Criminal Groups as Parties to Non-International Armed Conflicts: The Standard of the Constitutional Court of Ecuador
Editors’ note: This post builds upon the authors’ article-length work, “Is Ecuador Facing a Non-International Armed Conflict Against Organized Crime Groups? Reality, Inconsistencies and Jurisprudential Developments” appearing in the International Review of the Red Cross.
In our recently published article, we describe the situation of violence caused by organized crime groups in Ecuador. The article analyzes the state of exception decrees issued until August 2024 in which the President recognized the existence of non-international armed conflicts (NIACs) against multiple criminal groups. It also considers the judgments of the Constitutional Court of Ecuador (CCE) that ruled against the existence of one or more NIACs in Ecuador.
Regarding the position of the President, we identify inconsistencies between the recognition of the armed conflict and the actions taken to confront it. As to the CCE’s jurisprudence, we highlight some notable developments including the incorporation of international humanitarian law (IHL) treaties into the block of constitutionality and the Court’s ruling on challenging issues arising in contemporary armed conflicts. These include spillovers, coalition formation, and the participation of criminal groups in NIACs.
After the publication of our article, on 3 October 2024, the President issued Executive Decree 410 to declare a new state of exception. This decree recognized the existence of two NIACs between the State and the most powerful organized crime groups in Ecuador: Los Lobos and Los Choneros. For the first time, the President identified the parties to the alleged conflicts and presented concrete arguments about the organization of the criminal groups. The CCE examined the decree in its latest judgment (11-24-EE/24). Below, we analyze judgment 11-24-EE/24, particularly the position of the CCE on the possibility of criminal groups being parties to NIACs.
Can Criminal Groups be Parties to NIACs?
The possibility of criminal groups becoming parties to a NIAC is an issue that has provoked a heated and broad doctrinal debate. This could be explained by the fact that the involvement of organized criminal groups in armed conflicts is a challenge for IHL. In particular, discussions on this topic have received special interest due to the growth of violence caused by organized crime groups with extensive power in Latin American countries such as Mexico, Colombia, El Salvador, Ecuador, Brazil and Peru.
A small sector of doctrine has maintained that criminal groups cannot be parties to NIACs because they do not have political motivations. However, this radical position has been widely refuted. The International Committee of the Red Cross (ICRC) has explained that it is not based on a strictly legal interpretation. In addition, the ICRC has warned that this type of position would have several disadvantages; for example, it is not always easy to identify the real motivations of armed groups, and it is not rare for organizations fighting for political goals to conduct criminal activities in parallel and vice versa. The International Criminal Tribunal for the former Yugoslavia (ICTY) has also indicated that “the purpose of the armed forces to engage in acts of violence or also achieve some further objective is … irrelevant.” Notwithstanding these diverse views, there seems to be consensus on one point: the classification of hostilities involving organized crime as NIACs poses a real challenge to IHL and entails multiple difficulties.
Possible but Improbable: The Standard of the CCE
In its judgment 11-24-EE/24, the CCE considered that “for the qualification of a NIAC, the nature and objectives of the organized armed group are irrelevant.” Furthermore, the CCE expressly asserted 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.” However, in line with the most recent doctrinal developments, the CCE recognized that the qualification of a NIAC involving criminal groups entails complex challenges.
First, the CCE noted that while it is possible, criminal groups are unlikely to have a command structure that allows them to sustain military operations over time. To support this conclusion, the Court focused on certain characteristics that criminal groups usually have: lack of a clear hierarchical order, organization in mainly horizontal structures, independence between each cell or faction of the group, and operation through volatile alliances. The CCE analyzed how criminal groups operate from the logic of their criminal economy: when interests within the group do not align with this economic logic, internal power struggles arise, and structures and alliances are easily broken. As an example, the Court referred to the case of the two largest criminal groups in Ecuador and described how Los Lobos was created from the fragmentation of Los Choneros.
The position adopted by the CCE is widely discussed in doctrine. For example, Redaelli, who considers that there were NIACs involving criminal groups as parties to the conflicts in Mexico, argues that horizontality in the structure of criminal groups is not a problem for the qualification of a NIAC, provided it is not too lax. Radaelli maintains that, on the contrary, this could make these groups more resistant. The ICRC, for its part, has affirmed that criminal groups often have a command structure and the capacity to plan operations. On the other hand, authors like Crawford are more skeptical and maintain a position more aligned with the Court’s criteria.
