"Nayib Bukele’s violation of human rights with his state of exception and how previous administrations led to this authoritative approach to El Salvador’s gang crisis"
Historically, states of exception (a process by which the government allows the rule of law to be dismissed in the name of a specific cause of issue) have been enforced for varying reasons. In the case of El Salvador, the president, Nayib Bukele, has been enforcing a Regimen de Excepcion (state of exception) in the country due to its unbearable gang violence that has been increasing for the past decades. He has received criticism from both sides of the political spectrum, and in this essay, I argue that this criticism only stems from their loss of political power. Additionally, I propose that Nayib Bukele’s state of exception is indeed violating human rights according to international law.
On March 27, 2022, El Salvador’s president, Nayib Bukele, requested the national assembly to approve a state of exception as an initiative to combat the uncontrollable gang violence that has plagued the nation for the past three decades. This was in response to 62 murders that occurred within a 24-hour period on a Saturday of March 2022, with six additional murders on the following day. Bukele’s request was to instill a 30-day period where persons accused of being associated with a gang have their constitutional rights of freedom of expression, association, and due process suspended.
However, the state of exception has been consecutively extended, and as of mid-August 2022, more than 50,000 individuals accused of being “criminals” and “terrorists” have been detained under the state of exception. Throughout its entirety, critics have been raising concerns about whether Bukele is violating the human rights of Salvadoran citizens, especially since his policy seems to be indefinite. Despite this, President Bukele has maintained an approval rating of over 75 percent since he took office in June 2019, implying that the Salvadoran community is supporting this regardless of what his critics are saying. With a plethora of different perspectives on the matter, I will be examining whether President Nayib Bukele is violating human rights with his state of exception through an academic lens and the perspectives of sidelining political powers on the manner. I propose that the perspectives on whether he is violating human rights are hypocritical and concerns are only being brought because they are not politically and/or financially favoring from the issue.
El Salvador is notorious for its gang violence, and its citizens have been suffering for decades, pushing thousands of them to emigrate. In the 1970s, political repression and social unrest led to a 12-year civil war. During that period, about 75,000 people were killed, and many people were tortured and/or were disappeared, which forced thousands to flee the country. More than 85 percent of those atrocities were committed by the Salvadoran government, which was being sponsored by the U.S., and the consequences of such extreme violence and sustained terror are still being felt today. The war formally ended in January 1992 with the signing of the Chapultepec Peace Accords, but the country’s economic issues were still untouched, and a large number of weapons were left in possession of many Salvadorans with high levels of psychosocial trauma (Menjivar et. al., 2018).
Aside from this, the administrations that obtained power after the war ended implemented neoliberal policies that the U.S. pushed on developing countries in exchange for loans. These policies contributed to a lack of investment in education, and to the privatization of institutions such as banks and public services, which the U.S. supported. Additionally, the country adopted the U.S. dollar as its official currency in January 2001. This led to the lowest growth rate in the economy seen in the last 60 years and made the everyday life for most of the population more expensive. All these events have resulted in a large amount Salvadoran youth to increasingly become involved in gangs since the systemic oppression by the government continued (Menjivar et. al., 2018). Being involved in a gang provides poverty-stricken youth social resources and financial opportunities to survive that the government isn’t providing. These conditions have allowed the gang violence to flourish.
The current gang crisis began in the U.S. when Salvadoran refugees from the war formed the Mara Salvatrucha (MS) 13 to protect themselves from other gangs in the Los Angeles area. Once the war ended, the U.S. proceeded to deport those refugees back to El Salvador where they continued to face poor living conditions, inequality, and economic uncertainty. Ultimately, the war didn’t improve the economic situation for most Salvadorans, and as a now militarized society, this provided the perfect scenario for gangs to take over the country. Much of the weaponry used during that period was left to the people while many of them, who later most likely became involved in gangs, were trained in guerilla warfare during the war (Adams and
Now, these gangs have deep ties with Mexican cartels and have assumed the role in the transportation of cocaine through this region (Farah and Babinaeu, 2018). They have also wielded an increasing amount of political power in the country by inflicting violence onto civilians. All these factors combined have allowed the gangs in El Salvador to thrive, giving them the chance to grow their organization through violence imposed on the community. For instance, they use fear and intimidation tactics to extort payments from business owners to allow them to conduct their business in gang territory. The issue with this is that the entire country has basically been claimed as gang territory, either MS-13 or 18th gang street, so the entire population has to endure some sort of violence imposed by them. They are notorious for witness intimidation, raping, and murder, permitting them to instill pronounced fear onto the population so that they can do whatever they demand.
