IACHR
Press Release
IACHR presents its preliminary observations following its in loco visit to El Salvador
December 27, 2019
PRELIMINARY OBSERVATIONS
San Salvador—The Inter-American Commission on Human Rights (IACHR) has completed the on-site visit it paid to El Salvador between December 2 and 4, 2019, at the invitation of the state of El Salvador. The objective of this visit was to observe the human rights situation in the country on the ground, particularly issues that relate to citizen security and the situation of people who are deprived of their freedom; memory, truth, justice, and access to justice; the situation of the rights of women and LGBTI people; and the situation of migrants, displaced people, and economic, social, cultural, and environmental rights (ESCERs). Other crosscutting themes the IACHR focused on during its visit were freedom of expression, the situation of human rights defenders and justice workers, and other groups that are particularly at risk.
The IACHR delegation was made up of IACHR President Esmeralda Arosemena de Troitiño, First Vice President Joel Hernández, Second Vice President Antonia Urrejola, and commissioners Flavia Piovesan, Luis Ernesto Vargas, and Margaret May Macaulay, the rapporteur for El Salvador. The other members of the delegation included the Executive Secretary of the IACHR, Paulo Abrão; the Assistant Executive Secretary for Monitoring, Outreach, and Cooperation, María Claudia Pulido; the Chief of Staff of the Executive Secretariat, Fernando dos Anjos; the Special Rapporteur for Freedom of Expression, Edison Lanza; the Special Rapporteur for ESCERs, Soledad García Muñoz, and experts from the Executive Secretariat.
The IACHR met with government authorities from all three branches of government and autonomous bodies; civil society organizations and representatives, international organizations, academics, and the media. It also gathered testimonies from victims of human rights violations and their families. As part of the visit, the IACHR made unrestricted visits to various detention centers, specifically the maximum-security prison in Zacatecoluca, Izalco Phase I Detention Center, Tonacatepeque Social Integration Center, Izalco Women’s Detention Center, and the Bartolina de Sonsonate Detention Center. It also visited Las Anonas community in San Vicente department. The IACHR visited shelters for women victims and survivors of violence and their children, shelters and refuges run by civil society organizations, and a border community affected by the issues of mobility and forced displacement in the country.
The IACHR wishes to thank the government of El Salvador for the openness to international scrutiny six months into their term of office, which translated into the invitation to carry out this visit and led to a frank and constructive dialogue with the IACHR at the highest level. The IACHR also wishes to thank the government of El Salvador for the information and help with logistics that it provided. It particularly wishes to thank the Ministry of Foreign Affairs for all its cooperation with preparing and implementing the visit. The IACHR stresses and appreciates that the Government of El Salvador in its first 6 months into their term of office invited the IACHR to carry out an on-site visit after 32 years and highlights the complete access to complete it. The IACHR recognizes that many of the human rights problems affecting the country are structural, and several of them remain outstanding since the armed conflict.
Also, the IACHR is particularly grateful to civil society organizations for their support in organizing the visit and for the information they provided. The IACHR would like to acknowledge the efforts made by victims of human rights violations and their families to present their testimonies.
As a result of the visit, the IACHR will draft a country report on El Salvador in the coming months. The IACHR will now go on to discuss some of the main human rights issues it observed during its visit.
CITIZEN SECURITY
The IACHR has been particularly concerned about the high levels of violence that have affected Salvadoran society in recent years. According to the information it received, the government had lost control of some parts of the country, which had been taken over by criminal organizations, namely maras and gangs. Through threats and extortion, these groups exercise significant control over the daily lives of people living in specific areas, and the rivalry and clashes between them are a cause of widespread violence in the country. In this regard, the high crime rates in El Salvador have been a matter of constant concern on the agendas of the different areas of government in the country, which are implementing policies ranging from zero-tolerance approaches to “truces” with gangs and maras. According to the information the IACHR received during the visit, the public security mechanisms employed by previous governments have gradually brought down the murder rate in the country. For example, in 2015, there were 103 homicides per 100,000 inhabitants, a figure that came down to 80.9 in 2016 and continued to drop in 2017 and 2018, when the rates reached 60 and 51, respectively. The IACHR applauded the fact that in the first six months since the new government took office, the homicide rate has been reduced yet further, to approximately 50 per 100,000 inhabitants, the lowest rate yet since the Peace Agreements were signed. The state also reported reductions in crime rates during the period.
The IACHR values the fact that the state has acknowledged citizen security to be one of its priorities. The state reported that it was implementing a Territorial Control Plan to address the issue. According to the information put forward, this plan is overseen directly by the President, began to operate on June 20, 2019, and is made up of three stages: 1) primary prevention initiatives and the visible presence of the National Police Force and the Armed Forces; 2) the reconstruction of the social fabric by targeting and preventing crime; and 3) the modernization of the tools, infrastructure, and resources used by the security forces. According to the information the IACHR received, the first stage also includes action items that seek to regain control of detention centers. The plan, which builds on ideas from the previous government’s Safe El Salvador Plan, is being implemented in 12 of the country’s 262 municipalities, which are largely controlled by criminal organizations. The aim is to restore the governability of these areas. The state reported that the second phase in the plan, which mainly targets young people, seeks to integrate families into society through job opportunities and skills development for the community in partnership with authorities. The IACHR emphasized the fact that the phases of the plan described by the state included making the country governable again, preventing crime, and, in particular, rebuilding the social fabric.
The IACHR values the state’s efforts to develop a comprehensive citizen security policy to prevent and prosecute criminal activity, in which various government agencies are participating. However, several civil society organizations expressed their concern that the current government is continuing a security policy that emphasizes repression and intervention by the police and the Armed Forces. Indeed, the extraordinary measures approved by the state in April 2016 included permitting the deployment of the Armed Forces along with the National Civil Police Force to combat violence and insecurity in the country. These measures are being maintained as part of the implementation of the Territorial Control Plan. According to the information received, there are almost 13,000 members of the Armed Forces engaged in public security tasks. This is despite the precedent set by the Constitutional Chamber of the Supreme Court, which established that members of the military should not participate in public security tasks. In this sense, the IACHR was informed that the new government has begun to use the Armed Forces to carry out citizen security tasks on a widespread basis. The IACHR noted that the 2020 budget for defense work increased 17.9% in comparison with 2019.
Its concern on this issue is compounded by the lack of specific information on the Territorial Control Plan, a matter that was repeatedly raised by civil society organizations, who warned of the lack of transparency in the process of developing this plan, and the fact that it did not play a part in this. The IACHR encouraged the state to make the contents of the Territorial Control Plan public and underlined the importance of re-establishing spaces for citizen participation, such as the now-defunct Citizen Security Council.
Although the IACHR acknowledged the existence of a Joint Action Protocol for the National Civil Police Force and the Armed Forces of El Salvador, it once again drew attention to the fact that, in accordance with inter-American standards, maintaining public order and safety is primarily the mandate of civilian police forces. In any case, the Armed Forces must only be involved in maintaining public safety under extraordinary circumstances, such that any intervention involving the Armed Forces is justified, exceptional, temporary, and limited to action that is strictly necessary under the specific circumstances in question. Their actions should also be subordinate and complementary to the work of civilian security forces, and the scope of their tasks should not be expanded to include the powers of the institutions that administer justice or those of the ministerial or judicial police forces. This work should be regulated through legal mechanisms and protocols regarding the use of force, and be governed by the principles of exceptionality, proportionality, and absolute necessity, and those involved should receive appropriate training in the matter and be supervised by competent, independent, technically qualified civilian bodies.
The IACHR notes once more that the National Police Force and the Armed Forces are substantially and qualitatively different in terms of the purposes for which they were created and the training and education they receive. This is why measures need to be taken to strengthen the National Police Force by purging and rebuilding it, if necessary, to generate new grounds for citizens to place their trust in it.
