Inked or Not: Maras and Their Participation in El Salvador’s Recent Armed Conflict

In: Journal of International Humanitarian Legal Studies

El Salvador remains one of the most violent countries in the world undergoing a murder epidemic. The blatant rise in social violence is driven mainly by gangs of the Northern Triangle countries (Guatemala, Honduras and El Salvador), which frequently clash with governmental security forces. The situation legally blurred the lines between the law enforcement and armed conflict regimes. An insufficient amount of time has been dedicated to identifying the applicable international legal framework to El Salvador’s extreme gang violence and its repression. Consequently, the country’s categorization of violence has not been addressed. For this purpose, a contextual background narration of the politics of violence in the country followed by a detailed analysis of the constituent elements of El Salvador’s urban violence were examined. The assessment of facts and their juxtaposition to international jurisprudential criteria and doctrinal contributions on conflict classification suggest the situation reached international humanitarian law’s armed conflict brink.

Abstract

El Salvador remains one of the most violent countries in the world undergoing a murder epidemic. The blatant rise in social violence is driven mainly by gangs of the Northern Triangle countries (Guatemala, Honduras and El Salvador), which frequently clash with governmental security forces. The situation legally blurred the lines between the law enforcement and armed conflict regimes. An insufficient amount of time has been dedicated to identifying the applicable international legal framework to El Salvador’s extreme gang violence and its repression. Consequently, the country’s categorization of violence has not been addressed. For this purpose, a contextual background narration of the politics of violence in the country followed by a detailed analysis of the constituent elements of El Salvador’s urban violence were examined. The assessment of facts and their juxtaposition to international jurisprudential criteria and doctrinal contributions on conflict classification suggest the situation reached international humanitarian law’s armed conflict brink.

1 Introduction

Security threats in the twenty-first century should not be limited to the radical jihadist phenomenon, but should be extended to other actors such as gang organizations acting as non-State proxies within the contemporary asymmetric, unconventional, and political global arena. A particularly complex task for international law is dealing with conflicts that are essentially ‘criminal insurgencies’ conducted by gangs. These situations defy traditional barriers dividing armed conflict from ordinary law enforcement in so-called ‘other situations of violence’.1 Analyzing situations of protracted gang violence is a tricky exercise, as the legal situation may not always be well defined, and to determine the applicable normative framework an objective assessment of facts is required. In the most extreme manifestations, the magnitude and intensity of urban violence can resemble warfare and cannot be considered as only ‘crime that has gone out of control’.2 A correlation between countries undergoing extreme gang violence with Mary Kaldor’s notion of ‘new wars’ could explain the emergence of new asymmetrical warfare prototypes that have materialized in the last two decades.3 These ‘new wars’ are characterized by heavy-handed governmental counter-insurgency strategies and evolving modes of warfare. Modalities of urban violence – such as gang violence – challenge existing legal frameworks and remain ‘gray area’4 operational theaters, where ‘a clearer schematic framework is needed to regulate the use of force’.5 For this reason, more legal debate on detailed and cautious interpretations of jurisprudence and doctrine is a good way to avoid falling into a normative conundrum when dealing with these situations.

There is an academic debate and a level of uncertainty regarding how to legally handle serious gang violence situations. The possibility of applying international humanitarian law (‘ihl’) to gang activity has not been discarded.6 However, most debates focus on whether this legal regime provides an ‘appropriate’ or ‘desired’ response to the phenomenon.7 Many argue that activities carried out by gangs are merely criminal and should be dealt with through the law enforcement paradigm, where international human rights law (‘ihrl’) and national criminal law applies.8 Some academics claim that the drafters of the Geneva Conventions of 1949 (‘GCs’) and their Additional Protocols of 1977 (‘APs’) did not intend to regulate these types of conflicts.9 Scholars, such as Jennifer Hazen, recall an armed conflict lens might be applicable only to institutionalized gangs; however, few have reached this level.10 Others seem to have shifted from a twofold examination to a three-fold assessment, not only analyzing the ihl criteria of intensity of violence and the organization of the parties, but also requiring that armed non-State actors (‘ansas’) have a political motivation.11

Categorizing violent situations as armed conflicts is complex and is not as simple as the Tadić formula presents it.12 Contrary to the theories narrated above, there are scholars who consider that urban violence, like the situations with the favelas in Rio de Janeiro13 and drug cartels in Mexico,14 could be classified as non-international armed conflicts (‘niacs’), thus making ihl applicable. First, it is rational to believe that the law enforcement paradigm applies to these situations. Yet, how do scholars justify State actions against ansas going beyond the ordre public paradigm when violence surpasses the capacity of law enforcement methods and regulation? Second, gang violence may not have been envisioned by the drafters of the GCs. However, case law’s guiding indicators to determine the existence of such conflicts may be evidenced in situations of gang violence.15 Third, as recalled in case law and doctrine, even if a situation amounts to a niac where ihl is applicable, ihrl does not cease to apply.16 Actually, ‘in many situations the different legal orders operate in a complementary rather than an exclusive way’.17 Lastly, ansas’ motivations – political or not – do not determine the application of ihl, leading to this argument’s lack of foundation in international law.18

The situation in El Salvador is legally a clear example of blurred lines between armed violence and armed conflict, generating legal uncertainty about the applicable normative framework.19 In the last four years, El Salvador gained a reputation for being the murder capital of the world.20 In fact, El Salvador has been second only to Syria in the overall rates of annual violent deaths of any country in the world and is more deadly than the majority of the armed conflicts currently taking place across the globe.21 The overt increase in violence is attributed primarily to a particular form of organized crime: the street gangs of the Northern Triangle countries. Presumably, ‘El Salvador has more gang members per capita than any other country in Central America’,22 and in light of its size and population, gangs’ armed power is unparalleled to any other place in the world.23

The ‘militarization of policing and the state’s resort to force shifting from a focus on the individual (as requested under ihrl) to the collective (the gangs)’24 have raised many concerns. As acknowledged by a UN Rapporteur in 2018, even though ‘no one has suggested that the threshold of a niac has been crossed’, facts may lead us to conclude differently.25 Thus, the present case study is worthwhile of in-depth analysis and comes in a timely manner. Although due consideration has been given to arguments opposed to framing gang violence as armed conflicts, this contribution differs from them in seeking to argue the contrary by collating facts of El Salvador’s situation with jurisprudence and doctrine on conflict qualification.

In order to categorize the situation, the article will be divided into two sections. The first will briefly provide an overview of the situation of violence in El Salvador. Second, the two prominent legal criteria that signal the existence of an armed conflict, namely the intensity of violence and the organization of the parties to the conflict, will be analyzed on the basis of a set of jurisprudential indicators. These indicators will then be contrasted to facts from El Salvador’s state of gang violence. Lastly, concluding remarks and findings of this case study will be presented.

2 Contextual Background to El Salvador’s Situation of Violence

To understand the ‘politics of violence’26 rooted in El Salvador, the origin and institutionalization of gangs in the country, as well as some of the State-adopted measures to combat gangs will be discussed. As this section will engage in studying maras (organized and violent youth gangs with Hispanic-American origin),27 their response towards repressive State measures, and their strengthening as ansas, some general information on gangs and the Salvadoran maras must be examined.

Youth gangs in El Salvador have evolved overtime and have reached an institutionalized level.28 Their emergence in El Salvador dates back to the 1960s, following the increase in urbanization and industrialization that the country experienced in the 1950s. However, public notice of these groups was evidenced in the late 1980s during the civil war, when reports on their collaboration with the rebel forces arose.29 These gangs were turf-based groups or cliques that controlled well-defined neighborhoods and streets, engaged in petty crime, and spent most of their time loitering and consuming soft drugs.30 After the civil war, these small territorial gangs adhered or were absorbed by two large groups of historical rival cliques, MS-13 and B-18; and they redefined the meaning of gang warfare.31 Inevitably, gangs became a more organized, complex and violent phenomenon.32 In the mid-1990s, warfare between B-18 and MS-13 shaped gang combat and ‘violence escalated due to the availability of firearms and the absence of any significant program on gang prevention and control’.33 As Jose Miguel Cruz recalls, ‘at this stage, although police officials were responsible for a significant share of violence against maras, youth gangs seemed to be more driven by seeking retaliation against rival groups than by confronting the police’.34

Maras’ subsequent development was fueled by the government’s decision to introduce the Mano Dura (Iron Fist) policies from 2003 to 2009. These policies were repressive measures that gave way to police and military broad area sweeps and crackdowns on gang members and their detention without proper investigations.35 These policies aggravated violence in the country and as Sonja Wolf recalls, they were not only ‘contrary to the official discourse of success’, but ‘spectacularly ineffective’.36 Maras retaliated by killing more civilians, started using higher caliber weapons and intensified complex extortion rackets to provide for imprisoned gang members and their families.37 Then, they ‘prepared for an all-out war against the state and its agents’.38

With the Mano Dura policies, prison overcrowding was unavoidable, and violent confrontations between MS-13 and B-18 within penitentiaries became intense and frequent.39 The government was forced to separate gangs in different prisons, unconsciously endorsing gang leaders’ reorganization into hierarchical structures, their establishment of new connections in the country, and the strengthening of organized crime throughout El Salvador.40 In addition, ‘police abuses and the participation of police officers in extralegal cleansing operations increased under these Mano Dura policies’.41 Moreover, military forces were deployed around the country to work in collaboration with the police when these heavy-handed policies were introduced; a measure that enjoyed wide support from a population drained by chronic insecurity and condemned by others for what appeared to be the militarization of public security.42

Following Andrew Clapham’s broad concept of non-State actors,43 gangs are unconventional non-State armed groups.44 However, there is no universally accepted definition of armed groups.45 The United Nations Office for the Coordination of Humanitarian Affairs has defined non-State armed groups as those with ‘the potential to employ arms in the use of force to achieve political, ideological or economic objectives; are not within the formal military structures of states, state-alliances or intergovernmental organizations; and are not under the control of the state(s) in which they operate’.46 Gangs are ansas known as youth groups that carry out criminal and violent activities, operate within urban and rural areas, big or small cities and where their members may be marginalized from broader society and have no single ethnicity.47 Gangs can be loosely organized and moderately or highly cohesive. Their longevity can range from a few months to decades. Most importantly, a key characteristic that distinguishes gangs from other ansas is that they do not seek to overthrow the State.48 In addition, gangs such as the Salvadoran maras have either protective or oppressive relationships with local communities through fixed conventions and rules that include initiation rituals, a ranking system, rites of passage, and rules of conduct that make the gang a primary source of identity for members.49

Street gangs in El Salvador are a variant of the classic territorially-organized crime group, which are comprised almost entirely of people between 12–30 years of age. There is a tendency of referring to Central American gangs within a single category; however, a distinction should be rendered between maras and pandillas (gangs). The latter are localized and home-grown groups, while the former are groups with transnational origin ‘associated with much more intense and spectacular forms of violence’.50 Maras either have connections in the US or emigrate from El Salvador and operate drug, arms, and human trafficking enterprises, revealing the transnational nature of their criminal networks.51

Currently, there are various gangs in El Salvador;52 however, the largest, most lethal, well-organized and exercising the greatest territorial influence are MS-13 and B-18.53 B-18 divided into two rival factions in 2005 (the ‘revolucionarios’ and ‘suerños’).54 The Salvadoran Supreme Court of Justice has classified these groups as ‘terrorist organizations’,55 and scholars such as Max G Manwaring refer to them as ‘insurgents’56 that are a national security issue. Despite maras asserting they have no interest in toppling the government and lack a political agenda; their progressive, conscious, and deliberate capacity of political influence cannot be overlooked.57