These gangs are also heavily organized, creating financial power structures that connect even at a national level. In 2016, authorities uncovered 157 businesses owned by MS 13 including bus and taxi companies, luxury car lots, brothels, motels, crack houses, etc. Facetiously, much of this money that allowed them to make these legitimate investments came from negotiations with Mauricio Funes’ administration (Farah and Babinaeu, 2018).
This ex-president (2009-), that was later persecuted for suspicion of corruption, negotiated a gang “truce” where the government paid them $25 million to reduce the nation’s homicide rate. Farah and Babinaeu interviewed a gang member that laughingly stated, “The government asks us what we want, and we tell them—and then they give it to us. We have found that if they say no, we just must dump enough bodies on the street, then they say yes.” With all this deep-rooted violence paired with political corruption in El Salvador, the gangs have successfully infiltrated themselves into being a powerful and uncontrollable figure that affect the everyday lives of Salvadorans. This has left thousands of Salvadorans dead and forced thousands to leave the country as a result of this violence that is paired with economic uncertainty promoted by the corrupt government.
When President Bukele took office, he promised, like every other presidential candidate, to end corruption and deal with the unbearable gang violence. Like I previously stated, gangs have used the tactic of mass homicide at a national level to attempt to force the government to give them leeway. After attempting to coerce the government with 71 killings in a two-day period back in March 2022, El Salvador’s legislative assembly approved a state of exception that suspended several constitutional rights for 30 days (Mills, 2022). The state of exception evokes articles 29 of the constitution, suspending the freedom of association, the right to a defense attorney, the time limit of 72 hours for administrative detentions, and the inviolability of communications.
Many, such as El Salvador’s Centro de Estudios Juridicos, have come out urging the legislative assembly to ensure that the state of exception respects the rights of citizens. The problem with this though is that Bukele’s political party, Nuevas Ideas, won the majority of the legislative seats, so for political reasons they will of course adhere to Bukele’s requests. So, when the state of exception was approved, police actions immediately commenced, with checkpoints being set up to control citizen movement throughout different parts of the country. That same weekend, Bukele tweeted: “Religious services, sports events, business, studies, etc., can continue normally. Unless you are a gang member, or the authorities suspect you of being one.” This showed the country that the state of exception was targeted to the gangs, primarily those responsible to the increase in homicides. In 48 hours of the state of exception, the national civil police tweeted that 576 arrests had been made. In addition, security in the nation’s prisons was increased in what Bukele called a “mano dura” approach. Bukele tweeted that “...all cells closed 24/7, no one leaves, not even to the patio.” In that same tweet he also sent a message to the gangs stating, “...for your actions, now your “homeboys” will not be able to see even one ray of sun.” Since then, the “temporary” state of exception is still in place, and Bukele has continued his mass incarceration of gang members throughout the country, as well as his “get tough” approach in the nation’s prisons.
States of exceptions have been implemented throughout history, and many are in place for different circumstances. According to Giorgio Agamben’s (2005) analysis on the concept, state of exceptions are founded on the basis of necessity, and “necessity has no law.” It is tricky to place the concept into a definite definition because it contains an imbalance between public law and political fact. Agamben compares it to being like civil war because there is insurrection and resistance in an “ambiguous, uncertain, borderline fringe, at the intersection of the legal and political.” Like civil war, in a state of exception the state must respond and attempt to solve extreme internal conflicts. For it to work, there must be an elimination of a political adversary as well as a category of citizens that for some reason cannot be integrated into the political system. In the case of Bukele’s state of exception, the category of citizens that cannot be integrated into the political system are gang members.
