Ecuador: Amicus Curiae Regarding the National Solidarity Law

Honorable Justice Alí Lozada Prado
Presiding Judge
Constitutional Court
Quito – ECUADOR

Subject: Human Rights Watch Amicus Curiae in Action of Unconstitutionality 51-25-IN Against the National Solidarity Law

Juanita Goebertus Estrada, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th Floor, New York, NY 10118, United States, presents this amicus curiae brief to the Constitutional Court of Ecuador in the Action of Unconstitutionality with file number 51-25-IN, which discusses the unconstitutionality of the National Solidarity Law, published in the Official Register Supplement No. 56 of June 10, 2025. For that purpose, we respectfully state:

1. Purpose and Summary of this Submission

Human Rights Watch respectfully requests that the Constitutional Court of Ecuador accept this submission for its consideration regarding the international legal standards pertaining to the so-called “internal armed conflict” and the granting of pardons to members of state security forces.

The legal question before the Constitutional Court is whether certain provisions of the National Solidarity Law, approved by the National Assembly on June 7, 2025, and signed by President Daniel Noboa, are compatible with the state’s obligations under international law and the Constitution of Ecuador. This amicus curiae brief is organized as follows: Section II sets forth the background and interest of Human Rights Watch in this proceeding. Section III argues that the law’s definition of “armed conflict” is contrary to international humanitarian law. Section IV argues that the law fosters the state’s use of excessive force in violation of international human rights law. Section V examines how the law circumvents the Ecuadorian constitutional framework regarding states of emergency. Section VI argues that article 139.1 of the Criminal Code, as modified by the National Solidarity Law, violates the principle of legality established under international human rights law. Section VII shows that pardons established in article 14 of the National Solidarity Law undermine the state’s duty to investigate, appropriately prosecute and punish human rights violations. Finally, Section VIII respectfully urges the Constitutional Court to consider the legal arguments and international standards set forth in this brief when assessing the constitutionality of the relevant provisions concerning internal armed conflict and the granting of pardons under the National Solidarity Law.

2. Background on Human Rights Watch and Our Interest in the Case

Human Rights Watch is an international non-governmental organization dedicated to defending the rights of people worldwide. The organization has staff in more than 40 countries, and offices in Amsterdam, Beirut, Berlin, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Nairobi, New York, Paris, San Francisco, Sydney, Tokyo, Toronto, Tunis, Washington DC, and Zurich.

Human Rights Watch regularly monitors the human rights situation in Ecuador and has repeatedly documented violations of international human rights law in the country.[1] In recent years, Human Rights Watch has followed with concern the rise in violence linked to organized crime in Ecuador.[2] We have repeatedly called on the authorities to implement effective and rights-respecting security policies that protect the Ecuadorian people, in particular, by strengthening the country’s justice system.[3]

Human Rights Watch has also documented serious human rights violations by security forces that occurred after President Noboa announced an “internal armed conflict” in the country in January 2024.[4] Human Rights Watch has expressed concern about recently adopted laws, including the National Solidarity Law, the Intelligence Law, and the Public Integrity Law.[5]

Consistent with its mandate, Human Rights Watch uses judicial and quasi-judicial tools of domestic and international law to contribute to protecting and promoting human rights. That commitment has motivated this specific Human Rights Watch petition.

3. The Law’s Definition of Armed Conflict and International Humanitarian Law

a. Non-International Armed Conflicts under International Humanitarian Law

The existence of an armed conflict—whether considered international or non-international— does not depend on any declaration or determination made by a government or its leaders, but on an objective analysis of the facts on the basis of criteria established under international law.[6]

A non-international armed conflict under Common Article 3 to the four Geneva Conventions of 1949 consists of “protracted armed violence between governmental authorities and organized armed groups or between such groups.”[7] As set out in the International Committee of the Red Cross (ICRC) Commentary on the First Geneva Convention (2016),[8] “the question of whether a situation of violence amounts to a non-international armed conflict should therefore be answered solely by reliance on the criteria of intensity and organization.”[9] These two cumulative elements are:

• A level of intensity of hostilities that could be reflected in the number, duration, and scale of confrontations, the types of weapons used, the number of casualties, and the level of destruction, among other indicators.[10] The ICRC Commentary notes that “it is understood that Article 1(2) of Additional Protocol II, which provides that the ‘Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts’, also defines the lower threshold of common Article 3.”[11]
• A level of organization of the armed groups, which may include, among others, the existence of a command structure and the capacity to sustain military operations. This may be determined due to the existence of disciplinary rules and a certain level of hierarchy, control over territory, access to weapons and military training, and the armed group’s ability to implement the basic obligations of international humanitarian law.[12]

As the ICRC has noted, the existence of an armed conflict should be determined as a result of a “case-by-case analysis based on a contextual examination of the totality of the circumstances.”[13]

b. “Organized Armed Groups” under the National Solidarity Law

While the National Solidarity Law and its bylaws reiterate the two criteria under international law to determine the existence of a non-international armed conflict,[14] the law defines “organized armed groups” in a way that is inconsistent with international humanitarian law.

