Introduction
During the night of 7 February 2017, a helicopter of the Mexican Navy started shooting, with a machine gun, over a residential area in the state of Nayarit, Mexico. While individuals in the targeted building responded to the fire with automatic weapons and grenades, a joint command composed of units of the Mexican Navy, the Army and the Federal Police advanced on the ground with the intention of capturing Juan Francisco Patrón Sanchez (known as “H2”), leader of the Beltrán Leyva Organization (BLO), a cartel headed by the five Beltrán Leyva brothers.Footnote 1 The operation ended with the death of “H2” and seven other members of the cartel.Footnote 2
Two years later, on 17 October 2019, an operation to capture Ovidio Guzmán (son of the leader of the Sinaloa Cartel, Joaquín “El Chapo” Guzmán), in Culiacan, resulted in intense clashes between governmental forces and cartel gunmen.Footnote 3 While security forces managed to capture Guzmán, members of the Sinaloa Cartel threatened to start a “massacre” by killing more than 200 individuals while they placed the city under lockdown. The violence stopped only once the officials released Guzmán within minutes of his detention. After the operation, the current president of Mexico, Andrés Manuel López Obrador, made a statement arguing that “there is no war against drug trafficking”.Footnote 4 Still, the episodes of violence connected with drug cartels continue to proliferate, even during the current coronavirus pandemic.
These episodes reflect the complexity of the situation of Mexico, where incidents linked to drug trafficking erupt in a context of generalized violence. To determine whether these episodes are part of an armed conflict or a situation of tensions or internal disturbances is particularly challenging. Both the Rule of Law in Armed Conflict (RULAC) project and the War Report of the Geneva Academy have confirmed the existence of a non-international armed conflict (NIAC) between the Government of Mexico and (at least) the Jalisco New Generation Cartel (Cartel Jalisco Nueva Generación, CJNG) and Sinaloa Cartel.Footnote 5 This view has also been supported by the International Humanitarian Law Clinic of Leiden University.Footnote 6 Moreover, the International Institute for Strategic Studies has classified this situation as one of the most violent conflicts in the world, even surpassing Iraq and Afghanistan.Footnote 7
The purpose of this article is not to provide a conclusive view on the classification of the confrontation between the cartels and the Mexican government. Instead, the following pages will try to assess whether the requirements of violence and organization needed for international humanitarian law (IHL) are applicable to this type of criminal organization. It will conclude by suggesting a new set of elements that can be applied when analyzing drug cartels. This assessment may also be useful for assessing the applicability of IHL to other criminal groups around the world.
Cartels present an interesting case study for testing the suitability of the parameters used to assess the existence of a NIAC. In order to address the threshold of applicability of Article 3 common to the Geneva Conventions of 1949 (common Article 3, CA3), it is necessary to ascertain whether these groups fulfil the two-pronged test as presented by the International Tribunal for the former Yugoslavia (ICTY) in the Tadić case: a degree of organization within the armed group, and protracted armed violence.Footnote 8
One of the biggest challenges in the interpretation of CA3 is to define which situations fall under its scope.Footnote 9 Throughout this article, the author will try to tackle the question of whether the requirements of the two-pronged test are sufficient to classify the situation between the Mexican government and certain drug cartels as a NIAC. As will be explained, the challenge in this particular scenario is that the concepts of organization and violence by drug cartels do not necessarily equate with these concepts under IHL. The author will also argue that the reality of these groups shows that, while their aims may not affect the legal classification, the impact that the ends may have on the organization and the nature of the violence may well do so. This analysis will not go into depth regarding Additional Protocol II, as the degree of control that cartels exercise over territories is still controversial.Footnote 10 Territorial control as understood by cartels is equated to the monopoly of distribution of drugs.Footnote 11
Dealing with the situation of Mexico in relation to IHL is opening a Pandora's box. It may well change our perception of other situations where the proliferation of criminality is inciting this discussion, such as in Brazil or El Salvador.Footnote 12 Discerning whether and how IHL and/or international human rights law (IHRL) are applicable to criminal organizationsFootnote 13 is of fundamental importance for determining the proper tools to ameliorate the situation of thousands of victims of criminal violence; for defining the rights that protect individuals and the obligations of States when using force; and for offering transparency and proper legal remedies for victims and preventing human casualties.
Mexico: A challenge for IHL?
Since President Felipe Calderón (2006–12) declared the “war against drugs”, the question of whether this is a metaphorical war or a proper armed conflict has been raised.Footnote 14 Indeed, it seems that highly organized groups operating in Mexico put the governability of the State into question. However, their structure is based on the pursuance of profitable activities that are not necessarily equated to the characteristics of organized armed groups.
