Nature and expansion of violence and organized crime

Armed violence linked to organized crime causes severe humanitarian issues. In the Americas, the humanitarian impact extends beyond casualties, with hundreds of thousands of victims displaced from their homes and deprived of essential public services like health and education.Footnote ¹⁰ As noted above, Ecuador is currently experiencing this impact, with the highest levels of violence in its over 200 years of history as a republic. The situation is complex and, without a doubt, is the result of a confluence of multiple factors: increased presence of local and transnational organized crime, infiltration of organized crime in State institutions, drug trafficking, high homicide and crime rates, and violence within prisons.

Organized crime in Ecuador has evolved significantly in the last three decades. In 2023, the Ecuadorian Organized Crime Observatory published a study of the evolution of organized crime since 1990, divided into five stages.Footnote ¹¹ In the first stage (1990–2000), there were lightly structured organizations of a local nature and with limited international insertion, as well as urban gangs such as the Ñetas and the Latin Kings.Footnote ¹² The second stage (2000–2010) is identified as the “expansion phase”. The criminal group known as Los Choneros consolidated and formed alliances with organizations such as the Sinaloa Cartel from Mexico, and groups related to the Revolutionary Armed Forces of Colombia – People's Army (Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo, FARC-EP) from Colombia.Footnote ¹³ The third stage (2010–2015) corresponds to a “consolidation phase”. Los Choneros maintained a near-monopoly due to the weakening of groups such as the Latin Kings and the Ñetas that reached agreements with the State to be legalized.Footnote ¹⁴

The fourth stage (2015–2020) is known as the “weakening phase”. Foreign actors such as the Albanian Mafia, the Jalisco Nueva Generación Cartel and groups related to the FARC-EP gained power. Also, the leader of Los Choneros significantly lost power.Footnote ¹⁵ Finally, the fifth stage began in 2020 and is identified as a “phase of atomization and violence”. During this stage, confrontations between dissident groups and Los Choneros emerged.Footnote ¹⁶ Among the main criminal organizations currently operating in the country are Los Choneros and Los Lobos. These criminal groups are estimated to have 12,000Footnote ¹⁷ and 8,000Footnote ¹⁸ members respectively.

The foreign actors that have the greatest presence and influence in Ecuador include the Mexican cartels of Sinaloa and Jalisco Nueva Generación, dissident groups of the FARC-EP, and the mafias of the Balkans. Some of these groups have been or continue to be parties to armed conflicts in their countries. The Rule of Law in Armed Conflict (RULAC) project of the Geneva Academy has verified the presence of NIACs between the Government of Mexico and, at least, the Jalisco Nueva Generación Cartel and the Sinaloa Cartel, from 2017 to 2019.Footnote ¹⁹ According to the International Committee of the Red Cross (ICRC), the FARC-EP dissident groups that did not accept the Colombian peace agreement are parties to five of the eight NIACs currently taking place in Colombia.Footnote ²⁰

Organized crime has infiltrated several State institutions in Ecuador. The State Attorney General's Office filed charges of organized crime and related crimes against judges at all levels, prosecutors, lawyers, officials of the Judicial Administrative Body, officials of the National Service for Comprehensive Attention to Adults Deprived of Liberty and Adolescent Offenders (Servicio Nacional de Atención Integral a Personas Adultas Privadas de Libertad y a Adolescentes Infractores, SNAI), National Assembly former members, and police officers. These cases have been named “Metastasis”, “Purge”, and “Plague”.Footnote ²¹ More than a decade ago, Raúl Reyes, the FARC-EP's “number two”, was killed in an armed attack by Colombian armed forces in the territory of Ecuador.Footnote ²² Colombia justified these acts, among others, by alluding to links between Ecuadorian government officials and the Colombian guerrillas.Footnote ²³

Probably the most determining factor that explains the violence crisis and the confrontations between criminal groups is drug trafficking. In 2023, Ecuador seized nearly 200 tons of cocaine.Footnote ²⁴ That placed Ecuador second in the region (behind only Colombia), and among the world's highest-ranking places, for cocaine seizures.Footnote ²⁵ Ecuador is one of the main transit countries through which a large amount of drugs pass worldwide,Footnote ²⁶ and this has turned Ecuador into one of the most violent countries in the world. Ecuador ended 2023 with the highest homicide rate per 100,000 inhabitants in Latin America,Footnote ²⁷ a rate that had increased by 75% compared to the previous year.Footnote ²⁸ Also, in 2023, Ecuador presented the 11th-highest crime ranking in the world in a tie with Syria and closely following Afghanistan and Lebanon, which finished tied in ninth place.Footnote ²⁹

Among the most representative criminal acts of recent years, the murder of presidential candidate Fernando Villavicencio stands out.Footnote ³⁰ Likewise, it is notable that, on 9 January 2024, members of a criminal group kidnapped the State television channel TC Televisión.Footnote ³¹ The crime was broadcast live on national television and was classified as a terrorist attack by the authorities.

Violence in prisons has been another constant problem in recent years. According to official data, between 2021 and 2023, 542 violent deaths were recorded inside prisons in Ecuador: 331 in 2021, 144 in 2022, and sixty-seven in 2023.Footnote ³² These massacres have been extremely violent, involving multiple decapitations and mutilations.Footnote ³³ Firearms, explosives and even a drone have been used inside prisons.Footnote ³⁴ In 2022, the Inter-American Commission on Human Rights (IACHR) identified a high rate of overpopulation, weak institutions, corruption, and poor living conditions, among other issues.Footnote ³⁵ In Ecuador, it is well known that the prisons were distributed among the main organized crime groups and that the criminal groups now have control of the prisons.