Furthermore, civil society organizations drew attention to the armed clashes that have taken place between the police and alleged gang members in recent years. They stated that in the five years in which the previous government was in office, at least 2,173 armed clashes took place, resulting in the deaths of 1,930 people. Some 96.8% of these deaths were civilians, most of whom were identified by the police as gang members. On this point, the Office of the Ombudsman for the Defense of Human Rights documented 48 cases between 2014 and 2018 in which an extrajudicial execution may have taken place, involving more than 130 victims. According to information from civil society, the highest death toll came in 2018, when 106 civilians were reported to have died in clashes for every member of the National Police Force or Armed Forces that was killed. Between January and September 2019, there were reportedly fewer clashes and civilian deaths, bringing this ratio to 43.3 civilian deaths in clashes for every military or police death. Likewise, with regard to investigations into these cases, between 2013 and 2019, only eight police officers were convicted of homicide, and most of these cases were archived or dismissed by the Attorney General’s Office. In this regard, in all cases where civilians are injured or killed by police or military forces, and in compliance with international obligations, the state must urgently conduct diligent and impartial investigations in order to establish the facts and determine the penal responsibilities that apply.
In addition, according to information from the Attorney General’s Office, 3,289 disappearances were recorded in 2018, and 3,030 were reported in 2019, which represents an average of ten missing people per day. The Attorney General’s Office reported that in 2017 it began implementing a project entitled “Institutional Strengthening in Connection with Missing People Associated with Organized Crime to Reduce Impunity in El Salvador” in 2017–2019. An urgent action protocol and search strategy for missing people was developed through this initiative and launched in December 2018, and training and capacity-building courses were organized. The state reported that a special unit to follow up on missing people was established at the Attorney General’s Office on July 11, 2019. The state noted that this unit will function by searching for and locating missing people and investigating and prosecuting such cases. Likewise, the state reported that a network information system for missing people and corpses (SIRDEC) had been donated, which will help standardize technical and scientific processes. The IACHR was also informed about a National Civil Police Force Instructive to provide a police response to missing person cases.
On this point, the IACHR received reiterative complaints from victims about authorities’ actions when they file missing person reports about their relatives, particularly concerning the National Civil Police Force and the Attorney General’s Office. They also claimed that they receive no response when they attempt to file complaints. There are also often delays in the investigation process despite the fact that the first few hours are crucial in such cases. Relatives also reported that they are the ones who have to provide “clues” on the whereabouts of their relatives to prevent cases from being closed. The mother of one missing young person said: “they tell us to go and look for our children, but we can’t because it’s dangerous.” This hampers investigations, which are a non delegable obligation of the state. As the IACHR has repeatedly stated, impunity not only leaves victims, their families, and Salvadoran society as a whole without truth and justice but also fosters the repetition of such events.
The IACHR acknowledged that perceptions of citizen security in the country are extremely low as a result of the actions of gangs and maras. Among the measures adopted in response to this, the IACHR noted the abusive use of punitive power on the part of the state. As will be explained in more detail below, the main effect of this is to increase the number of young people who are deprived of their freedom and then acquitted. Based on official data from the Attorney General’s Office, the IACHR was informed that 18,356 people were charged with the crime of involvement in terrorist organizations from 2016 to September 2019, 3,086 of whom were convicted and 6,983 of whom spent approximately two years in pretrial detention and were later acquitted of the charges.
The IACHR repeated and emphasized the importance of taking steps to rebuild the social fabric as part of the plan established by the current government. During the visit, the IACHR visited Los Cubos, in Iberia community, to learn about an initiative started by young people involving social spaces that provide cultural and recreational activities. The IACHR applauded this initiative to rebuild the social fabric and expressed its hope that this can be replicated in other parts of the country.
THE SITUATION OF PEOPLE WHO ARE DEPRIVED OF THEIR FREEDOM
During the visit, the IACHR repeatedly received information regarding the effects of extraordinary security measures on people who are deprived of their freedom. According to the information provided by the state, these measures were implemented to combat criminal activity that was masterminded and managed from within penitentiaries. Although the IACHR understands that it is the state’s responsibility to prevent and combat crime, the ongoing existence of these so-called extraordinary measures is a matter of particular concern, given that they lead to serious violations of the rights of people who are deprived of their freedom, such as prolonged, indefinite isolation in inhumane conditions, effects on health, the suspension of the visiting regime, and obstacles to guaranteeing due process. These measures were permanently integrated into the Prison Act in 2018. As a result, punitive responses by the state and depriving people of their freedom are prioritized over alternative measures or approaches.
The state reported that the prison system currently has a population of 38,627 inmates, some 92.25% of whom are male, 7.74% of whom are female, and approximately 65% of whom are between the ages of 18 and 35. According to the World Prison Population List, El Salvador has the second-highest incarceration rate in the world, at 604 inmates per 100,000 inhabitants. Given the high numbers of people who are imprisoned, the IACHR noted with concern that to date there are only approximately 15 prison supervision and sentence enforcement judges reviewing the backlog of over 38,000 cases.
Although the average rate of prison overcrowding in the country is 142%, the IACHR was alarmed to find that some detention centers have overcrowding rates as high as 600%. During the visit, the IACHR observed higher levels of overcrowding in some specific cells. For example, while visiting Izalco I Penitentiary, the IACHR observed 94 people being held in cells with a capacity for 28.
Furthermore, the state reported that 72.43% of the population who are deprived of their freedom have been sentenced and 27.57% have been accused. The IACHR acknowledged the state’s efforts to separate those who have been accused from those who have been sentenced, a policy it observed at the Izalco I Penitentiary, along with the other separations of prisoners into categories that have been implemented in recent months.
The IACHR is also especially concerned over the poor detention conditions it observed at the different prisons it visited. In addition to the overcrowding that was observed at these maximum-security facilities that house approximately 16,000 people, there were also widespread shortfalls in infrastructure, unsanitary conditions, an absence of rehabilitation programs, insufficient health care, scarce and limited access to water. During the IACHR’s visits to detention centers, people who are deprived of their liberty repeatedly expressed concerns about the health conditions at these facilities. Indeed, the state itself reported frequent outbreaks of respiratory and skin diseases. The state also indicated that around 60% of all tuberculosis cases in the country are found within the prison system, where there is an incidence rate of almost 6,000 patients per 100,000 inhabitants. In the words of the state, these represent “the highest rates in the region.” In response, the IACHR noted that the state has acknowledged the scale of the tuberculosis problem in prisons and that the current administration has taken measures to counteract this, including by implementing initiatives to improve early detection of the disease, establishing health plans for this purpose, and putting a series of measures in place to improve healthcare and reduce overcrowding in prisons. The state also reported on the measures it has adopted to bring down malnutrition levels within prisons.
The state also reported on a series of programs that seek to foster the rehabilitation and reintegration into society of people who are deprived of their freedom, which are being implemented at different penitentiaries (excluding high- and maximum-security facilities). The IACHR praised these initiatives and expressed its hope that they can gradually be replicated at all penitentiaries. The state also reported on a series of training sessions it ran for personnel working in the areas of human rights, healthcare, security, prison regimes, and prison administration.
The IACHR noted that the holding capacity of detention centers must be defined taking into account criteria such as the actual space available per inmate, ventilation, lighting, heating, access to sanitary facilities, and the number of hours inmates spend locked in their cells and outdoors, as well as other basic components of infrastructure such as clinics, and the space and facilities needed for work, education, and recreation. As an absolute minimum, each inmate should have enough space to be able to sleep lying down, walk freely within their cell or dormitory, and store their personal belongings.
During the visit, the IACHR’s attention was drawn to how isolated people who are deprived of their freedom are, which means that there is a lack of minimum guarantees for them, including lack of access to their families, legal assistance, and measures for social reintegration. According to the information the IACHR received, 100% of those who are deprived of their freedom have no contact with the outside world. Even at Izalco I Prison, which only houses people who have been accused of crimes, and at a police detention center, the IACHR was informed that family visits are not allowed, which runs counter to the presumption of innocence principle.
