The phantom comes back: IHL abuse in Ecuador?

About the author(s):

Camilo Ramírez Gutierrez is a research professor and a university lecturer on legal interpretation, International Human Rights, Humanitarian Law, and Armed Conflicts at the Universidad del Bosque. Additionally, he is a founding member of the International Institute of Human Rights-Colombia Chapter and the “Centro Internacional para el Tratamiento de las Violencias” -International Centre for Violences Treatment. He was the research director to the International Red Cross Study of Customary International Humanitarian Law in Colombia 2020-2023 and participated in the 15th Advance Seminar in IHL for Academics and Policymakers in Geneva. He has 10 years of work experience in international human rights and international humanitarian law

On January 9th, 2024, Ecuador’s Government declared the existence of non-international armed conflict (NIAC) under international humanitarian law (IHL) against 22 groups located in different detention facilities across the country. The question on this political and legal decision relates to the return of the “phantom” of the war against terrorism and the overuse of lethal force.

In this context, some criminal organisations have expanded their operations in Latin America and increased their influence on Ecuador’s territory, specifically inside the penitentiary system. In 2022, the think tank and media organisation InSight Crime reported that Ecuador was the tenth most violent country in Latin America and the Caribbean, after an astonishing 82% rise in murders compared to the previous year. With this in mind, there are many questions regarding whether the Ecuadorian Government’s statement is actually a correct picture of the violent situation in terms of IHL’s application and whether the appropriate answer to the situation is the use of lethal force by military forces against these criminal bands. Thus, is it really precise to think of these groups as belligerent parties to a non-international armed conflict (NIAC)?

In this piece, I intend to explore the dilemmas about the declaration made by Ecuador’s president in relation to the NIAC’s existence under IHL and international law as a whole.

The main issue in Ecuador

On 9th January 2024, Ecuador’s current president, Daniel Noboa, announced a State of Emergency and declared “Martial Law” across the country due to the “existence” of a NIAC, ordering the mobilisation of the Armed Forces and National Police to tackle the actions of several criminal groups. Article 3 of the government act reads as follows: “[p]rovide mobilisation and intervention of the Armed Forces and National Police in the national territory to guarantee sovereignty and territory integrity against transnational organised crime, terrorist organisations and belligerent non-state actors as set forth in this Executive Decree.” More than 20 such criminal and armed groups are mentioned in the document.

InSight Crime, however, has shown a different picture of the situation in Ecuador. It reports that, currently, only three criminal organisations have taken control of some prisons and places in this country, notably the Los Choneros, Los Lobos, and Los Lagartos. All of them are violent groups —having as a common feature that they are all engaged in the following types of crimes: drug trafficking, extortion, kidnappings, etc. Yet, as I will show from the news, public information and mass media, it is impossible to determine whether these transnational organisations have taken part in military action. So, what should the actions of the Ecuadorian State be in this situation and what is the relevant legal framework to regulate it?

To answer, it is relevant to assess the application of Common Article 3 of the four 1949 Geneva Conventions and the interpretations provided by international jurisprudence regarding the two requirements required for a NIAC: i) the level of organisation of the parties and ii) the intensity of the violence. By applying these two criteria, I will analyse and evaluate the correct legal setting for each group:

Los Choneros

Level of organisation: This criminal group derives from Colombian drug trafficking groups operating on the Pacific Coast that needed Ecuadorian allies to transport and export the drugs to the United States. The Los Choneros group was born in the 90s, but in 2011 it split in two and its two component parts took control of the penitentiary system in Ecuador. Its structure is similar to the one of a gang organisation; it is formed of two gangs called “Fatales” (Adolfo Macias, alias “Fito”, is their leader) and the “Águilas” (Junior Roldán, alias “JR”, was their leader, but he was killed in Colombia in May 2023).

This structure is relevant because it does not fulfil the threshold established by IHL, which requires to have a sufficient level of organisation to take overall control of its subordinates and give orders. Indeed, its fragmentated nature became clear after the 2020 assassination of the previous leader of Los Choneros, Jorge Luis Zambrano, which led to a further split in the gang, with its off-shoots soon turning into mortal enemies of their former comrades. As a result, it seems that when looking at this group in Ecuador, with the information that is available, the Government’s decision cannot be sustained by law but is instead informed by a political strategy to manage the violent situation in the Country. For instance, in the ICTY Case Boškoski (par.177-78, 183, 199-203), the Trial Chamber remarked that the level of organisation is only fulfilled when the armed group has logistics to make military operations, training for their fighters, camps, a disciplinary code, and long-lasting conducting of the hostilities.