In particular, article 9 of the law defines “organized armed groups” as “any association with a structure of three or more people with an organized power structure that exercises prolonged violence against the state, the population and civilian property.”[15]

The definition of “organized armed groups” under the National Security Law, in particular the reference to “three or more people,” clearly departs from the definition applicable under Common Article 3 to the Geneva Conventions. The Trial Chamber of the International Criminal Tribunal for the former Yugoslavia has said that organized armed groups should be “organized to a greater or lesser extent” and that there should be “some degree of organization.”[16] Crucially, organized armed groups under Common Article 3 should have a degree of responsible command that enables them to exercise collective violence in a prolonged manner and to comply with the obligations under international humanitarian law.[17]

Additionally, the definition of “organized armed groups” under the National Solidarity Law falls short of that under Additional Protocol II to the Geneva Conventions, which requires a “higher degree of organization” as compared with Common Article 3.[18] Scholars have referenced that the “most prevalent view” in international law is that Additional Protocol II demands a “particularly high level” of organization.[19] This is because Additional Protocol II requires more detailed rules of international humanitarian law, which only an armed group with a certain degree of organization would be able to fulfill.[20] In particular, Additional Protocol II requires, as mentioned above, that the armed group operate under a “responsible command” and “exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.”[21]

4. The Law Fosters the Use of Excessive Force in Violation of International Law

b. Use of an International Humanitarian Law Framework in a Law Enforcement Context

As described above, the National Solidarity Law includes an overbroad definition of non-international armed conflict. Additionally, this Court has repeatedly found that the Ecuadorian government has not presented evidence that the situation in the country amounts to an armed conflict under international law.[22] In August 2024, the Court “called the attention” of the president because of his government’s repeated efforts to invoke an “armed conflict” without meeting the evidentiary standards required by the Court.[23]

Given that international humanitarian law, which is only applicable during armed conflicts, allows for the broader use of lethal force than international human rights law, a decision to allow national armed forces to apply rules of engagement under international humanitarian law, when the criteria for such a decision have not been objectively met, enables human rights violations to occur. While international human rights law remains applicable during non-international armed conflicts,[24] the use of rules of engagement under international humanitarian law would allow for the use of lethal force outside of the narrow circumstances in which it is permitted under international human rights law (that is, when strictly necessary to safeguard the life or physical integrity of another person).[25]

The United Nations Office of the High Commissioner for Human Rights has stated that international humanitarian law should not be applied prematurely. As it has noted, “[i]n those unclear cases it is essential to consider international human rights law as the only applicable legal regime, until such time that the threshold and conditions of an armed conflict have been met.”[26]

b. The National Solidarity Law’s Definition of “Military Objective”

The National Solidarity Law also defines military objectives (that is, objects that may lawfully be subject to attack under international humanitarian law) in a broad manner that would allow for the unlawful use of military force against civilians and civilian objects.

In particular, article 13 of the National Solidarity Law creates a legal presumption that certain properties or “zones” are military objectives. These include those “zones” where “unlawful activities of organized armed groups or [groups] linked to their criminal economy take place, such as drug trafficking, illegal mining, arms trafficking, extortion, kidnapping, money laundering, people trafficking, among others” (italics added).[27]

Additionally, article 20(d) of the National Solidarity Law’s regulating decree indicates that prisons where people commit the crimes mentioned in article 13 of the law may be considered “military objectives.”[28]

The reference to entire “zones” or prisons that may be considered military objectives and the use of vague criteria is contrary to the definition of military objectives under international humanitarian law, which defines these as objects which, by their nature, location, purpose, or use, “effectively contribute to military action and whose total or partial destruction, capture, or neutralization, under the circumstances ruling at the time, offers a definite military advantage.”[29] Designating entire “areas” as military objectives fosters violations of the principle of distinction under international humanitarian law, which requires military forces to distinguish at all times between civilians and military objectives,[30] and may allow indiscriminate attacks that in this context would violate international humanitarian and human rights law.[31]

5. A Special Legal Regime that Circumvents Constitutional Obligations on States of Emergency

In Ecuador, an internal armed conflict is one of the grounds on which the president may declare a state of emergency.[32] The Ecuadorian Constitution requires that the president justify the state of emergency and specify its duration, the affected territory, and the rights to be restricted.[33] Only some rights, such as the “inviolability of the home” and freedom of association or information, may be suspended.[34]

Under the Constitution, all emergency decrees, including those based on alleged internal armed conflict, must be reported to the National Assembly, which has the power to repeal them; to the Constitutional Court, which conducts a constitutional review; and to the “relevant international bodies.”[35] This Court has repeatedly ruled that multiple states of emergency decreed by President Noboa under “internal armed conflict” grounds failed to comply with the requirements under the Constitution and international law.[36]

The National Solidarity Law appears to establish a new legal framework allowing the president to suspend some constitutional rights, bypassing the substantive and procedural requirements for a state of emergency. Namely, the president’s declaration of an “armed conflict” triggers a suspension of the right to the “inviolability of the home,” established under article 66(22) of the Constitution, allowing for security forces to conduct raids without warrants.[37] Unlike during states of emergency, however, this regime is not subject to legislative or automatic Constitutional Court oversight. In fact, according to this law, the legal framework of an “internal armed conflict” and the application of its rules begin and end at the president’s discretion.[38]