Other states of exceptions, of various degrees, have been seen throughout political history. When Hitler took power, his suspension of the Weimar Constitution concerning personal liberties and his proclamation of the Decree for the Protection of the People and the State can be considered a state of exception. It was never repealed, and it allowed Nazi Germany to become fascist. When Bush issued a military order on November 2001 in response to 9/11, by definition it is considered a state of exception. With it he erased any legal status of noncitizens suspected of being involved in terrorist activities, and anyone suspected are given indefinite detainee status. This state of exception is still in place 21 years later, and it has led to the racialized targeting and state surveillance of Muslim Americans post 9/11 (Alimahomed-Wilson, 2019). State of exceptions were also implemented in response to the Covid-19 pandemic, like the one placed in Guinea-Bussau (Barros et. al., 2020). All of these have been in response to a “political crisis” of various degrees of necessity according to those that have instilled them.
Since implementing the state of exception, President Bukele has publicly displayed his “get tough” policy for prisoners and has kept his mass incarceration trend for anyone suspected of being involved in a gang. As of November 2022, 95,000 people have been detained (Human Rights Watch (HRW), 2022), and Bukele has been receiving criticisms from both ends of the political spectrum. Organizations like Cristosal, which have a history of siding with El Salvador’s left, have been against the state of exception. In a report they conducted with the HRW (2022), they reported a “widespread of human rights violations committed during the state of emergency.”
According to them, the human rights violations include arbitrary arrests, enforced disappearances, torture, other ill treatment of detainees, significant due process violations, and deaths in custody of the state. The U.S. has also been another critic of Bukele’s state of exception. On September 12, 2022, a U.S. Human Rights Commission had a hearing to talk about the matter. Representative James P. McGovern stated that El Salvador is not complying with the obligations under international human rights law, and that an astounding number of people have been rounded up and placed in preventive detention. He proceeded by saying, “I can think of no equivalent in Latin America, not even during the worst years of military dictatorship,” despite the U.S. continuing to report the world’s highest criminal incarceration rates.
Based on the definition provided by the United Nations, a violation of human rights is where there is a: “Deprivation of life; torture; cruel or degrading treatment or punishment;slavery and forced labor; arbitrary arrest or detention; arbitrary interference with privacy; discrimination; etc.”
Throughout the state of exception, Bukele has, by definition, violated the rights of the people that have been detained. Since it began, soldiers and police officers have conducted hundreds of raids that have taken place primarily in low-income neighborhoods according to the HRW (2022). Over 95,000 people have been arrested, and even 1,600 children have been detained. In the state of exception, arrest warrants are not required, and arrests are often based on the appearance of social background of the suspect. One of the main things used by the state have been gang related tattoos—anyone exhibiting gang-affiliated tattoos is arrested. Relatives of detainees have said that while conducting arrests police officers search for tattoos on people’s bodies to use as evidence of gang affiliation. According to records in the Attorney General’s Office, out of 690 cases examined by El Faro, 160 of them were based on “suspicious appearance,” 73 on “nervous appearance,” and 34 on “anonymous reports” (HRW, 2022).
Detainees are rarely informed of the reasons for their arrests, and officers report that they are just following orders from their superiors. Sometimes, people are taken for “informal questioning,” but later report being under arrest. In one case, a 16-year-old, Neomi Abrego, was aggressively detained while waiting for the bus outside of her home by four soldiers. They didn’t have a warrant or explanation for her arrest, and despite her mother telling them she was pregnant, she was pushed and dropped to the ground while they arrested her. She was held at the local police station for five days and was then transferred to a juvenile detention facility. Fifteen days after her arrest, she was presented in front of a judge for the first time and was accused of unlawful association. Abrego had a miscarriage two months after her arrest and the mother was not informed of it because an officer “forgot to let her know.” As of November 2022, she remains in detention. On April 26, 2022, Bukele “authorized” the use of lethal force as self-defense, and the next day he warned the public through a tweet that a “gang member who resists will be put down with proportional and possibly lethal force.” Many people have also reported not being able to contact their family members that have been detained for days or weeks.