The intensity of the violence: The Los Choneros organisation utilises a high level of violence, with some news reportingthat they have committed extortion, murder, kidnapping, and drug trafficking.However, the group does not engage in any behaviours that can be described as military operations in the sense of conduct of hostilities. The Commentary of Article 49.1 of AP-I, of 1987, notes that “(…) it is appropriate to note that in the sense of the Protocol, an attack is unrelated to the concept of aggression or the first use of armed force; (6) it refers simply to the use of armed force to carry out a military operation at the beginning or during the course of armed conflict”. An “attack” in IHL is any offensive or defensive act of violence against the adversary. This confirms that not all violent attacks constitute military operations, as it happens with the activities of this gang.

In addition, it is relevant to note that the Choneros’ members generally use standard criminal weapons as well as knives, guns, and some mini Uzis and assault rifles. Despite having 20,000 members, most of them are in prison and do not have military training or formation. So, it is also possible to conclude that the violence does not reach the required threshold for IHL to be applicable. Finally, international case law has noted that achieving the intensity of the violence in a situation could be a condition for determining the existence of the NIAC. In Haradinaj’s case (par.60), the Trial Chamber remarked that the intensity of violence might be a criterion to presume the level of organisation. Therefore, the current level of violence does not support the presumption that the organisation’s degree is met either. In sum, the situation of violence involving the Choneros gang does not comply with the requirements of IHL, such that it can be considered a non-State armed actor.

Los Lobos

Level of organisation: The Los Lobos criminal group is the second biggest criminal organisation in Ecuador after the Choneros, with 8.000 members. They are actually a descendant of the “Choneros“, with control over other gangs, such as “Los Tiguerones” and “Los Chone Killers.” These gangs have as their main goals to manage illegal businesses such as illegal mining, drug trafficking, and all businesses inside of certain prisons. Together they form a transnational criminal group linked with Colombian and Mexican cartels.

In the beginning, the constituent groups gave weapons to the Jalisco Cartel or “Cartel Jalisco Nueva Generación” for Mexico and provided security to their drug routes. InSight Crime has reported how this group has relationships with other gangs as a sort of “federation”, but it does not have enough command and control as a single structure. As in the case of “Los Choneros,” it can be asserted that this criminal organisation does not have the level of organisation required by international law to be considered a part of a NIAC.

In addition, the ICC has suggested that “organisation level” requires “some degree of organisation” or to be “relatively organised”, but in the case of Lobos, it is not possible to conclude this because the group is operating as a criminal gang with different cells and subgroups.

The intensity of the violence: Though their operations are related to criminal activities, the “Lobos” group threatens the security and stability of Ecuador. In 2021, there were reported some massive murders inside prisons against individuals allegedly associated with the other criminal gangs, including the “Choneros.” The group has coordinated some criminal operations with other groups as well as with the “Nueva Generación” cartel to attack “Los Choneros“. However, this violence has not reached a military status, remaining criminal in nature. As Kalmanovitz argues, “the case of illicit business leads to unlawful enrichment, particularly from the traffic of illicit substances, but not necessarily to increasing violence and threats to life” and these gangs “prefer to avoid confrontation with the State, [even thought] competition among themselves for illicit markets can become highly conflictive and violent, and lead to appalling humanitarian effects on communities living in disputed territories.” Furthermore, the clashes between the “Lobos” and “Choneros” have taken place inside the Ecuador Penitentiary System without the Government having to undertake military interventions. It seems this was more a matter of ordinary police operations.   

Los Lagartos

Level of organisation: The last group of importance listed in the presidential decree, “Los Lagartos”, is a group made from other criminal gangs such as “Los Cubanos” and “Gorras”; its common purpose is to attack and engage with “Los Choneros.” Like the “Lobos” and “Choneros,” this group is located inside the Ecuadorian Penitentiary System.

