Marero O Terrorista? Examining the Supreme Court of El Salvador's Designation of Gang Members as Terrorists

• Jurisdiction: United States,Federal
• Citation: Vol. 47 No. 3
• Publication year: 2019

MARERO O TERRORISTA? EXAMINING THE SUPREME COURT OF EL SALVADOR'S DESIGNATION OF GANG MEMBERS AS TERRORISTS

Karla Martinez^*

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TABLE OF CONTENTS

I. INTRODUCTION.................................................................................684

II. BACKGROUND..................................................................................685

A. Children of War................................................................685
B. History of MS-13..............................................................686
C. Ley Anti Mara...................................................................687
D. Government Truce............................................................687
E. The Special Law Against Terrorism.................................687
F. Factors Weighing for and Against Classification as Terrorists .......................................................................... 688
G. The Supreme Court Resolution.........................................689

III. ANALYSIS—HAS THIS REALLY WORKED?......................................690

A. International Treaties.......................................................693
B. El Salvador Constitution .................................................. 694
C. Use of LECAT Leading to More Violence........................695
D. Case of Honduras: Anti-Terrorism to the Extreme..........696

IV. CONCLUSION....................................................................................697

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I. Introduction

MS-13, or Mara Salvatrucha, is one of, if not the most, notorious gangs. In 2012, the U.S. Department of the Treasury designated it as a Transnational Criminal Organization (TCO).¹ It was the first U.S. street gang to be labeled as such.² What started out as a street gang in Los Angeles has turned into a multinational organization with strongholds in nearly all of the lower forty-eight states, Mexico, and the Northern Triangle. The Salvadoran government has attempted to fight this gang in various ways, finally declaring the gangs as terrorists.

On August 23, 2015, the Constitutional Court of the Supreme Court of El Salvador designated the MS-13 gang as terrorists.³ A year and a half later, the Honduran Congress passed a Legislative package in which gang members, as well as protestors, can qualify as terrorists.⁴

Some argue extraordinarily tough measures are necessary to combat gangs, even if El Salvador has to violate international human rights law to achieve its goal of social order.⁵ While gang violence must be curtailed, it cannot be procured at the expense of human rights. This Note will discuss the consequences of the Supreme Court of El Salvador's designation of the MS-13 as terrorists. It will first lay out a history of the MS-13 and the various efforts to combat this organization. It will then argue that using anti-terrorism laws and other extreme measures to combat street gangs has resulted in human rights abuses in violation of international law. Lastly, this Note will call upon the international community to act in the face of mounting evidence of human rights abuses and propose other alternatives for combating gangs.

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II. Background

A. Children of War

Though it is hard to pinpoint an exact cause of the rise of MS-13, there is no doubt that El Salvador's bloody civil war was a major factor in turning young men into cold-hearted killers. The Salvadoran Civil War was fought between the right-wing military-led government and a coalition of leftist guerillas known as the Faribundo Marti National Liberation Front (FMLN).⁶ The origin of the war can be traced back to years of civil unrest due to extreme inequality. For decades, El Salvador's wealth was concentrated amongst a small elite class, while the rest of the population lived in abject poverty.⁷ During the late 1970s, there were increasing reports of human rights violations committed by the right-wing government troops and death squads, causing the FMLN to respond with intensified guerilla tactics. The assassination of the outspoken government critic and human rights activist, Archbishop Oscar Romero, in 1980 plunged the country into full-blown war.⁸ In the ensuing twelve years, more than 75,000 Salvadorans perished and 8,000 disappeared.⁹

The war finally came to an end in 1991 with the signing of the Chapultepec Peace Agreement.¹⁰ The agreement included reforms of the armed forces, established a civilian police force, and recognized the FMLN as a political party.¹¹ Throughout the course of the war, the Salvadoran people were subjected to atrocities by both sides, but the most heinous of human rights violations came from the government itself.¹² After the release of the United Nations Truth Commission report laying out the atrocities committed by the

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government, the Salvadoran Legislative Assembly quickly moved to approve the Law of General Amnesty for the Consolidation of Peace, which granted absolute immunity for those who participated in criminal acts that occurred during the war.¹³ For nearly a quarter century, Salvadoran civilians who suffered at the hands of the government never received justice as a result of the amnesty.¹⁴

Amongst the most heinous crimes, for which nobody has been brought to justice, was the massacre at El Mozote. For three days, a U.S.-trained coun-terinsurgency force killed more than 900 men, women, and children.¹⁵ It took the Salvadoran government 35 years to strike down the Law of General Amnesty that absolved those who carried out these extra-judicial killings.¹⁶ This long history of uninvestigated human rights violations continues to this day.