Allegations of an implicit recognition of ‘war’ against gangs during former President Sanchez Cerén’s speech in 2016 should be acknowledged.58 The former head of State opted for a holistic approach to gang violence by implementing preventive ‘Plan El Salvador Seguro’ in 201559 and enforcing repressive ‘extraordinary measures’ in 2016. The former focused mainly on providing youth employment, education, increasing State presence in the 50 most violent municipalities, expansion of security on public transportation, cutting communication between imprisoned gang members and those who are free, etc.60 These measures enabled the creation of the ‘Special Reaction Forces’61 to combat gangs as well as the establishment of a special regime of internment and isolation of gang leaders, among others.62 Some extraordinary measures related to penitentiaries were declared permanent in August 2018. These policies seem to have intensified gangs’ targeting of police and military agents.63

3 Two Guiding Legal Criteria for the Qualification of a niac

One of the most complicated and highly disputed challenges for legal advisors in the humanitarian field is determining if an armed conflict exists, whether international or a niac.64 Mindful of the classification, the legal context pertaining to the Salvadoran situation in question is the internal armed conflict paradigm given that the inter-State factor is absent. Thus, Common Article 3 (‘CA 3’) of the GCs and Article 1 of APii are the relevant dispositions to analyze the threshold of niacs in ihl. Each of these provisions set out ‘criteria that may be interpreted in light of practice’.65 The situation is rather complex due to the fact that ‘CA 3 does not provide a detailed definition of its scope of application, nor does it contain a list of criteria for identifying the situations in which it is meant to apply’.66 In fact, no one can determine the exact meaning the term was envisioned to convey; therefore, its elucidation calls for inevitable ‘supplementary means of interpretation’.67

Conceptual uncertainty of the term ‘armed conflict’ remained until 1995, when the International Criminal Tribunal for the former Yugoslavia (‘icty’) provided for a definition,68 which can widely be recognized as authoritative.69 In order to identify niacs, the icty established two fundamental cumulative conditions focused on: (1) intensity of the violence, and (2) the level of organization of the parties to the conflict.70 These requirements are useful in order to distinguish niacs from banditry, riots, isolated, acts of terrorism, or similar situations and must be evaluated on a case-by-case appraisal.71 The latter forms of violence ‘do not reach the threshold of applicability of ihl; therefore, they fall within the scope of other normative frameworks’72 such as ihrl within law enforcement.

As recalled by Arne Willy Dahl and Magnus Sandbu, ‘treaty law as well as customary law have provided limited help in distinguishing internal armed conflict from situations of internal disturbances and tensions’,73 and developing legal practice has been critical in setting criteria to categorize armed conflicts. The icty has established a set of indicators, leaning towards the CA 3 level,74 that may reveal that a situation’s degree of intensity has reached the armed conflict threshold and that a certain degree of organization has been acquired by the ansas. It is safe to say that none of the factors are essential to determine the intensity or organization of the parties; thus, not all indicators have to be met concurrently, nor are they exhaustive.75 These indicators, identified in circumstances which have been deemed high-intensity armed conflicts, are not entirely suitable indicators for low-intensity armed conflicts.76

Due consideration must be given to the approach the Geneva Academy’s War Report (‘War Report’) adopts, by requiring a third criteria entailing warring parties engagement in ‘actual combat’.77 This interpretation places the icty’s intensity indicator illustrating ‘the number, duration and intensity of individual confrontations’78 as a key component. These hostilities may include ‘acts of violence against the adversary, whether in offence or defense’.79 On that account, unilateral targeting of individuals on the basis of their membership in an organized armed group, exercising a continuous combatant function (‘ccf’), may occur in the context of targeted operations in armed conflicts.80 In this case, targeted operations would suggest that prior evaluations have ensured that the targeted individual ‘has gone beyond spontaneous, sporadic or unorganized direct participation in hostilities and has become a member of an organized armed group belonging to a party to the conflict who is exercising a ccf’.81

The War Report also sustains that armed groups cannot be parties to a niac if they do not partake in ‘direct’ hostilities with armed or security forces of the State. In other words, ‘indirect’ hostilities, such as solely planting explosive devices to target State forces, are not sufficient to comply with the armed conflict brink, and should therefore be categorized as terrorist activities to which ihl does not apply.82 Contrary to this viewpoint, Nils Melzer suggests that ‘attacks’ do not solely include open combat, ‘but also the placing of devices, sabotage and probably even the transmission of orders directing ongoing combat’.83 In this sense, the War Report rightly requires that ‘actual combat’ between conflicting parties take place; however, the better view disagrees in requiring that combat only include ‘direct’ hostilities to classify a situation as an armed conflict. If applying the icty’s reasoning, which recognizes that ‘terrorists acts may be constitutive of protracted violence’, there is no reason why ‘indirect’ hostilities should be excluded from becoming part of a protracted campaign of violence, which can reach the armed conflict brink.84

3.1 The Intensity of Violence in El Salvador

It is of paramount importance to analyze the emergence of confrontations between gangs and governmental security forces in El Salvador, which unquestionably have reached a dangerous level of intensity and captured the international community’s interest. Clashes between MS-13 and B-18 for territorial control and to ‘settle up pending issues’ are recurrent, even within prison facilities.85 In spite of that, due to fights shifting from a primarily gang-on-gang to a gang-versus-State focus, rising armed attacks between governmental security forces and maras will be assessed. According to InSight Crime, the ‘battle that seems to have everything you would expect in a war except an ideology’ between the maras and State security forces began resembling a low-intensity conflict in 2016.86 Nonetheless, acknowledging the frequency of armed confrontations recorded a year before, focus will be given to those reported since 2015 – one of the deadliest years in El Salvador’s history – through 2018.87 This timeframe has been established to identify when the factual state of armed conflict may have began.

In 2015, 432 gunfights between State agents and gangs peeked to an annual increase of 171%.88 From January 2015 to August 2016, 1,074 police catalogued clashes between gangs and governmental security forces were reported.89 In 2016, Salvadoran gangs and State forces clashed with more frequency than those between security forces and criminal groups in Mexico from 2013 to 2015, or clashes in Colombia during 2013.90 In 2017, 536 confrontations were reported by the Policía Nacional Civil de El Salvador (Salvadoran Police Forces) (‘pnc’).91 On an occasion, five armed attacks took place in less than five hours between B-18 and the police in one municipality.92 In 2018, the former Minister of Defense stated there were up to 2–3 armed clashes per day between State forces and gangs,93 while the pnc reported 341 armed confrontations.94 These shootouts95 usually take place in various Salvadoran municipalities where regularly either one of the parties is caught off guard, off duty, or patrolling, and causalities are routinely gang members.96 During this timespan, there is evidence of intermittent shootings ranging from minutes to hours and attacks on police posts with grenades and high-caliber weapons.97 Notably, gangs have been placing car bombs near governmental buildings or detonating them around security forces.98 In 2018, these facts led the former Minister of Defense to claim there is a low intensity armed conflict in El Salvador.99

Locally–affiliated Salvadoran gangs are gradually becoming better-armed with pistols, semi-automatic revolvers, shotguns, machine guns, assault rifles (M-16s, AK-47s and Galils),100 explosives such as fragmentation grenades,101 and military hardware. A lackadaisical application of existing laws in El Salvador, limited arms controls in the US, corruption of the armed forces, and a weak control of the numerous weapon storages left by the civil war have made it relatively easy for gangs to access high-powered weapons.102 Since 2014–2015, gangs in El Salvador have significantly increased their arsenals. In 2016, 1,127 weapons were confiscated by governmental security forces from gangs.103 In 2017, the pnc in collaboration with the Fuerza Armada de El Salvador (Salvadoran Armed Forces) (‘faes’), confiscated up to 4,461 firearms, of which at least 675 were rifles for private use of the military under gangs’ power.104 In 2018, 3,838 firearms were seized.105 Additionally, MS-13 cliques reportedly monopolize illegal arms trade in downtown San Salvador, indicating its ability to acquire armament.106

Throughout 2012–2014, the country reached homicide rates not even close to those reported in 2015.107 This last year, the intentional homicide rate was 103 killings per 100,000 people (approximately 6,650 people) with about 97 governmental security agents murdered or killed in armed confrontation with gangs.108 The average rate of approximately 18 violent deaths per day topped the average rate of 16 violent deaths per day during the 1980s civil war.109 Official statistics suggest that more than half of the violent homicides registered in 2015 were committed by gang members.110 By 2016, the violent homicide rate was around 81.7 per 100,000 people (approximately 5,280 people),111 of which 84 governmental security forces were killed by gangs,112 and in the first seven months, 1,394 gang members were killed.113 In 2017, the murder rate was 60 violent homicides per 100,000 people (approximately 3,952 people),114 out of which 411 were gang members killed in armed confrontations.115 Gangs were allegedly responsible for killing 66 State agents in 2017.116 In 2018, El Salvador’s homicide rate ranked in second place after Venezuela within the Latin America and Caribbean region with 3,340 homicides reported.117 This last year, 208 gang members died in confrontations with State security forces.118

It is not a trivial exercise to analyze the number of civilians that have been forced to flee due to violence in the country. Salvadorans’ asylum petitions have been increasing progressively from 2009 to 2014.119 In 2015, the US alone received 22,675 Salvadorans’ asylum petitions, representing a 501% increase in comparison to refugee petitions recorded in 2010.120 According to the Global Report on Internal Displacement, 170,000 Salvadorans fled conflict and violence in 2015.121 In 2016, the number of displaced Salvadorans increased to 220,000, placing El Salvador in second place after Syria within the list of countries with most new displacements by conflict and violence relative to population size.122 Survey results showed that maras accounted for 84% of forced displacements in 2016.123 In 2017, 296,000 new displacements associated to conflict were reported,124 placing El Salvador as the worst affected country by displacement in the Americas.125 In 2018, figures vary with national sources claiming 235,708 Salvadorans were displaced due to threats or acts of violence, and the Internal Displacement Monitoring Centre reporting 246,000 new displacements linked to conflict and violence.126

Particular attention is given to the deployment of armed forces to crisis areas due to intense gang violence. The government deployed faes agents to unofficially collaborate with the pnc from the implementation of the Mano Dura policies, and the faes and pnc have officially collaborated since 2009.127 The executive government branch has been decreeing annual extensions for military collaboration in the public security paradigm. Its most recent amendment extended this military collaboration until 31 December 2019.128 The pnc’s Anti-gang Sub-Direction and Anti-extortion Subdivision were replaced in 2016 by a larger Intelligence Sub-Direction concentrating all investigative activity under a single command.129 Additionally, in 2016 as part of the ‘extraordinary measures’, the ‘Special Reaction Forces’ were created comprising three battalions, each with 200 military agents and 400 specialized police officers. The same year, the number of soldiers deployed to collaborate with the police increased by 32% from 2015, leaving 10,432 soldiers out in the streets.130 In 2017, former President Sanchez Cerén reinforced military presence in El Salvador by including armed patrol forces in militarized vehicles.131 As for rural areas, the Rural Protection Division replaced the Rural Police in 2018. It is composed of 5,000 agents with expanded mandates that only armed forces have. Police reports confirmed that a large number of armed attacks between security forces and gangs have taken place in rural areas, and gang members seem to be moving to the countryside to escape and receive military training.132

Identifying the use of military force against insurgents may indicate that hostilities have reached a minimum level of intensity.133 Using military means to resolve law enforcement issues may show that ‘a criminal matter has metamorphosed into a national security issue’.134 In this case, the government ‘admits that it is not able to protect the right to life under peacetime standards, and that its actions must be judged according to the Law of Armed Conflict’.135 In cases where the intensity of violence is severe and military forces apply means and methods incompatible with the right to life, the situation is possibly an armed conflict.136 Regardless of the use of military agents, ‘even operations conducted by law enforcement agents are not excluded from classification as niacs’.137