Specifically, with regard to maximum-security prisons, the IACHR is concerned that solitary confinement is being used in a way that contravenes international standards on this matter. Indeed, the solitary confinement regime is being used for all people who are considered “extremely dangerous” or “very dangerous” (generally gang or mara leaders). People in solitary confinement spend no time outside, have no contact with inmates except their cellmates, and do not engage in any academic, work, or recreational activities, and their families are not allowed to bring them clothing, personal care products, or medicine. The IACHR notes with concern that people being held in maximum-security prisons are expressly prohibited by law from receiving family visits. The IACHR condemns the use of solitary confinement which clearly contravenes international standards for imprisonment and places personal integrity at particular risk and may bring consequences that affect people who are subjected to this regime for the rest of their lives.
The IACHR calls on the state to strike a balance between the security measures it imposes and the budgetary deficiencies observed at detention centers to ensure that it can provide the human resources, medical services, infrastructure, and guards needed to comply with inter-American standards on this issue.
The IACHR visited the Sonsonate Police Station where it observed
high levels of overcrowding and shortfalls in the basic services
needed to ensure decent conditions of detention. It was also
informed that prisoners’ families must cover the costs of their food
themselves. The IACHR interviewed detainees who had been held for
more than 26 months in cells with a holding capacity of
approximately 12 people. In some cases, these cells were housing 99
people, implying that they were only able to sit but not to lie
down.
Among the most serious cases, the IACHR met an 80-year-old man in
this cell. The Commission also heard the case of a woman who was
arrested seven days after giving birth and whose baby is taken to
her in cell only twice a day to be breastfed. The IACHR was informed
that eight months ago, the police detention center known as “la
Bartolina” had a population of 850 people, and this figure currently
stands at 357.
Detention centers such as these known as “bartolinas” were designed for temporary arrests and thus do not have the infrastructure or basic services needed to ensure decent conditions of detention that are compatible with the right to personal integrity, thus generating grave human rights violations. The conditions at these facilities are not appropriate for housing any number of people for long periods of time, let alone the high numbers currently being held there. In this regard, the IACHR urges the state to take urgent, necessary measures to cease the use of police facilities as places in which to imprison people for prolonged periods of time.
The IACHR emphasized the importance of establishing a crime prevention policy that aims to use imprisonment as a last resort and entails applying alternative measures and granting minimum guarantees to all people who are deprived of their freedom. In accordance with the provisions of its Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, the IACHR noted that given that states are in a special position as guarantors of the rights of people who are deprived of their freedom, they must respect and guarantee these people’s lives and personal integrity and ensure minimum conditions that are compatible with their dignity.
Additionally, and given the limited financial resources that the State disposes for prisons, the State must reconsider a criminal policy based on the isolation of the detainee. On the one hand, the state lacks the resources to guarantee health, recreation, access to sun, clothing, footwear and personal grooming. On the other hand, it prevents the assistance that family members can provide by prohibiting visits. Face with this dilemma, the State must choose to provide the necessary resources to meet the minimum standards of detention or rethink its visiting scheme. Otherwise, the inmate is subjected to absolute isolation that in some cases could constitute acts of torture.
The IACHR visited the Center for Social Integration in Tonacatepeque, where minors are being held. During the visit, the IACHR observed the shortfalls in infrastructure at the facility, which the state itself also acknowledged. However, it also noted that the center provides education up to the third year of secondary school and also offers a series of educational and recreational activities that may help adolescents who are deprived of their liberty there to reintegrate into society. The IACHR welcomed these initiatives and encouraged the state to continue efforts to provide treatment that is in keeping with respect and human dignity, with a view to promoting effective, constructive reintegration into society. Finally, the IACHR urged the state to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and to establish the National Mechanism for the Prevention of Torture.
MEMORY, TRUTH, AND JUSTICE
During its visit, the state informed the IACHR of the creation of spaces for interinstitutional coordination and the implementation and planning of measures to provide compensation for the victims of grave human rights violations in relation to the massacre in El Mozote and surrounding areas. On this point, the IACHR congratulated the state for the progress it has made and applauded its commitment to complying with the measures set out in the sentence passed by the Inter-American Court of Human Rights (IA Court). Despite this, the IACHR underlined the high number of victims of serious human rights violations during and as a result of the armed conflict in El Salvador, who number over 75,000, according to the report of the Truth Commission for El Salvador, which was one of the outcomes of the Chapultepec Peace Agreements.
During the visit, the IACHR went to Las Anonas community and received testimonies from survivors and families of victims of the internal armed conflict who expressed the importance of having their testimonies being heard. In response, the IACHR noted that it is essential for states to create a comprehensive reparation policy that addresses the many aspects of damage that victims suffer. In particular, the IACHR encouraged the states to create spaces within different government authorities and in different parts of the country for listening to victims, which should be used as an essential part in rebuilding citizens’ trust in institutions after spending decades fruitlessly searching for measures to ensure memory, truth, justice, reparation, and nonrepetition.
With regard to justice for the grave human rights violations perpetrated during the armed conflict, the IACHR applauded the conventionality control that the Constitutional Chamber of the Supreme Court of Justice exercised in declaring the 1993 General Amnesty Law for the Consolidation of Peace unconstitutional and acknowledged this decision as a step in the fight against impunity for past crimes. The IACHR was also been informed of individual initiatives seeking to criminalize former judges of this chamber as a result of their involvement in this process. In this regard, the IACHR emphasized the importance of the state providing judicial personnel with guarantees to ensure they can go about their work independently, free from interference, so as to guarantee their obligation to provide people with access to justice, particularly surviving victims and the relatives of the tens of thousands of people who lost their lives.
The IACHR also acknowledged the fact that over 180 cases that relate to this period have been opened or reopened since the Attorney General’s Office created the Special Unit on Crimes That Took Place During the Armed Conflict. Victims and civil society organizations expressed the need for greater progress to be made on investigating and prosecuting cases, and for there to be more information on these processes and broader involvement in them. Given how much time has passed since the armed conflict and that the victims are now elderly, the IACHR urged that the justice system’s institutional capacities be strengthened. In this regard, the creation of specialized courts could be a strategy to promote the investigation, prosecution, and when necessary, sanction of those who may be responsible for these violations.
The IACHR has been closely monitoring the drafting of the National Reconciliation Act that began with unconstitutionality process no. 44-2013/145-2013. During the IACHR’s on-site visit, the Constitutional Chamber of the Supreme Court of Justice informed the IACHR that the deadline for the Legislative Assembly to approve a draft bill that complies with the standards set forth in the 2016 Ruling and the 2018 Follow-Up Resolution had been extended for the third time, until February 28, 2020. In its dialogue with the legislative branch, the IACHR underlined how important it is for this legal initiative to comply with the international obligations taken on by the Salvadoran state with regard to transitional justice, taking victims’ voices into account. Specifically, the IACHR has pointed out that amnesty provisions, statutes of limitation, and exclusion of liability clauses that seek to impede criminal prosecution are inadmissible, as are any obstacles within domestic law that seek to impede the investigation and punishment of those responsible for serious human rights violations, such as torture; summary, extralegal, or arbitrary executions, and forced disappearance, all of which are prohibited because they contravene nonderogable rights recognized by international human rights law. Likewise, the IACHR appreciated the fact that the Office of the President of the Legislative Assembly has recognized the state’s debt in this area and has committed to developing this draft law with the support of the IACHR, the United Nations, and experts with a proven record in human rights.
Furthermore, the IACHR observed that there was consensus among civil society organizations and the various state representatives that it met with regarding the lack of complete, systematic access to the archives of the security forces operated during the armed conflict. More than 25 years have passed sin the Peace Agreements were signed, yet the lack of progress on classifying these archives remains a major obstacle to reconstructing the truth of what happened during the conflict. Likewise, this is a serious limitation to achieving justice cases of grave human rights violations that are currently at the investigation stage.
