Is There a Non-International Armed Conflict in Ecuador?

International Humanitarian Law (IHL) adopts a pragmatic approach in which the facts on the ground prevail. As stated in the new ICRC commentary ‘[a] situation of violence that crosses the threshold of an ‘armed conflict not of an international character’ is a situation in which organized Parties confront one another with violence of a certain degree of intensity. It is a determination made based on the facts’. However the government's reaction could indicate the existence of a NIAC.

According to the International Criminal Tribunal for the former Yugoslavia (ICTY), a NIAC exists whenever there is ‘protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’. In other words, two criteria must be met: organization and intensity.

Organization refers to the parties to the conflict and the intensity of the armed violence. These two criteria are closely related, and both must be present. Whether they have been met is determined on a case-by-case basis.

Concerning the organization criterion, while State armed forces are presumed to fulfil it, non-state armed groups, to be sufficiently organized, must possess a certain command structure and a certain level of hierarchy and discipline. They must also have the capacity to sustain military operations and to implement the basic obligations of IHL.

As the new ICRC commentary states, the requisite intensity may be met ‘when hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces’, by opposition to internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of similar nature.

In any case, the labelling of the armed group as terrorist or criminal, as well as the purpose or the ideology of the group are irrelevant.

By classifying a situation of internal violence as a NIAC, IHL of NIAC becomes applicable, in addition to domestic law and international human rights law. The application of the law of NIAC is not necessarily more beneficial for the protection of individuals. Within the paradigm of the conduct of hostilities, which is regulated by IHL, direct attacks against soldiers, members of armed groups with a continuous combat function and civilians taking part in hostilities, for the duration of their participation for the latter, are authorized as such. Proportionally and precaution evaluation take into account only incidental harm inflicted on civilian populations and objects. By contrast, in the law enforcement paradigm, which is governed by human rights standards, the use of lethal force must abide by the rules of necessity, proportionality and precaution, whereby the targeted individual is taken into account.

The upsurge in violence in Ecuador could suggest that a NIAC is ongoing. The declaration of a state of emergency or war, or the involvement of the military forces, as well as the number, duration, and intensity of confrontations, the number of casualties and the extent of material destruction, are some of the indicative factors developed by the ICTY to assess the intensity criterion. However, these factors are indicative and are not conditions that must be fulfilled, and none of them is in itself sufficient to establish that the requisite level of intensity has been reached. Moreover, we currently lack information on the organization of the criminal groups such as the presence of some kind of command structure and discipline rules, their operational capacity, their logistical capacity (the ability to gain access to weapons, recruits and military training) or their ability to speak with one voice. As a result, and while we monitor the situation closely, it is currently difficult to make a definitive statement as to whether or not there is an ongoing NIAC. Further developments will be decisive in this respect.

Situations of violence have been classified as NIACs in the context of drug-related violence in Mexico. Specifically, the government of Mexico was involved in two parallel NIACs against the Cartel Jalisco Nueva Generación and the Sinaloa Cartel, and the violence between those two cartels amounted to a NIAC too.

However, even if the violence between the government and the cartels, as well as between cartels remained high in 2022, it was increasingly difficult to attribute acts of violence to specific armed groups and, therefore, we could not conclude with certainty that these armed conflicts were still ongoing. For this reason, we declassified them.

We are also closely monitoring similar situations in Colombia in relation with the Gulf Clan as well as Haiti.