The Ius Constitutionale Commune facing State-Sponsored Organized Crime

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In various contexts across the region, institutional erosion, structural corruption, and human rights violations can no longer be explained solely as a “lack of will” to comply on the part of the state. In these times, it is appropriate to highlight a new and increasingly evident phenomenon: state-sponsored organized crime (Crimen Organizado de Estado, COE). In this ecosystem, key sectors of the public apparatus become integrated into the criminal logic rather than containing it. Such a scenario compels us to ask an uncomfortable yet even more pressing question: What do we do when the state is part of the crime rather than its remedy?

Transformative constitutionalism does not invite us to wait, but rather to lay the legal and institutional groundwork now so that, when political conditions change, it will be possible to move from COE toward a future of justice and dignity for the people who today bear the brunt of violence. In this context, the framework of the Ius Constitutionale Commune in Latin America (ICCAL) has gradually established itself as a proposal that offers tools to strengthen institutions and, above all, to envision reconstruction based on constitutional and human rights commitments themselves, as one of the legal pathways to address this problem.

An environment of state-sponsored organized crime, not just “corruption”

The starting point is to properly identify the problem, which is that in states where state-sponsored organized crime might operate, the issue is not merely “corruption”—nor even “grand corruption.” Rather, it involves a mutation of the very structure of the state, in which key segments of the public apparatus are reconfigured as a criminal power structure and cease to function as a check on illegality. As a result of this transformation, administrative hierarchies, security forces, and control over resources come to support a full-fledged criminal enterprise, designed to commit crimes on a large scale and, as part of its very design, to ensure the impunity of those who run it.

State-sponsored organized crime does not emerge suddenly, as it almost always takes root through a process of gradual capture. At first, criminal networks and public officials begin to forge ties of convenience—such as favors, silence, and occasional support. Little by little, this cooperation evolves into vertical and horizontal coordination, spanning ministries, security forces, public enterprises, and financial networks. A point is reached where the involvement of high-ranking authorities ceases to be peripheral and instead organizes the chain of benefits, enforces obedience, and orchestrates the cover-up. From that point on, repression and serious human rights violations no longer appear as isolated excesses, but rather as a method of governance at the service of a criminal enterprise embedded within the state apparatus itself—designed to discipline the population and ensure that impunity becomes a structural part of the model of power, thereby guaranteeing the state’s permanence and control.

Furthermore, compounded by this problem is the fact that the traditional frameworks of international and criminal law only scratch the surface of the issue. They help track the flow of illicit funds and establish individual accountability, but they may fall short depending on the extent of state capture.

The ICCAL Approach: A Framework for Reconstruction

At this point, the language of ICCAL becomes particularly useful. The Ius Constitutionale Commune in Latin America starts from a premise that is both very simple and radical within the ecosystem of a captured state: taking seriously the commitments to human rights, democracy, and the rule of law that are already enshrined in constitutions and in inter-American law, and interpreting them collectively as a common framework for addressing institutional capture produced by COE structures. This multilevel perspective allows us to connect national courts, the inter-American system, and international criminal justice—not as isolated spheres, but as pieces of the same transformative constitutionalism aimed at rebuilding institutions and protecting people from state-sponsored organized crime.

In contexts shaped by the COE, the ICCAL allows us to reframe the landscape in several ways. Place serious human rights violations and ius cogens norms at the center as an analytical starting point, and do not treat political or economic corruption as a phenomenon isolated from violence and repression. Integrate anti-corruption efforts, international criminal law, and state responsibility, using asset recovery not only to impose sanctions but also as a tool for truth, reparations, and the dismantling of state-sponsored criminal networks. Strengthen conventionality review and judicial dialogue among domestic courts, the inter-American system, and international justice mechanisms, so that victims do not depend on a single avenue of access to justice. Prioritize the reconstruction of independent institutions with enhanced protection, while also taking into account, for example, historically excluded groups, such as local and indigenous communities affected by mining exploitation and violence.

Here, the language of the Ius Constitutionale Commune in Latin America is useful not because it explains the phenomenon, but because it offers a thread to weave together the scattered pieces of constitutional law, international human rights law, and international criminal law. This shared perspective makes it possible to take inter-American standards, obligations to investigate international crimes, and mechanisms for monitoring compliance with international conventions and transform them into an agenda for institutional reconstruction in the face of structures captured by the COE.

Rebuilding Amid the Damage: Concrete Tools

When we acknowledge the existence of a COE environment, the question shifts from whether we will ever have a “normal” state to how to dismantle, step by step, a criminal structure that operates from within the state apparatus itself, shielded by legal frameworks. Such scenarios make it tempting for many to applaud violent actions that may, in reality, be a cover to secure power for those who already hold it or to become the new exploiters of the contested market. Beyond the violations of the international legal framework evident throughout this context, the central danger of these actions lies in the escalation of violence and attacks on civilian populations. There is no distinction, no proportionality, no humanity. Violence begets more violence; hatred begets more hatred.  Furthermore, in contexts marked by deep-seated social resentment, warnings have been issued about the risk of civic disengagement, which can lead to attitudes of detachment and even tolerance toward violence and human rights violations.

In this regard, the ICCAL approach could help strengthen the following lines of action:

• Special justice mechanisms: commissions of inquiry, transitional justice, and, eventually, an internationalized or hybrid tribunal for high-profile cases, especially when the national judicial system has been co-opted. Similarly, the existence of an internationalized tribunal would make it possible to prosecute crimes that could not be addressed within a jurisdiction such as that of the International Criminal Court (ICC).

• Strategic use of international justice: Crimes against humanity and other serious violations can be addressed through the ICC’s jurisdiction, even when the domestic environment is hostile to accountability; this approach should also encourage Latin American states to establish universal jurisdiction. The message must be clear: there is no safe haven.

• Indicators of state capture and patterns of impunity: Develop evidentiary tools that go beyond isolated individual cases and make it possible to demonstrate a criminal structure, the involvement of high-ranking officials, the use of the public apparatus, and links to serious human rights violations.

• Multilevel protection for victims: Coordinate inter-American precautionary measures, domestic constitutional actions, and strategic international litigation to protect human rights defenders, affected communities, and journalists documenting the COE.

Each of these tools is imperfect, but together they outline a reconstruction agenda that depends not only on changes in government but also on fundamental legal and institutional transformations.

From an Extreme Case to realistic Hope

Some situations in the region are particularly extreme, but they are not isolated exceptions. Other contexts in the region exhibit forms of institutional capture and links between organized crime and state structures, albeit to varying degrees. From this perspective, the strategies designed today to address environments of organized crime and state-organized crime may have an impact beyond any specific case and contribute to a shared toolkit.

Hope does not lie in denying the depth of the damage, but in recognizing that Latin American constitutional law—in dialogue with international human rights law and international criminal law—already contains the building blocks for envisioning reconstruction. The challenge is to boldly bring these elements together, starting by naming state-sponsored organized crime, tracing the money, documenting violations of human rights, activating international justice, and using the ICCAL as a compass to rebuild institutions that serve the people, not criminal networks.