Use of state of exception decrees and the mobilization of the Armed Forces to combat violence

The Constitution of the Republic of Ecuador gives the president the exclusive competence to issue state of exception decrees in cases of “aggression, international or internal armed conflict,Footnote ³⁶ serious internal commotion, public calamity or natural disaster”.Footnote ³⁷ The state of exception allows the president to suspend or limit the exercise of the following rights: inviolability of domicile, inviolability of correspondence, freedom of transit, freedom of association and assembly, and freedom of information.Footnote ³⁸

Furthermore, through the declaration of a state of exception, the president can take extraordinary measures, including the early collection of taxes, using public funds destined for other purposes, providing for prior censorship of information from social media, establishing all or part of the national territory as a security zone, providing for the use of the Armed Forces and the National Police and calling the entire reserve or part of it to active duty, arranging the necessary mobilization and requisitions, and decreeing national demobilization when normality is restored.Footnote ³⁹

States of exception have become the preferred tool of Ecuador's presidents to combat crime, both inside and outside prisons. Since 2018, thirty-three states of exception have been declared specifically aimed at combating crime inside and/or outside prisons.Footnote ⁴⁰ These decrees were adopted with the main purpose of mobilizing and employing the Armed Forces since, in principle, the Armed Forces are not responsible for controlling internal security (which is dealt with by the National PoliceFootnote ⁴¹) or order within prisons (dealt with by the SNAI). Since January 2024, the president has declared a state of exception six times. In five of those cases, the president, based on the existence of a NIAC, took extraordinary measures aimed at combating crime inside and outside prisons. These states of exception are detailed in Table 1.

Table 1. States of exception decreed by the president of Ecuador

The qualification of a NIAC

Article 3 common to the four Geneva Conventions (common Article 3) refers to armed conflicts “not of an international character”, but it does not define NIACs or establish the requirements that must be verified for their qualification. Therefore, it is necessary to consider international jurisprudence as an auxiliary source of international law. The definition of NIAC that is commonly accepted was proposed by the International Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadić case. In this case, the ICTY considered that a NIAC occurs when there is “protracted armed violence between governmental authorities and organized armed groups or between such groups”.Footnote ⁴⁸ To meet this standard, in accordance with other decisions of the ICTY and other international tribunals, two cumulative requirements must be met: organization of the parties and intensity of hostilities.Footnote ⁴⁹ These requirements to qualify a NIAC have become international custom due to their constant practice and acceptance as obligatory.

To guide the analysis of the requirements of organization and intensity, international tribunals have proposed various indicative factors.Footnote ⁵⁰ However, it should be noted that such indicative factors do not constitute an exhaustive list of requirements that must necessarily be met. Indeed, as recognized by the ICTY and the International Criminal Tribunal for Rwanda (ICTR), “the determination of the intensity of a conflict and the organisation of the parties are factual matters which need to be decided in light of the particular evidence and on a case-by-case basis”.Footnote ⁵¹

The position of the president of Ecuador regarding the definition of NIAC evolved over time. Thus, in his first state of exception decree, he cited a concept according to which a NIAC is a confrontation that requires “a minimum of 100 fatalities in one year and/or a serious impact on the territory … and human security”, with the aim of “achiev[ing] objectives that are distinguishable from those of common crime”.Footnote ⁵² In subsequent decrees,Footnote ⁵³ the president adopted the definition from the international jurisprudence. Regardless of this, in all his decrees, the president tried to justify the requirements of organization and intensity, referring to the indicative factors proposed by international tribunals. For its part, the CCE, in all its judgments, adopted the definition of NIAC from the Tadić case and analyzed the compliance with the requirements of organization and intensity, in light of indicative factors proposed by the international tribunals, to conclude that the president did not prove the existence of a NIAC.Footnote ⁵⁴

Can criminal groups be a party to a NIAC?

The president and the CCE agreed that criminal groups can be parties to NIACs. The president, when recognizing the existence of a NIAC for the first time, identified twenty-two criminal groups as “belligerent armed groups”.Footnote ⁵⁵ The president has expressly stated that “the fact that these groups are dedicated to drug trafficking or other criminal activities does not prevent them from being parties to the NIAC”.Footnote ⁵⁶

The president has consistently referred to the situation in Ecuador as a modern armed conflict, stating that the “presence of various types of armed actors, both public and private, in most cases of a transnational nature, constitutes the most relevant characteristic of these conflicts. In them, militias, paramilitaries, armies of warlords, [and] criminal gangs … clash.”Footnote ⁵⁷ He has also specifically stated that “organized crime has become a non-belligerent state actor”.Footnote ⁵⁸ Likewise, he has argued that “the modern conflicts that threaten Ecuador are fought under asymmetric conditions”Footnote ⁵⁹ and that they are “dynamic, changing and with mutable alliances”.Footnote ⁶⁰

According to the president, modern conflicts “demand modern responses”.Footnote ⁶¹ In this regard, he reasoned that the conflict which Ecuador is experiencing “cannot be conceived restrictively based on the conceptualization of 1949 and the jurisprudence of other countries”.Footnote ⁶² For example, the president indicated that the ICTY's jurisprudence “cannot be applied strictly to the country”.Footnote ⁶³ He also argued that modern conflicts “materialize their own factual conditions … [such as] the violence perpetrated by organized crime groups … which are dramatically different from the classic Ius ad Bellum and Ius in Bellum”.Footnote ⁶⁴ However, despite all these claims, the president did not specify the specific regime that would be applicable to modern conflicts involving criminal groups.