Secondly, the CCE considered that organized crime groups would rarely have the capacity to implement and comply with IHL obligations. In this regard, the CCE stated that the horizontal and independent structures of criminal groups make it difficult for violations of IHL to be prevented and punished. The Court also resorted to a pragmatic argument when it noted that it would be unlikely that a criminal group whose activities focus on activities such as extortion, contract killings and kidnappings (which would be prohibited by IHL) would have the capacity to abandon such activities and punish its members who continue committing these crimes. This approach from the CCE should be explained in more detail in future judgments as non-State armed groups usually do not comply with IHL rules.
This issue has attracted significant doctrinal discussion. For example, Rodenhäuser suggests that peer pressure and group dynamics may be sufficient to ensure respect for IHL. Other authors such as Kalmanovitz, Crawford, and Hauck & Peterke are skeptical about this and their view is more aligned with the CCE’s position. It should not be overlooked that criminal groups such as the Mexican cartels tend to have very complex and efficient disciplinary mechanisms. Therefore, it cannot be ruled out that these mechanisms may become, at some point, tools that allow criminal groups to implement and comply with IHL obligations.
The third factor that the CCE considered is the operation of criminal groups from the shadows. The CCE identified that criminal groups often try to blend in with the civilian population and operate anonymously so that the authorities do not identify and prosecute them for the crimes they have committed. As the Court argued, the lack of a clear identification of the members of the armed group is an indicative factor against their organization and, more importantly, this type of operation complicates the verification of the intensity requirement. It is very complex to attribute confrontations to specific criminal groups. To illustrate how this challenge operates in practice, the CCE cites the case of Mexico. Although The Rule of Law in Armed Conflict project classified three NIACs involving criminal groups in Mexico, it later declassified such conflicts due to the difficulty in attributing acts of violence to specific groups.
The last factor brought up by the CCE has to do with the low probability and frequency of criminal groups entering into direct and open confrontations with armed forces and police. The Court explained why this type of violence is not usually in line with the interests of criminal groups. Criminal groups usually carry out selective and isolated operations and, when the State’s security forces arrive, they usually choose to escape and not defend their position. According to the CCE, the modus operandi of criminal groups tends to lead them to seek coexistence with State authorities and infiltrate the State’s institutions.
For these reasons, the Court considered that, in the absence of direct confrontations, it would be difficult to meet the intensity requirement of a NIAC. This is due to the lack of indicative factors such as the number of incidents and the level, extent and duration of the violence, the geographical extent of the violence, and the deaths, injuries and damage caused by the violence. In addition, the Court stressed the need to consider only those incidents directly related to the conflict when classifying a NIAC. Authors such as Padin have illustrated how complex it is to differentiate between those acts committed by criminal groups that are relevant for the classification of a NIAC and those that respond only to the common criminal activities of the group.
Despite all the challenges the Court identified, suggesting that NIACs between States and criminal groups are improbable, the CCE concluded that the NIAC qualification analysis is always necessary and must be carried out on a case-by-case basis. The Court set a demanding standard in which the analysis would start with some kind of unfavorable balance or a presumption against the qualification of violence involving criminal groups as a NIAC.
In the case of Ecuador, for the CCE to qualify this type of violence as a NIAC, the President would have to present sufficient arguments to defeat this presumption. The CCE’s message is clear: although it is possible, it is improbable that a NIAC involving criminal groups as parties to the conflict could occur.
Is Ecuador Facing NIACs Against Organized Crime Groups?
The CCE ruled on the alleged NIACs against Los Lobos and Los Choneros that the President recognized in Executive Decree 410. Although the CCE based its analysis exclusively on the arguments and evidence provided by the President, Judgment 11-24-EE/24 presents an accurate picture of the reality of Ecuador. The judgment exposes a lot of information from reports prepared by the armed forces and other State institutions about the structures and modus operandi of the largest criminal groups in the country.
The most disturbing aspects exposed by the CCE include the number of members of each criminal group (8,000 and 13,000, respectively), the type of weapons to which Los Lobos and Los Choneros have access (including AK47s, M16A4s, grenades, explosives and even drones), the connections between these criminal groups and armed actors that could have participated in NIACs (dissident groups of the FARC and the Sinaloa and Jalisco Nueva Generación cartels), and the groups’ ability to recruit new members (including children). On the other hand, the ruling brings to light the weakness of Ecuador’s entire intelligence system. Indeed, the judgment reveals that the President is not able to attribute the violent acts that occur every day in Ecuador to any specific criminal group and that State authorities do not have data on the number of the dead and wounded.