Case law gives relevance to the use of military forces to determine the intensity of violence of a situation. The Inter-American Commission on Human Rights (‘IACommHR’) recognized in the Abella case that the direct involvement of governmental armed forces was an indicator to determine the intensity of violence.138 Moreover, the icty has established that an indicative factor of a niac ‘lies on the way state organs, such as the police and military, use force against armed groups’.139 In other words, looking at how certain human rights are interpreted, such as the right to life and the right to be free from arbitrary detention, are useful to identify armed conflicts.140 Undoubtedly, within the law enforcement paradigm, States have the right to use lethal force to preserve law and order as long as it is ‘absolutely necessary’ and proportionate to certain objectives.141 In El Salvador, State forces were accused on numerous occasions of carrying out a de facto extrajudicial execution policy.142 As to arbitrary detention, recent reports on State agents running clandestine jails illegally holding suspected gang members tend to confirm this practice.143

Perhaps one of the most interesting events, related to gangs’ agreements, is a ‘truce’ between rivals MS-13 and B-18. The truce, a type of ceasefire, was signed in 2012 in a much contended collaboration with the Salvadoran government. The agreement required maras to stop the killings between gangs and of civilians, and to suspend armed encounters with public security forces. In return they requested better and less repressive prison conditions and job opportunities for gang members. Throughout the truce’s implementation, maras declared all private and public schools as ‘peace zones’ and were determined to suspend forced recruitment, especially of minors.144 Additionally, gangs committed to declaring certain municipalities ‘peace zones’ and handing over weapons in exchange for limiting security forces from doing massive raids and night incursions in these zones.145 The Organization of American States incorporated itself into the process to guarantee the pacification procedure and monitor violence.146 Meanwhile, the government held informal meetings with MS-13 and B-18 to guarantee gang support for local pacification processes.147 It is uncertain whether the truce continued after July 2013, when MS-13 and B-18 clashed due to the latter’s intention to expand territorial control within a ‘peace zone’.148 These actions not only empowered maras, but have confirmed their transformation into ‘third generation gangs’ known as influential political actors that can combat the State and hold territory.149 There have been new attempts to force negotiations with the government to sign truces between gangs and the Salvadoran government; however, the government has allegedly rejected all petitions.150

The issues in El Salvador have attracted the international community’s interest and concern. In 2017, the UN High Commissioner for Human Rights, the UN Special Rapporteur on the human rights of internally displaced persons and the IACommHR visited El Salvador and remain alarmed by reports of extrajudicial killings, the return of anti-gang death squads, and the increased military presence in public security tasks.151 In 2018, the Special Rapporteur on extrajudicial executions confirmed gangs’ modus operandi shifting from random criminal acts to a deliberate strategy aimed at targeting security personnel and their families.152

This subsection proves that the intensity of violence is high, with armed clashes between the two main gangs and State forces peaking from 2015 to 2017 and relatively dipping in 2018. While these armed clashes are intermittent violent encounters ranging from minutes to hours, CA 3 ‘includes situations of internal conflict where hostilities are not necessarily carried out on a continuous basis’.153 Moreover, the icty posits that ‘daily incidents of violence, shootings and provocations’ connected to a protracted campaign engaging belligerent parties may determine the intensity of the conflict.154 Gangs are well-armed with high-caliber weapons and have demonstrated their ability to acquire weaponry by monopolizing arms-sales markets in certain zones of the capital. Based on the sheer number of weapons confiscated by the police, these gangs are sufficiently equipped to challenge governmental security forces.

The State’s response has certainly not lagged far behind, resorting to the armed forces to contain gang violence and insecurity. Figures illustrating violent homicides in El Salvador remain worrisome, with the highest peak in 2015. Not only do these figures illustrate fighting forces’ deaths after confrontations, but also intentional homicides perpetrated by gangs exercising their territorial control. Also, internal displacement remains a source of concern, the highest peak of displacement occurring in 2017. Furthermore, the government officially recognized the problem in 2018, acknowledging that violence against the population is the third most common reason for displacement.155 Though the process of pacification linked to the MS-13 and B-18 truce does not pertain to the 2015–2018 timeframe, this event illustrated the extent of power and leverage they hold over the government. This was widely evidenced when – in attempts to force negotiations with the government – B-18 was responsible for sabotaging national transportation in 2015. These facts lead to the presumption that the intensity criterion has been met.

3.2 MS-13 and B-18’s Organization

The biggest challenge lies on identifying gangs’ organization. At first glance, many perceive them as loosely organized criminal groups. Indeed, at the outset of violence, maras failed to meet the requisite degree of organization. However, their power and territorial control calls for an exhaustive assessment of maras’ current organizational traits. The organization criterion seeks to verify whether ‘parties to the conflict are sufficiently organized to confront each other with military means’,156 whilst ‘distinguishing genuine armed conflicts from mere acts of banditry or unorganized and short-lived insurrections’.157

Using the Tadić formula, even if widely accepted, remains a concept that offers little insight as to what is the precise degree of organization required for a niac.158 The situation is more complicated due to the varying structures of armed groups, which question whether having a ‘one size fits all’ definition of organization is convenient.159 Given the flexibility in the use of certain indicators to determine organization, case law has provided for benchmarks through interpretations of the requisite degree of organization. The International Criminal Tribunal for Rwanda suggests that hostilities between armed forces should be ‘organized to a greater or lesser extent’,160 while the icty reckoned ‘some degree of organization by the parties would suffice’.161 The IACommHR considers that parties to the conflict must be ‘relatively organized’.162 Along the same line, some scholars posit that the required degree of organization ‘should not be exaggerated’.163 Three things remain clear: (1) armed groups require a certain level of organization to give rise to a niac,164 (2) they are not compelled to be as organized as governmental military forces or reach the level of a conventional military unit,165 and (3) hostilities must be of a collective character and not only be carried out by single groups.166

A means to determine if an armed group is sufficiently organized is to assess whether they can engage in intense armed violence or if the armed group has the ability to apply basic humanitarian obligations,167 essentially those contained in CA 3. Those focusing on the former claim the ‘sheer ability to mount sustained terrorist attacks is evidence of a high level of planning and a coordinated command structure’.168 Others posit that a situation of intense hostilities without significant organized opposition force, where a heavy-handed government military strategy is being applied, is precisely the type of conflict that dictates ihl regulation because ihrl is insufficient to protect those most in need.169 Yet, even if the intensity of violence were high, the compliance with minimum standards could only be followed if an armed group has an internal disciplinary system. If ihl’s ultimate objective is to prevent abusive conduct of warring parties and protect victims of armed conflict, ‘organization of the parties to the conflict for the purposes of the enforcement of the law is equally as important as, indeed even more important than, organization for the purposes of the intensity of the violence’.170

There are two different structures which armed groups may adopt: (1) a pyramidal structure with a defined chain of command; or (2) horizontally structured groups, characterized by the decentralization of power in various units, where a clear demarcation of roles and responsibilities is missing.171 Both groups can meet ihl’s requirement of organization, even decentralized ones since these groups will find it difficult to function without some resemblance of a structure.172 In addition, the International Committee of the Red Cross added a third category of structural organization found in community-embedded armed groups that are not considered armed groups under ihl due to their level of decentralization.173 Maras would appear to be a hybrid of the first and second structures, since there appears to be a pyramidal structure at the top that flows into a more decentralized edifice at the bottom. According to Ekaterina Stepanova, this structural hybridism constitutes a trait of armed groups that have emerged and/or grown stronger in recent decades to make up for their weaknesses in asymmetrical armed confrontations.174

The top management level of MS-13 and B-18’s pyramidal structure is the Ranfla General, composed of their national ringleaders.175 Allegedly, all national gang leaders are in prisons (‘imprisoned Ranfla’); however, there are reports of some ringleaders operating in the streets.176 The Ranfla manages the entire gang structure and serves as an administrative and strategic decision-making body.177 At the following organizational level, operating in a regional setting, are ‘programs’ for MS-13 and ‘tribes’ for B-18. Each ‘program’ or ‘tribe’ is led by a gang member known as the corredor who reports to the Ranfla General.178 ‘Programs’ and ‘tribes’ are comprised of clicas (cliques) for MS-13 and canchas (courts) for B-18, who control small territories-neighborhoods.179 Each zone clique, the lowest operational level, is headed by a cabecilla or palabrero.180 When more than one clique operates in a zone, they are called a jenga, and they operate in coordination.181 According to police sources, by 2015 MS-13 had 96 programs composed of 360 cliques and B-18 had 35 tribes comprising 200 canchas.182 Most MS-13 cliques have a primera palabra and segunda palabra in reference to first- and second-in-command.183 Tactical operational level decisions are made between the ‘program’ or ‘tribe’ corredores and each cliques’ palabrero, highlighting the groups’ decentralized power within this organizational level.184 Notably, they have quasi-military discipline; once the Ranfla General gives orders in ‘meetings’ there is no way to change or disobey them. Physical corrective punishments maintain discipline among group members. When offenders relapse or do not follow orders, they may be executed. Their hierarchical structure appears immovable, except for death or imprisonment.185

Cliques’ sizes vary depending on the gang’s organization, the neighborhood, and other factors.186 Generally, each clique has a minimum of 15 members, and gang members have specific functions previously defined by national leaders.187 Allegedly, the average number of members in a MS-13 clique is 85, while for B-18 sureños is 66, and B-18 revolucionarios is 31.188 There are reports of cliques composed of more than 500 members.189 For MS-13, maras permanentes are members with the longest experience in the gangs, sicarios or gatilleros are members in charge of killings, and the novatos and simpatizantes are rookies with less power.190 According to the United Nations Office on Drugs and Crime, MS-13 has a commission formed by the nine leaders of the most powerful clicas, which can impose a death sentence on a mara member found guilty of insubordination.191 As to gang members pertaining to B-18’s cliques, llaveros are close partners of the leaders of the clicas, soldiers are the subordinates of the llaveros and the chequeos are rookies in lookout positions.192 In response to the more aggressive military assaults, MS-13 and B-18 solidified a formal united council, originally created in 2012 to negotiate the truce, which discusses broad anti-government strategies and potential ruptures of the existing peace agreement among former rivals.193 This council was allegedly composed of six MS-13 members and three members of each B-18 faction. Nevertheless, in 2016 the majority of its original members had been either killed or imprisoned and those who remained continue assigned tasks.194

Gang members may climb the organizational ladder based on age and on the number of murders committed.195 To terminate gang membership, there are two ways of understanding separation from the gang. First, a gang member can ‘calm down’, no longer participating in gang life and activities. Still, they are considered members who bear the identity of the gang.196 The second method of separation is understood as ‘deserting’ the gang (‘salirse de la pandilla’). Deserters may believe they are no longer tied to the gang. However, gang leaders may consider them as ‘calmed down’. Requests to leave the gang represent a dilemma for the gang, not being impossible to leave, but making it difficult and risky.197

Organization presupposes the existence of responsible command. When organization and responsible command are linked, leaders can train their groups’ members, provide for clear orders and instructions, inform themselves of subordinates’ actions and counter them.198 ‘Responsible command does not require a hierarchical pyramidal structure with one individual at the top’, rather it only requires that there be some sort of relationship of effective control by which one or some individuals have the power to control the acts of others.199 Of utmost importance is that the armed group has individuals ‘capable of ensuring generally the execution of … orders, including as far as possible, respect for the laws and customs of war, regardless of whether they are also in a superior subordinate relationship’.200 The above description of the gangs’ structure can lead to the identification of a responsible command, in this case the Ranfla General. Yet, this is not the sole organizational level with the ability of executing orders; so do corredores as leaders of the regional ‘programs’ or ‘tribes,’ and palabreros or cabecillas as cliques’ leaders.