Despite the fact that the Constitutional Chamber of the Supreme Court and the Institute of Access to Public Information have spoken out in favor of the rights of victims and the judiciary to access these files, the Ministry of Defense has provided little access to this documentation. Its current authorities informed the IACHR that no specific files have been found or identified on operations during the armed conflict, including regarding those in positions of responsibility or who commanded operations or any other aspects relating to the conflict, nor are there any constitutional impediments to these documents being seen. In this regard, authorities from the Ministry of Defense announced that a commission has recently been established within the Armed Forces to review and audit these archives. The IACHR noted that the interinstitutional commission in which both the state and civil society will allegedly work together to locate these archives has not yet been established, despite being announced by the state months ago. Likewise, the IACHR drew attention to the fact that although victims have requested that the archives of the Truth Commission that operated at the United Nations Secretariat be opened, these have not yet been handed over to El Salvador for judicial purposes. According to the information the IACHR received, this lack of access is due to financial issues and the need to systematize these archives, two challenges that the IACHR is confident can be overcome.
Indeed, the IACHR calls on the state of El Salvador to take urgent, decisive steps to organize, systematize, and make all documentation available, including material on operations, administration, financial issues, healthcare, public relations, and any other issue. It should also make these available to victims, judicial authorities, and society as a whole, ensuring that sensitive aspects are protected appropriately, in the latter case.
The IACHR recalled that it itself and the IA Court have established through various rulings that the national security exception cannot be invoked by departments or agencies that were allegedly involved in human rights violations as a reason not to disclose those documents needed to clarify these violations. Likewise, authorities must act in good faith and reconstruct archives that have been destroyed or which contained documents that should have been delivered but have not been. The IACHR also called on the international community to provide financial resources and technical assistance for the identification, organization, and management of the archives held by national and international organizations that might play a part in re-establishing truth, memory, justice, and reparation for the victims of the armed conflict.
On the matter of victims of forced disappearance during the armed conflict, the IACHR noted that the National Commission for the Search for Children Who Disappeared during the Internal Armed Conflict (CNB) has solved 95 of the 265 cases which it has been investigating in the eight years since it was established, with active support from the Argentine Forensic Anthropology Team, the Guatemalan Forensic Anthropology Foundation (FAFG), and the Institute of Legal Medicine. A year after starting its work, the National Commission for the Search for Adults Who Disappeared During the Armed Conflict (CONABUSQUEDA) has published a national plan to search for such missing adults and carried out its first exhumation with technical support from the FAFG. The IACHR was informed that the two commissions have sent a proposal for a national law on the search for children and adults who were forcibly disappeared during the armed conflict to the Office of the President. The proposal calls on the state to follow up on this process and establish commissions that have the human, economic, logistical, scientific, and other resources they need to effectively investigate and determine the whereabouts of the disappeared people in question. In this regard, the IACHR also recognizes the work of the organization PRO-BÚSQUEDA in the investigation of cases of children who have disappeared or involuntarily separated from their families during the internal Salvadoran armed conflict.
The IACHR noted that, in the case of the Serrano Cruz sisters, the Salvadoran state has been ordered to create a genetic information system that will enable it to obtain and preserve genetic data to help determine, clarify, and identify the relationships between missing children and the families who are looking for them. Both the victims and the various state authorities that spoke to the IACHR emphasized how important a genetic profile bank is to clarifying the truth and attaining justice in the cases of children, adolescents, and adults who were forcibly disappeared during the internal armed conflict. The IACHR was informed that no such bank exists in El Salvador and that there is also a need for technical improvements to how genetic material is collected and stored. In this sense, the IACHR called on the state to foster the passing of this proposed law, which is currently being under debate by the Legislative Assembly, and to provide the Institute of Forensic Medicine with the resources it needs.
Likewise, the IACHR stressed the importance of drafting a law to regulate exhumations that form part of investigations into forced disappearances, as well as the rights of relatives regarding the absence of disappeared people. The IACHR also urged the state to ratify the Inter-American Convention on the Forced Disappearance of Persons, the International Convention for the Protection of All Persons from Enforced Disappearance, and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.
RIGHTS OF WOMEN AND LGBTI PEOPLE
During its on-site visit to El Salvador, the IACHR received consistent information pointing to the prevalence of discriminatory sociocultural patterns that permeate Salvadoran society as a whole, impact how public officials go about their work, and violate the right of women and lesbian, gay, bisexual, transgender, and intersex (LGBTI) people to live free of violence and discrimination. The IACHR was informed about how deeply rooted misogynist and sexist stereotypical concepts related to women are in Salvadoran society, including women’s supposed inferiority to men; their assimilation to their role as mothers, partners, and caregivers; the assumption that they are responsible for domestic chores; or the idea that women and girls must be available and subject to the will of men such as their fathers, brothers, or partners, for example. The IACHR observed with concern that these sexist, discriminatory patterns affect almost all sectors of Salvadoran society and result in the normalization and tolerance of violence against women and LGBTI people, against a backdrop that facilitates the occurrence of such violence, in which there is widespread impunity in the face of such crimes.
Given the above, the IACHR acknowledged the efforts El Salvador has made to develop a regulatory framework to protect and guarantee the rights of women and girls and to implement policies, programs, and mechanisms to respond to, provide protection from, and prevent violence and discrimination. Specifically, the IACHR notes that the passing of the Law on Equality and the Eradication of Discrimination against Women and the Special Comprehensive Law for a Life Free from Violence for Women has made it possible for the country to develop a legal framework that complies with inter-American standards on gender equality, which has been the basis on which specialized public policies, plans, and programs have been developed. During its visit, the IACHR visited a shelter for women victims and survivors of violence and their children. The IACHR delegation deemed the conditions in the shelter to be favorable and safe and also acknowledged the multidisciplinary support provided by various state authorities, which are coordinated by the Salvadoran Institute for Women’s Development (ISDEMU). These authorities provide assistance for women seeking physical protection, support in legal processes, and other forms of assistance for fully recovering from their experience and once again living a life free from violence. On this point, the IACHR encouraged the state to strengthen and replicate this model of protection, particularly by providing sufficient resources for opening and maintaining more shelters specializing in assisting women who are victims of gender violence, human trafficking, and other forms of violence.
On the matter of LGBTI people, the IACHR noted with concern that there was an absence of institutional arrangements to protect and guarantee their rights. According to the information it received, after the Secretariat for Social Inclusion was dissolved, the Gender and Diversity Unit was created at the Ministry of Culture with a mandate to protect diversity and promote bringing an end to discrimination. However, the five-year plan for LGBTI people’s rights has yet to be aproved as has the Gender Identity Act. The IACHR is concerned that the limited progress that has been made so far in the country may be at risk of being reversed or disappearing altogether due to the absence of a dedicated budget item in the general budget that was presented recently, along with the cancellation of job fairs that were previously promoted by the state, and the lack of spaces for articulating between state institutions and civil society representatives to defend the rights of LGBTI people.
In the area of access to justice, the IACHR warned that despite this institutional framework, there are ongoing challenges to ensuring that women and girls who are victims of violence can gain full access to effective judicial remedies, have their cases prosecuted, and obtain reparation. The IACHR was informed of the creation of expert units within the judiciary; assistance programs for victims of violence; progress on data production; and Specialized Courts for a Life Free of Violence and Discrimination for Women, among other initiatives. However, according to data from the 2017 National Survey on Violence against Women, women’s confidence in the administration of justice is very low, in that only six out of every hundred women report acts of violence committed against them, a figure that drops to 0% in cases of violence against women of African descent and indigenous women. Likewise, the IACHR was concerned by consistent reports of shortcomings in including a gender perspective in the work of the Attorney General’s Office, the lack of special training and focus on gender issues within the Ombud’s Office, and the lack of training among judicial personal. Only three specialist courts have been established, which do not have the power to hear cases on sexual offenses; lack basic resources such as office equipment, technical teams, and fully trained staff; and have been overwhelmed by the scale of the violence against women in the country. For example, according to the information the IACHR received, the Court of Instruction of San Salvador, which began its work in 2017, is allegedly at a standstill. The IACHR noted with great concern the insurmountable barriers that LGBTI people encounter when attempting to access justice given the lack of recognition of their gender identity and the prejudices that continue to inform the actions of judicial personnel.