The Court concluded that, for both Los Lobos and Los Choneros, the groups met the following indicative factors of the organization requirement: the ability to acquire, transport and distribute weapons, the ability to provide military training to members of the group, the ability to enter into negotiations with third parties, a certain logistical capacity, a considerable number of members, a wide territorial deployment, and the ability to recruit new members. On the other hand, the Court concluded that, among others, the following indicative factors were not met: the existence of a command structure, the ability to maintain military operations in a sustained manner over time, the ability to implement IHL obligations, the possibility of easily identifying the members of the groups, the existence of internal disciplinary rules and mechanisms, evidence of actual military training of members of the groups (regardless of their ability to do so), territorial control, and the ability to speak with one voice.
In this context, after a comprehensive and strict analysis, the CCE concluded that Los Lobos and Los Choneros did not meet the organization requirement. Clearly, the Court’s conclusions were guided by the rigorous standard explained in the previous section. The CCE’s position has received both support and criticism. As for the latter, three judges of the CCE presented dissenting opinions and questioned the rigidity with which the Court concluded that the criminal groups were not organized. On this issue, even though the Court’s position can be debated, it is worth recognizing that it was technical and widely reasoned.
Regarding the assessment of the intensity requirement, the issue is less controversial. The Court concluded that certain indicative factors were met: the use of military-type weapons, the recognition of the conflicts by the State, the issuance of multiple state of emergency decrees, the suspension of rights, and the use of the armed forces to combat Los Lobos and Los Choneros. However, the CCE noted that the President only identified three low-intensity incidents that would be relevant for the qualification of the alleged NIACs and that he did not provide information regarding the number of confrontations, the duration of hostilities, the number of wounded and dead, among other indicative factors. As expected, the Court concluded that the intensity requirement was not satisfied in respect of any of the NIACs invoked by the President.
Conclusions
In judgment 11-24-EE/24, the CCE has sent a clear and strong message: although it is possible, it is improbable that a NIAC involving criminal groups as parties to the conflict could occur. As for the arguments the CCE presented to support its position, there is no consensus in doctrine. The challenges posed by the qualification of NIACs involving organized crime are still the subject of deep debate. The qualification of this type of conflict as a NIAC is extremely complex and involves multiple difficulties. In this context, the CCE’s ruling on the matter is an invaluable contribution to IHL. The standards developed by the Court shall be studied carefully and in-depth.
Regarding the analysis of the organization requirement, the CCE’s position was technical and well-reasoned but could be debated. The CCE has established rigorous standards that have generated internal discrepancies reflected in the three dissenting votes. On the other hand, the CCE’s conclusions regarding the intensity requirement were much easier to reach. In fact, the President did not identify any confrontations directly related to the conflicts, attributable to Los Lobos and Los Choneros, which did not correspond to ordinary criminal activities. However, the reality in Ecuador appears to be much more complex every day, mainly on the border with Colombia.
When analyzing the general panorama in Ecuador, it would seem that the Court’s conclusion was legally justified and corresponds to reality: currently, Ecuador is not facing NIACs against organized crime groups. It is not clear if the criminal groups are sufficiently organized and, certainly, their violent acts are still isolated and do not reach a sufficient level of intensity. The arguments presented in our article support these conclusions. However, we must not underestimate the fact that additional evidence regarding the organization of criminal groups is progressively coming to light and that violence keeps intensifying. Therefore, it is necessary to closely monitor the situation in Ecuador going forward. The situation of violence in Ecuador demonstrates that we must continue to evaluate whether the existing international legal framework is sufficient to address the dynamics and consequences of transnational organized crime.
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Juan Felipe Idrovo Romo has held the position of Jurisdictional Constitutional Expert at the Constitutional Court of Ecuador since 2022.
Hugo Cahueñas is a Professor of Law at Universidad San Francisco de Quito, Ecuador and a visiting professor at the Diplomatic Academy of Ecuador and at Universidad Andina Simón Bolivar.
Photo credit: Carlos Silva, Presidencia de la República del Ecuador