Inside prisons, detainees are put into overcrowded cells and have poor access to basic necessities. These are just some of the things that have occurred throughout the state of exception, but there have been many reports of abusive criminal proceedings, abusive prison conditions, arbitrary detention, and lack of accountability.
President Bukele has been open about the ill-treatment of anyone accused of being affiliated with a gang with his “get tough” approach, and according to the definition of “violation of human rights” provided by the United Nations, he is in fact violating human rights in El Salvador. Many that have been left outside of his political inner circle and those that aren’t financially benefiting have been critics of his state of exception from its commencement. Both the opposing political parties, ARENA and FMLN, were politically ousted from Bukele’s circle and have been harsh critics of the state of exception. Newspapers that side with FMLN and ARENA, such as Diario Co Latino and La Presna Grafica, frequently come out with headlines critiquing the state of exception. The hypocritical part of this though is that the people affiliated with these parties aren’t criticizing other state of exceptions and seem to be only doing so with Bukele’s because they aren’t in the same political inner circle.
Since the war, El Salvador has had two ruling political parties that have been in control of the country: FMLN and ARENA. The FMLN was created by leftist guerilla organizations, and ARENA was formed by ultra-rightist politicians. Nayib Bukele initially began his political career in the FMLN but was expelled, so he formed a new party named Nuevas Ideas. Since the Saca presidency, every Salvadoran president has been accused of corruption: Antonio Saca (ARENA) is currently serving a minimum 10-year prison sentence on corruption charges, Mauricio Funes (FMLN) has been requested to be extradited on corruption charges, and Sanchez Ceren (FMLN) was accused to be involved in money laundering, embezzlement, and illicit enrichment. The amount of corruption exhibited by both ruling parties led El Salvador to move away from its wartime polarities and elect Nayib Bukele, who has heavily benefited from criticizing both parties. Since then, both the FMLN and ARENA have been openly critical of Bukele, especially of the state of exception he’s imposed.
While both political parties have been widely critical of Nayib Bukele, their claims seem to be politically hypocritical. Leftist political figures have been highly critical of Bukele, saying that he is authoritative and a dictator, but show support for Nicaragua’s regime.
Recently, Nicaragua has been accused of dismantling many institutional checks on presidential power, removing opposing lawmakers, and barred opposition political parties ahead of the 2021 presidential elections (HRW, 2021). When Daniel Ortega won his fourth consecutive presidency in Nicaragua, the FMLN official twitter page tweeted, “Felicitamos al soberano pueblo de Nicaragua, por someterse a elecciones y demostrar una verdadera fiesta democratica.” (FMLN, 2021). Ortega was accused of arresting and prosecuting government critics and political opponents.
Between May and October 2021, presidential candidates and government critics were detained on treason charges. Those detained have apparently been subjected to abuses in detention such as daily interrogations, prolonged solitary confinement, and insufficient food (HRW, 2021), similar to the conditions Bukele has been criticized of creating for his detainees in El Salvador. Previously, in December 2018, the Inter-American Commission on Human Rights (IAHCR) reported that there was a crisis in Nicaragua that began in April, and it had crossed into a “state of exception” (Stanford, 2019). This was in response to Nicaraguan police ransacking and appropriating the office building of Nicaragua multimedia news platform, Confidencial, because they had posted a story with the headline, “Aggression against Confidencial consolidates ‘state of exception.” Despite the abuses Ortega has been accused of, the FMLN has continuously shows support for Nicaragua, and seem to be good political allies.
Daniel Ortega granted Nicaraguan citizenship to Mauricio Funes and Sanchez Ceren to avoid extradition for corruption charges in El Salvador, showing the FMLN’s interest toward the Salvadoran community. In addition to the FMLN, ARENA has also been a huge critic of Nayib Bukele. In their official twitter page, ARENA retweeted, “Este Gobierno no logra entendar que ser pobre NO es sinonimo de delincuente... La violacion indiscriminada de los derechos humanos y la leyes no recolveran el problema...” (ARENA, 2022), even though they had previously suggested a state of exception back in their 2014 presidential campaign. Norman Quijano, the ARENA candidate for the 2014 presidential elections, proposed the implementation of a regimen de excepcion to combat crime in the country. Later, in early 2022, Quijano was accused of being part of illicit aggrupation and electoral fraud. ARENA is also the same party that was behind the death squads during the Salvadoran civil war that evidently committed human rights violations throughout its entirety (Loxton, 2021). Both parties have showed to be hypocritical in what they preach to the Salvadoran community.