The CCE, for its part, was clear when pointing out that “for the qualification of a NIAC, the nature and objectives of the organized armed group are irrelevant”Footnote ⁶⁵ and that “the fact that an armed group does not have political aspirations or that its activity is focused on drug trafficking or other criminal activities does not prevent it from being a party to the conflict within the framework of a NIAC”.Footnote ⁶⁶ For the specific case of Ecuador, the CCE considered that “the fact that the activity of the criminal groups identified by the president is focused on drug trafficking and other criminal activities does not prevent them from being a party to the conflict within the framework of a NIAC”.Footnote ⁶⁷ To reach its conclusion, the CCE turned to the Limaj case in which the ICTY clarified that

The possibility of criminal groups being parties to NIACs is a topic that has been the subject of extensive debate in doctrine in recent years. As Muggah recognizes, “humanitarian, law enforcement and military experts do not always agree on the criteria that should be applied to determine whether IHL can or should apply to organized criminal groups”.Footnote ⁶⁹ Although there is general agreement that the motivation of the organized armed group is legally irrelevant to the qualification of a NIAC, when trying to classify a potential armed conflict involving criminal groups, multiple challenges arise.

Kalmanovitz emphasizes the difficulty of criminal groups meeting the organization requirement and proposes a “presumption against NIAC qualifications of organized criminal violence”.Footnote ⁷⁰ In this regard, the author notes that “[i]f we take responsible command and the ability to comply with IHL norms to be necessary features of non-State armed groups in NIACs, then we should in principle be sceptical of NIAC qualifications of organized criminal violence”.Footnote ⁷¹ Another challenge that arises when analyzing the organization of criminal groups is that they often try to keep their structures, and in some cases their leaders, anonymous. This is clear when, for example, criminal groups try to prevent the State from identifying people who have infiltrated State institutions.

Another challenge has to do with the differentiation between acts that have a direct nexus with the NIAC and those that correspond to ordinary criminal acts. As Padin explains, to analyze the intensity requirement,

The challenges in categorizing armed conflicts associated with organized crime are exemplified in the case of Ecuador.

Organization of the parties

To justify the level of organization, in general, of the twenty-two criminal groups identified in the first decree, the president affirmed that they had: a command structure; disciplinary rules and mechanisms within their organizations; territorial control (in entire provinces and inside prisons); recruiting capacity; access to weapons, equipment and military training; the ability to plan, coordinate and execute operations of a military nature; and official spokespersons to communicate, negotiate and conclude agreements.Footnote ⁷³ However, in a subsequent decree, the president recognized that the organizational structure of the criminal groups was unstable “due to the lack of leadership caused by the arrests or escapes of their main leaders”.Footnote ⁷⁴ This would result in the “emergence of middle-rank leaders who seek to have complete control by forming new groups to act alone or to reach agreements and alliances that allow them to sustain their criminal organization”.Footnote ⁷⁵

In a hearing before the CCE, the government stated that three criminal groups had a “mixed structure in non-hierarchical criminal networks” and that eight criminal groups were “not structured, since their activity corresponds to common crime”.Footnote ⁷⁶ Nothing was argued about the remaining criminal groups that had been considered parties to the NIAC initially. In addition, the authorities accepted that the State was absent in certain territories due to lack of resources, but affirmed that it could easily recover those territories.Footnote ⁷⁷ They also indicated that there were no “sophisticated or well-defined camps since the leaders move throughout the territory”.Footnote ⁷⁸ In relation to the “use of uniforms” element of organization, the authorities asserted that certain members of the criminal groups wear black clothing and/or have distinctive tattoos.Footnote ⁷⁹ The authorities maintained that criminal groups exercised influence on local governments and civil organizations.Footnote ⁸⁰ They further indicated that members of the criminal groups used expensive cars and motorcycles and argued that they communicated via disposable contact numbers and encrypted social networks to avoid being identified.Footnote ⁸¹

The CCE explained that the organization requirement must necessarily be proven with respect to each of the armed groups, without the possibility of aggregating or confusing the characteristics of the different groups.Footnote ⁸² Regarding the specific case of Ecuador, the CCE noted that the president did not present an individualized analysis regarding the organization of each armed group and, rather, that he sought to aggregate the characteristics of all the identified criminal groups.Footnote ⁸³ In addition, the CCE identified contradictions in the president's argument since he indicated that the organizational structure of the criminal groups was unstable, lacked leadership, and was constantly changing due to internal power disputes.Footnote ⁸⁴

In its latest judgment, the CCE conducted its most in-depth examination of the issue and determined that specific indicative factors were not met: command structure, territorial control, use of uniforms, establishment of military camps, ability to negotiate with third parties, and use of means of communication.Footnote ⁸⁵ In general terms, the CCE concluded that “there are possible inconsistencies and confusions regarding the identification of ‘organized armed groups’ and ‘organized and common criminal groups’”.Footnote ⁸⁶

In that last ruling, the CCE also sought to explain the indicative factors for assessing the level of organization; however, it fell short in comprehensively analyzing and delineating these criteria. For example, regarding the use of uniforms, the CCE stated that “[t]his indicative factor implies that an organization is fully identifiable by the use of its clothing or insignia that allows for the identification of one's membership in a group”.Footnote ⁸⁷ Then, when describing this parameter applied to the Ecuadorian case, the CCE stated that “[i]n the reserved diligence, the competent authorities indicated, without referring to the specific name of any ‘organized armed group’, that there are individuals who, for example, wear black clothing and others who bear distinctive tattoos”.Footnote ⁸⁸ The CCE ultimately concluded in general terms:

The mere reference to the use of tattoos is not a clear parameter that allows for distinguishing between those who participate and those who do not participate in hostilities. In fact, this type of explanation deepens discrimination against those who have tattoos, an aspect that should have been observed by the CCE.