MS-13 and B-18 appear to have their own set of disciplinary rules.201 MS-13’s disciplinary code is said to be stricter in regard to behavior, but coincides with B-18 in the consumption and prohibition of certain drugs.202 In May 2015, a set of twenty-four rules were found where both gangs built a common front against the government.203 On the existence of headquarters, doctrine notes that headquarters prove centralized command structure. Armed groups may decide to not have headquarters or have many regional ones owing to the risk of being attacked.204 Although MS-13 and B-18 lack a clear and established headquarter location in El Salvador, prisons can be seen as gangs’ headquarters where leaders are relatively safe and from where they can coordinate extortion rackets and operations within and outside prison walls through cellphones.205 After the government decided to separate both gangs in different prison facilities, penitentiaries located in Ciudad Barrios, Chalatenango, Izalco, Apanteos, among others, are hubs run by MS-13 gang members; and prisons located in Quezaltepeque, San Francisco Gotera and Iloponago, among others, are B-18 hubs.206

Perhaps one of the most recognized indicators that signal the organization of maras is the scale of territorial control they possess.207 The International Criminal Court (‘icc’) suggests that territorial control is not a strict requirement to qualify an armed group as a party to a niac.208 Nonetheless, ‘a degree of territorial control on the part of insurgents would certainly strengthen the case for determining that a CA 3 conflict is taking place’.209 In political science, territorial control may be categorized as either tangible or intangible. Tangible control takes place when an armed group physically occupies and controls a space, but intangible control may be witnessed when armed groups control territory by instilling fear in the population.210 Additionally, ‘a group’s ability to control territory is normally a sign of military strength, even if the adversary, owing to its military superiority, retains the possibility to enter territory considered to be under an armed group’s control’.211 In unconventional asymmetric armed conflicts, territorial control is likely to be contentious and difficult to determine because weaker parties may not adopt conventional forms of territorial control in order to promote their survivability.212 Moreover, considering the nature and dynamics of asymmetric conflict, weaker adversaries are usually strained into ‘organic organizational adaptation’ counterstrategies ‘whereby they adopt horizontal, clandestine and hybrid systems and networks of command and control’.213

Maras exert intangible territorial control because they do not have the capacity of impeding government security forces from physically entering territories. Yet, the fear they instill within the population, including State authorities, has indeed given them territorial control over various zones where even the pnc dreads to enter.214 For this reason, a large portion of the Salvadoran population has had to coexist within two parallel states, crossing invisible lines that have become so real to the extent that it may cost someone his or her life.215

As of 2016, reports claim gangs in El Salvador have a menacing presence in 247 out of 262 municipalities.216 Extortion remains their main source of income followed by drug dealing.217 For both these illicit activities, ‘territorial control is a previous and essential requisite to conduct efficient and effective operations’.218 Territorial control is exercised through an extensive network of gang members, collaborators and gang family members.219 They demand a fee called ‘rent’ to guarantee their protection of people and mainly charge this ‘tax’ to public transportation workers, merchants, private schools, and individuals living in gang controlled zones.220 In 2017, certain bus routes suspended their services due to gangs’ rising extortion rates, gang harassment, and drivers’ fear of being killed.221 In some areas, gangs decree curfews, showing their ability to impose entry and exit hours. This excludes the possibility of governmental security forces having the ability to take over control of some communities, except for certain occasions and for short periods of time.222 In 2018, the Attorney-General confirmed that homicide rates in municipalities covered by ‘Plan El Salvador Seguro’ spiked due to the State’s lack of territorial recovery over them.223 The non-gang population living in gang-controlled areas are taught to follow one rule: ‘See, hear and keep quiet if you want to enjoy life’ (ver, oír y callar si de la vida quieres gozar).

Further confirmation of maras’ territorial control is illustrated by the government’s creation of an Intervention and Territorial Recovery Force (Fuerzas de Intervención y Recuperación Territorial) in 2016, composed of military and police agents.224 These forces were replaced by the ‘Tactical Operational Section’ in 2017.225 With the help of people living in gang controlled areas and the pnc, journalists went so far as to create a map of San Salvador to delineate zones controlled by MS-13 and B-18 (sureños and revolucionarios).226 MS-13 gang members are not allowed within territories controlled by other maras and vice versa. Living in one gang’s territory but working in another gang’s terrain turns out to be quite risky as the price for crossing over can result in death.227

High voluntary and forced recruitment rates signal the presence and power of gangs. Joining gangs is often the only option for minors in gang-controlled communities that suffer from the State’s lack of presence, where employment opportunities are scarce, and violence is the norm.228 Young Salvadorans continue to join gangs as a result of family issues, lack of opportunities, and deprivation of social respect and affection within their communities.229 Gangs profit from such scarcities to recruit and maintain an instrumental ‘army’ to control more territory and wage war with enemies.230 Voluntary affiliation is more prevalent among young individuals who fill ‘lookout’ positions, whereas reasons related to family problems and forced recruitment is common among older individuals.231 Young boys who refuse to join gangs are threatened, if not murdered, and girls who refuse to affiliate with gangs are often raped.232

In schools, student rivalry has transformed into gang violence and the phenomenon has been increasingly progressing. In 2012, the Ministry of Education (‘mined’) signed cooperation agreements with the faes to prevent violence and protect schools in line with its 2011 ‘Safe Schools Plan,’ which initially covered 166 schools.233 A study reported that by 2015, 80% of public schools in El Salvador had gang presence.234 In 2016, up to 14,000 children had dropped out of school due to gang threats,235 and as a result 2,000 military agents were deployed to protect 1,063 public schools.236 Reportedly, from 2014 to 2016, school desertion due to violence had tripled.237 By 2017, allegedly 15% of cliques’ recruitment took place in schools, 50% took place in territories they controlled, and the rest was done at other places, even through social media.238 According to the mined, in the first seven months of 2017, 12,000 children abandoned schools mainly due to violence and insecurity and in 2018, approximately 11,500 students deserted schools.239

Statistics show that in 2005, there were 11,000 active gang members in El Salvador. By 2015, this number increased to approximately 60,000, while the country only had a combined police force and army of 50,000 officials.240 In 2016, the Ministry of Defense estimated that 10% of the country’s inhabitants worked directly for the two main armed groups.241 By 2017, reports claimed that 64,587 mara members were in the country (out of which 21,436 remained incarcerated).242 Furthermore, if one family member forms part of a gang it is difficult to dissociate the whole family from the gang. In cases where gang members are declared insubordinate or fail to follow orders, their families may face persecution or death.243

On military training, back in 2014 State authorities confirmed the identification of areas around El Salvador where MS-13 gang members were obtaining martial training.244 Allegedly, that same year, proof acquired in judicial proceedings reported the existence of 5 training centers where B-18 members were being trained on weapons and targeting. Word on ex-military agents and former guerrilla fighters being paid to train gang members should not go unnoticed.245 Information on their training resurfaced in 2016.246 In 2015, reports on maras using planned and coordinated guerrilla tactics to target governmental security forces, similar to, but less sophisticated than, some strategies used by the Frente Farabundo Martí para la Liberación Nacional (‘fmln’) in the past civil war emerged. During the civil war, curfews were declared by the fmln, public transportation was frequently boycotted, and attacks on police stations were common.247 These trends have been witnessed in the past 4 years, only now the ansas practicing them are maras.248

Findings from this section suggest MS-13 and B-18 have acquired a certain level of organization signaled by their hybrid pyramidal and decentralized structure. They do not reach the level of conventional military units, and hostilities were carried out in a collective manner by clicas and canchas throughout the 2015–2018 timespan. For the purpose of determining responsible command, the Ranfla General, corredores of ‘programs’ or ‘tribes’ and cliques’ palabreros or cabecillas are those that may be exercising command. Maras have disciplinary rules and have reportedly joined forces to create a common front ‘regulation’. As to the existence of headquarters, the clearest place from where leaderships coordinate their operations, whether to pursue their battle against governmental security forces or for criminal purposes, are prisons. Penitentiaries are locations from where both MS-13 and B-18 keep themselves relatively safe, maintain their leadership, and control the structural organization and activities of the gang.

While territorial control is not a strict requirement, research proves that MS-13 and B-18 exercise widespread intangible control over Salvadoran municipalities and their inhabitants. Maras have expanded their presence from some neighborhoods in the 1990s, to virtually the whole country by 2015.249 Other indicators signaling the organization of maras are the recruitment of members to gangs, both forced and voluntary, especially targeting children and adolescents. Between 2005 and 2015, the number of gang members seems to have quintupled and continued to rise. Gang members’ military training may suggest their preparation for activity which goes beyond simple or sophisticated criminality but preparing for combat against State agents. Also, maras have been accused of applying planned and coordinated guerrilla tactics against governmental security forces since 2015. Furthermore, MS-13 and B-18 have shown their ability to settle agreements since 2012 and continued to press the government for negotiations throughout 2015–2018. It may be suggested that the territorial control maras possess could reach the APii armed conflict threshold. However, they don’t yet qualify into a APii conflict because there is no proof signaling that their current territorial control enables them to carry out sustained and concerted military operations as Article 1 of APii requires. Nonetheless, sufficient evidence may suggest that maras have already reached the threshold of organization required to become a party to a CA 3 niac.

4 Concluding Remarks

Classifying a situation of violence is of paramount importance for international law, as the assessment of facts may reveal that armed attacks between belligerent parties and targeted killings become lawful only if the situation has reached the brink of an armed conflict. This will consequently establish what type of force may be used.250 Albeit that ‘effective determination of the appropriate legal paradigm is a theoretical issue that interests international lawyers and military experts’, it may also have a significant effect on the humanitarian implications of an operation due to its direct effect on civilian populations.251 Nevertheless, as pointed out by Sylvain Vité, this task may prove to be challenging seeing as armed conflicts are not as clearly defined as the two well-known legal categories, and ‘some of them may not exactly tally with any of the concepts envisioned in ihl’.252 This raises the issue of whether the existing categories may need to be revised and adjusted. As recalled by Marko Milanovic, armed conflict classifications may ‘at best be redundant and at worst dangerous’.253 Yet for the purpose of legally addressing gang violence operational theaters – such as the situation in El Salvador – qualifications are essential and also remain risky due to the consequences of applying ihl.254

El Salvador’s extreme gang violence is not a newly emerging issue. However, in recent years maras have grown stronger to the point of challenging and menacing the State’s founding pillars. It is evident that MS-13 and B-18 have become institutionalized gangs that have indeed started targeting State forces in response to the government’s heavy-handed anti-gang measures. The critical appraisal would suggest that various indicators signaling the intensity of violence between conflicting parties seem to be met. This includes the rise in and gravity of armed confrontations, the sophisticated arsenal used by maras, the ease with which they acquire armament, the number of violent homicides, the number of displaced people due to violence and conflict, the militarization of public security, the increased military deployment to the streets, the gangs’ ability to conclude agreements, and the international community’s unrest regarding the current situation. In addition, several case law indicators illustrating the level of organization have been reached by the main gangs. This comprises maras’ relatively organized structure signaling command responsibility, their rules of conduct, the existence of their ‘headquarters’ located in prisons, their unconventional territorial control, their recruitment of new members, their military training and their use of guerrilla tactics to attack government security forces.

Mindful of the assessment of facts and their juxtaposition to case law and doctrine, there is a possibility that armed violence between governmental security forces and El Salvador’s main gangs have, legally speaking, reached the CA 3 armed conflict threshold. This article suggests that El Salvador’s situation may have abandoned the law enforcement paradigm to enter the conduct of hostilities paradigm in 2015, and continued in 2018. Thus, statements suggesting a low intensity armed conflict in the country may legally have a foundation. If trends in the intensity of violence continue or escalate in El Salvador, rampant social confrontations further hampering peace and security, along with worrisome regional projections to neighboring countries, may be unavoidable. This volatile setting could soon represent an uncontrolled and inappropriately monitored armed conflict.

The State’s response towards gang violence has proven to be insufficient, and even if homicide rates have reduced in comparison to 2015, the State’s excessive use of force is irrefutable and the situation of violence remained. Even though adopted policies portray a rounded approach of both preventive and repressive measures against gang violence, they were perceived as ineffective. Due to imbalanced investment in different axes of ‘Plan El Salvador Seguro’, with a clear tendency towards criminal prosecution,255 and the inconsistency of programs and their follow up within the most violent municipalities of the country, there are no signs of gangs weakening, much less being eradicated.256 These measures seem to have excluded some municipalities severely affected by gang violence, leaving the non-gang population exposed to maras and showing the widespread character of this phenomenon in El Salvador. The scale of gang violence and its repression shows that the situation at hand is not only a development issue, but has also become a humanitarian concern. Therefore, the State should not rule out the possibility of rethinking security policies and existing legislation to safeguard the rights of the population affected by the conflict.