B. History of MS-13

Though MS-13 has become synonymous with illegal immigration, the gang originated in Los Angeles during the early 1990s.¹⁷ MS-13 was formed by children of immigrants who fled to the United States to escape the Salvadoran Civil War.¹⁸ These refugees mostly flocked to rough neighborhoods in cities where gang culture was already prevalent. After California's passage of new anti-gang laws in the mid-1990s, thousands of convicted felons were deported to El Salvador, with disastrous results.¹⁹ The Salvadoran government, still reeling from a twelve-year-long civil war, was unequipped to deal with these hardened criminals.²⁰ The gang problem in El Salvador quickly escalated and spread to other Central American countries.²¹

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In an effort to combat the gang, the Salvadoran government enacted a series of "firm hand" legislation at the turn of the century.²²

C. Ley Anti Mara

El Salvador enacted its first anti-gang law, the Ley Anti Mara, on October 10, 2013.²³ The law contained a laundry list of crimes intended to curtail violent gang activity.²⁴ The law was challenged on the grounds that it violated numerous provisions of the Salvadoran constitution and the U.N. Convention on the Rights of the Child.²⁵ The challenge ultimately succeeded and the law was struck down.²⁶ However, before the Ley Anti Mara was struck down, the Salvadoran legislature enacted a new version of Ley Anti Mara that no longer contained the provisions that were declared unconstitutional.²⁷ These tough measures proved popular among the Salvadoran populace, but did not solve the gang problem.

D. Government Truce

Finding that their hard-fist policies were not curtailing the violence, the now legitimized FMLN government decided to try something new. In early 2012, the FMLN and the gangs reached a secret truce.²⁸ In exchange for the transfer of top gang leaders to more lax prisons, the MS-13 and Barrio 18 issued orders to their foot soldiers to stop killing.²⁹ Though the murder rate decreased drastically, some believe it was artificially depressed and, in reality, gangs were making their victims disappear.³⁰ The truce eventually broke down and the government ramped up their efforts in the war against gangs.

E. The Special Law Against Terrorism

Interestingly, El Salvador's latest weapon to combat gangs has been on the books for over a decade. El Salvador enacted the Special Law Against Acts

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of Terrorism (LECAT in Spanish) on October 17, 2006,³¹ after joining the war on terror.³² It was one of the many countries that modeled its own anti-terrorism law after the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act.³³ Though the definition of terrorism in the wording of the anti-terrorism law is vague, it was not intended to apply to gang members.³⁴ Former Salvadoran Attorney General, Luis Antonio Martinez Gonzalez, was among the first to propose the use of LECAT against gang members following the murder of an officer of the Anti-Extortion Unit in 2014.³⁵ When asked to justify using this anti-terrorism law against gang members, he responded, "[a]ssassi-nating police officers, prosecutors, soldiers, judges, throwing grenades, assassinating hardworking and honorable people, it is not simply crime, it is terrorism. The gangs are causing terror in the population. That is why I have designated them as terrorists and that is how they should be treated."³⁶ These acts are heinous, to be sure, but do they qualify as terrorism by international standards?

F. Factors Weighing for and Against Classification as Terrorists

Street gangs and terrorist organizations have similar organizational structures in that they are both non-state actors that depend on recruiting disaffected youths. Though there are several common characteristics between gangs like MS-13 and terrorist groups, including "a propensity for indiscriminate violence, intimidation, coercion, transcending borders, and targeting na-tion-states,"³⁷ they have divergent motivations. Namely, gangs are motivated by profit whereas terrorist organizations are motivated by politics.³⁸ Members of terrorist organizations share an ideological belief, but for street gangs like the MS-13, a belief system is not generally a defining feature.³⁹

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According to the United States, these...