By Jorge Vicente Paladines, Ecuadorian jurist and criminologist
The massacres in Ecuadorian prisons not only reflect the loss of the criminal hegemony of the 'Los Choneros' gang, who operate as a monopoly broker between the Colombian and Mexican drug trafficking organisations, but also the arrival of new criminal groups that have emerged from the dispersion of the former. Alongside 'Los Choneros', the gangs of the 'Chone Killers', 'Los Lagartos', 'Los Fatales', 'Los Gángsters' and the 'G7' have aligned themselves; meanwhile, 'Los Lobos' and 'Los Tiguerones' have emerged as their key enemies.
Regarding the latter, state intelligence services do not have an exact figure for the number of members of this gang, but they estimate that there could be between 3,000 and 4,000. The total number of members of all these groups could outnumber the entire police force.
In this 'war between gangs', Ecuadorian drug policy is showing a new facet. A radicalisation of its strategy of repression that begins with a change of nomenclature, from 'organised crime' to 'terrorist group or organisation'. Behind this terminological adjustment, what are the risks to human rights? Here is a very brief analysis in a country that has seen drug trafficking and criminal violence increase to horrifying levels.
Drug trafficking as a justification for an out-of-control state of exception
These eight gangs were declared by the Council for Public Security and State Security (COSEPE) as 'terrorist organisations'. The mere participation in any of them enables the Armed Forces to immediately neutralise them through the use of lethal weaponry. This controversial recommendation was covered by Presidential Decree Nr. 730 issued on 3 May by Guillermo Lasso, which allows for the militarisation of security in the face of the 'terrorist threat'.
Materially, this decree becomes an undeclared state of emergency, of which the Constitutional Court has not carried out the due control required by the Ecuadorian Constitution, especially when article 436(8) establishes that: 'The Constitutional Court shall exercise, in addition to those conferred by law, the following powers: To carry out ex officio and immediately the control of constitutionality of the declarations of states of emergency, when they imply the suspension of constitutional rights' (emphasis in italics added by the author).
This controversial measure could in practice resuscitate the swarm of extrajudicial executions and false positives that characterise the region. A concern that is made more acute by news reports that begin to show the number of 'criminals killed'.
Let us recall that Ecuador was condemned for extrajudicial execution in the famous Zambrano Vélez et al. case in the judgement of 4 July 2007. The Inter-American Court of Human Rights underlined in paragraph 84 that '[t]o a greater degree of exceptionality is the use of lethal force and firearms by state security agents against persons, which should be prohibited as a general rule. Its exceptional use should be formulated by law, and interpreted restrictively so as to be minimised in all circumstances, being no more than 'absolutely necessary' in relation to the force or threat it is intended to repel. When excessive force is used, any resulting deprivation of life is arbitrary.
The state takes advantage of the lack of clarity in the definition of terrorism under international law.
Given the vague definition of terrorism within international and national legal frameworks, states are seduced into completing the definition administratively, i.e. without democratic control in parliament, as part of their security policies. Instead of establishing an exhaustive model criminal definition, the many international conventions on terrorism leave open the possibility for states to adopt an arbitrary definition. In this sense, the concept of 'terrorism' can be weaponised to direct state violence at those who are targeted as terrorists, regardless of their political or ideological claims.
But at the international level the definition of 'organised crime' is also unclear. In fact, the United Nations Convention against Transnational Organised Crime, signed in 2000 and also known as the Palermo Convention, is characterised as a piecemeal instrument that juxtaposes anti-money laundering, extradition and judicial cooperation measures to the concept of organised crime.
To define organised crime, Article 2(a) of this convention emphasises the economic or material benefit of the 'organised criminal group'. Interestingly, it is not important that drug trafficking as such pre-exists, but simply the commission of a 'serious crime', i.e. any criminal offence that prescribes a penalty of more than four years' imprisonment according to Article 2(b) of the same convention. In addition, despite the fact that recitals 4, 5 and 7 themselves infer that the drafting of this convention was inconclusive with regard to the relationship between 'organised crime' and 'terrorism', it does, however, draw the link between the two according to recital 6.
Thus, from 'organised crime', Ecuadorian gangs are now classified as 'terrorist organisations'. Although, as Chilean jurist Myrna Villegas says, this subtle migration of concepts reveals in practice a new form of communication carried out by criminal groups through actions that cause terror, this change of label may inaugurate a new facet of the state. Simply put, Ecuador's criminal gangs will not be prosecuted according to the normal rules of the rule of law.
The hidden bias behind the war on narco-terrorism
Fundamentally, this change of name may awaken a dangerous prejudice in the way the state operates. The discovery of terrorists could be based on the racist and discriminatory labelling of certain traits as crude forms of identification.
Similar to the technique used by the current regime in El Salvador to 'detect' gang members on the basis of the type and quantity of tattoos, as well as the reports made by anonymous third parties to identify those denounced as gang members - as denounced by the organisation Cristosal - the search for terrorists in Ecuador could be based on a controversial technique based on skin colour. A new task would then emerge within criminal anthropology that has not yet been developed in the country.
As Ecuador's current criminal organisations congregate into three large groups ('Los Choneros', 'Los Tiguerones' and 'Los Lobos'), ethnic characteristics also emerge that could mobilise the racist character of the state. While 'Los Choneros' are made up of members who are close to Caucasian within the self-defined montubio population, 'Los Tiguerones' are mostly Afro-descendants based in the province of Esmeraldas and the suburbs of Guayaquil.
Finally, 'Los Lobos' maintain a degree of mestizo integration associated with what is popularly known as cholaje; consequently, they may be more present in regions such as the highlands and the Amazon. In the name of the 'war on terror', security agencies may detain or neutralise as their members people who share at first glance traits of 'montubios', 'negros' or 'cholos'.
In the same way that the dispersal of the Cali and Medellín cartels - as well as the Revolutionary Armed Forces of Colombia (FARC) - into smaller criminal structures took place, the conflict between 'Los Choneros' and 'Los Tiguerones' and 'Los Lobos' hints at the fragmentation of criminal governance in Ecuador. Police seizures that led to the capture of 97.14 (2018), 82.2 (2019), 128.4 (2020), 201 (2021) and 176 (2022) tons of cocaine resulted in the subsequent loss of the merchandise and its proceeds. All this, added to the 'bad deals' and unforgivable betrayals, economically prevents a peaceful coexistence inside and outside the prisons.
The increase in violence in Ecuador is indicative of a dispute in the criminal economy of drug trafficking, which has shifted to territorial control and control of areas where the state has been absent in recent years. In response, the state has adopted a controversial strategy based on changing legal definitions without reforming any laws or having constitutional control. The conflation of 'narco' with 'terrorism', which emerged in the 1980s by one of the US ambassadors in Colombia, is not a simple adjustment of concepts in Ecuador. Its consequences can also lead to dangerous actions directed against certain ethnic groups. To paraphrase Franz Fanon, the 'narco-terrorist' mask can hide the face of racism as a state practice.