The group is organised into subgroups which have different roles in the criminal business. It does not have a clear hierarchical structure. It has some allies’ gangs such as “Los Gángster Negros,” “Los Latin Kings”, and “el Cuartel de las Feas.” According to this structure, also “Los Largartos” does not reach the required standard to be a party to a NIAC. It does not have the minimum of organisation as a military structure.

The intensity of the violence: Similar to what occurs with the previous two actors, Los Lagartos uses violence to gain financial income, and it does not conduct hostilities in a military sense. Los Lagartos has been accused by authorities of some crimes such as murdering, as in the case of a famous Ecuadorian actor, and for the overall control of some prisons (35 in total), where they have been responsible for some violent riots and taken part in the drug trafficking business. Yet, even though Ecuador is heavily engaged with these criminal organisations in a law enforcement sense, there is no NIAC because, as can be observed, the situation does not meet the required legal criteria.

In a nutshell

As a result, for IHL to be applicable and for Ecuador to use lethal force according to the standards included in this legal framework, the ‘organisation’ and ‘intensity’ criteria need to be met. On the basis that these requirements seem not to have been met, Ecuador should re-assess its response because its declaration of ‘Martial Law’ seems not to comply with the international obligations of the four 1949 Geneva Conventions. It is relevant to say that Ecuador ratified the Geneva Conventions, and so the cumulative criteria resulting from ICTY interpretation in the Tadic Case is applicable, also as a matter of customary law. The international community has accepted this formula to classify violent situations as NIACs and therefore apply IHL.

With this scenario some dilemmas are raised by the complex situation of security in Ecuador: (i) the abuse of IHL and (ii) the issue grasping at straws for defeat this kind of threat. Firstly, for some human rights defenders, “the phantom comes back” means the abuse of the lethal force without due process and outside of some shape of armed conflict. Therefore, IHL is used in wrong scenarios, where the critical legal regimen is human rights. As the Inter-American Commission of Human Rights pointed out in 2002 in the Report about Terrorism and Human Rights, State Agents have to distinguish between people who are participating in the hostilities in the context of the NIAC and people who are a threat to security in times of “peace” but make violent actions. Moreover, the right to life in scenarios that are not NIACs is governed by a different legal regime, which is linked to due process and other law guarantees. These safeguards do not allow arbitrary killing, which can take place without the commission of a previous crime, the existence of a legal process and a death sentence, in contrast to the use of lethal force in IHL, which permits (or at least does not prohibit) the killing of members of non-state armed groups.

At the same time, it is true that in the contexts under analysis there are threats in the shape of non-state groups or armed groups, with the capacity to commit massive crimes and damage to the State. Yet, they do not have the purpose of attacking the State directly or taking political power. These groups seem to exclusively use some means of violence to have an illegal income. As a result, the question is how we can engage those transnational groups, without the use of lethal force as there are no NIACs, but with unique mechanisms because the regular security forces cannot fight with them under regular police procedures.

Secondly, given the lack of clarity regarding the possible application of IHL in the situation under analysis, the general problem of violence in Ecuador raises some inquiries regarding what kind of measures the government can take to face this significant threat. The expert Geoffrey Corn, in a recent publication, addresses this issue by examining (i) the incapability in the praxis of filling up the IHL requirement in these transnational grey zones and (ii) the existence of legal uncertainties in international law that raise doubts in government authorities on the specific rules to apply.

As a result of these intricacies, Ecuador has several dilemmas to solve concerning the use of force; they selected a path of using of lethal force under IHL, but they must comply with their international duties in good faith under the principle of pacta sunt servanda (Art.26, Vienna Convention,1969). The threat of the “Phantom’s return”, with the abuse of IHL, appears here. However, during the last few years the traditional non-state armed groups’ landscape has changed worldwide. Transnational criminal groups under terrorism or illegal business flags represent a serious scenario to States. The thorny path to managing these situations must comply with international law without justifying the complex scenarios because human rights and humanitarian law are means to protect the human people, and they are not tools to use lethal force without limits when social and political government stability is compromised. Despite the difficult security situation in Latin America and Ecuador, IHL cannot be instrumentalised as an easy way to end transnational criminality because even good intentions pave the road to hell.

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