The FMLN and ARENA have been extremely critical of Bukele’s state of exception in what seems to be a way for them to regain their popularity. Both parties have demonstrated biases when it comes to their political stance on Nayib Bukele in comparison to how they express themselves toward other political issues. On one hand, the FMLN has been criticizing Bukele’s state of exception because it is violating the constitution and human rights, but on the other hand they greatly support Daniel Ortega’s regimen. ARENA has also shown to be
hypocritical in the way they criticize Bukele but were proposing the same policy years before. In the February 2021 midterm elections, Nuevas Ideas gained control of the legislature which further stripped the FMLN’s and ARENA’s power grip in the country. Their history of corruption, and no economic or social change in the country, and an increase in gang violence during their administrations pushed most Salvadorans to vote against them in these previously presidential and midterm elections. While the FMLN and ARENA were in power of the government, the gangs learned how to play the politics of violence. Like most criminal organizations, Salvadoran gangs learned that by using violence they can push their agenda. When Mauricio Funes negotiated to scale back pressive policing tactics, better prison conditions, and investing in rehabilitation programs for former inmates back in early 2012 (Aguilar et. al. 2014), gang violence dropped significantly. Although violence dropped during that time, gangs learned that they have political power against the government.
Now they could influence the government in whichever way they wanted just by increasing the violence in the streets. In 2013, violence began to climb again, and in 2015 the homicide rate skyrocketed leading to outlawing negotiations with gangs (Greeley et. al. 2017). After witnessing this, it is not to our surprise that a new populist, authoritative, and social media savvy figure took power in El Salvador. Now, he has established a state of exception that technically is violating human rights, but with his high approval rate from the Salvadoran community, it is insinuating that they believe it is necessary.
The concept of state of exception is difficult to decipher because it goes against constitutional rights but is meant to maintain social order. Agamben describes how a sovereign state maintain social order by moving from “a real, or military, state of siege to a fictitious, or political one” under the guise of “an extraordinary police measure to cope with internal sedition and disorder” (Agamben, 2005). It is not martial law or an intentional move toward dictatorship, but it still negates the law and forms an “anomie in which all legal determinations are deactivated.” States of exceptions have been seen in many countries, like with the U.S. using Guantanamo Bay in Cuba to detain accused terrorists without due process, and they always receive criticism from outside figures. In Nayib Bukele’s state of exception, outside parties have been repeatedly accusing him of violating human rights with his state of exception. According to international definitions of violation of human rights, Bukele is technically violating the human rights of many accused gang members.
Former administrations thought negotiating with them would solve it, but it was only a mitigating solution that led to a rise in homicides a few years after. Aside from this, former administrations have also proven that they used their political position for profit instead. Now that they have been ousted of their political power grip, they have been repeatedly accusing Bukele of violating human rights with his state of exception. Although they are correct, their criticism seems to be one-sided. The FMLN continuously supports countries like Nicaragua that have also been accused of violating human rights by international human rights organizations. Simultaneously, ARENA, the same party behind the civil war atrocities, proposed a similar state of exception during the presidential election back in 2014. Both parties have shown hypocrisy and continue to do so in order to regain their political power. They were stripped from their power, so convincing the Salvadoran community to go against Bukele may increase their popularity.
Ultimately, Nayib Bukele continues his state of exception as of December 2022 and continues to create authoritative conditions for anyone accused or perceived of being involved with the gangs. With his high approval rating, he is backed by the Salvadoran community and may continue to impose these extreme measures to combat the gang violence. By continuing this, he will continue to violate the rights of those accused of being gang members and opposing parties will continue to hypocritically criticize his actions that they ultimately created.
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