If the acknowledgment of an armed conflict is recognized, members of fighting parties may be held accountable not only for crimes against humanity, which may be perpetrated in both peace and wartime settings, but for war crimes as well. Notwithstanding national prosecutions for crimes committed by parties to the conflict, but considering the icc’s complementary role, individuals may be tried internationally for crimes committed after 3 March 2016, the date on which El Salvador ratified the Rome Statute. Moreover, on the assumption that ihrl and ihl apply coterminously to the situation, humanitarian international organizations and non-governmental organizations should also consider having a presence or further expanding it within the country and start disseminating both legal regimes to prevent abusive conduct of fighting parties and protect civilians. On the legal aspect, the GCs arguably seem to fall short in regulating these operational theaters and the UN Convention against Transnational Organized Crime gives no insight into dealing with this phenomenon internally. Thus, the international community has a big role to play and should consider adjusting existing international normative frameworks to regulate conflict gray zones, such as gang violence.

In conclusion, gang violence may reach the required levels of intensity and organization of niacs. Whether applying ihl to the current situation is ‘adequate’ or ‘appropriate’ to deal with El Salvador’s gang violence is a separate issue that qualifies for further analysis. The politics of violence rooted in El Salvador are indeed a complex environment to work with and have emerged due to a plurality of causes, many of them being, though not exclusively, a product of the civil war. For this reason, analyzing the ‘adequacy’ of applying the conduct of hostilities regime must also contemplate considerations of anthropological, economic, historical, political science and sociological order; as well as implications for international relations, acknowledging the gang phenomenon’s transnational nature.

Disclaimer

This article has been written in the author’s personal capacity and the views expressed in this piece do not represent those of Geneva Call.

1

Kenneth Watkin, Fighting at the Legal Boundaries: Controlling the Use of Force in Contemporary Conflict (oup 2016) 7–8. See also, Robert Muggah, ‘A humanitarian response to Central America’s fragile cities’ (2017) 69 Humanitarian Practice Network 17, 17. There is no agreed legal definition of ‘other situations of violence’. The International Committee of the Red Cross (‘icrc’) considers them as contexts where collective violence falls ‘below the threshold of armed conflict’: icrc, ‘The icrc’s role in situations of violence below the threshold of armed conflict: Policy document’ (icrc 2014) 281.

2

Kees Koonings, ‘Urban Violence: State of Play, Operational and Legal Challenges – Definitions and Trends of Urban Violence’ in European Union Institute for Security Studies (‘euiss’) and icrc, ‘Urban Violence and Humanitarian Challenges Joint Report’ (euiss and icrc 2012) 14.

3

Mary Kaldor, New and Old Wars: Organised Violence in a Global Era (Polity Press 2012) 9.

4

Damien Helly, ‘Urban Violence: State of Play, Operational and Legal Challenges – Definitions and Trends of Urban Violence’ in euiss and icrc, ‘Urban Violence and Humanitarian Challenges Joint Report’ (euiss and icrc 2012) 77.

5

Michael John-Hopkins, The Rule of Law in Crisis and Conflict Grey Zones (Routledge 2017) 21.

6

Toni Pfanner, ‘Editorial’ (2010) 92(878) irrc 309, 311. See also, Céline Bauloz, ‘Le Droit International Humanitaire à l’Épreuve des Groupes Armés Non-Étatiques’ in Vincent Chetail (ed), Permanence et Mutation du Droit des Conflits Armés (Bruylant 2013) 248.

7

Carlos Ivan Fuentes, ‘The Applicability of International Humanitarian Law to Situations of Urban Violence: Are Cities Turning into War Zones?’ (On the Edges of Conflict conference: Phase i, Vancouver, February 2008) 3; Pfanner (n 6) 311; Jennifer M Hazen, ‘Understanding gangs as armed groups’ (2010) 92(878) irrc 369, 370; Stéphane Kolanowski, ‘Urban Violence: State of Play, Operational and Legal Challenges – Definitions and Trends of Urban Violence’ in euiss and icrc, ‘Urban Violence and Humanitarian Challenges Joint Report’ (euiss and icrc 2012) 24; Bauloz (n 6) 245.

8

Pfanner (n 6) 311; Pierre Hauck and Sven Peterke, ‘Organized crime and gang violence in national and international law’ (2010) 92(878) irrc 407, 417, 434–36.

9

Marion Harroff-Tavel, ‘Violence and humanitarian action in urban areas: new challenges, new approaches’ (2010) 92(878) irrc 329, 348.

10

Hazen (n 7) 386.

11

Claude Bruderlein, ‘The role of non-state actors in building human security: the case of armed groups in intra-state wars’ (Centre for Humanitarian Dialogue 2000) 8; Hauck and Peterke (n 8) 431–433.

12

Prosecutor v Tadić (Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1 (2 October 1995) [70]. See text to n 70 for a description of the Tadić formula.

13

Raimond Duijsens, ‘Humanitarian challenges of urbanization’ (2010) 92(878) irrc 351, 365; Andrea Florence de Mello Aguiar, ‘Urban Violence in Rio de Janeiro: The Challenges for the Relationship between Human Rights Law and International Humanitarian Law’ (MA Intl Law thesis, Graduate Institute 2013) 68–69. See also, Sylvain Vité, ‘La lutte contre la criminalité organisée: Peut-on parler de conflit armé au sens où l’entend le droit international humanitaire’ (2010) 40 Collegium 69.

14

Annyssa Bellal (ed), The War Report: Armed Conflicts in 2017 (Geneva Academy of International Humanitarian Law and Human Rights 2018) 83.

15

Dapo Akande, ‘Classification of Armed Conflicts: Relevant Legal Concepts’ in Elizabeth Wilmshurst (ed), International Law and the Classification of Conflicts (oup 2012) 52. Akande does not exclude the possibility that criminal gangs meet the legal conditions to be engaged in armed conflict.

16

Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 226 [25]; Marco Sassòli, ‘The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts’ in Orna Ben-Naftali (ed), International Humanitarian Law and International Human Rights Law (oup 2011) 50–51.

17

Andrew Clapham, Brierly’s Law of Nations (7th edn, oup 2014) 501. See also, Serrano-Cruz Sisters v El Salvador (Judgment on Preliminary Objections) Inter-American Court of Human Rights Series C No 118 (23 November 2004) [116].

18

Prosecutor v Limaj (Judgment) ICTY-03-66-T (30 November 2005) [170]; Pfanner (n 6) 311; icrc, ‘31st International Conference of the Red Cross and Red Crescent: International Humanitarian Law and the challenges of contemporary armed conflict’ (icrc 2011) 6, 11; Kolanowski (n 7) 25.

19

The author of the section on El Salvador did not carry out the legal qualification of the conflict and limited herself to a factual narration of the country’s gang violence situation: Bellal (n 14) 64.

20

United Nations Development Programme (‘undp’), ‘Regional Human Development Report 2013–14: Citizen Security with a Human Face: Evidence and Proposals for Latin America’ (undp 2013) 1.

21

David James Cantor, ‘As deadly as armed conflict? Gang violence and forced displacement in the Northern Triangle of Central America’ (2016) 34 Agenda Internacional 77, 82–83. See also, Claire Mc Evoy and Gergely Hideg, ‘Global Violent Deaths 2017’ (Small Arms Survey 2017) 11, 25, 30, 50, 53; David James Cantor and Malte Plewa, ‘Forced displacement and violent crime: a humanitarian crisis in Central America?’ (2017) 69 Humanitarian Practice Network 12, 12.

22

Sarah Kinosian and others, ‘La Violencia en El Salvador: No Hay una Solución Sencilla’ (Center for International Policy and Latin America Working Group Education Fund 2016) 9.

23

International Crisis Group (‘icg’), ‘El Salvador’s politics of perpetual violence’ (icg, 19 December 2017) <www.crisisgroup.org/latinamerica-caribbean/central-america/el-salvador/64-el-salvadors-politics-perpetual-violence>.

24

Agnes Callamard, ‘El Salvador End of Mission Statement of the UN Special Rapporteur for Extrajudicial, Summary or Arbitrary Executions’ (Office of the United Nations High Commissioner for Human Rights, 5 February 2018) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22634&LangID=E>.

25

Ibid. Though not legally based, the International Institute for Strategic Studies (‘iiss’) qualifies El Salvador’s situation as an armed conflict: iiss, ‘Armed Conflict Survey 2019’ (iiss 2019) 48–91.

26

Jose Miguel Cruz, ‘Maras and the Politics of Violence in El Salvador’ in Jennifer M Hazen and Dennis Rodgers (eds), Global Gangs: Street Violence Across the World (University of Minnesota Press 2014) 124.

27

‘mara’ (Real Academia Española) .

28

Cruz (n 26) 129.

29

Ibid 125.

30

Ibid.

31

Ibid 130.

32

Marlon Hernández-Anzora, ‘Las Maras y la Nueva Guerra Salvadoreña’ (2016) 263 Nueva Sociedad 96, 97.

33

Cruz (n 26) 131.

34

Ibid.

35

Carolina Sampó and Mariano Bartolomé, ‘Reflexiones sobre el cumplimiento de la tregua entre maras en El Salvador’ (2014) 46(177) Estudios Internacionales Universidad de Chile 89, 93; Luis Ayala and others, ‘Proceso de Pacificación entre Pandillas’ in Universidad de El Salvador Facultad de Jurisprudencia y Ciencias Sociales, Análisis del Estado Constitucional de Derecho y Democracia en El Salvador: Informe Ejecutivo vii-2013 (Universidad de El Salvador 2013) 32–35; Cruz (n 26) 132.

36

Sonja Wolf, ‘Mano Dura: Gang Suppression in El Salvador’ (Sustainable Security Program, 1 March 2011) .

37

Carlos Carballo, ‘El Salvador’s Crime Prevention Policies – from Mano Dura to El Salvador Seguro’ (MA security studies thesis, Naval Postgraduate School 2015) 9.

38

Cruz (n 26) 135. See also, Benjamin Lessing, ‘Inside Out: The Challenge of Prison-Based Criminal Organizations’ (The Brookings Institution 2016) 11–12.

39

Steven Dudley and Juan Martínez, ‘Las prisiones de El Salvador y la lucha por el control de MS13’ (InSight Crime, 16 February 2016) .

40

Hernández-Anzora (n 32) 97.

41

Cruz (n 26) 133.

42

Sonja Wolf, ‘Papel de militares en seguridad pública de El Salvador’ (ContraPunto, 30 January 2012) <www.archivoscp.net/2008-2012/index.php/sociedad/74-violencia/7799-noticias-de-el-salvador-contrapunto>; Jeanette Aguilar, ‘El rol del ejército en la seguridad interna en El Salvador: lo excepcional convertido en permanente’ in Heinrich Böll Fundación Mexico Centroamérica y el Caribe (ed), Reconceptualización de la violencia en el Triángulo Norte (Asociación Equipo Maíz 2016) 80–81.

43

Andrew Clapham, ‘Non-State Actors’ in David Moeckli and others (eds), International Human Rights Law (oup 2016) 531.

44

Dennis Rodgers and Robert Muggah, ‘Gangs as non-state armed groups: The Central American case’ (2009) 30(2) Contemporary Security Policy 1, 3; Hazen (n 7) 375.

45

Hazen (n 7) 373.

46

Gerard Mc Hugh and Manuel Bessler, ‘Humanitarian Negotiations with Armed Groups: A Manual for Practitioners’ (Office for the Coordination of Humanitarian Affairs 2006) 6.

47

Hazen (n 7) 375–376.

