whose only option is exile or imprisonment.

4. Sweeping government layoffs have increased public discontent.

The massive layoffs that have taken place in the public sector such as the Attorney General’s Office, Ministry of Culture, health sector personnel, and the Supreme Electoral Tribunal have provoked greater citizen discontent as it violates the labor protections public servants are entitled to. Several unions have expressed their concern about the situation and many fear that their critical voices may be criminalized under the state of emergency regime. According to the information provided, there are at least 17 union members in prison, 50 unions dissolved and more than 519 union leaders dismissed, with 80 of the dismissals occurring after a peaceful demonstration.

5. The International Monetary Fund is a key player.

El Salvador’s economy is deteriorating, directly affecting the population and endangering President Bukele’s enormous popularity. The Government of El Salvador has made efforts to promote foreign investment and undergone extensive negotiation processes with the International Monetary Fund (IMF) for the approval of loans to alleviate their financial burden. According to the recent announcement by unnamed senior government officials, a 3-year program containing a $1.4 billion loan has a high probability of being approved in December. In fact, the massive layoffs are apparently the result of one of the IMF’s requirements, as the IMF would have demanded a spending-income adjustment. For some people the budget is very good in form, but not in substance, since it cuts social areas such as health and education and largely increases funds for the Ministry of Defense. For the IMF, cutting the wage bill is positive.

On the other hand, in its most recent statement, the IMF reports that it has reached preliminary agreements with Salvadoran authorities on a “multi-year global strategy” on issues including governance and transparency. While the statement mentions proposed legislation on money laundering and corruption, and improvements in the public procurement process, civil society actors expressed concern that the IMF’s conception of governance and transparency does not appear to address the concentration of power and increasingly authoritarian practices by the government that threaten financial stability as well as the democratic order.

Recommendations

Faced with this worrying panorama, we call on the international community to monitor the situation in the country.

To decision makers in the United States:

The role of the United States continues to be highly relevant and the Biden administration has not been decisive in denouncing the human rights violations committed within the framework of the state of exception, nor the democratic deterioration the country has suffered. The Biden administration has maintained a passive stance while members of the Republican Party have supported President Bukele’s administration.

The future Secretary of State of the Trump administration, current Senator Marco Rubio, has visited El Salvador and met with President Bukele, congratulating him for the security situation in the country. On the other hand, several congressmen have formed a caucus on El Salvador within the House of Representatives in support of Bukele and the state of exception.

In this context, it seems unlikely that the U.S. government, under any president, will urge an end to the indefinite state of emergency despite serious human rights violations, although it is important members of Congress continue to denounce the situation, as some have done in recent years.

Below are urgent actions to consider to address the human rights and democracy crisis in the country:

Promote accountability through International Financial Institutions (IFIs): Corruption and lack of transparency should be of bipartisan concern. Since the U.S. is a major financial contributor to the IMF, the U.S. has the ability to veto any major proposal. In addition, it has its own seat on the IMF Executive Board, which approves loans, policy decisions and other matters. In negotiations between the IMF and El Salvador, the United States must use its influence as a mechanism of accountability for the government of El Salvador. Impose individual sanctions: Due to credible evidence of serious human rights violations and high levels of corruption, the U.S. government should continue to consider individual sanctions under the Global Magnitsky Human Rights Accountability Act on justice system officials. To date, only 6 Salvadoran individuals have been sanctioned— an important measure as it impacts individual finances. Urge the reestablishment of due process for detainees and oppose constitutional reforms that allow for arbitrary detention, the extension of pre-trial detention, among other possible reforms. Call for the release of innocent people and those who should be released from prison for humanitarian reasons. Promote the humane treatment of persons detained under the state of emergency, including regular access to family visits, specifically for vulnerable groups such as women and minors. Urge an end to the harassment of journalists and civil society actors. Through USAID and other programs, continue to support independent journalists and civil society groups that promote the rule of law.

To the United Nations System:

Follow up on the recommendations issued in the framework of the Universal Periodic Review through its inter-institutional coordination mechanism. Having access to decision makers and being able to have a dialogue with the government of El Salvador is key to demand the protection of civic space, the rule of law and democratic institutions.

To the OAS and the Inter-American System:

Urge the Government of El Salvador to refrain from harassing the independent press, human rights defenders, and civil society, as this violates the rights recognized in the Pact of San José and other instruments of the Inter-American system. Grant protection measures to at-risk journalists and members of civil society. The OAS Permanent Council should review the political situation in El Salvador and determine whether there has been a violation of the Democratic Charter.

To the International Monetary Fund:

In discussions with the Salvadoran government on a new loan agreement, seek greater transparency and access to information for Salvadoran citizens and organizations to enable oversight of loan allocations and related budget decisions. The Chapter IV performance review should consider the deterioration in El Salvador’s governance and rule of law and serve as a tool to urge the government for greater transparency, anti-corruption measures and respect for democratic institutions. Call on the government to meet minimum international standards for judicial independence, which are necessary for financial stability and the investment environment.

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