After analyzing the president's decrees and the rulings of the CCE, it is clear that the president's justification was deficient. As the CCE noted in its judgments, the president did not present evidence on each of the criminal groups but inexplicably tried to aggregate the characteristics of multiple criminal groups as if they were all part of the same organized armed group. The deficiencies in the president's position become evident starting from the identification of the parties to the alleged NIAC. As noted above, over the course of six months, the president first referred to twenty-two criminal groups, then to three alliances, and later to eleven or three criminal groups.Footnote ⁹⁰ The fact that the president – relying on reports prepared by the Strategic Intelligence Centre, the Armed Forces and the National Police – was not able to prove the organization of even one of the criminal groups in five attempts is certainly a clear signal to conclude that the organization requirement was not properly met.

Corroborating the thesis of Kalmanovitz, the case of Ecuador demonstrates that proving the organization requirement in NIACs that involve organized crime is complex.Footnote ⁹¹ In this sense, the fact that the president himself recognized that the organizational structure of the criminal groups was unstable, lacked leadership and was constantly changing due to internal power disputes should not be underestimated. This denotes the lack of a solid command structure, which becomes a clear indication that, in Ecuador, the existence of an armed conflict has not been proven because none of the criminal groups would satisfy the organization requirement. The difficulty of determining the precise structure of each armed group has also been noted. One of the reasons for this could be, in fact, the intention of the criminal groups to remain anonymous.

In any case, the question remains as to what the CCE's position would have been if the president had presented more solid arguments. Perhaps the president's repeated references to the existence of a modern conflict should have been linked to the characteristics of the organization of criminal groups, such as dynamism, horizontal structures, decentralization, the presence of collective leaders and the prominence of middle-rank leaders. In this sense, the possibility remains open for the organization requirement to be met when other indicative factors are present, such as, as occurs in the case of certain criminal groups in Ecuador, access to military-grade weapons, logistical capabilities, and the ability to recruit new members. Not all of the dozens of criminal groups that operate in Ecuador can be seriously considered as organized armed groups, but the most powerful and structured criminal groups should not be automatically discarded. This situation should be the subject of extensive debate in the jurisprudence and the doctrine.

Intensity of hostilities

To justify the intensity requirement, the president argued that the criminal groups were responsible for prison massacres, selective armed attacks, multiple armed attacks, attacks with explosives, and attacks on public officials and infrastructure.Footnote ⁹² According to the president, these acts were not sporadic and were characterized by their intensity, permanence and recurrence.Footnote ⁹³ The president also mentioned the territorial control exercised by criminal groups in entire provinces and inside prisons.Footnote ⁹⁴ In one of the decrees, the president referred to three alliances or factions that had been formed, each led by one of the largest and most powerful criminal groups in the country.Footnote ⁹⁵ These alliances were formed “intermittent[ly] for survival”, “for territorial positioning” or “for power”.Footnote ⁹⁶ The objectives of the factions were linked, essentially, to the protection of leaders, the control of ports, and the permanence of criminal activities such as drug trafficking and illegal mining.Footnote ⁹⁷

The CCE established that the intensity requirement must be verified for “each confrontation that is intended to be classified as a NIAC”, taking into account only the acts that are directly related to the specific conflict.Footnote ⁹⁸ As an exception, the CCE provided for the case of coalitions in which organized armed groups “join efforts to combat the same adversary in a coordinated and sustained manner”.Footnote ⁹⁹ In these cases, according to the CCE, it is possible to aggregate the acts of the armed groups that act as a coalition in order to verify whether or not the intensity requirement is met.Footnote ¹⁰⁰

For the case of Ecuador, the CCE verified that the president presented information in a general way, attempting to aggregate the acts attributable to multiple criminal groups.Footnote ¹⁰¹ The CCE repeatedly noted that the president merely cited isolated cases of criminality that were not even attributed to any specific criminal group.Footnote ¹⁰² According to the Court, the president did not justify the existence of a coalition in which armed groups “join forces to combat the same adversary in a coordinated and sustained manner”.Footnote ¹⁰³ Indeed, the CCE pointed out that the president himself stated that the alliances formed between criminal groups were temporary and adaptable.Footnote ¹⁰⁴

Additionally, the CCE considered that the type of territorial control by criminal groups referred to by the president was not relevant for the classification of a high-intensity NIAC.Footnote ¹⁰⁵ This is because the control exercised by criminal groups had to do only with their prevalence in specific areas for planning and committing criminal acts.Footnote ¹⁰⁶ Thus, for example, certain groups managed drug distribution in Guayaquil, others in Esmeraldas, in certain prisons, etc.Footnote ¹⁰⁷ According to the CCE, the relevant type of territorial control is that in which the organized armed group exercises de facto functions of the State in a certain territory over which the State has lost control.Footnote ¹⁰⁸