48

Ibid 376; Balcazar and others, ‘Gang Violence in Colombia, Mexico and El Salvador’ (Geneva Academy of International Humanitarian Law and Human Rights 2017) 2.

49

Rodgers and Muggah (n 44) 3.

50

Dennis Rodgers, ‘Bróderes in arms: Gangs and the socialization of violence in Nicaragua’ (2017) 54(5) Journal of Peace Research 648, 649. See also, Jeannette Aguilar and Marlon Carranza, ‘Las Maras y Pandillas como Actores Ilegales de la Región’ (iudop Estado de la Region 2008) 3.

51

Carballo (n 37) 12; Balcazar and others (n 48) 12.

52

Maras Mao Mao, Máquina, Mirada Loca, La Raza, Desorden, among others.

53

iiss, ‘Armed Conflict Survey 2017’ (iiss 2017) 332.

54

Héctor Silva Ávalos, ‘Barrio 18’ (InSight Crime, 13 January 2017) <www.insightcrime.org/el-salvador-organized-crime-news/barrio-18-profile/>.

55

García et al v Asamblea Legislativa (Judgment) Corte Suprema de El Salvador Sala Constitucional 22-2007AC (4 August 2015).

56

Max G Manwaring, ‘Gangs and Coups D’Streets in the New World Disorder: Protean Insurgents in Post-modern War’ (2006) 7(3–4) Global Crime 505, 506. See also, Daniel López Fuentes and others, ‘El problema de las “maras” y bandas Latinas, dos visiones: desde El Salvador y España’ (Instituto Español de Estudios Estratégicos 2017) 38.

57

Hernández-Anzora (n 32) 104.

58

Ibid.

59

Consejo Nacional de Seguridad Ciudadana y Convivencia, ‘Plan El Salvador Seguro: Resumen Ejecutivo’ (Gobierno de El Salvador 2015). For further reference, see Damaris Escobar de Escalante, ‘Plan El Salvador Seguro en sus primeros 6 meses de ejecución. ¿Vamos por buen Camino?’ (Instituto Especializado de Educación Superior para la Formación Diplomática – Ministerio de Relaciones Exteriores de El Salvador 2016) 1–10.

60

Consejo Nacional de Seguridad Ciudadana y Convivencia (n 59).

61

In 2018, the ‘Police Reaction Groups’ were replaced by the ‘Specialized Police Tactical Unit’, with the same mandate: Felipe Puerta, ‘Policía de El Salvador reemplaza una polémica unidad élite por otra similar’ (InSight Crime, 16 February 2018) .

62

‘El Salvador alista a su ejército para una “guerra” contra las pandillas’ (Prensa Libre, 28 July 2015) <www.sercano.com/el-salvador-alista-a-su-ejercito-para-una-guerra-contra-las-pandillas/>; ‘Nace la Fuerza Especializada de Reaccion El Salvador’ (Presidencia de la República El Salvador, 19 April 2016) <www.presidencia.gob.sv/nace-la-fuerzaespecializada-de-reaccion-el-salvador/>; Adriana Peralta, ‘El Salvador extiende medidas extraordinarias contra pandillas hasta 2018’ (Panam Post, 13 February 2017) .

63

Adriana Peralta, ‘El Salvador: en aumento asesinatos de policías a manos de mareros’ (Panam Post, 21 July 2017) .

64

A niac takes place when there is protracted armed violence between governmental authorities and organized armed groups or between such groups within a State, the latter situation may be an armed conflict even if State authorities are not involved in the conflict.

65

Sylvain Vité, ‘Typology of armed conflicts in international humanitarian law: legal concepts and actual situations’ (2009) 91(873) irrc 69, 75.

66

icrc, ‘Commentary of 2016 – Article 3: conflicts not of an international character’ (icrc 2016) [384].

67

Tom Farer, ‘Humanitarian Law and Armed Conflicts: Toward the Definition of “International Armed Conflict”’ (1971) 71(1) Columbia Law Review 37, 43.

68

Tadić (n 12) [70].

69

Prosecutor v Furundžija (Judgment) IT-95-17/1-T (10 December 1998) [59]; Prosecutor v Katanga (Judgment) ICC-01/04-01/07 (7 March 2014) [1173]; Prosecutor v Akayesu (Judgment) ICTR-96-4-T (2 September 1998) [619]; Abella v Argentina, Inter-American Commission on Human Rights Case 11.137, Report N° 55/97 OEA/Ser.L/V/II.95 Doc. 7 (18 November 1997) [152]. See also, Sandesh Sivakumaran, The Law of Non-International Armed Conflict (oup 2014) 155. The European Court of Justice (‘ecj’) has recognized the icty’s criteria, though to determine migrants’ eligibility for subsidiary protection it created its own category (foreign to ihl) of ‘internal armed conflicts’: Diakité v Commissaire general aux réfugiés et aux apatrides (Judgment) C-285/12 (30 January 2014) [17]–[35].

70

Prosecutor v Tadić (Opinion and Judgment) IT-94-1-T (7 May 1997) [561]–[568]. See also, Limaj (n 18) [84].

71

Prosecutor v Haradinaj (Judgment) IT-04-84-T (3 April 2008) [38], [49].

72

Vité (n 65) 70.

73

Arne Willy Dahl and Magnus Sandbu, ‘The Threshold of Armed Conflict’ (2006) 45 Military Law & Law of War Review 369, 370.

74

John-Hopkins (n 5) 123.

75

Haradinaj (n 71) [49], [60]; Vité (n 65) 77; Sivakumaran (n 69) 168, 170; icrc, ‘Commentary of 2016 – Article 3: conflicts not of an international character’ (n 66) [433]; Lindsay Moir, ‘The Concept of Non-International Armed Conflict’ in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary (oup 2015) 413.

76

Sivakumaran (n 69) 168.

77

Bellal (n 14) 25.

78

Haradinaj (n 71) [49].

79

Nils Melzer, Targeted Killings in International Law (oup 2008) 270.

80

John-Hopkins (n 5) 109.

81

Ibid.

82

Bellal (n 14) 25.

83

Melzer (n 79) 270.

84

Prosecutor v Boškoski (Judgment) IT-04-82 (10 July 2008) [187].

85

See David James Cantor, ‘The New Wave: Forced Displacement Caused by Organized Crime in Central America and Mexico’ (2014) 33 Refugee Survey Quarterly 34, 49–50.

86

David Gagne, ‘GameChangers 2016: El Salvador’s New (Ideology Free) Civil War’ (InSight Crime, 10 January 2017) <www.insightcrime.org/news/analysis/gamechangers-2016-el-salvador-new-civil-war/>. This categorization is not legally based.

87

Up to this point, various national institutions collect data of this type in El Salvador and possess their own figures. Retrieved data and figures are those recurrent or backed up with national newspaper articles. Figures will give an overview of the level of violence in El Salvador rather than determine the precision of officially collated national statistics.

88

iiss, ‘Armed Conflict Survey 2016’ (iiss 2016) 305.

89

Roberto Valencia and Andrea Burgos, ‘Casi que Guardia Nacional Civil’ (El Faro, 3 October 2016) <www.elfaro.net/es/201610/salanegra/19277/Casi-que-Guardia-Nacional-Civil.htm>; Roberto Valencia, ‘Cifras oficiales sugieren que la policía del El Salvador mata con impunidad’ (InSight Crime, 10 October 2016) .

90

Roberto Valencia, ‘Enfrentamientos diarios entre policías y pandillas en El Salvador’ (InSight Crime, 28 September 2016) .

91

‘Brinda balance anual de la actividad policial 2017’ (pnc, 2018) <www.pnc.gob.sv/portal/page/portal/informativo/novedades/noticias/Brinda%20balance%20anual%20de%20la%20actividad%20policial 202017#.WvIU0C97EnV> accessed 9 May 2018.

92

Alex Fernando Rojas and Andrea Orozco, ‘Pandilleros del Barrio 18 atacan con fusiles a pnc’ (Prensa Libre, 21 March 2017) <www.prensalibre.com/guatemala/comunitario/pandilleros-del-barrio-18-atacan-con-fusiles-a-pnc>.

93

‘Munguía Payés: El Salvador afronta un conflict armado de “baja intensidad”’ (elsalvador.com, 2 February 2018) <www.elsalvador.com/noticias/nacional/445836/munguia-payes-el-salvador-afronta-un-conflicto-armado-de-baja-intensidad/>.

94

‘Tiroteo con la Policía deja a cabecilla de MS-13 muerto en Estanzuelas’ (La Prensa Gráfica, 20 January 2019) <www.laprensagrafica.com/elsalvador/Tiroteo-con-la-Policia-deja-a-cabecilla-de-MS-13-muerto-en-Estanzuelas---20190120-0217.html>.

95

Daily incidents of violence, shootings and provocations are considered as armed clashes: Boškoski (n 84) [243].

96

Hernández-Anzora (n 32) 102.

97

‘Mueren tres mareros al enfrentarse a la policía’ (elsalvador.com, 25 October 2015) <www.elsalvador.com/noticias/nacional/163761/mueren-tres-mareros-al-enfrentarse-a-policias/>; Leidy Puentes and Edgardo Hernández, ‘Un policía muerto y ocho heridos en enfrentamiento con pandilleros en colonia San Patricio’ (elsalvador.com, 2 February 2018) <www.elsalvador.com/noticias/nacional/445702/tiroteo-entre-policias-y-pandilleros-deja-al-menos-cuatroagentes-lesionados-en-colonia-bella-vista/>; Bryan Avelar ‘Octavo ataque contra puesto policial’ (ContraPunto, 25 June 2015) <www.contrapunto.com.sv/archivo2016/sociedad/violencia/octavo-ataque-contra-puesto-policial>.

98

Kinosian and others (n 22) 9; Beatriz Mendoza and Franklin Zelaya, ‘Explosión de coche bomba en carretera al Puerto de la Libertad: dos heridos del cam de Santa Tecla’ (La Prensa Gráfica, 11 February 2018) .

99

‘Munguía Payés: El Salvador afronta un conflict armado de “baja intensidad”’ (n 93).

100

Roberto Valencia, ‘Las maras se arman con fusiles de la guerra civil’ (El Faro, 7 September 2016) .

101

Dennis Rodgers, Robert Muggah, and Chris Stevenson, Gangs of Central America: Causes, Costs and Interventions (Small Arms Survey 2009) 9.

102

Kinosian and others (n 22) 22–27.

103

‘Policía Nacional Civil informa que han incautado mas de 1,700 armas’ (El Periodista, 15 May 2017) .

104

Gobierno de El Salvador, ‘Informe de gestión correspondiente al año 2017 ­(Gabinete de Seguridad 2017) 6; Enrique García, ‘Más de 4 mil armas de fuego han sido decomisadas en 2017’ (El Mundo, 6 December 2017) .

105

Francisco Hernandez, ‘La pnc decomisó 10 armas de fuego cada día durante 2018’ (La Prensa Gráfica, 3 January 2019) <www.laprensagrafica.com/elsalvador/La-PNC-decomiso-1O-armas-de-fuego-cada-dia-durante-2018-20190102-0317.html>.

106

‘MS-13 expande el tráfico de armas en centro de San Salvador’ (La Prensa Gráfica, 30 March 2017) <www.laprensagrafica.com/elsalvador/MS-13-expande-el-trafico-de-armas-en-centro-de-San-Salvador-20170330-0090.html>.

107

See, for example, ‘Evolución de los homicidios en El Salvador, 2009-junio 2016’ (FundaUngo 2016) 1.

108

David Marroquín, ‘62 Policías asesinados en el presente año, un récord funesto’ (elsalvador.com, 27 December 2015) <www.elsalvador.com/noticias/nacional/169917/62-policias-asesinados-en-el-presente-ano-un-record-funesto/>.

109

Cantor (n 21) 84.

110

Ibid.

