Terrorism in Ecuador?

Friday 18 January 2013

All the versions of this article: [English] [Español]

Authorship: David Cordero Heredia.

Published by:

- La línea de fuego.

- Regional Advisory Foundation in Human Rights (Fundación Regional de Asesoría en Derechos Humanos) (INREDH).

Canal: Inter-American Platform of Human Rights, Democracy and Development (Plataforma Interamericana de Derechos Humanos, Democracia y Desarrollo) (PIDHDD).

Type of document: Article.

Language: Spanish.

Subject: Legislation.

Keywords: Human rights, Justice, Legislation, International agencies, Politics, Terrorists.

Countries and Regions: Ecuador.

Description: Position article by David Cordero Heredia, President of INREDH.

Refer to the full text article on a direct link and in PDF format.

During the last months the national public opinion has been giving a large coverage to the case of ten youth facing charges of terrorism. This is not the first case; although it is to expect this to be the last one in which this criminal charge is used in Ecuador, against members of the political opposition, social leaders and defenders of human rights and of the nature. This article will assess the criminal type of terrorism as a pragmatic example of the use of the terror discourse and in concrete of its use against persons identified as the enemy by those holding the reins of power, to try to explain the daily use of that discourse and how this discourse undermines human rights and limits the reaction, analysis and political participation reaction.

The use of criminal law as a political tool is nothing new, and it dates back to its own origin, when individuals received sentences for not obeying the will of the sovereign or simply in the exercise of said will. With the passing of centuries societies have tried to rationalize its use, resulting in the fact that it is such a big power allowing to take away the freedom (or even the life) of persons that it is not easy to control, especially when it turns out to be an attractive weapon for those holding the political power.

They can do a lot through the use of the criminal law, seeing from a political perspective, they can deprive of his/her freedom anyone having a different way of though, intimidate those who want to practice political opposition, exclude a specific group from the society just because the power thinks they are making it uncomfortable, and, above all, to define in the symbolic the stereotype of citizens within the legal area, thus being part of the society; whoever is not included should be expelled and sent inside (jail, mad houses) or if needed (deported or to exile) or even those who need to be eliminated (death penalty)

Based on the advances of modern criminal law, they have tried to create filters to be able to exercise this power, which could include legality, the proportionality of the sentence, the presumption of innocence, the right to have a defense, the need of the characterization, the need of the anti legality, inter alia. Even the discourse was moderated to such an extent of limiting punishable acts to those attempting against the main legal goods, whose importance seems to be acknowledged in the social pact thanks to the quasi universality of its acknowledgement. Nevertheless, in recent decades, especially after September 11, 2001, we have been witnessing a notorious backward movement in the limitation of these powers within two figures introduced into the legal field: “terrorism” and the “criminal law of the enemy”.

Actions considered as “terrorist” are, in its vast majority, event characterized in several states all over the world, such as assassination, kidnapping with the purpose of extortion, handling of explosives, arms trafficking, etc., nevertheless the category is created with an ambiguous nature having no room inside the law, so a concerted definition of terrorism at the international level cannot be identified, the United Nations Security Council Counter-Terrorism Committee recognizes the existence at the universal level of 16 covenants on terrorism, each one of them has different definitions of actions considered as terrorists, without defining the concept of “terrorism”.

The Inter-American Commission on Human Rights also fails in defining terrorism, thus it takes the definition given by the United Nations General Assembly and expresses that terrorism are “criminal actions with political purposes designed or planned to create a state of terror in the population at large, in a group of persons or in specific persons which are not justifiable under any circumstances, regardless of the political philosophical, ideological, racial, ethnics, religious considerations or of any other kind used to justify said actions.” Afterwards it goes in detailing a series of actions, each one constituting a different criminal type. Within the structural definition of a crime, this criminal type is not sustained, given the fact that the plurality of ruling verbs is not too clear, and as it can be easily understood, it is prone to arbitrariness.

Within the framework of the world terror resulting from “terrorist” actions, the theory of the Criminal Law of the Enemy is developed and spread; the jurist Zaffaroni defines this postulate in a very clear way, when expressing that it is to grant a different treatment, out of the right to a given group of persons: the enemies: “The essence of the differential treatment designed for the enemy consists in the fact that the law denies the condition of human being and only sees him/her under the definition of a dangerous or harmful entity. No matter the shades you give to this idea, when you are to distinguish between citizens (persons) and enemies (non persons), reference is made to human deprived from some individual rights for the reason that they are no longer considered as persons.”

Of course, when you define a group of persons as “enemies of the society” this gives room to a unique subjectivity within criminal law, and with this determination they are enemies of the society and eventually they could be catalogued as terrorists, those persons attempting against the values, stability, wellbeing and goals of the society.

Regretfully the content of these parameters will be given by the government holding power at that moment, as Ferrajoli points out the criminal types of terrorism “are prone to be used as empty boxes and provide room for sociological hypothesis or political-historiography theorems elaborated on the basis of the personality of those incriminated or through supposed interpretations and conspiracies of the terrorist or mafia phenomenon. In this normative figure the fact is blurred in the vital route or in the political or environmental situation of the accused and as such, it cannot be verified by the accusation or hardly defended by the defense. And it is tendentiously described as a status crime rather than as a crime of action or result, identifiable, instead of through evidences, through valuations referred to the subversive subjectivity or substantially anti legal of its author.”

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