As it did for the analysis of organization, in Judgment 7-24-EE/24 the CCE examined some of the indicative factors of intensity: the number of incidents, the duration of the violence, the geographical extent of the violence and the type of weapons used. In this regard, the CCE concluded that: (a) incidents were presented as isolated cases without indicating which criminal group they could be attributed to; (b) the president evoked the incidence of more violent events in 2021 and noted a rise in violence in the first half of 2024, but did not attribute those data to any specific criminal group; (c) the president indicated that there was a local and regional operational dynamic, but did not justify it with respect to any specific criminal group; and (d) data were provided on the seizure of weapons, ammunition, explosives and drones employed in the commission of illegal acts, but those data were not attributed to any specific criminal group.Footnote ¹⁰⁹

The difficulty of separating ordinary criminal acts from acts relevant to the qualification of a NIAC has been noted in this case, as evidenced in the president's decrees. The president was not able to differentiate between isolated criminal acts and acts that could have had a direct nexus with the conflicts that were qualified as NIACs. Certainly, there may be many criminal acts that could be easily discarded for the purposes of qualifying a NIAC. Among these acts, crimes committed against local authorities and candidates, robberies, kidnappings, money laundering, corruption, and destruction of civil infrastructure, among other acts that the president cited to justify his decrees, could be included. However, it is more complicated to analyze acts that, despite appearing to be isolated, were committed directly against the Armed Forces and the National Police, such as the use of car bombs, the destruction of police vehicles and infrastructure, and the murders of police officers while they were performing their duties.

At first sight, it could be concluded that some indicative factors of the intensity requirement are met in the case of Ecuador. The use of military equipment by criminal groups, the number of deaths and the duration of violence are probably the most evident. Also, the continuous declaration of states of exception, the use of the Armed Forces and the recognition of the NIAC by the president could be considered indicative factors because these actions demonstrate that the situation of violence has reached a very high level.

However, with a closer and deeper analysis, it will be noted that, as the president identified it, dozens of criminal groups operate in Ecuador independently. The number of deaths may be high, but that could be attributed to the high number of criminal groups, and many of those deaths certainly correspond to the consequences of ordinary and organized crime, but not to confrontations that could be relevant to IHL. Other apparent indicative factors – such as the duration of violence, the declaration of states of exception, the use of the Armed Forces and the recognition of the NIAC – could be explained by the lack of capacity of the State to confront the criminal violence and are not necessarily motivated by hostilities of an intensity proper to a NIAC. In this context, the conclusion and arguments of the CCE regarding the failure to meet the intensity requirement in the case of Ecuador could be considered reasonable.

Inconsistency of the State's actions with the recognition of the NIAC

The Latin American experience reveals a pattern of governments combating certain criminal groups using IHL standards, both in situations that could be classified as NIACs and in others where the facts clearly suggest the opposite. The governments of Colombia, Peru, Mexico, El Salvador and Brazil have considered certain criminal groups to be enemies of the State and have used levels of force against them that would be expected in NIACs.Footnote ¹¹⁰ As an illustration, in 2015, the Colombian Air Force conducted air strikes against individuals belonging to the drug trafficking group known as the Clan del Golfo, and these acts have subsequently been adopted as part of the government's official policy.Footnote ¹¹¹ While the violence in the Valle de los Ríos Apurímac, Ene y Mantaro region of Peru has not been officially qualified as a NIAC by experts, the government has called drug trafficking organizations in the area “hostile groups” in order to target them under IHL.Footnote ¹¹²

Ecuador seems to have moved away from this trend, as the government has recognized the existence of a NIAC but not with the intention of applying IHL against the criminal groups. Although the president has recognized the existence of a NIAC, governmental actions to address the alleged armed conflict suggest the opposite. This section aims to present indicative factors which support the conclusion of previous subsections that there is insufficient evidence to assert that a NIAC is occurring in Ecuador. The statistics and facts provided are merely indicative and should not be interpreted as conclusive.

On 11 March 2024, the president, the Armed Forces and the National Police issued a joint statement in which they reported that, since 9 January 2024, they had carried out 167,575 security operations, including 202 operations against alleged terrorist groups.Footnote ¹¹³ During these operations, the authorities reported the deaths of fifteen alleged terrorists.Footnote ¹¹⁴ In addition, the authorities detained 13,073 people, 280 for terrorism.Footnote ¹¹⁵ Arrests notably increased, since official data show that, between January and the end of May 2024, 30,987 people were detained.Footnote ¹¹⁶ By the end of July, 43,354 people had been detained.Footnote ¹¹⁷ The statistics show that the National Police and the Armed Forces are not addressing the alleged armed conflict using IHL standards.

The figures cited above show that the rate of deceased people compared to those detained in the period 9 January to 11 March (i.e., the first two months since the recognition of the NIAC) was 0.11%. In other words, 871.53 people were arrested for each person who died. Furthermore, the data show that, on average, there was one deceased person for every 11,171.67 operations and, specifically, for every 13.47 operations aimed at fighting terrorism. Clearly, the National Police and the Armed Forces have been acting with a standard of legitimate use of force under a human rights approach, at least as a general rule. The low number of deaths compared to the number of arrests and military and police operations is not typical of a NIAC. Although, in the context of an armed conflict, the ideal is to reduce the number of deaths to a minimum, when such a low number is observed, the situation suggests that there is no NIAC due to an insufficient level of intensity.