111

‘1,322 homicidios menos se registran en el 2017 según cifras oficiales’ (pnc El Salvador, 31 December 2017) ; Tristan Clavel, ‘Insight Crime’s 2017 Homicide Round-up’ (InSight Crime, 19 January 2018) <www.insightcrime.org/news/analysis/2017-homicide-round-up/>.

112

‘Inteligencia militar detecta plan de MS-13 para matar soldados’ (La Prensa Gráfica, 28 April 2017) <www.laprensagrafica.com/elsalvador/Inteligencia-militar-detecta-plan-de-MS-13-para-matar-soldados-20170428-0083.html>.

113

Mesa de Sociedad Civil contra el Desplazamiento Forzado por Violencia y Crimen Organizado en El Salvador (‘mscdf’), ‘Desplazamiento interno por violencia y crimen organizado en El Salvador: Informe 2016’ (mscdf 2017) 27.

114

‘Informe estadístico del Instituto de Medicina Legal mes de diciembre 2017’ (Corte Suprema de Justicia, 19 January 2018) <www.csj.gob.sv/Comunicaciones/2018/01_ENERO/BOLETINES/Boletin%20datos%20estadisticos,%20IML%20diciembre%202017.pdf>.

115

David Marroquín, ‘El Salvador cerró 2017 con un promedio de 11 homicidios por día’ (El Diario de Hoy, 1 January 2018) <www.eldiariodehoy.com/noticias/nacional/68243/el-salvador-cerro-2017-con-un-promedio-de-11-homicidios-por-dia/>.

116

David Marroquín, ‘Estos son los rostros de polícias y militares asesinados durante 2017’ (elsalvador.com, 12 December 2017) <www.elsalvador.com/noticias/nacional/428900/estos-son-los-rostros-de-los-policias-y-militares-asesinados-durante-2017/>.

117

Chris Dalby and Camilo Carranza, ‘InSight Crime’s 2018 Homicide Round-Up’ (InSight Crime, 22 January 2019) <www.insightcrime.org/news/analysis/insight-crime-2018-homicide-roundup/>.

118

‘El Salvador: Muertes de Pandilleros en tiroteos con policias bajaron mas del 49% en 2018’ (El Periódico, 3 January 2019) <www.elperiodico.com/es/internacional/20190103/el-salvador-muertes-de-pandilleros-en-tiroteos-con-policias-bajaron-mas-­del-49--en-2018-7227306>.

119

mscdf, ‘Informe sobre situación de desplazamiento forzado por violencia generalizada en El Salvador (2014–2015)’ (mscdf 2015) 2.

120

mscdf, ‘Desplazamiento interno por violencia y crimen organizado en El Salvador: Informe 2016’ (n 113) 25–26.

121

Internal Displacement Monitoring Centre (‘idmc’), ‘El Salvador’ (idmc, 2018) <www.internal-displacement.org/countries/el-salvador>.

122

idmc, ‘Global Report on Internal Displacement 2016’ (idmc 2016) 22.

123

mscdf, ‘Desplazamiento interno por violencia y crimen organizado en El Salvador: Informe 2016’ (n 113) 46–48. See also, Cecilia Jimenez-Damary, ‘Statement on the conclusion of the visit of the UN Special Rapporteur on the human rights of internally displaced persons’ (ohchr, 18 August 2017) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21984&LangID=E>.

124

idmc, ‘Global Report on Internal Displacement 2018’ (idmc 2018) 6.

125

Ibid 39.

126

‘Salvadorans Think Forced Displacement Should Be Officially Recognized and that the Extraordinary Measures Have Been Unsuccessful’ (Cristosal, 9 January 2019) <www.cristosal.org/news/2019/1/8/salvadorans-think-forced-displacement-should-be-recognized-and-that-extraordinary-measures-have-been-unsuccessful>; idmc, ‘El Salvador’ (n 121).

127

Wolf, ‘Papel de militares en seguridad pública de El Salvador’ (n 42).

128

‘Decreto No 57’ (adopted 6 December 2018) 421(230) Diario Oficial 1, 15.

129

Tania Urías, ‘Policía elimina subdirecciones Antipandillas y Antiextorisón’ (elsalvador.com, 10 February 2016) <www.elsalvador.com/noticias/nacional/178578/policia-elimina-subdirecciones-antipandillas-y-antiextorsion/>.

130

J Montes, ‘El número de soldados en las calles del El Salvador se ha elevado un 32 por ciento’ (defensa, 31 October 2016) <www.defensa.com/centro-america/numero-soldados-calles-salvador-ha-elevado-32-ciento>; ‘Miles de soldados salvadoreños seguirán patrullando calles hasta fin de 2017’ (El Mundo, 23 February 2017) .

131

Beatriz Calderón, ‘Gobierno refuerza presencia militar en San Salvador’ (La Prensa Gráfica, 18 September 2017) <www.laprensagrafica.com/elsalvador/Gobierno-refuerza-presencia-militar-en-San-Salvador-20170918-0008.html>.

132

David Marroquín, ‘La Policía Rural será convertida en División de Protección Rural’ (elsalvador.com, 14 March 2018) <www.elsalvador.com/noticias/nacional/460698/la-policia-rural-sera-convertida-en-division-de-proteccion-rural/>.

133

Marco Sassòli, ‘Terrorism and War’ (2006) 4(5) Journal of International Criminal Justice 959, 965; icrc, ‘How is the Term “Armed Conflict” Defined in International Humanitarian Law Opinion Paper’ (icrc 2008) 3; Andrea Bianchi and Yasmin Naqvi, International Humanitarian Law and Terrorism (Hart 2011) 126–128; Sivakumaran (n 69) 169.

134

Dale Stephens, ‘Military involvement in law enforcement’ (2010) 92(878) irrc 453, 455–456.

135

Dahl and Sandbu (n 73) 375.

136

Bianchi and Naqvi (n 133) 129.

137

Akande (n 15) 53–54.

138

Abella (n 69) [155].

139

Boškoski (n 84) [178].

140

Dahl and Sandbu (n 73) 369.

141

See, for example, article 2 of the European Convention on Human Rights.

142

‘El Salvador Special Police Unit Committed Extrajudicial Executions: Report’ (InSight Crime, 23 August 2017) <www.insightcrime.org/news/analysis/el-salvador-special-police-unit-committed-extrajudicial-executions-report/>; Callamard (n 24). See also, Nick Paton and others, ‘US-funded police linked to illegal executions in El Salvador’ (cnn, May 2018) .

143

Tristan Clavel, ‘El Salvador Police Running “Clandestine Jails”: Report’ (InSight Crime, 20 September 2017) <www.insightcrime.org/news/brief/el-salvador-police-running-clandestine-jails-report/>.

144

Ayala and others (n 35) 7–8.

145

Ibid 10.

146

Sampó and Bartolomé (n 35) 98.

147

Ibid 98–99.

148

Ibid 100.

149

Ibid 102; unhcr ‘Eligibility Guidelines for Assessing the International ­Protection Needs of Asylum-Seekers from El Salvador’ (15 March 2016) HCR/EG/SLV/16/01, 17; Héctor Silva, ‘Pandillas en El Salvador también influyeron en gobierno de la capital’ (InSight Crime, 6 July 2018) .

150

‘El paro que demuestra el poder de las maras’ (bbc World, 25 July 2015) <www.bbc.com/mundo/noticias/2015/07/150729_america_latina_el_salvador_maras_pandillas_paro_transporte_aw>; Nelson Rauda Zablah, ‘Sanchez Cerén: aunque algunos digan que estamos en una guerra, no queda otro camino’ (El Faro, 7 March 2016) ; Patrick J McNamara, ‘Political Refugees from El Salvador: Gang Politics, the State, and Asylum Claims’ (2017) 36(4) Refugee Quarterly Survey 1, 13–15.

151

Jimenez-Damary (n 123); Zeid Ra’ad Al Hussein, ‘Statement by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein at the end of his mission to El Salvador’ (ohchr, 17 November 2017) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22412&LangID=E>; Inter-American Commission on Human Rights, ‘Conclusions and Observations on the iachr’s Working Visit to El Salvador’ (Organization of American States, 29 January 2018) <www.oas.org/en/iachr/media_center/PReleases/2018/011A.asp>.

152

Callamard (n 24).

153

Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (cup 2010) 128.

154

Boškoski (n 84) [185], [243]. See also, John-Hopkins (n 5) 132.

155

Gobierno de El Salvador, ‘El Salvador: Caracterización de la movilidad interna a causa de la violencia en El Salvador: Informe Final’ (Ministerio de Justicia y Seguridad Pública 2018) 7; idmc, ‘Global Report on Internal Displacement 2018’ (n 124) 41.

156

Haradinaj (n 71) [60].

157

Akayesu (n 69) [620].

158

Tilman Rodenhäuser, ‘Armed Groups under International Humanitarian Law, Human Rights Law, and International Criminal Law: What Degree of Organisation is Required?’ (PhD thesis, Graduate Institute 2016) 62.

159

Ibid.

160

Prosecutor v Musema (Judgment) ICTR-96-13-A (27 January 2000) [248]; Akayesu (n 69) [620].

161

Limaj (n 18) [89].

162

Abella (n 69) [152].

163

Claus Kress, ‘The 1999 Crisis in East Timor and the Threshold of the Law on War Crimes’ (2002) 13(4) Criminal Law Forum 416; G I A D Draper, ‘The Geneva Conventions of 1949’ (1965) 114(63) Recueil des Cours de l’Académie de Droit International 82, 90.

164

Lindsay Moir, The Law of Internal Armed Conflict (cup 2002) 36; Rodenhäuser (n 158) 63.

165

Prosecutor v Óric (Judgment) IT-03-68-T (30 June 2006) [254]; Boškoski (n 84) [197]; Cordula Droege, ‘Get off my cloud: cyber warfare, international humanitarian law, and the protection of civilians’ (2012) 94(886) irrc 533, 550; Louise Arimatsu and Mohbuba Choudhury, The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya (Chatham House 2014) 4.

166

Dietrich Schindler, ‘The different types of armed conflicts according to the Geneva conventions and protocols’ (1979) 163 Recueil des Cours de l’Académie de Droit International 117, 147. On the collective nature of violence, see icrc, ‘The icrc’s role in situations of violence below the threshold of armed conflict’ (n 1) 281.

167

Rodenhäuser (n 158) 65.

168

Peter Margulies and Matthew Sinnot, ‘Crossing borders to target Al-Qaeda and its affiliates: Defining Networks as Organized Armed Groups in Non-International Armed Conflicts’ (2015) 16 Yearbook of International Humanitarian Law 319, 326.

169

Laurie R Blank and Geoffrey S Corn, ‘Losing the Forest for the Trees: Syria, Law and the Pragmatics of Conflict Recognition’ (2013) 46(3) Vanderbilt Journal of Transnational Law 693, 740–741.

170

Sivakumaran (n 69) 179.

171

Ibid 172–173.

172

Olivier Bangerter, ‘Disseminating and Implementing International Humanitarian Law Within Organized Armed Groups: Measures Armed Groups Can Take to Improve Respect for International Humanitarian Law’ in International Institute of Humanitarian Law (ed), Non-State Actors in International Humanitarian Law: Organized Armed Groups: A Challenge for the 21st Century (FrancoAngeli 2010) 189.

173

Fiona Terry and Brian McQuinn, ‘The Roots of Restraints in War’ (icrc 2018) 23.

174

Ekaterina Stepanova, ‘Terrorism in Asymmetrical Conflict: Ideological and Structural Aspects’ (Stockholm International Peace Research Institute, oup 2010) 101–105.

175

López Fuentes and others (n 56) 46.

176

Kinosian and others (n 22) 9. See also, Jose Miguel Cruz and others, ‘The New Face of Street Gangs: The Gang Phenomenon in El Salvador’ (Florida International University 2017) 5.

177

Cruz and others (n 176) 5.

178

Antonio Luna, ‘Informe proyectivo sobre las pandillas en El Salvador y las perspectivas de su expansión territorial’ (2015) 2 Revista Policía y Seguridad Púbica 415, 426.