The IACHR was informed of how prevalent violence and discrimination against women are in the workplace. According to the information it received, in 2018, of the more than 1,020 complaints that were lodged regarding violence in the workplace, 60% were complaints of workplace or sexual harassment. Furthermore, the IACHR was informed that the Ministry of Labor has closed the office responsible for investigating these reports. Trans women are entirely excluded from access to formal employment. The IACHR drew particular attention to the predicament of women journalists, who face discrimination on the basis of both their profession and their gender, as well as various forms of violence including harassment, insults, threats, and killings, as was the case in the murder of journalist Karla Turcios. The IACHR also received information on the situation of women working in the textile maquila and home-based embroidery sectors. The information the IACHR received detailed the numerous occupational health problems suffered by women employed at maquilas, most of whom are rural women, including menstrual and gynecological health problems, and the precarious conditions in which they are employed, including no social security, long working hours, and salaries that are below the minimum wage. Women working in the home-based embroidery sector are not formally employed and therefore are not subject to inspections. These conditions encourage girls and adolescents to work, resulting in high school dropout rates and greater vulnerability among this population, who receive less than a dollar in payment for each completed piece.
With regard to violence against women, the IACHR noted with great concern that El Salvador continues to be the country with the highest number of murders of women in Latin America and the Caribbean. According to data from ECLAC’s Gender Equality Observatory for Latin America and the Caribbean, at least 232 women were murdered in the country in 2018. Furthermore, the IACHR noted that women who died violent deaths showed signs of having been subjected to particular viciousness, including asphyxiation, hanging, and machete attacks. The IACHR was informed of cases of violence against women which were allegedly perpetrated by National Civil Police Force officers, one of the most representative of which was the disappearance and murder of police officer Carla Ayala. Another form of violence that is a source of great concern to the IACHR due to its prevalence is sexual violence against women and girls. In 2018, the reports received by the authorities indicated that a sexual offense occurs approximately every two hours in El Salvador, mostly against women. According to the information provided to the IACHR, this violence especially affects girls between 10 and 17 years of age, resulting in high teenage pregnancy rates. Despite the seriousness of the prevalence of sexual violence, the IACHR received information to the effect that these acts were normalized and invisibilized and that there was no effective approach to eradicate once and for all either the acts themselves or the high levels of impunity that surround them.
In addition to this, the IACHR was informed that despite the fact that gang violence against women is a matter of public knowledge—including threats, disappearances, killings, rape, and sexual slavery—the link between gangs and violence against women has not been thoroughly analyzed. Due to fear of reprisals, women do not report this violence, so sufficient evidence has not yet been gathered on this phenomenon nor have attempts being made to effectively prevent it and protect women from it. The IACHR also learned that numerous cases of suicide and suicide attempts have been reported among women victims of violence, including attempted suicides by girls under the age of nine. The IACHR expressed its regret over the lack of information and public policies with a differentiated gender approach in the country, particularly in relation to the discrimination and violence faced by women with political roles, women human rights defenders, indigenous women, women of African descent, women with disabilities, and older women.
The IASHR has acknowledged the intimate relationship between women’s right to live a life free from violence and the right to equality and nondiscrimination, emphasizing that gender-based violence is a manifestation of historically unequal power relations between men and women that are perpetuated by ongoing discriminatory attitudes and practices toward women. The IACHR has stated that gender-based violence is one of the most extreme and widespread forms of discrimination toward women and girls. Among other consequences, it leads to obstructions of their ability to exercise and enjoy their rights and freedoms on an equal footing with men. Gender violence against women and girls is a serious human rights violation.
The IACHR has established that violence and discrimination do not affect all women equally and has deemed that some women are exposed to greater risk of their rights being violated as a result of the overlapping of other factors with gender. These include poor women; indigenous women and women of African descent; lesbians and bisexual, trans, and intersex (LBTI) women; disabled women; migrant women; and elderly women; along with other specific situations of risk.
With regard to women with political roles, the IACHR has observed that their exercise of their political rights is seriously affected by the prevalence of discriminatory gender stereotypes that pigeonhole them in domestic roles, ignore their fundamental role in public spaces, and lead to acts of violence against them. In the case of women journalists, the IACHR and the Office of the IACHR Special Rapporteur for Freedom of Expression have noted that while women journalists face similar risks to their male counterparts, they also face specific gender-related risks. As the IACHR was informed, in El Salvador, women journalists and media workers suffer specific forms of gender violence such as verbal and psychological harassment, physical, sexual, and online violence, and even murder, but are also subjected to forms of violence and discrimination in newsrooms, in their working conditions, and in the kinds of issues and stories they are assigned to cover. The acts of violence that tend to be committed against them have particular impacts on their lives and those of their families, including acts of violence to intimidate them or silence them. Women human rights defenders are continually confronted by individuals or groups who use sexist stereotypes to delegitimize their work, in addition to condemning their participation in public life and their role as leaders in the defense of human rights. Furthermore, women who advocate for issues that in themselves challenge established sociocultural patterns are at increased risk of being targeted by specific acts of violence against them. Women defenders who are committed to women’s rights, especially in the area of sexual and reproductive rights and the rights of LBTI women, are particularly delegitimized, attacked, and assaulted both because they are women and because of the very rights that they are defending.
The IACHR has become aware that LGBTI people are threatened, killed, or disappeared and/or often forced to move across international borders to save their lives, without there being any official record that analyzes the extent of this violence appropriately. According to figures from the organization CONCAVIS TRANS, more than 600 murders of LGBTI people have been recorded since 1993 in El Salvador, and 151 cases of forced displacement of LGBTI people were recorded between 2018 and September 2019. The IACHR delegation heard the testimonies of Isabela González and Aldo Alexander Peña, who reported having suffered violence at the hands of National Police Force staff, exemplifying the violence and discrimination faced by LGBTI people in El Salvador. During its visit, the IACHR was informed that hate crimes spiked in 2019, as was evidenced by the six murders of trans women that took place in the 20 days preceding the IACHR’s arrival. In this regard, the IACHR reminded El Salvador of its obligation to investigate such acts of violence with due diligence and of its duty to prevent and combat impunity, including in relation to violence against LGBTI people.
On the matter of access to healthcare services, the IACHR noted with concern that one of the main challenges in El Salvador is preventing and addressing child and teenage pregnancy. According to the figures presented to the IACHR, 19,190 pregnancies among girls between the ages of 10 and 19 were reported in 2017. Despite the fact that most of these pregnancies affected girls under the legal age of sexual consent, civil society organizations reported that the health authorities who attend these pregnancies do not report these cases to the Attorney General’s Office, despite the fact that they constitute rape cases. On the issue of maternal health, the delegation was informed that at least 36 women died from chronic preventable diseases and a further 13 from ectopic pregnancies between 2011 and 2015. It is reasonable to argue that such deaths could have been prevented if women had been able to legally terminate their unsafe pregnancies, a situation that was prevented by the country’s legislation, which criminalizes abortion under any circumstances. On the matter of sexual and reproductive health, the prevalence of discriminatory gender patterns limits education on this issue and access to and the distribution of contraceptives, particularly to women and girls. Furthermore, although emergency oral contraception is legal for women victims of sexual violence, it is being distributed at the discretion of healthcare providers. With regard to access to healthcare for LGBTI people, although the IACHR was informed that guidelines on this had been established, there is still no specialized healthcare policy for them. This is a result of a lack of recognition of their rights and a lack of respect for their gender identity. The state does not provide special services for these people and social security does not cover their physical or mental healthcare needs, which is a source of particular concern in the case of people with HIV/AIDS and for trans people engaged in sex work.
The IACHR was also informed that there are more women who are deprived of their freedom in El Salvador than any other country in Latin America and that these numbers are on the rise. According to the information it received, in the last 15 years, the female prison population has increased tenfold because unlike in other countries in the region, the main crime for which women are imprisoned is extortion. As those who go to collect payments from extortion practices are mainly women, they are more likely to be identified and arrested. The IACHR has also been informed of the efforts made by the state to ensure that women who are deprived of their freedom in El Salvador are held in detention centers that are exclusively for women, especially Ilopango Prison, the Juvenile Detention Center (which the IACHR visited), and Granja de Izalco. With regard to the latter, the IACHR noted that although there are still some shortcomings in conditions there, the facility has successfully improved the conditions in which women and their children are held, and this progress must be continued and reinforced.
