Author: Kalesh Loakman, LLM
March 7, 2024
Current Crisis
On January 8, 2024 Daniel Noboa, Ecuador’s President, declared a 60-day state of emergency—a power which is often sparingly exercised by governments in response to escalating political instability and threats to national security—in the South American country following increased organized gang violence. Not long after the declaration of the state of emergency, the Noboa government also declared an internal armed conflict in the country. Consequently, 20 gangs have been classed as terrorist groups in response to which the government has ordered the mobilization of military groups to neutralize these organized rings within the country, albeit within “the bounds of international humanitarian law”. Noboa has expressed that the organized gangs, which his government has deemed terrorist groups, comprise over 20,000 people.
Naturally, the President’s declaration of a state of an emergency and the accompanying directive to “neutralize” gangs was not received kindly by gang members who stormed a TV broadcast station in Guayaquil, pointed guns at employees of the broadcast agency, forced them to lie on the floor while on live TV, and declared to the Noboa government that “you cannot play with the Mafia”. The state of affairs in the country has deteriorated so significantly that Ecuador is now dubbed the most violent country in Latin America. This article examines three strands of issues: the arising humanitarian law obligations, the standards under international human rights law which are threatened by the present circumstances in Ecuador, and the extra-territorial implications vis-à-vis migration which is prompted by political instability in the country.
Background
The situation in Ecuador today stems from continual deterioration of affairs post-2020. Ecuador’s prisons country-wide became a notable battle ground. There was a significant uptick in prison riots over the past few years, often orchestrated by gangs operating from within the prisons. There were also reported incidents of hostage-taking of prison officers across various prisons in the country by incarcerated gangs. The UN reported at least 150 prison officers and 20 administrative workers within the prison system being taken hostage across seven different prisons. Notorious gang leader Jose Adolfo Marcias Villamar, referred to as “Fito” in the narcotic trade, mysteriously vanished from prison, which marked the tipping point of Ecuador’s national security crisis and spurred the government’s move to declare a state of emergency within the country. Outside of the fragile prison system, gang-orchestrated murders in Ecuador had also witnessed an explosive increase five-fold between 2016 and 2022. Notable among the murders within the country was the assassination of presidential candidate Fernando Villavicencio in August 2023, mere weeks before the country was slated to hold its national elections. Villavicencio was a vocal critic of corruption and drug crime in the country.
A related off-shoot which has contributed to a complicated extant situation in Ecuador hinges on the country’s critical role in the transnational organized crime and narcotics trade, which also affects the wider Latin American region. Ecuador is a neighbor to Colombia and Peru, the two largest producers of cocaine in the world. The Global Report on Cocaine for 2023 indicated that Ecuador, especially its port city of Guayaquil—incidentally the country’s most dangerous city—serves as a point of transit for cocaine destined for Central and North America, as well as Europe.
Humanitarian Law Implications
A country usually declares a “state of emergency”, which is often provided for under its constitutional mechanism, in response to extraordinary and unexpected events or situations arising in the country. Emergency powers allow the government to exercise a plethora of ‘extra’ and enhanced powers to deal with the abnormal and unusual circumstances which gave rise to the declaration of a state of emergency. However, it is not unusual for these powers to slip into abuse. In light of the concomitant declaration of the Ecuadorian government of the existence of an internal armed conflict, it becomes important that the standards of non-international armed conflict under international humanitarian law, as set out in the Geneva Conventions and elsewhere, are met. The minimum and non-derogable requirements in the case of internal armed conflicts are set out in Article 3 Common to the Geneva Conventions (“Common Article 3”).
Common Article 3 stipulates that non-international armed conflicts arise where one party to the conflict is not a state and the conflict between the parties must be protracted. These elements resonate with the state of affairs in Ecuador, where the parties to the internal conflict are the government on one hand, and rebel groups within the state, on the other hand. Importantly, obligations under international humanitarian law apply to all parties to the conflict, which would mean that both the Ecuadorian government and the members of organized gangs must respect and uphold the obligations set out in Common Article 3.
Notably, Common Article 3 is considered a codification of fundamental customary international humanitarian law. In situations of internal armed conflict, international humanitarian law is activated and dominates the operation of human rights law. However, the mandates of Common Article 3, embodies non-derogable human rights and binding elementary principles of basic humanity and therefore, even in times of national emergencies, violating these fundamental standards is tantamount to a war crime.
As such, failure by parties to a conflict not of an international character to honor the stipulated obligations is inexcusable. Parties have to ensure that those not taking active part in hostilities are treated humanely and without distinction based on “race, color, religion or faith, sex, birth or wealth, or any other similar criteria.” Moreover, violence to life and persons including murder, cruel treatment and torture; taking of hostages; outrages on personal dignity vis-à-vis degrading and humiliating treatment; extrajudicial sentencing which undercuts the operability of the normal judicial machinery are all strictly and unconditionally prohibited. To this extent, the UN has called on Ecuador to ensure that human rights are “at the center of all policies” employed to stem violence within the country. Additionally, it states that measures taken by the government must adhere to fundamental international humanitarian law standards of legality, necessity, proportionality, and non-discrimination.
Impending Migration Crisis
It is not uncommon for internal violence and insecurity to drive migration out of a country. The situation in Ecuador is no different. Prior to the escalation of instability within Ecuador, the country was home to over 800,000 migrants, the majority of whom were from neighboring Colombia and Venezuela. Face-offs between gangs and government will likely trigger a second-wave of migration out of Ecuador, not only by Ecuadorians who are fearful for their lives, but by persons belonging to the large subset of migrants who initially arrived in Ecuador seeking refuge from instability and hardship in their respective countries.
Prior to the conflict, Ecuadorians were already actively emigrating from the country, with an estimated 1.2 million Ecuadorians living in the diaspora. Approximately 40% of that number have migrated north to the U.S. This number will increase exponentially as the country experiences unprecedented instability.
A Call for Rigid but Delicate Action
In times of armed conflict, 90% of the casualties are of civilians caught in the crossfire between opposing parties. While the Ecuadorian government may need to take swift and stern action to restore peace, stability and security to the South American nation, the government is implored to ensure that civilian lives and livelihood is not the opportunity cost to be incurred to suppress organized gang violence in Ecuador.
Glossary
Codification: The act, process, or result of stating the rules and principles applicable in a given legal order to one or more broad areas into written law.
Concomitant: Something that happens with something else and is connected with it.
Diaspora: People who come from a particular nation, or whose ancestors came from it, but who now live in many different parts of the world.
Extant: Refers to a thing or situation that is still existing.
Extra-territorial: In the international law and international human rights context, extraterritorial refers to events outside of a country of origin
Migrant: A person who moves from one place to another, especially in order to find work.
Non-derogable: Used in the human rights context to refer to rights that are absolute and may not be subjected to any derogation, even in time of war or emergency.
Transnational: Extending beyond the borders of a single country.
War crimes: War crimes are those violations of international humanitarian law which takes place in the context of armed conflict which makes a person criminally liable under international law.