IHL Application in the Context of a NIAC: An Issue in Ecuador?

[Benjamin Meret is a PhD Candidate and teaching assistant at the University of Geneva. He holds an MA in international law from the Geneva Graduate Institute of international and development studies.]

On the evening of January 9^th, Ecuadorian President Daniel Noboa declared that the country’s armed forces were in an internal armed conflict against various criminal groups. This followed several critical events earlier in the day: the escape of two leaders of organized crime, José Adolfo Macías Villamar and Fabricio Colon Pico (leading “Los Coneros” and “Los Lobos”, respectively), subsequent riots in penitentiaries, kidnappings of police officers and, later in the day, of journalists on a TV set (for a summary of the events, see here and here). 

The following days saw significant engagements between the army and narcotraffickers groups, with the latter displaying a substantial level of organization and hierarchy. The application of IHL (International Humanitarian Law) in this context is a welcome sight for many observers, as its rules tend to protect civilians and proscribe some methods that can be used by belligerents, such as torture. However, in this post, I argue that crossing the threshold of a NIAC (non-international armed conflicts) with the State endorsing this qualification very quickly can be problematic in relation to some aspects, especially for the resulting facilitation of rules of engagement.

The application of IHL rules pertaining to NIACs is triggered on the basis of two cumulative criteria: the intensity of the conflict and the degree of organization of the belligerent non-State party. As stated above, it seems that in the case of Ecuador, this threshold has been reached. The army is involved in the conflict, fulfilling the condition of intensity. The criminal groups seem sufficiently organized, as the attacks seemed to be coordinated and as these groups appears to have a certain internal hierarchy with leaders in charge (for an opposite opinion, see the RULAC online portal from the Geneva Academy of International Humanitarian Law and Human Rights).

Let us suppose a NIAC does exist (today, it seems to be still ongoing). The consequent applicability of common article 3 of the Geneva Conventions (GC) would be uncontested. The applicability of Additional Protocol II (AP II) to the Geneva Conventions in this case is much more difficult. AP II is specifically designed to be applied to NIACs and Ecuador has been a party since 1979, but one of its key conditions of applicability (art. 1(1)) is that the non-State party must retain some control of the territory in its fight against the State. To my knowledge, this does not seem to be the case here. In any case, the entire body of customary law pertaining to NIACs applies.

The Liberating Power of IHL

On the one hand, IHL rules bring a positive, protective effect: common art. 3 GC prohibits the torturing of prisoners, hostage-taking, or civilian targeting. More broadly, it sets out basic rules that guarantee a minimum of humanity in the conflict. It is beyond doubt that the application of these rules is of primary importance. 

On the other hand, however, the quick endorsement by the Ecuadorian government of IHL’s framework also signals a shift from a law-enforcement paradigm to one of armed conflict. In this context, the Ecuadorian government can, for example, order the killings of narcotraffickers at any time, because they are “fighters”, and can fit in the category of “continuous combat function” (at least for the members who use force and carry weapons, see the analysis following a teleological approach by Redaelli and Arévalo), as developed by the International Committee of the Red Cross. Narco-group members thus become lawful targets for the Ecuadorian army, and no regular soldier can be prosecuted for killing a fighter belonging to the other side. 

This is problematic because these “fighters” are, fundamentally, common-law criminals. Applying IHL as lex specialis here would amount to allowing a sort of automatic death penalty for these criminals, denying any guarantee of a fair trial or any human rights. The fast application of IHL being announced by the highest authorities in the country raises questions about the goal they pursue: is it to reduce criminality or kill criminals? To give a hint on the answer, consider what Jaime Vela Erazo, head of the Joint Command of Ecuador’s Armed Forces, said: “From this moment on, every terrorist group identified […] has become a military target.” Consider also what the current president said even before his election: “The violence and death rates we are facing are like those in a warzone – so we should treat it as a war and treat these narco-terrorist groups as our enemy.” It is also telling that it is the president himself who announced the status of internal armed conflict in order to “neutralize” the crime factions “within the bounds of international humanitarian law.” Another hint appears in the fact that Ecuador’s parliament allowed amnesty for military and police officers fighting organized crime. Moreover, the presidential statement calling the criminals to directly defy (“be brave, fight the soldiers”) the army suggests that Ecuadorian power wants to bring them within firing range to eliminate them more easily than in an urban guerilla where cartel members would play a sort of “hide and seek” with the army. Arguably, killing them will not resolve all the problems Ecuador faces: new criminals could come back, and the issue would recur repeatedly. In other words, it seems to me that it would be preferable to tackle the underlying reasons for criminality through political means (in the long term) as pointed out by the United Nations, rather than allowing the killing (in the short term) of all criminals to sweep the problem under the rug with the help of IHL. The Ecuadorian government seems to have chosen the easier route. The fact that it uses IHL to do it is in my view problematic: the law is here to protect and to put order in the chaos and the violence of an armed conflict, not to serve the political aims of a particular government. To overcome this issue, refraining from displacing human rights completely could be helpful, and a “license to kill” should not be granted anytime IHL is triggered when it comes to wide criminality such as drug trafficking. In other words, although a killing might be lawful under IHL, one would have to consider whether said killing is arbitrary or not to be completely lawful. Otherwise, IHL could be considered not to be protective in that case. The point is not to show that Ecuador will not abide with IHL. It is to show that only considering IHL in a case of common (albeit wide) criminality might undermine the rule of law.