Another very revealing fact has to do with the choice of the authorities to prosecute detained people for common crimes, including terrorism, and not for war crimes. The initiation of several judicial proceedings against detained persons has been made public and, according to the information available, none of these proceedings is being pursued for war crimes, even though the Ecuadorian Criminal Code typifies these crimes in its Articles 111–139.Footnote ¹¹⁸ For example, if acts of terrorism were committed during a NIAC, the corresponding response would be to resort not to the criminal types of terrorism that are applicable in an ordinary situation but to the types of criminal activities covered by Article 126 of the Criminal Code, which establishes that “[t]he person who, during an armed conflict, carries out any form of attack on a protected person with the aim of terrorizing the civilian population will be punished with a prison sentence of ten to thirteen years”.Footnote ¹¹⁹

The actions of Ecuadorian prosecutors can be explained by the fact that, in the event of initiating judicial proceedings for the commission of war crimes, in accordance with Article 114 of the Ecuadorian Criminal Code, the existence of a NIAC would have to be proven. Article 114 clearly states that a NIAC can exist “regardless of the formal declaration by the president or the decree of a state of exception throughout the national territory or part of it”.Footnote ¹²⁰

Another point on which the position and actions of the government do not coincide is related to the type of weapons used. IHL prohibits the use of chemical weapons, including tear gas,Footnote ¹²¹ but the National Police and the Armed Forces have used tear gas in the alleged armed conflict. There are even complaints that it has been used disproportionately when employed near the faces of detained people.Footnote ¹²² The use of tear gas in Ecuador, in this context, can be explained in only two ways. The first scenario is that, being aware that there is no real NIAC in Ecuador, the National Police and the Armed Forces have used means that are proper to address an ordinary situation and that are generally employed to contain riots. The second scenario is that, believing that there is an armed conflict, the National Police and the Armed Forces have deliberately chosen to use weapons prohibited by international law.

Also, the way in which detentions have been carried out during the alleged armed conflict is not what would be expected in a NIAC. As indicated above, between January and May 2024, the National Police and the Armed Forces detained 30,987 people. The effective capacity of Ecuador's prisons is 27,714 people, and this has remained practically unchanged since January of this year.Footnote ¹²³ This means that, in five months, the number of people detained amounted to 111.8% of the total capacity of Ecuadorian prisons. In addition, it must be taken into account that, for several years, Ecuador had already been facing a very serious problem of prison overcrowding.Footnote ¹²⁴ Considering that, since the beginning of the alleged armed conflict in Ecuador, no new prison or any type of detention centre has been set up, the question arises: where are the detained people?

Between January and 19 April 2024, according to data from the State Attorney General's Office, there were 217 convictions and thirty-eight trials initiated.Footnote ¹²⁵ The progression of the prison population since January of this year shows that it has not changed significantly compared to the number of detentions.Footnote ¹²⁶ After an independent investigation, Human Rights Watch has explained that, apparently, most of the detained people were never brought before a judge or prosecutor but rather were detained for brief periods, outside the legal process, to receive reprisals, beatings or other degrading treatment by members of the National Police and the Armed Forces.Footnote ¹²⁷ In the rest of the cases, the detained people would have been transferred to the country's prisons. At this point it should be noted that, in the state of exception decrees, the president indicated that the alleged armed conflict was also taking place inside prisons that were controlled by criminal groups.

Thus, it is clear that the people who would be members of the organized armed groups and have been detained en masse have not been placed in a special or temporary detention centre. They have been released after short periods of detention and, in a minority of cases, have been located in the country's existing prisons, where the NIAC would also be taking place. The inconsistency lies in the fact that, in any of these scenarios, the State would be massively detaining people who had allegedly participated directly in the NIAC and then returning them to the places where the hostilities were taking place.

In its judgments, the CCE highlighted that the president did not make it clear if he considered that there was one, several, or even twenty-two NIACs.Footnote ¹²⁸ The CCE also noted that the president's motivation was deficient since he did not identify the criminal group that would have committed each act that motivated the states of exception.Footnote ¹²⁹ In summary, the CCE concluded that the president limited himself to identifying multiple criminal groups, mentioning isolated acts of violence without attributing them to any specific group, and citing some indicative factors to affirm that the requirements of organization and intensity were met. This is why the position of the CCE was contrary to the position of the president regarding the existence of a NIAC (or multiple NIACs) in Ecuador.

Regardless of the particularities and difficulties of classifying armed conflicts involving organized crime, the CCE's position seems to be reasonable and appropriate for the specific case of Ecuador. Indeed, the situation of Ecuador would seem to be more similar to that of a State in which organized crime exceeds the capacity of the authorities to combat it (such as Haiti) than to that of a State facing specific criminal groups that meet the criterion of organization and that have committed acts sufficient to reach the required level of intensity (as in the case of Colombia). This conclusion is reinforced since multiple authorities of the State, including the government itself, have not applied IHL and have not acted as they would be expected to in a NIAC.

New challenges for IHL in contemporary armed conflicts

One of the most interesting contributions of the CCE's judgments is the inclusion and discussion of some of the challenges facing IHL in contemporary armed conflicts. Among other issues, the CCE addressed (1) the possibility of considering organized crime groups as parties to a NIAC, (2) how the requirement of intensity should be analyzed when coalitions are formed, and (3) the definition of spillovers. We will now discuss these issues in turn.

First, there has been extensive debate in recent years about the possibility of criminal groups being parties to NIACs. For example, the International Review of the Red Cross dedicated a thematic issue to the subject of organized crime and IHL in 2023.Footnote ¹³⁰ While there is broad consensus that the motivations of organized armed groups are irrelevant to the qualification of a NIAC, several challenges emerge when attempting to classify a potential conflict involving criminal groups.Footnote ¹³¹ Without a doubt, armed conflicts in which criminal groups participate are examples of the so-called “contemporary” armed conflicts for which, for various reasons, the existing norms do not seem to fit as easily compared to the armed conflicts of the last century for which the standards were created.

