State of Siege in GuatemalaResponsible Implementation Based on the Experience of El Salvador

By Daniel Olmedo

NAL-2-2026- Guatemala State of Emergency (210126) _ EN.pdf

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1. State of Siege in Guatemala

On January 17, 2026, members of the Barrio 18 gang rioted in two Guatemalan prisons. Although the authorities managed to regain control, as retaliation, nine officers of the National Civil Police were killed the following day on the streets of the capital..

On January 18, the President of Guatemala declared a State of Siege, temporarily suspending certain constitutional rights. A day later, the Congress ratified the measure, introducing a number of amendments.

The Constitution of Guatemala authorizes the suspension of certain constitutional rights “in cases of invasion of the territory, serious disturbance of the peace, activities against state security, or public calamity.” The power to decree such a measure lies with the President of the Republic, with the approval of the Council of Ministers, while Congress has three days to ratify, amend, or reject it.

According to the Constitution, the suspension of constitutional rights may last for a maximum of thirty days. However, the Executive Branch may issue a new decree to extend the measure for an additional period.

The Constitution establishes a five-tier system for the restriction of constitutional rights. The most severe level is the State of War, followed by the State of Siege. The Public Order Law regulates the specific measures that may be implemented under this latter category.

In Guatemala, a State of Siege has been declared for a period of thirty days. This means that, during this time, the enforcement of certain rights is suspended throughout the national territory, and extraordinary special measures are implemented.

The constitutional rights suspended and the measures adopted are as follows:

Constitutional Rights Restricted by Decree 1-2026 (Amended by Congress)

Constitution Article	Text
5	Freedom of Action. Every person has the right to do what the law does not prohibit; no one is obliged to comply with orders that are not based on the law and issued in accordance with it. No one may be persecuted or harassed for their opinions or for acts that do not constitute a violation of the law.
6	Legal Detention. No person may be detained or imprisoned except for the commission of a crime or offense and pursuant to an order issued in accordance with the law by a competent judicial authority. Exceptions apply in cases of flagrante delicto. Detainees must be brought before the competent judicial authority within a period not exceeding six hours and may not be placed under the authority of any other official. Any official or law enforcement agent who violates the provisions of this article shall be sanctioned in accordance with the law, and the courts shall, ex officio, initiate the corresponding proceedings.
33	Right of Assembly and Demonstration. The right to peaceful and unarmed assembly is recognized. The rights of assembly and public demonstration may not be restricted, diminished, or curtailed; the law shall regulate them solely to ensure public order. Religious gatherings outside places of worship are permitted and governed by law. To exercise these rights, prior notification by the organizers to the competent authority shall suffice.

Measures Adopted by Decree 1-2026 (Amended by Congress)

Limit the holding of outdoor gatherings, public demonstrations, or other events, and, if necessary, prevent them from taking place—even if they are private—only when they disrupt public order and citizen security, or impede the freedom of movement of citizens, security forces, or emergency services. Under no circumstances should the State of Siege be used to target political or ideological opponents, or autonomous institutions.

Forcefully disperse any assembly, group, or public demonstration that takes place without proper authorization, or, if authorized, is conducted while carrying weapons or other instruments of violence. In such cases, dispersal shall occur when public order and citizen security are disrupted, or when the freedom of movement of citizens, security forces, or emergency services is restricted.

Forcefully disperse, without any prior warning, any group, assembly, or public demonstration in which weapons are used or acts of violence are committed.

Prohibit the circulation or parking of vehicles in specified locations, zones, or times, prevent their departure from designated areas, or subject them to inspection, in accordance with the provisions issued by the competent authority within the territory, in order to address the circumstances prompting this decree. Exceptions to this prohibition apply to individuals who, due to the nature of their work, have been granted a safe-conduct permit issued by one of the three branches of government or by autonomous and decentralized entities.

Require the services or assistance of private individuals, regardless of their status or position, for the purpose of maintaining the operation of public utility services or any other services deemed necessary.

Order, without the need for a prior judicial warrant, the detention or confinement of members of groups known as maras or gangs, declared as criminal groups or transnational and terrorist organizations under Decree No. 11-2025 of the Congress of the Republic of Guatemala, as well as of individuals for whom there is reasonable evidence of collaboration with such groups, when such membership or collaboration is directly and substantially linked to the acts that justified the declaration of the present State of Siege.

Repel or suppress, by preventive, defensive, or offensive means appropriate to the circumstances, any individual or collective action that contravenes the provisions, agreements, or ordinances issued to restore normalcy.