The aim is not here to analyze the different approaches regarding the interaction between HRL and IHL. However, the lex specialis approach in favor of IHL may not be the most suitable when it comes to fighting armed groups involved in only criminal activity done for business. An objection to this argument would be that terrorism can also be considered criminal activity, and States combatting terrorism would find IHL as a suitable legal framework, at least the practice seems to corroborate this assertion. It proves the importance of defining terrorism because the absence of an international definition lets the States declare themselves who they want to call terrorists. The issue at stake is where to draw the limit in the application of IHL as lex specialis because it would be counterproductive, as the determination of what is a terrorist group is left to the particular State involved in fighting the said group. Be that as it may, this situation implies that a State can frame as terrorists any sufficiently organized group disturbing it. It leaves room for arbitrary denomination and consequently to the problems I try to point out here.

An issue for compliance with IHL?

Another issue is related to IHL’s respect by the non-State party. If States are using IHL (lawfully but also for political aims) to kill criminals, the incentives for the criminal group to respect IHL are difficult to see. When a rebel group aims to take over the government, the task is easier: one may persuade this group that its respectability as a potential future government hinges upon its commitment to the rule of law, including IHL. However, a group with a criminal goal would care little of its respectability: what it wants is to make money from criminal activity. Therefore, if the application of IHL facilitates the deaths of its members at the hands of the State, I argue that there is no incentive to abide by IHL: the criminal group will do everything it deems necessary to the continuation of its activities. Turning to Ecuador, this element can already be verified: narcotraffickers have attacked civilians, a prosecutor, journalists, a hospital, and even a university to put pressure on the government. Moreover, if one wants its enemy to surrender more easily, one should grant it some guarantees. Treating the enemy as mere “terrorists” would not encourage them to negotiate or surrender. It is one of the reasons why, regarding members of organized resistance movements leading guerilla warfare in IACs (international armed conflicts), Article 44 (4) Additional Protocol I to the Geneva Conventions was adopted to grant a treatment tantamount to prisoners of war. The provision was proposed in light of the view that “guerrilleros” would not stop fighting if one does not grant guarantees in the event of their surrender.

Concluding Thoughts

The point of this piece is not to say that IHL rules are not applicable or should not be applied. Rather, it is pointed out that their use can add additional issues that might diminish IHL’s efficiency and respect. Because one party uses it to liberate itself from human rights constraints and to facilitate the killings of criminals, the other party, when criminal, might feel threatened in its criminal activity and therefore would do everything in its power to continue its aim, including…disregarding IHL! One solution would be to advise States to consider human rights as far as possible and to capture rather than kill when feasible. Encouraging criminals to abide by the law is difficult. Encouraging States to show their humanity by taking a harder route would also prove challenging but might be easier. To that aim, States must not qualify anyone “terrorist” or “terrorist group” at their will. Instead, an international definition is more than ever needed. The issue is the same all over again: the content of the definition.

Nevertheless, the situation seems to be lawful as a matter of international law. The Ecuadorian president has made the political choice to involve the army which regards only the Ecuadorian State. Therefore, IHL is triggered (if one considers the criminal groups sufficiently organized), and the situation remains lawful. I might acknowledge that criticizing this choice may be easy from a comfortable chair in a university. Perhaps taking such a decision is not the same when one must oversee the well-being of the civilian population of a whole country.