The CCE had to expressly address this situation since the president constantly tried to justify his position by indicating that the alleged NIAC was not a traditional conflict but rather a modern one that was radically different from those addressed by the “classical” ius in bello.Footnote ¹³² The CCE opted for a clear position as it expressly recognized that criminal groups can be parties to a NIAC since the motivation of the organized armed groups is not relevant to the qualification of the conflict.Footnote ¹³³ Also, the CCE analyzed whether the requirements of intensity and organization were met. The CCE carried out the same analysis that would be expected for the qualification of a NIAC without any distinction based on the nature of the criminal groups.

Second, coalition formation was addressed in the ICRC's fifth report on IHL and the challenges of contemporary armed conflicts. The report presents a favourable position in relation to the cumulative analysis of the intensity requirement when there are coalitions, since “it would be unrealistic to expect States to operate under different paradigms – either the law-enforcement or the conduct-of-hostilities paradigm – to respond to the different groups that operate together [and] pool and marshal their military means in order to defeat the State”.Footnote ¹³⁴ According to this report, “it might be more realistic to examine the intensity criteria collectively by considering the sum of the military actions carried out by all of [the groups] fighting together”.Footnote ¹³⁵

Some authors have maintained the same position. For example, Redaelli considers that it is possible to “aggregate the intensity when a number of organized [armed non-State actors] fight in the same geographical region, during the same period of time, and against a common enemy”.Footnote ¹³⁶ Likewise, Nikolic, de Saint Maurice and Ferraro have suggested that

The CCE had to rule on the issue given that the president expressly alleged that multiple alliances had been formed between criminal groups. The position of the CCE was aligned with contemporary trends in favour of conducting an aggregate analysis of the intensity requirement when analyzing cases of coalitions. Indeed, the CCE considered that this type of analysis is possible when two or more organized armed groups join forces to combat the same adversary in a coordinated and sustained manner.Footnote ¹³⁸ As can be seen, the CCE established three requirements: (1) the coalition's purpose of confronting the same enemy, (2) a level of coordination between the organized armed groups, and (3) the persistence of the coalition over time. With this, the CCE established parameters that allow a coalition that could be relevant for the classification of a NIAC to be differentiated from other types of alliances or relationships that armed groups could have.

Third, the occurrence of spillovers during NIACs was also addressed by the CCE. This issue is attended to in depth in the updated commentary on common Article 3; in this commentary, it is noted that “an existing non-international armed conflict may spill over from the territory of the State in which it began into the territory of a neighbouring State not party to the conflict”.Footnote ¹³⁹ In addition, the commentary identifies several challenges that could arise: for example, (a) how far into a neighbouring country can an existing NIAC be considered as spilling over, and (b) is the spilling over of an existing NIAC limited to neighbouring countries?Footnote ¹⁴⁰

The CCE defined spillovers in the following way:

The need to address this issue arose because the CCE had to interpret the Constitution, which uses the term “internal armed conflict” and not NIAC. In this sense, the CCE clarified that the appropriate term is NIAC since this type of conflict does not necessarily take place in the territory of a single State.Footnote ¹⁴²

Although the CCE did not carry out a more in-depth analysis of this issue, the fact that it ruled on the matter is an important step for Ecuador. The border with Colombia is particularly vulnerable, and the violence of that country has already been felt on multiple occasions in Ecuador. In 2008, for example, Colombia bombed FARC-EP camps that were located in Ecuadorian territory without the consent of Ecuador.Footnote ¹⁴³ Also in 2018, three Ecuadorian journalists were kidnapped at the border and later murdered by members of the Oliver Sinisterra Front, a dissident group of the FARC-EP.Footnote ¹⁴⁴

Incorporation of IHL into the block of constitutionality

The second relevant point that must be highlighted from the CCE's judgments is related to the implementation of IHL in the legal system of Ecuador. In its Judgment 2-24-EE/24, the CCE established that the Geneva Conventions and Additional Protocol II (AP II) are part of the block of constitutionality.Footnote ¹⁴⁵ This statement implies that IHL treaties are considered part of the Constitution itself and, therefore, hold the same hierarchical rank. Then, the CCE gave IHL treaties the highest hierarchical rank in the domestic legal system. To justify its position, the Court presented three arguments: (1) the aforementioned treaties contain ius cogens norms; (2) IHL and international human rights law (IHRL) have common objectives and a direct relationship; and (3) Ecuador must comply with its obligations under international law.Footnote ¹⁴⁶

In subsequent decisions, the CCE expressly made it clear that all IHL international treaties ratified by Ecuador (i.e., those applicable in NIACs and international armed conflicts) are part of the block of constitutionality.Footnote ¹⁴⁷ In this regard, the Court stated that “the international treaties of international humanitarian law applicable to [international armed conflicts] are also part of the block of constitutionality”.Footnote ¹⁴⁸ The CCE supported this position based on the common objectives and the direct relationship between IHL and IHRL.

The CCE's decision to include IHL treaties in the block of constitutionality is fundamental to ensuring the implementation of IHL in domestic law and making its applicability viable in the event of an armed conflict. If IHL norms were not given the same hierarchical rank as human rights norms, in case of a discrepancy between both regimes, the human rights norm would necessarily be imposed. This is because, according to Articles 424 and 425 of the Ecuadorian Constitution, if they are literally interpreted, the Constitution and human rights treaties would be hierarchically superior norms to the rest of the international treaties, including IHL treaties.Footnote ¹⁴⁹ According to Article 425, in case of conflict between two norms of different hierarchical ranks, the hierarchically superior norm has to be applied.Footnote ¹⁵⁰ With the CCE's decision, IHL and human rights have the same hierarchical rank, the maximum possible. Therefore, it is easier for the purposes of domestic law to sustain the simultaneous and complementary application of IHL and human rights in the event of an armed conflict. It is also easier to sustain that, in case of contradiction, IHL prevails due to the lex specialis principle.