2. The Case of El Salvador

Between March 25 and 27, 2022, gangs in El Salvador—commonly known as maras—committed 87 homicides. In response to this extraordinary situation, on March 27 the Legislative Assembly decreed a state of emergency, suspending the rights to freedom of association and assembly; the right to be informed promptly and clearly of the reasons for one’s detention and of one’s rights; the right not to be compelled to testify; the right to legal counsel; the maximum duration of administrative detention of up to 72 hours (extended to 15 days); the right to the inviolability of correspondence; and the prohibition of interference with communications.

The Constitution of the Republic of El Salvador authorizes the suspension of certain constitutional rights in cases of “war, invasion of territory, rebellion, sedition, catastrophe, epidemic, or other general calamity, or serious disturbances of public order.” The period of suspension must not exceed thirty days, although it may be extended if the circumstances that gave rise to the measure persist.

Since its initial approval, the measure has been extended on 46 occasions. The state of emergency, which by its nature is meant to be a temporary and extraordinary measure, has remained in effect in El Salvador for more than three years and nine months.

The decree establishing the state of emergency in March 2022 was justified by a surge in homicides. One of its immediate effects was the dismantling of the gangs, which were held responsible for the tragic wave of killings. However, in subsequent extensions, the rationale for the measure changed; it is now justified on the grounds that the gangs are attempting to reorganize, and that the measure must therefore be maintained to prevent a potential resurgence of violence.

3. States of Emergency in International Law

The suspension of the exercise of human rights is a measure recognized under International Human Rights Law. It is permitted solely to address exceptional situations and is subject to specific conditions and limits.

3.1. International Covenant on Civil and Political Rights

The ICCPR authorizes the suspension of States’ obligations regarding the rights it recognizes, with the exception of those related to the right to life (Article 6), the prohibition of torture (Article 7), the prohibition of slavery (Article 8), the prohibition of imprisonment for debt (Article 11), the principle of legality of punishment (Article 15), the right to legal personality (Article 16), and the freedom of thought, conscience, and religion (Article 18).

Such suspension is authorized only in cases in which it "threatens the life of the nation". The State must conduct a careful proportionality assessment to determine whether the measure is necessary and legitimate. Furthermore, the measure must be adopted solely to address the exceptional situation that justified it, and the actions taken must be "to the extent strictly required by the exigencies of the situation”.

According to the ICCPR, the purpose of the suspension must be to restore normalcy. Accordingly, the measures must be temporary in nature and cannot be transformed into a permanent situation.

Beyond the fact that the ICCPR expressly identifies certain rights that cannot be suspended during a state of emergency, the United Nations Human Rights Committee has recognized that judicial guarantees are inherent to the protection of rights. Thus, under no circumstances may the guarantees of a fair trial or the presumption of innocence be suspended.

3.2. American Convention on Human Rights

The ACHR also allows for the suspension of obligations assumed by the States Parties. However, certain rights are excepted, including the right to legal personality (Article 3), the right to life (Article 4), the right to personal integrity (Article 5), the prohibition of slavery and servitude (Article 6), the principles of legality and non-retroactivity of criminal law (Article 9), freedom of conscience and religion (Article 12), protection of the family (Article 17), the right to a name (Article 18), children’s rights (Article 19), the right to nationality (Article 20), and political rights (Article 23). Furthermore, it is prohibited to suspend the judicial guarantees essential for the protection of these rights.

The suspension of rights authorized by the ACHR may be decreed only in situations of war, public danger, or other emergencies that threaten the independence or security of the State. Regarding its temporal limit, the Convention provides that it must be applied “to the extent and for the period of time strictly required by the exigencies of the situation.”

As mentioned earlier, the ACHR does not allow the suspension of judicial guarantees intended to protect fundamental rights.

These guarantees include the right to a “simple and prompt recourse, or any other effective recourse, to a competent court or tribunal” for the protection of such rights. The Inter-American Court of Human Rights (IACtHR) has established that these guarantees include amparo and habeas corpus.

The IACtHR has held that the requirement to guarantee effective judicial remedies is not met if the existing mechanisms are “illusory.” This can occur when there is practical evidence of a lack of independence in the Judiciary or of unjustified delays in judicial decisions.

Furthermore, the IACtHR has affirmed that the principles of due process recognized in Article 8 of the ACHR cannot be suspended during a state of emergency. These include the right to legal counsel, the right not to be compelled to testify against oneself, and the right to appeal a judgment to a higher court.

4. Analysis

Both the ICCPR and the ACHR allow for the suspension of fundamental rights in exceptional situations, subject to limits and conditions. Both instruments agree that such limits include: 1. the strictly temporary nature of the measure, and 2. the prohibition of suspending certain judicial guarantees.