Although the IACHR was informed that guidelines had been adopted on assisting LGBTI people who are deprived of their freedom, it noted that the situation on the ground was a matter of concern, given that their specific needs and vulnerability within penitentiaries have not been suitably addressed. The IACHR delegation was informed that there are no official figures on LGBTI people who are deprived of their freedom, and the lack of recognition of the sexual identity of trans people has prevented them from being duly identified as such by prison authorities.
The IACHR reiterated its concern over the regulations that criminalize abortion in all circumstances in El Salvador. Although the Criminal Code establishes sentences of up to 12 years for the crime of abortion, the IACHR has learned that at least 74 women who suffered obstetric complications or emergencies have been convicted of aggravated murder and sentenced to up to 40 years imprisonment based on the suspicion that they induced abortions. During its visit to the country, the IACHR met with 15 women who had been sentenced under such circumstances and were then released after their sentences were reviewed or commuted, including one woman who spent 17 years in prison. Furthermore, the delegation heard first-hand testimonies from 13 other women who are currently imprisoned after being convicted in relation to obstetric emergencies, including the case of a woman who was sentenced to 30 years in prison for aggravated murder after giving birth outside of a hospital when the emergency services failed to respond to her 911 call. After hearing their testimonies, the IACHR noted with great concern a pattern of criminalization whereby mostly poor women aged between 18 and 23 at the time of their sentences have been systematically sentenced to 30 years in prison, mostly after being reported by healthcare workers such as doctors and nurses.
According to the IACHR’s observations, all the known cases of this sort include indications of possible violations of due process, such as violations of the presumption of innocence principle, since all the women were treated as being guilty of murder from the very beginning of proceedings by healthcare workers, police officers, and those working at the district attorney’s office and other judicial personnel. They were also denied the possibility of defending themselves, being heard by a judge, or accessing legal representation. There were possible breaches of the principle of guilt and the proportionality of the sentence in terms of the personalized assessment of each case and the overlooking of mitigating factors such as the absence of a criminal record. Furthermore, these women were sentenced without there being conclusive scientific or objective evidence against them, in trials that were marked by gender stereotypes that discriminate against such women because of their gender and who are treated as “bad mothers” and “child killers” by the judges themselves. In this regard, the IACHR called once more on the Salvadoran state to take the necessary measures to implement a moratorium on the application of article 133 of the Criminal Code, to carefully review the sentences in each case involving obstetric emergencies with a view to ensuring fair trials that are free of stereotypes and comply with the rules of due process for each woman in these circumstances so that she can regain her freedom. The IACHR also urged the state to prioritize requests to commute sentences that are currently being served.
On this matter, the IACHR has deemed that sexual and reproductive rights should include the rights to equality and nondiscrimination, life, personal integrity, health, dignity, and access information, among other things. As a consequence, states’ fundamental obligations include guaranteeing prompt access to healthcare services that are only required by women and girls as a result of their gender and reproductive roles, free from all forms of discrimination and violence, in accordance with existing international commitments on gender equality.
The IACHR reminded the state of El Salvador of its obligations regarding the rights to life; integrity; health; freedom from cruel, inhuman, and degrading treatment; privacy; equality and nondiscrimination; and the right of women to live a life free from violence. Likewise, the IACHR once again reminded Salvadoran state of its duty to eliminate all de jure and de facto obstacles that impede women’s access to the maternal, sexual, and reproductive healthcare services they require, including information and education on matters of sexual and reproductive health. These measures must take into account the particular risk, lack of protection, and vulnerability facing girls and adolescents and women who are particularly marginalized, and must be in line with inter-American standards on the matter.
MIGRATION AND FORCED DISPLACEMENT AND ECONOMIC, SOCIAL, CULTURAL, AND ENVIRONMENTAL RIGHTS
The rights of the displaced population
According to the figures published in the report entitled Characterization of Internal Mobility due to Violence in El Salvador, 1.1% of the Salvadoran population was allegedly forced to move from their usual places of residence between 2006 and 2016, a situation that has had a disproportionate effect on women (54%), and in which violence was one of the main causes of displacement, with reports of direct victimization of one or more family members in 87% of cases, and of threats, intimidation, or coercion in 69% of cases. In addition, the IACHR notes that in 2018, nearly 46,800 Salvadorans applied for asylum worldwide, placing El Salvador sixth on the list of the countries of origin with the largest numbers of new asylum seekers.
On July 13, 2018, the Constitutional Chamber of the Supreme Court of Justice issued a ruling that recognized that forced displacement in El Salvador is due to both the violence and insecurity in areas controlled by gangs and the systematic human rights violations caused by organized crime. In Amparo Ruling 411/17, the Constitutional Chamber ordered various state bodies to take measures that included: a) acknowledging victims and categorizing them in accordance with the law; b) designing and implementing public policies and action protocols that aim to prevent displacement; c) providing protection for displaced people and guaranteeing them the possibility of returning to their homes; and d) entering into cooperation agreements at the national and international levels to ensure the protection of victims and witnesses.
According to the information provided by the state, mobility and forced displacement are part of the integrated approach of the National Territorial Control Plan. The state reported on some challenges to implementing policies targeting this population, including the construction and maintenance of state shelters, the creation of reception facilities, and the approval of a comprehensive regulatory framework on internal displacement, which is currently being debated in the Legislative Assembly. The state also reported that El Salvador has recently adhered to the Comprehensive Regional Protection and Solutions Framework (MIRPS), which includes commitments such as the development and implementation of a national action plan in close consultation with communities of displaced persons, national and local institutions, civil society organizations, and international agencies. The IACHR also received information on the follow-up to the sentence passed by the Constitutional Chamber of the Supreme Court of Justice (Amparo Ruling 411-2017) and deemed the comprehensive implementation of this to be central to the category of forced displacement being institutionalized and the development of public policies for the protection of the El Salvador’s displaced population.
Although the IACHR acknowledges the complexity of this phenomenon and the efforts that the Salvadoran state has been implementing to tackle the various challenges that derive from it, it is nonetheless extremely concerned by the living conditions that these people and their families are forced to endure due to a lack of specialist state protection that aims to reduce the risk factors for displacement, including the exposure of people who are displaced by mara and gang violence. There are no measures to prevent forced displacement, provide humanitarian assistance, and ensure that lasting, safe measures are put in place for the voluntary return or resettlement of displaced people.
The IACHR and the Office of the IACHR Special Rapporteur on Economic, Social, Cultural, and Economic Rights (OSRESCER) observed that the victims of forced displacement usually find themselves in a situation of poverty and inequality and are more vulnerable than anyone else in El Salvador because they lack guarantees that allow them to minimally exercise their human rights, and thus require special protection from the state. The IACHR’s interviews with migrants, displaced people, and their families revealed the connection between economic and social factors and the violence that characterizes most cases of internal displacement and international migration among Salvadorans, which has a direct impact on the enjoyment of their human rights. In other words, victims of forced displacement are affected not only by the violence that originates in the direct action of gangs in El Salvador, but also by the resulting social and institutional discrimination.
In addition, the IACHR noted that at the point at which forced displacement occurs, it usually has an inseparable, interconnected, and immediate impact on the rights to free movement, personal integrity, and housing, hence these rights should be analyzed together. The IACHR was concerned to receive reports of cases of migrants who died and disappeared while attempting to cross Mexican territory or the southern border of the United States, which included accounts of the difficulties or even the impossibility of obtaining consistent and timely information, consular assistance, and help recovering and repatriating the mortal remains of their family members.
