El Salvador State of Exception: Legal Basis and Key Rights Implications

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This blog breaks down the domestic and international legal framework governing the state of exception, its core impacts on individual rights, and ongoing debates over its legitimacy for casual readers, policy observers, and travelers alike.#

Table of Contents#

1. Background: What Is El Salvador's State of Exception?
2. Legal Basis of the State of Exception 2.1 Domestic Legal Framework 2.2 International Legal Obligations
3. Core Rights Impacts and Restrictions
4. Ongoing Legal and Human Rights Debates
5. Frequently Asked Questions (FAQs)
6. References

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1. Background: What Is El Salvador's State of Exception?#

A state of exception (or estado de excepción in Spanish) is a temporary legal status that allows a government to suspend standard civil liberties and expand security powers to address an imminent public threat.

El Salvador's policy was approved by the country's Legislative Assembly on March 27, 2022, days after a gang violence surge that officials attributed to rivalries between the MS-13 and Barrio 18 gangs. Initially set to last 30 days, the policy has been renewed monthly by the supermajority of Bukele's Nuevas Ideas party in the legislature and remained in force as of early 2026. In 2024, President Bukele won a second term despite a constitutional prohibition on immediate re-election, and in July 2025 the Legislative Assembly amended the Constitution to allow indefinite presidential re-election, further concentrating executive power.#

2. Legal Basis of the State of Exception#

2.1 Domestic Legal Framework#

The policy is rooted in Article 29 of El Salvador's 1983 Constitution, which permits the declaration of a state of exception in the event of war, foreign invasion, rebellion, public calamity, or serious disturbance of public order. Constitutional requirements for the policy include:

• Formal approval by a two-thirds majority of the Legislative Assembly
• Clear specification of its geographic scope, duration, and the specific rights being suspended
• Regular reauthorization for extensions beyond the initial 30-day period

Under the current order, the following rights are formally suspended per domestic law:

• The right to be informed of criminal charges within 72 hours of arrest
• Unrestricted access to legal counsel immediately after detention
• Freedom of assembly for unregistered groups
• Privacy of communications (including phone and internet monitoring without a warrant)
• Freedom of movement in high-security zones

The country's Supreme Court, which was restructured with Bukele allies in 2021, has repeatedly upheld the legality of extensions to the policy. The government also passed amendments to the penal code in 2022 that classify gang membership as a felony punishable by up to 20 years in prison, and in August 2025 amended the Organized Crime Law to allow pre-trial detention of up to five years for people accused of belonging to criminal organizations.

2.2 International Legal Obligations#

El Salvador is a signatory to two core international human rights treaties that govern states of exception:

1. International Covenant on Civil and Political Rights (ICCPR): Article 4 of the ICCPR allows governments to derogate (temporarily suspend) certain rights during a public emergency that threatens the life of the nation, but requires that restrictions are strictly proportional to the threat, non-discriminatory, and time-bound. Non-derogable rights that cannot be suspended under any circumstances include the right to life, prohibition of torture and forced disappearance, ban on retroactive criminal laws, and freedom of thought, conscience, and religion.
2. American Convention on Human Rights: As a member of the Organization of American States, El Salvador is subject to oversight from the Inter-American Commission on Human Rights (IACHR) and Inter-American Court of Human Rights (IACtHR), which enforce equivalent rules for states of emergency in the Americas.

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3. Core Rights Impacts and Restrictions#

More than 90,000 people have been arrested under the state of exception as of 2025, including more than 3,000 children, leading to the following documented rights impacts:

1. Due process gaps: An estimated 1 in 5 detainees have been released without charge after extended detention, with many held for months without access to legal representation or notification of formal charges. Mass trials involving hundreds of defendants simultaneously have been introduced, raising concerns about the right to individualized justice. Family visits to detained people are severely restricted, and most detainees remain incommunicado in pre-trial detention.
2. Arbitrary arrest risks: Human rights groups have documented cases of people arrested solely based on their socioeconomic status, residence in former gang-controlled neighborhoods, visible tattoos of any kind, uncorroborated tips, or pressure to meet arrest quotas, even without evidence of criminal activity.
3. Restrictions on civic space: In May 2025, the Legislative Assembly passed a Foreign Agents Law requiring organizations receiving foreign funding to register as "foreign agents" and imposing a 30% tax on all foreign donations. Journalists covering prison conditions or alleged abuse of detainees have reported harassment, surveillance, and threats of arrest. At least 140 human rights defenders and journalists fled the country between May and September 2025. Human rights defenders advocating for detainees are often labeled as "gang apologists" by government officials.
4. Prison condition risks: El Salvador's prison population has risen to an estimated 118,000 detainees — more than double the system's designed capacity — with 1.9% of the country's population in detention, among the highest rates in the world. Human rights groups have documented at least 458 deaths in custody since the state of exception began, many linked to abuse, neglect, or lack of access to medical care.

It is important to note that the policy has also been tied to a dramatic decline in El Salvador's homicide rate, which fell from 53.1 per 100,000 residents in 2020 to 1.9 per 100,000 in 2024 and a record-low 1.3 per 100,000 in 2025 (82 murders total), according to official figures. However, the government uses a narrower definition of homicide than international standards, excluding killings by police, deaths in prisons, and bodies found in unmarked graves, making independent verification difficult.#

4. Ongoing Legal and Human Rights Debates#

The state of exception remains deeply divisive among global observers, with competing arguments over its legality and legitimacy:

Proponent Arguments#

• The policy complies with El Salvador's domestic legal framework, and has been repeatedly approved by elected representatives in the Legislative Assembly
• It has ended decades of gang violence that made El Salvador one of the world's most dangerous countries, with the homicide rate peaking at 105 per 100,000 in 2015
• It has broad popular support: independent polling consistently shows support ranging from 70% to 85% among domestic residents
• Innocent people who are wrongfully detained are entitled to financial compensation under government guidelines issued in 2023

Critic Arguments#

• The lack of judicial independence (given the 2021 restructuring of the Supreme Court and dismissal of independent judges) eliminates critical checks and balances on executive overreach
• The scale of arbitrary arrests and deaths in custody violates El Salvador's obligations under the ICCPR and American Convention on Human Rights
• The IACtHR issued binding provisional measures in 2023 ordering El Salvador to improve prison conditions and provide due process for detainees, which the government has rejected as interference in domestic affairs
• The state of exception has been used to target journalists, human rights defenders, and political opponents, not just gang members
• The suspension of due process risks eroding long-term trust in the country's legal system, even after the state of exception ends

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5. Frequently Asked Questions (FAQs)#

Q1: How long will El Salvador's state of exception remain in effect?#

There is no official end date. President Bukele has stated the policy will remain in place until gang activity is fully eradicated, and extensions are approved approximately every 30 days by the Legislative Assembly.

Q2: Can the government suspend all human rights during the state of exception?#

No. Both domestic and international law prohibit the suspension of non-derogable rights including the right to life, freedom from torture, and protection from retroactive punishment.

Q3: Is it safe to travel to El Salvador during the state of exception?#

The U.S. State Department and other foreign governments note that violent crime rates have dropped sharply, but advise travelers to be aware of the security environment and potential for security sweeps that may result in temporary movement restrictions in some areas.

Q4: What percentage of Salvadorans support the state of exception?#

Multiple independent polls conducted between 2022 and 2025 consistently show support ranging from 70% to 85% among domestic residents, though the policy faces strong opposition from international human rights organizations.#

References#

1. Constitution of the Republic of El Salvador (1983, as amended), Legislative Assembly of El Salvador
2. United Nations Human Rights Committee, General Comment No. 29: States of Emergency (2001)
3. Inter-American Commission on Human Rights, State of Emergency and Human Rights in El Salvador (2024)
4. Human Rights Watch, World Report 2026: El Salvador (2026)
5. U.S. Department of State, 2024 Country Reports on Human Rights Practices: El Salvador (2025)
6. InSight Crime, "2025 Homicide Round-Up" (2026)
7. Washington Office on Latin America (WOLA), Mass Incarceration and Democratic Deterioration: Three Years of the State of Exception in El Salvador (2025)
8. Inter-American Court of Human Rights, Provisional Measures Against El Salvador (Case of Persons Detained in the Context of the State of Exception, 2023)