4.1. The Time Limits on the Suspension of Fundamental Rights

As mentioned earlier, the state of emergency in El Salvador was adopted on March 27, 2022, with the explicit purpose of addressing the sharp increase in homicides recorded between March 25 and 27 of that year. Although the initial objective of the measure was achieved—since the extraordinary homicide crisis was halted—the regime has now been extended for more than three years and nine months. This is because, in each successive thirty-day extension, the justification has shifted toward preventing the possible reorganization of criminal groups that had already been dismantled.

In this way, the suspension of fundamental rights has evolved from being a temporary measure intended to address an exceptional situation into a permanent public security policy. This characteristic of the Salvadoran regime departs from the strict temporal limits established by both the ICCPR and the ACHR regarding the suspension of rights.

For this reason, the Inter-American Commission on Human Rights (IACHR) has noted that the crisis of March 2022 no longer reflects the current security situation in El Salvador, where violence rates have significantly decreased. Accordingly, the Commission considers that maintaining the suspension of rights under the state of emergency is no longer justified and has urged the State to repeal the measure.

In the case of Guatemala, the State has declared a State of Siege that entails the suspension of fundamental rights until February 18, 2026. To comply with its obligations under the ICCPR and the ACHR, Guatemala must ensure that this exceptional measure does not evolve into a general and permanent policy through systematic extensions.

To that end, both the authorities and Guatemalan society must remain aware that the purpose of the measure is to address the actions of gangs—known as maras—against security forces, which arose from the State’s refusal to yield to the unlawful demands of certain imprisoned individuals. Once that exceptional situation is brought under control and can be addressed through ordinary mechanisms, the justification for maintaining the suspension of rights would cease to exist.

Attempting to use the suspension of fundamental rights as a permanent tool to dismantle gangs or combat crime beyond the specific circumstances that motivated the measure could represent an overreach of its original purpose. This would risk, as in the case of El Salvador, transforming the measure into a permanent public security policy, thereby losing its exceptional character and resulting in a violation of the international obligations assumed by the State under the ICCPR and the ACHR.

4.2. On the Suspension of Judicial Guarantees

Under El Salvador’s state of emergency, the rights recognized in Article 12, paragraph two, of the Constitution have been suspended: (1) the right to be informed of the reasons for one’s detention and of one’s corresponding rights; (2) the right not to be compelled to testify; and (3) the right to legal counsel.

Beyond their constitutional recognition, these rights are also protected under the ICCPR and the ACHR. In particular, the IACtHR has established that the rights against self-incrimination and to legal counsel form part of the judicial guarantees that cannot be suspended, even under a state of emergency. For this reason, the IACHR has expressed concern over the serious risks that this regime poses to the presumption of innocence and judicial guarantees, urging the Salvadoran State to keep them in force under all circumstances.

In the case of Guatemala, the State of Siege has suspended Article 6 of the Constitution, which pertains to legal detention. It has authorized the detention or confinement of alleged gang members without a judicial order. In this context, the Guatemalan State must exercise these extraordinary powers with caution, ensuring that they do not result in the suspension of the guarantees of a fair trial or the presumption of innocence, as doing so would constitute a violation of the ICCPR and the judicial guarantees enshrined in Article 8 of the ACHR.

5. Conclusion

The suspension of fundamental rights in emergency contexts constitutes a legitimate State power recognized by both the ICCPR and the ACHR. However, its application must adhere to principles of strict necessity, temporality, and proportionality, and be directed solely at addressing an exceptional situation that threatens the life of the nation.

In this regard, the Guatemalan State can draw on the experience of El Salvador’s state of emergency to avoid practices that deviate from international standards. A critical analysis of that precedent would allow Guatemala to implement a state of emergency that remains within the margins established by the ICCPR and the ACHR, ensuring a balance between public security and respect for human rights.

To this end, once gang-related attacks arising from reprisals against the State’s refusal to comply with the demands of imprisoned leaders have been controlled, Guatemala should lift the State of Siege and refrain from approving successive extensions that would transform the measure into a permanent public security policy. Maintaining the exceptional nature of the suspension of rights is essential to uphold democratic legitimacy and respect the international obligations assumed by the State.

Furthermore, the State must exercise particular caution regarding the suspension of the rights contained in Article 6 of the Guatemalan Constitution, relating to legal detention, and in measures allowing detention without a judicial order. The exercise of these extraordinary powers must not restrict the right to a fair trial, the presumption of innocence, or any of the other judicial guarantees set forth in Article 8 of the ACHR. Only by respecting these limits can the State ensure that the State of Siege remains within the parameters of International Human Rights Law.