Forced displacement affects the effective enjoyment of the right to housing, since it entails victims being forced to flee their homes or places of habitual residence, which implies leaving behind their life projects and in most cases, losing their land, housing, and other assets, and it also affects various rights due to uprooting and displacement. In all the interviews conducted by the IACHR during its visit, the displaced persons recounted in detail the extreme speed with which they had to flee their homes following violence and threats—in many cases, they were not even able to enter their homes to take belongings with them. The IACHR noted with concern that many victims of forced displacement are at constant risk of remaining homeless due to the lack of temporary state reception programs to provide lasting solutions to these issues. In other cases, people continue to live in their homes but do so in hiding, often in overcrowded conditions, as they are threatened and harassed by gangs. This situation also affects the right to housing, as it makes it impossible for people to live safely or go about their daily lives normally.
Violence also prevents them from fully exercising their right to work, which results in the deterioration of appropriate living conditions and reduces their possibilities of accessing other fundamental rights such as healthcare and education. In many cases, people reported that the poverty in which they were living worsened after having to suddenly leave their sources of income and having little or no access to decent jobs or state programs to address and alleviate this situation. In the run-up to displacement, people also see a substantial reduction in their income due to extortion payments. Displaced women experience a greater differentiated impact because, for example, the small amount of paid work they can find is in precarious, highly vulnerable conditions that put their integrity and health at risk. The IACHR observed that the violence and insecurity in certain communities are pushing the population toward displacement and even forced confinement.
The IACHR noted with concern that the educational supply for displaced people tends to be very limited. Furthermore, the basic socialization and social reproduction functions that schools provide, including strengthening values and building citizenship, are constrained by the violence in El Salvador. As a consequence, educational institutions and the fundamental role these play in children’s everyday lives and in society as a whole are essentially broken, which is limiting Salvadorans’ possibilities for personal development. The IACHR learned that children were being recruited for criminal activities at school by gangs and that girls were being subjected to threats and gender-based violence. The physical control that gangs exercise over areas where schools are located is also a source of concern to the IACHR, as it directly limits children’s ability to access public education. In many cases, families have no available alternatives and cannot access school in other areas, they are also under threat from gangs that exercise control over these places.
Displaced people’s right to health is also seriously at risk, particularly the mental health of individuals and entire families due to the extreme violence and fear they endure. Children are in a particularly vulnerable situation. The IACHR emphasized the importance of the state intensifying and expanding the comprehensive programs for psychological and psychosocial care targeting this population and ensuring they have sufficient resources and trained staff. The IACHR was also informed that displaced people face serious obstacles to accessing the public health system as a result of their displacement. Being on the move means that they have less access to specialist healthcare facilities and medical treatment in general. The IACHR observed that for the state to effectively guarantee the right to health, it must not only direct efforts toward providing specific medical services for the displaced population but must focus particularly on displacement itself as the social factor that has the greatest effect on these people’s health.
The IACHR noted that states must adopt the policies, laws, and measures needed to ensure that internal displacement is addressed from a human rights perspective that responds effectively to humanitarian crises, in accordance with international standards on this matter. In this regard, the IACHR has specified that the forced displacement of people constitutes a serious violation of human rights and has recognized that states are obliged to not implement actions that force people to be displaced against their will, nor to assist third parties that perpetrate acts that cause this to happen.
The IACHR also noted that the Guiding Principles on Internal Displacement are also applicable as a further source of information for public policy-making. These principles indicate that states should adopt domestic measures and public policies to comply with four main obligations: (i) the obligation to prevent forced displacement; (ii) the obligation to protect and assist displaced people; (iii) the obligation to provide and facilitate the provision of humanitarian assistance; and (iv) the obligation to facilitate the safe return, resettlement, and reintegration of those who have been internally displaced.
The right to drinking water and environmental protection
During the visit, the IACHR was informed that El Salvador has the lowest rate of fresh water availability per capita in Central America. Water is a highly vulnerable resource in the country because it depends on water sources and basins located in other countries. This situation is often aggravated by the possibility of the water resources that supply the Salvadoran population being affected by transboundary pollution, coupled with the effects of climate change, because the country is within the so-called “dry corridor.” According to civil society organizations, about 600,000 people have no access to clean water, even when it rains.
The problems that were identified included the lack of water being produced at the wells administered by the National Aqueducts and Sewerage Department (ANDA), intermittent service provision and poor water quality, the deterioration and pollution of aquifers, the overexploitation of springs, substandard administration of distribution services, inequality in the collection of water supply rates, and privileging the growing commercial, agricultural, or industrial demand for water over human consumption. In many cases, changing land uses jeopardize the protection of water sources when particular economic interests and business activities are prioritized instead of using a human rights approach. The IACHR also received information about the actions of companies that allegedly do not have environmental permits or that exert pressure on various authorities to implement projects and favor their interests. It also heard allegations of noncompliance with regulations on wastewater discharge and the fact that these parameters were allegedly substandard with regard to the rights to water and a healthy environment. There were also reports of corruption and municipalities and private stakeholders putting pressure on water boards to control water use.
The state expressed its commitment to making the right to water a priority issue and also emphasized that water is a public resource that is not privatized in El Salvador. It stressed that water supply coverage stands at about 90% in urban areas, but that many rural areas still lack access to drinking water. The state also claimed that efforts have been made in recent years to guarantee that the right to water is made a reality and to reduce the inequality gap in access to it, as evidenced by the adoption of the National Drinking Water and Sanitation Plan in 2018 to make access universal within 20 years. Despite this, there are still many gaps and outstanding challenges to be tackled, including creating an inventory of water resources and treatment plants to make an integrated management approach possible.
The IACHR and the OSRESCER understand access to water as being fundamental to guaranteeing the right to life and the right to personal integrity and also see it as an inherent part of the right to health, while also having a close relationship with other social rights such as food or housing. In view of this perspective, states must take steps to guarantee access to the quality and quantity of water needed for human consumption without discrimination. Furthermore, they should refrain from engaging in practices or activities that prevent or restrict access to safe drinking water on equal footing, particularly with regard to individuals, groups, or communities that have historically been discriminated against. They should also prevent third parties from undermining access to water by taking such measures as preventing third parties from denying access to water or contaminating water sources, wells, and other water distribution systems. In addition, the IACHR and OSRESCER emphasized the need for there to be a rights-based approach to policies and regulatory frameworks related to water and the environment, particularly in contexts of transboundary water management and use, public and transnational companies’ activities, the implementation of investment treaties, and the execution and financing of development projects.
To comply with its obligations, the Salvadoran state must establish prevention policies and due diligence parameters to reduce risks and avoid violations of these rights, and to ensure that procedures and effective legal remedies are in place to enable reparation to be made to victims in relation to these rights, such as accountability mechanisms for state and nonstate stakeholders such as private companies.
FREEDOM OF EXPRESSION, HUMAN RIGHTS DEFENDERS, INDIGENOUS PEOPLES, AND COMMUNITIES OF AFRICAN DESCENT
On the matter of protecting freedom of expression and the right of access to public information, one of the crosscutting themes of the on-site visit, the IACHR acknowledged the progress El Salvador has made in protecting this since the Peace Accords, which has helped improve social control of the government.
During its visit, the IACHR received information regarding a series of concerns relating to guarantees that the exercise of freedom of expression. The concerns raised by various actors included the prevalence of stigmatizing discourse on social media against women human rights defenders, the media, and journalists. These online attacks involving gender stereotypes take particularly vicious forms against women human rights defenders and women journalists. According to what the IACHR was told, this situation allegedly became worse after state authorities targeted specific individuals. While it is legitimate for public officials to make criticisms, corrections, or objections regarding specific media reports and social organizations, they must take particular care not to generate situations of risk when they do so.
The IACHR also received information from various organizations and media outlets regarding cases in which access to public information on security, the environment, expenditure, and migration agreements was allegedly restricted on the grounds that it was classified. Furthermore, several media outlets reported restrictions on access to government press conferences and alleged that the government was distributing official advertising in a way that discriminated against media outlets that published criticism of it.