It should be noted that the decision of the CCE to incorporate IHL into the block of constitutionality is not the first of its kind in the region – the Constitutional Court of Colombia has issued precedents in the same line. The renowned Judgment C-225/95, which analyses the nature of AP II, stands out in this regard.Footnote ¹⁵¹ This phenomenon requires a detailed and in-depth study aimed at verifying the real impact that the decisions of the high courts of the States of the region to incorporate IHL into their internal legal systems with the highest possible hierarchical rank have had in favour of the effective implementation of IHL.

Open questions and pending doubts

As explained above, the CCE has taken important steps to implement IHL in the Ecuadorian legal system and to highlight its relevance and hierarchical position. However, some issues remain pending resolution. Likewise, reasonable criticisms have arisen against the CCE's decisions.

The CCE considered that IHL treaties are part of the block of constitutionality, but it did not rule on how customary IHL should be implemented. This leaves a void that is particularly relevant for the case of NIACs since, in these scenarios, certain fundamental principles, such as the principle of proportionality, are derived exclusively from international custom. The same question arises regarding international instruments of IHL (other than treaties) – indeed, the CCE's position is that not only treaties but also other human rights instruments, such as the advisory opinions of the Inter-American Court of Human Rights, are part of the block of constitutionality.Footnote ¹⁵² It is not clear whether or not the CCE's position is the same regarding IHL instruments.

Another important issue that the CCE did not address has to do with the practical interaction between IHL and human rights. Indeed, although the CCE broadly developed the close and direct relationship between these branches of law as a central argument to justify the inclusion of IHL treaties in the block of constitutionality,Footnote ¹⁵³ it did not rule on how they should interact in practice. For this reason, the Court lost the opportunity to guide the president, the Armed Forces and the judges of the country on how to act in the event that, at some point, a true NIAC takes place in Ecuador. The CCE had the option of accepting one of the existing traditional theories (exclusivity, complementarity or integration) or developing a new standard capable of facing the challenges posed by contemporary armed conflicts, and specifically those that have taken place in Latin America, in which the participation of organized crime has been a constant characteristic.Footnote ¹⁵⁴

Regarding the requirements for the classification of NIACs, there are deficiencies. As indicated earlier in this article, the CCE should have observed that tattoos are not a definitive criterion for differentiating who has participated in hostilities and that this type of consideration promotes discrimination. In general, the definitions proposed by the Court in Judgment 7-24-EE/24 to give content to the indicative factors of intensity and organization are unclear, do not use technical language, and have no normative basis. Also, the CCE should have clarified that intensity is quantified as the accumulation of hostilities in respect of each armed group or coalition rather than “each confrontation intended to be classified as a NIAC”, in order to avoid the interpretation that isolated events should be considered instead of all the hostilities that are relevant for the qualification of a NIAC.

The CCE's judgments have also been criticized. One of the reasons for such criticisms is that the CCE has limited itself to verifying whether the facts presented by the president allowed the classification of a NIAC.Footnote ¹⁵⁵ In fact, the CCE did not carry out an exhaustive examination that would have led it to definitely conclude that there is no NIAC taking place in Ecuador. The Court's position is comprehensible since it is not its obligation to carry out an ex officio analysis beyond what the president argues in his decrees. However, doubt remains as to whether the CCE, in order to avoid possible violations of human rights, should have been more categorical and affirmed that in Ecuador there is no NIAC, regardless of what the president argued.

The consequence of this is that, if criminal proceedings were initiated and the possible commission of war crimes was investigated, it would be up to first-instance criminal judges to determine if there is a NIAC in Ecuador. The same would occur if a first-instance constitutional judge had to resolve a jurisdictional guarantee (i.e., a constitutional proceeding) in which violations of constitutional rights are alleged to have occurred during the supposed NIAC. In summary, the qualification of the NIAC, for the purposes of the application of domestic law, would be left in the hands of first-instance judges who do not have specific training in IHL or resources at their disposal to examine the facts in depth. The risk that these judges will simply assume, because the president has said so, that a NIAC does exist in Ecuador remains a possibility.

The CCE's judgments have also been criticized because the Court expressly indicated that, in the event of a NIAC, the president could directly use the Armed Forces and appropriate weapons.Footnote ¹⁵⁶ Thus, the president would not need to declare a state of exception and the CCE would not have to control the constitutionality of such actions. Those who criticize the judgments argue that the CCE may not prevent human rights violations. Based on the decisions of the CCE, the president has deployed, at will, the Armed Forces.Footnote ¹⁵⁷ In fact, since the beginning of January 2024, the Armed Forces have been mobilized without interruption, inside prisons and throughout the country, both in periods of a state of exception and outside them. In this context, the Ombudsman's Office has verified, between February and March 2024, twenty-four deaths in prisons controlled by the Armed Forces.Footnote ¹⁵⁸ Some cases correspond to natural deaths and others to violent deaths, with signs of torture.Footnote ¹⁵⁹ Likewise, there are reports of the deaths of prisoners with signs of malnutrition. For its part, Human Rights Watch has identified cases of possible extrajudicial executions, torture, cruel treatment and arbitrary detentions during the supposed NIAC.Footnote ¹⁶⁰