179

López Fuentes and others (n 56) 46.

180

United Nations Office on Drugs and Crime (unodc), ‘Transitional Organized Crime in Central America and the Caribbean: A Threat Assessment’ (unodc 2012) 27–28; López Fuentes and others (n 56) 46.

181

Walter Murcia, ‘Las Pandillas en El Salvador’ (United Nations Economic Commission for Latin America and the Caribbean 2015) 15.

182

López Fuentes and others (n 56) 47.

184

López Fuentes and others (n 56) 46.

185

Ibid 52.

186

Cruz and others (n 176) 6, 37.

187

Luna (n 178) 425.

188

Ibid.

189

Ibid 38.

190

unodc (n 180) 27.

191

Ibid.

192

Ibid 28. See also, Cruz and others (n 176) 34.

193

McNamara (n 150) 13–14.

194

Ibid; Carlos Martínez, ‘Pandillas caminan hacia un frente común ante medidas extraordinarias’ (El Faro, 5 July 2016) <www.elfaro.net/es/201607/salanegra/18899/Pandillas-caminan-hacia-un-%20frente-común-ante-medidas-extraordinarias.htm>. See also, Ahmed Azam, ‘La hora de la verdad en El Salvador’ (The New York Times, 29 November 2017) <www.nytimes.com/es/2017/11/29/el-salvador-maras-tregua-violencia/>.

195

Cruz and others (n 176) 35.

196

Ibid 51.

197

Ibid.

198

Anne Marie La Rosa and Carolin Wuerzner, ‘Armed groups, sanctions and the implementation of international humanitarian law’ (2008) 90(870) irrc 327, 329.

199

Sivakumaran (n 69) 175.

200

Ibid 176.

201

Luna (n 178) 441–443.

202

‘Conozca los códigos y reglas del barrio 18 y la Mara Salvatrucha’ (El Heraldo, 20 April 2016) <www.elheraldo.hn/pais/954755-466/conozca-los-códigos-y-reglas-del-barrio-18-y-la-mara-salvatrucha>.

203

Luna (n 178) 442–443.

204

Rodenhäuser (n 158) 84. See also, Haradinaj (n 71) [65]–[66].

205

Steven Dudley and Juan Jose Martinez D’Aubuisson, ‘El Salvador Prisons and the Battle for the MS13’s Soul’ (InSight Crime, 16 February 2017) <www.insightcrime.org/investigations/el-salvador-prisons-battle-ms13-soul/>.

206

Karla Arévalo, ‘Maras operan desde penales, a pesar de medidas extraordinarias’ (elsalvador.com, 17 April 2017) <www.elsalvador.com/noticias/nacional/334106/cuatro-penales-son-la-base-de-operaciones-de-la-ms-y-la-18/>.

207

Murcia (n 181) 16–17.

208

Prosecutor v Lubanga (Judgment) ICC-01/04-01/06 (14 March 2012) 536; Katanga (n 69) [1186].

209

Moir, ‘The Concept of Non-International Armed Conflict’ (n 75) 407.

210

Peter Thompson, Armed Groups: The 21st Century Threat (Rowman and Littlefield 2014) 61–62.

211

Rodenhäuser (n 158) 95. See also, Haradinaj (n 71) [73].

212

John-Hopkins (n 5) 134.

213

Ibid.

214

López Fuentes and others (n 56) 51; Oscar Martínez, ‘Los bichos gobiernan el centro’ (El Faro, 15 May 2015) <www.especiales.elfaro.net/es/extorsion/investigaciones/16960/Los-bichos-gobiernan-el-Centro.htm>; Kinosian and others (n 22) 11.

215

Hernández-Anzora (n 32) 99.

216

Oscar Martínez and others, ‘La mafia de pobres que desangra a El Salvador’ (The New York Times, 21 November 2016) <www.nytimes.com/es/2016/11/21/la-mafia-de-pobres-que-desangra-el-salvador/>; Callamard (n 24).

217

icg, ‘El salario del miedo: maras, violencia y extorsión en Centroamérica’ (icg 2017) 12.

218

López Fuentes and others (n 56) 47.

219

Ibid 47–48.

220

Hernández-Anzora (n 32) 100; Gustavo Arias, ‘Así funcionan las pandillas en El Salvador’ (La nación, 8 August 2015) <www.nacion.com/elmundo/politica/asi-funcionan-las-pandillas-en-elsalvador/MOKLTQVST5GORALFVU3V6E6ZWM/story/>; Jaime López, ‘751 familias huyen de sus hogares por amenazas de maras’ (elsalvador.com, 9 January 2016) <www.elsalvador.com/noticias/nacional/175205/751-familias-huyen-de-sus-hogares-por-amenazas-de-maras/>.

221

‘Siete rutas han suspendido labores por temor a pandillas’ (La Prensa Gráfica, 20 March 2017) <www.laprensagrafica.com/elsalvador/Siete-rutas-han-suspendido-labores-por-temor-a-pandillas-20170320-0088.html>.

222

Hernández-Anzora (n 32) 99–100; ‘Pandilleros causan temor a familias de San Martín e imponen toque de queda’ (La Noticia SV, 31 July 2017) <www.lanoticiasv.com/pandilleros-causan-temor-a-familias-de-san-martin-e-imponen-toque-de-queda>.

223

Ricardo Flores, ‘¿Qué municipios en El Salvador han registrado un incremento de homicidios en estos últimos días?’ (La Prensa Gráfica, 10 May 2018) <www.laprensagrafica.com/elsalvador/Que-municipios-en-El-Salvador-hanregistrado-un-incremento-de-homicidios-en-estos-ultimos-dias-20180509-0118.html>.

224

Observatorio de Derechos Humanos Rufina Amaya, ‘Inseguridad y violencia en El Salvador: El impacto en los derechos de adolescentes y jóvenes del municipio de Mejicanos’ (Servicio Social Pasionista 2017) 36.

225

Enrique García, ‘pnc elimina unidad de recuperación territorial’ (El Mundo, 26 July 2017) .

226

‘Maras controlan la capital Salvadoreña’ (El Diario de Hoy, 19 December 2015) <www.elsalvador.com/noticias/nacional/170517/maras-controlan-la-capital-salvadorena/>.

227

Ibid.

228

Kinosian and others (n 22) 12.

229

Cruz and others (n 176) 6.

230

Ibid.

231

Ibid 41.

232

Kinosian and others (n 22) 12. See also, Giovanni Bassu, ‘Strengthening state and regional responses to Central America’s forced displacement crisis’ (2017) 69 Humanitarian ­Practice Network 20, 20.

233

Herberth Alexander Oliva, ‘Matices cronológicas de la violencia escolar en El Salvador’ (2015) 15(42) Realidad y Reflexión 30, 36.

234

Augusto Rigoberto López, ‘Pandillas en escuelas públicas de El Salvador’ (2015) 1 Revista Policía y Seguridad Pública 247, 266, 277.

235

‘Deserción de 14,000 estudiantes por pandillas’ (La Prensa Gráfica, 13 January 2017) <www.laprensagrafica.com/elsalvador/Desercion-de-14000-estudiantes-por-pandillas-20170113-0076.html>.

236

Monserrat Cárcamo Baires, ‘faes despliega 2.000 efectivos para proteger a estudiantes contra pandillas’ (Diálogo, 28 January 2016) .

237

Jaime López, ‘Deserción escolar por violencia se ha triplicado en últimos dos años’ (elsalvador.com, 19 July 2016) <www.elsalvador.com/noticias/nacional/desercion-escolar-por-violencia-se-ha-triplicado-en-ultimos-dos-anos/194932/2016/>.

238

López Fuentes and others (n 56) 31; ‘Pandilleros usan Facebook para reclutar jóvenes en El Salvador’ (elsalvador.com, 25 July 2017) <www.elsalvador.com/noticias/nacional/378213/pandilleros-usan-redes-sociales-para-atraer-miembros/>.

239

mined reporta deserción de 12,000 estudiantes’ (La Prensa Gráfica, 26 August 2017) <www.laprensagrafica.com/elsalvador/MINED-reporta-desercion-de-12000-estudiantes-20170826-0046.html>; Susana Peñate, ‘Educación cerró 2018 con 0.9% de deserción escolar’ (La Prensa Gráfica, 31 January 2019) <https://www.laprensagrafica.com/elsalvador/Educacion-cerro-2018-con-0.9-de-desercion-escolar-20190130-0365.html>.

240

Thabata Molina, ‘Pandilleros de El Salvador superan en número a efectivos de seguridad’ (Panam Post, 23 October 2015) .

241

Hugo Van Offel, Grégory Roudier and Jacques Avalos, ‘Salvador: un Etat sous contrôle’ (Arte Reportage, 30 January 2016) .

242

Roberto Valencia, ‘El país de las Maras (El Faro, 10 June 2018) .

243

‘La Mara Salvatrucha se divide en MS-13 y en MS-503 y ordenan purga de cabecillas’ (elsalvador.com, 27 April 2017) <www.elsalvador.com/noticias/nacional/341973/la-mara-salvatrucha-se-divide-en-ms-13-y-en-ms-503-y-ordenan-purga-de-cabecillas/>; Balcazar and others (n 48) 12.

244

‘Seguridad reafirma que maras reciben adiestramiento en tácticas de combate’ (elsalvador.com, 8 April 2014) <www.elsalvador.com/noticias/nacional/125780/seguridad-reafirma-que-maras-reciben-adiestramiento-en-tacticas-de-combate/>.

245

Luis Fernando Alonso, ‘Pandilla de El Salvador habría recibido entrenamiento militar’ (InSight Crime, 13 September 2016) .

246

‘Mareros se jactan de su poder de fuego después de entrenamiento militar’ (Diario1.com, 3 January 2016) ; David Marroquín, ‘Pandilla MS preparaba grupo elite de 500 mareros’ (elsalvador.com, 10 August 2016) <www.elsalvador.com/noticias/nacional/199042/pandilla-ms-preparaba-grupo-elite-de-500-mareros/>.

247

José Angel Moroni Bracamonte and David E Spencer, Strategy and Tactics of the Salvadoran fmln Guerrillas: Last Battle of the Cold War, Blueprint for Future Conflicts (Praeger 1995) 24, 94.

248

‘El Salvador se encamina hacia una nueva guerra?’ (Diario1.com, 7 July 2015) .

249

Daniel López Fuentes and others, ‘Las Pandillas: Su Expansión Territorial en El Salvador 1992–2015’ (Colegio de Altos Estudios Estratégicos 2017) 34.

250

Elizabeth Wilmhurst, ‘Conclusions’ in Elizabeth Wilmhurst (ed), International Law and the Classification of Conflicts (oup 2012) 495.

251

Gloria Gaggioli (ed), ‘The Use of Force in Armed Conflicts: Interplay between the Conduct of Hostilities and Law Enforcement Paradigms’ (icrc 2013) iv.

252

Vité (n 65) 83.

253

Marko Milanovic and Vidan Hadzi-Vidanovic, ‘A Taxonomy of Armed Conflict’ in Nigel White and Christian Henderson (eds), Research Handbook on International Conflict and Security Law (Edward Elgar 2012) 257.

254

See Eric David, ‘Internal (Non-International) Armed Conflict’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (oup 2014) 358; Jann Kleffner, ‘Implications of Applying ihl to Low-Intensity Conflict: from Internal Disturbance to Armed Conflict’ (Humanitarian Assistance Podcast 2016) ; Rodenhäuser (n 158) 17–18, 71; John-Hopkins (n 5) 109.

255

Sofía Martínez Fernandez, ‘Hacia una política de seguridad sostenible en El Salvador: Documento de Opinión’ (2018) 42 Instituto Español de Estudios Estratégicos, 10.

256

Roberto Valencia, ‘Hay cero posibilidades de que las pandillas se debiliten con el modelo actual de prevención’ (El Faro, 25 October 2017) .

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