With regard to the rights of indigenous peoples and communities, which were also crosscutting issues for the IACHR visit, civil society organizations claimed that there was a need to carry out a population census that would provide data on these groups in the country to enable the design of public policies that would reflect their demands and needs. The IACHR noted that there were shortcomings in the information on the situation of people of African descent in El Salvador and called on the state and civil society to provide data to bring an end to the invisibility of the conditions this group is living in with regard to their human rights. Finally, the IACHR urged the state to ratify the Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance and the International Labor Organization’s convention 169, the Indigenous and Tribal Peoples Convention.
RECOMMENDATIONS
In light of the above preliminary observations and an exercise of its mandate to monitor the human rights situation in the Americas, the IACHR calls on the state of El Salvador to implement the following initial recommendations:
On the matters of public safety and people who are deprived of their freedom:
1. Make the Territorial Control Plan public, enable civil society to participate in it, and create outreach work around citizen security policies, including the Territorial Control Plan.
2. Urgently conduct diligent and impartial investigations in all cases where civilians are injured or killed by police or military forces, in order to establish the facts and determine the corresponding criminal responsibilities.
3. Establish a crime prevention policy that aims to use imprisonment as a last resort and entails applying alternative measures and granting minimum guarantees to all people who are deprived of their freedom.
4. Strengthen the capacities of the National Police Force so as to make headway on implementing the plan to gradually replace the Armed Forces in public security tasks, in accordance with inter-American human rights standards.
5. Take urgent, necessary measures to cease the use of police facilities as places in which prisoners are held for long periods of time.
6. Ensure that there are sufficient human and financial resources in penitentiaries to guarantee compliance with minimum standards on detention conditions for people who are deprived of their freedom, in accordance with inter-American standards.
7. Guarantee regular visits to prisoners at penitentiaries, to which end the state should review article 79-A of Decree 93, Reforms to the Penitentiary Act.
8. Pass the Organic Law on the Ombud’s Office and grant it a budget that will allow it to act consistently with the workload assigned to it.
9. Ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and establish a national mechanism for the prevention of torture.
On the matters of memory, truth, and justice:
1. Create spaces for listening to victims of the internal armed conflict, allowing them to express their needs with regard to different state services on the matters of truth, memory, justice, and reparation for serious human rights violations.
2. Make progress on investigating and prosecuting crimes that are serious human rights violations perpetrated during the internal armed conflict.
3. Develop a regulatory and institutional framework to guarantee comprehensive reparation for victims of the armed conflict.
4. Pass a National Reconciliation Law in accordance with inter-American standards on transitional justice, particularly with regard to holding perpetrators of serious human rights violations accountable for their actions and the participation of victims.
5. Organize all documentation on the security forces that acted during the internal armed conflict, systematize this, and make it publicly available to victims, judicial authorities, and society as a whole, ensuring that sensitive aspects are protected appropriately, in the latter case, and reconstructing any archive that were destroyed or documents that were not produced when they should legally have been.
6. Ratify the Inter-American Convention on the Forced Disappearance of Persons, the International Convention for the Protection of All Persons from Enforced Disappearance, and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.
7. Pass a national law for the search for victims of forced disappearance and a law that regulates the creation of a genetic information bank, taking the necessary measures to ensure this becomes a reality; develop legislative proposals to regulate exclamation processes; and a law to regulate the rights of the relatives of victims of disappearances.
8. Provide the CNB and CONABÚSQUEDA with the human, economic, logistic, scientific, and other resources needed for them to investigate and determine the whereabouts of the disappeared people in question.
On the matter of women’s rights
1. Take the necessary steps to strengthen the system for protecting women and girls who are victims of violence, including strengthening the system for monitoring protection measures, creating a network of shelters, and providing these with the resources they need to operate.
2. Provide periodic training for state officials, particularly those in the judiciary, on including a gender perspective and complying with inter-American standards on gender-based violence and discrimination, access to justice for women and girls, conducting investigations with a gender perspective, and doing due diligence in this area to eradicate impunity in cases of violence against women.
3. Adopt the measures needed to guarantee special assistance is provided for women who are deprived of their freedom and that this includes a gender perspective.
4. Strengthen mechanisms for women and girls to access justice, including by clarifying legal competences, strengthening resources and capacities, and better focusing the work of the Specialized Courts for a Life Free from Violence and Discrimination.
5. Review the cases of women who are serving severe prison sentences for aggravated murder in relation to obstetric emergencies or complications and prioritize requests to commute sentences that are currently being served.
6. Take the necessary steps to adapt El Salvador’s regulatory framework to comply with inter-American standards on the sexual and reproductive rights of women and girls.
7. Adopt specific measures in accordance with international standards that guarantee the rights to work and to fair and equitable working conditions for women employed in domestic service and maquilas, particularly those working in the textile industry from their own homes. It is recommended that the state ratify ILO conventions 177, 189, and 190 and implement ILO recommendations 184 and 201 on this matter.
On the matter of the rights of LGBTI people
1. Ratify the Inter-American Convention Against All Forms of Discrimination and Intolerance.
2. Adopt the measures needed to ensure the Gender Identity Law is passed and adopted and that it conforms to inter-American standards on this matter.
3. Adopt a plan to protect and guarantee the human rights of LGBTI people, including their access to justice, education, healthcare, and employment, and promote the participation of civil society organizations in the design and drafting of this plan.
4. Provide training for state officials, especially judicial personnel, on the rights of LGBTI persons.
5. Create a public statistical record on acts of violence and discrimination against LGBTI people in El Salvador and ensure the data it contains is appropriately disaggregated and regularly updated.
On the matter of the migrant and displaced population:
1. Pass a comprehensive regulatory framework on forced displacement that includes lasting solutions as part of the framework for implementing the MIRPS and guarantees the provision of support and advisory services on comprehensive coordination mechanisms for protecting human rights.
2. Refuse to implement measures, policies, or agreements that in any way impose the recognition of El Salvador as a safe third country.
3. Strengthen transnational coordination around the search for missing and deceased migrants, including strengthening mechanisms for collecting, storing, and analyzing forensic data and genetic information banks, and strengthening consular services for Salvadorans abroad, especially those in need of international protection.
4. Adopt comprehensive programs and specific measures to guarantee the rights of internally displaced populations in safety and with dignity, and to place guaranteeing these rights at the core of strategies to prevent forced migration, particularly the rights to housing, work, education, and health.
5. Adopt a public policy that aims to guarantee an effective, human rights-centered reintegration process for returnee migrants, especially those in vulnerable situations and/or with a particular need for protection, such as children, victims of human trafficking, people with disabilities, LGTBI people, and people with medical needs.
On the matter of economic, social, cultural, and environmental rights:
1. Promote the adoption of measures to implement inter-American standards on business and human rights.
2. Recognize the human right to drinking water and sanitation within the country’s legal system, promote the comprehensive, coordinated administration of water as a public good using a rights-based approach, and ensure that water-use permits and agreements with companies on this resource do not jeopardize the effective realization of the human right to water.
3. Promote the negotiation and adoption of a treaty in cooperation with neighboring countries to guarantee the necessary measures for preventing, regulating, and supervising the comprehensive, sustainable management of shared, transboundary water basins, placing the human right to water at the core of this.
4. Ratify the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters in Latin America and the Caribbean (Escazú Agreement),.
5. Include content on equality, nondiscrimination, and social harmony in the school curriculum to move toward building a culture based on tolerance and peaceful conflict resolution, inclusion, and respect for human rights.
On the matter of freedom of expression, human rights defenders, indigenous peoples, and communities and individuals of African descent:
1. Promote a safe working environment for journalists and respect for media independence, particularly editorial independence, in accordance with international standards on access to public information.
2. Avoid stigmatizing and discrediting journalists and human rights defenders by ensuring that statements made by public authorities are respectful of their work.
3. Generate statistical data on the indigenous population and people of African descent at the national level, including questions in the population census that contribute to identifying and registering these groups.
4. Ratify the Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance and the International Labor Organization’s convention 169, the Indigenous and Tribal Peoples Convention.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.
No. 335/19