In addition to contravening the Constitution, the legal framework established under the National Solidarity Law may violate article 4 of the International Covenant on Civil and Political Rights (ICCPR), to which Ecuador is a state party. As the UN Human Rights Committee, the independent expert committee that interprets the ICCPR, has noted in its General Comment on States of Emergency, “[w]hen proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers” (italics added).[39]

6. Second Amending Provision Referring to Article 139.1 of the Criminal Code Violates the Principle of Legality

The National Solidarity Law modifies article 139 of the Ecuadorian Criminal Code to create the crime of “belonging to an organized armed group of the internal armed conflict.” The crime punishes, with between 22 and 26 years in prison, anyone who “belongs, permanently or circumstantially, directly or indirectly, to an organized armed group” identified as such by the Ecuadorian state.[40]

The overly broad definition of the crime violates the principle of legality established under articles 9 of the ICCPR and the American Convention on Human Rights.

As the UN Human Rights Committee has noted, “[a]ny substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision to avoid overly broad or arbitrary interpretation or application.”[41]

Similarly, the Inter-American Court of Human Rights has stated the following with regard to ambiguous or vague crimes:

The court understands that in the formulation of criminal definitions it is necessary to use restrictive and univocal terms, which clearly limit the punishable conducts, thus making the nullum crimen nulla poena sine lege praevia[42] criminal principle effective. This implies an accurate definition of the criminalized conduct, which sets its elements and allows it to be delimited and distinguishable from non-punishable acts or illegal acts punishable with sanctions other than criminal. Ambiguity in the formulation of criminal definitions generates doubts and opens the door to the discretion of the authorities, particularly undesirable where the criminal liability of a person is to be determined and punished with sanctions which severely affect fundamental rights, such as life or freedom.[43]

7. Granting Pardons Could Undermine the State’s Duty to Investigate, Appropriately Prosecute and Punish

Article 14 of the National Solidarity Law allows the president to pardon for “humanitarian and exceptional public interest reasons” members of the security forces who are under investigation for “crimes connected to the… [armed] conflict.” The law establishes that such pardons will have a “delayed effect,” meaning, they will not preclude criminal investigations and convictions but will exempt those benefiting from pardons from serving their criminal sentences.[44]

The law also excludes some crimes from the pardons, including torture, enforced disappearances, kidnappings, and “homicide for political reasons or reasons of conscience.” However, it does not exclude other grave human rights violations such as other types of homicides, extrajudicial executions, cruel and inhuman treatment, or the “abuse of authority while performing official duties” (extralimitación en la ejecución de un acto de servicio), a crime often used to investigate excessive use of force in Ecuador.[45]

Article 233 of the Constitution establishes that “no public official shall be exempt from administrative, civil and criminal responsibility for actions carried out in the exercise of their duties.”[46]

Under international human rights law, Ecuador has an obligation to investigate, prosecute and punish gross human rights violations amounting to serious crimes under international law. The Inter-American Court of Human Rights has repeatedly found that a state party to the American Convention on Human Rights must “use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”[47] Similarly, the UN Human Rights Committee has noted that states have an obligation to investigate and “bring to justice” perpetrators of serious human rights violations. The Committee has concluded that “failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant.”[48]

The Inter-American Court of Human Rights has said that “the execution of the sentence is also part of the obligation” to investigate, prosecute, and punish, and that the “the execution of the sentence is an integral part of the right of access to justice for victims of serious violations and their families.”[49] The Court emphasized that “during the execution of the sentence, undue benefits that could lead to a form of impunity should not be granted,”[50] and that “the international obligation to punish those responsible for serious human rights violations with penalties appropriate to the gravity of the criminal conduct cannot be unduly affected or rendered illusory during the execution of the sentence that imposed the sanction, in accordance with the principle of proportionality.”[51]

Similarly, the Inter-American Court has held that:

all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible [under the American convention on Human Rights], because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law [italics added].[52]

Similarly, in Gutierrez Soler v. Colombia, which concerned the lack of prosecutions for a case of police torture, the Court ruled that:

the State shall refrain from resorting to amnesty, pardon, statute of limitations and from enacting provisions to exclude liability, as well as measures, aimed at preventing criminal prosecution or at voiding the effects of a conviction [italics added].[53]

Finally, the UN Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, intended to provide guidelines to assist states in developing measures to combat impunity for human rights violations, reflects the requirement of prosecution and punishment of serious crimes.[54] The principles indicate that states have a duty to investigate “serious crimes under international law” and to take measures to ensure that those suspected of criminal responsibility “are prosecuted, tried and duly punished.”[55]

8. Petition

For the abovementioned reasons, we ask this Honorable Court to:

1. Accept Human Rights Watch as a Friend of the Court in this case, and
2. Take into account the legal arguments and international standards presented in this brief when evaluating the constitutionality of the National Solidarity Law provisions related to internal armed conflict and pardons.

Juanita Goebertus Estrada
Director
Americas Division
Human Rights Watch