Why El Salvador’s Gang Truce Is Illegal, and Why It Matters

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To facilitate a gang truce, the El Salvador government is violating its own laws. While this may seem like a necessary evil, ignoring legislation establishes a dangerous precedent in this process that has involved falsehood and evasion from the beginning.

El Faro investigative website points out that under the Gang Prohibition Law, passed in September 2010, being a member of either the Barrio 18 or Mara Salvatrucha (MS-13) is in itself a criminal offense, as are any dealings with these groups. However, the negotiations with gang leaders, subsequent moves to set up work schemes, and ceremonies to surrender weapons involve officials dealing directly with representatives of these gangs.

Meanwhile, active gang members on the outside have been given permission to enter prisons for press conferences with jailed leaders, and leave again afterwards, El Faro says. As part of the latest phase of the truce, the authorities are setting up “Peace Zones,” in which the gangs agree to stop all crimes. For El Faro, these activities represent another violation of the 2010 law:

Perhaps the clearest case is that of the mayor of Ilopango [one of the first Peace Zones], Salvador Ruano, of the Arena Party, who has admitted that, as part of his policy to prevent violence and carry out reintegration, he has contracted small groups of gang members to resurface the streets or set up flood defenses since May 2012, paying them with municipal funds. These actions seem to clash head-on with the restrictive Article 2 of the Prohibition Law, which states: “Any legal act that … these groups realize via their members or others will be illegal, and therefore will entail criminal, civil, and administrative consequences for their promoters, creators … collaborators and financiers.”

As El Faro points out, the mayor’s actions do not seem to be bringing any legal consequences for him, and at least 21 other mayors across the country have committed to hiring gang members to carry out public works.

InSight Crime Analysis

Murders in El Salvador have fallen by about half since March 2012, thanks to a deal between the government and the country’s two main gangs. These groups have agreed to cut violence in exchange for concessions, including the transfer to lower-security prisons of jailed leaders, and comprehensive reintegration programs for members.

Bending the rules and obscuring the facts seems to be part of an accepted way of brokering the truce. The authorities maintained extreme secrecy around the project, first denying the existence of any negotiations; then denying that the government had played a part in them; and finally admitting six months after the story broke that it had been a government plan from the start, and that gang leaders had been offered concessions in exchange for cutting violence.

Indeed, the Mauricio Funes administration has appeared more concerned with bringing about the electorally vital drop in the murder rate than with consulting Salvadorans or the Salvadoran Congress about the process. This may have been necessary in order to gain political capital to keep the truce going. Most Salvadorans are against it, but are now seeing the benefits.

However, the administration’s arbitrary approach to the law is troubling. Laws are circumvented or simply ignored. No new laws have been passed or considered in order to facilitate the movement of gang representatives. The negotiators of the truce have called for the anti-gang law to be repealed, but President Mauricio Funes rejected that option in December, though he did say he would consider amending the law. And there has been little public discussion of what an amnesty deal for gang members, if it is an option, would look like.

The lack of transparency in the process has generated distrust on all sides. If the executive branch can simply sidestep laws when it wants, there is no guarantee that it will not simply apply them again when it is politically convenient. This problem will only get worse as the truce continues.

There have been proposals, for instance, to adjust legislation to allow for gang members to leave the groups and rehabilitate themselves, but El Faro points out that the gangs have made it clear that they are not interested in disbanding, and are offering only to cease criminal activity. Pedro Cruz, a former head of the Special Crimes Unit of the Attorney General’s Office, told El Faro that there could be no repeal of the law until this took place: “Committing crime is still one of the natural activities of a gang. It is a structure that still commits crime. Fewer, but it commits them. This is a process, and when in their essence the gangs do not commit crimes, they will not have to be banned, but while they still do…”

Until the Funes administration begins to face up to these tough questions in conjunction with other elected officials — and hopefully civil society figures of all stripes — then this process will lack the necessary legitimacy to bring about a sustainable peace.

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