Drug cartels can be defined as “large, highly sophisticated organizations composed of multiple DTOs [drug trafficking organizations] and cells with specific assignments such as drug transportation [and] security/enforcement”.Footnote 15 DTOs are complex organizations with highly defined command and control structures that produce, transport and/or distribute large quantities of one or more illicit drugs.Footnote 16 While drug trafficking started in Mexico in the 1930s, cartels emerged in the 1980s with the purpose of taking control of distribution routes and protecting themselves from government intervention.Footnote 17 An agreement between the most prominent gangs in the 1980s divided the market into territories known as plazas. The roots of drug violence can be traced to control of these areas.Footnote 18 While the cohesion of these criminal structures changes continuously, existing organizations include the Sinaloa Cartel, the CJNG, the BLO and the Juárez Cartel.Footnote 19
The issue of criminality and gang violence in relation to drug cartels reflects one of the current challenges of IHL. While criminality has traditionally been considered to be outside the scope of IHL, Mexico raises questions over the potential applicability of IHL to criminal groups.Footnote 20 The impact of violence on the population and the military-grade capacity of some cartels to respond to rival gangs and the State has led many people to believe that Mexico is in a NIAC between the government and some of these groups. While there are also persuasive arguments to suggest the contrary, one thing is certain: waging a “war” against cartels made the country fall into a spiral of violence and death that has continued for the last fourteen years while the official discourse struggles to find an appropriate legal response. The lack of a stance on the applicable legal paradigm has found the government without appropriate institutional mechanisms to address cartels.Footnote 21 Mexico shows the problems of not reaching a clear legal approach in the implementation of (either or both) the law enforcement and conduct of hostilities paradigms.Footnote 22
This topic illustrates the necessity of revisiting the division line between internal violence and NIACs. The discussion is relevant throughout Latin America. Exponential growth of criminality and drug-related violence can be observed in the entire region, even outside of the context of armed conflicts.Footnote 23 This eruption of criminal violence led the Geneva Academy's War Report to start addressing the potential applicability of IHL to other Latin American countries besides Mexico.Footnote 24 On the other hand, certain clearly defined organized armed groups, like the Revolutionary Armed Forces of Colombia, have engaged in profitable activities in order to fund their endeavours (e.g., taxation, human trafficking, production and selling of drugs).Footnote 25 Mexican cartels may be close to both scenarios, as they present analogous features to certain armed groups (particularly access to equipment and weapons) but also to many criminal gangs around the world.
An expert meeting of the International Committee of the Red Cross (ICRC) has explicitly mentioned drug cartels to exemplify that powerful criminal groups resorting to armed violence may fall “short of an armed conflict”.Footnote 26 This, however, does not lower the importance of ascertaining which are the available legal tools to address this situation. The fact that the humanitarian consequences of violence in Mexico are similar to those experienced by countries with armed conflict was noted in 2017 by former ICRC president Peter Maurer, who stated: “We have always recognized that the situation of Mexico is very specific and that we cannot simply transfer our experience of conflicts and wars to Mexico, but there are recurrent problems and the humanitarian impact is very similar sometimes.”Footnote 27
The organization criterion
Organized to confront?
In relation to the level of organization of armed groups, the ICTY and International Criminal Court (ICC) have developed a series of exemplificative indicators to assess this criterion. These include the existence of a command structure; the ability to gain access to weapons, military equipment, recruits and military training; and the ability to plan, coordinate and carry out military operations.Footnote 28 While a loose interpretation has been utilized to define the organization criteria, requiring a case-by-case analysis, three broad elements can be identified from practice and jurisprudence: (1) a collective entity with a command structure; (2) the ability to implement basic humanitarian norms; and (c) the capacity to engage in sufficiently intense violence.Footnote 29 Underlying this is the implicit requirement that these groups are not a mere juxtaposition of individuals but a collective entity.Footnote 30
According to international jurisprudence, the organizational capabilities of armed groups must be focused on the capacity of parties “to confront each other with military means”.Footnote 31 Nevertheless, according to other theories, analyzing only the ability of groups to confront would make the distinction between organization and armed violence redundant.Footnote 32 Therefore, these organizations must also be able to implement the obligations imposed by CA3.Footnote 33 A third position suggests that the ability of a group to engage in armed violence may compensate for the inability of the organizational structure to implement IHL obligations.Footnote 34 Accordingly, these groups must reach at least a “sufficient degree of military organization to conduct hostilities on behalf of a party to the conflict”.Footnote 35
From the perspective of cartels, however, these criteria, used in IHL, may not be suitable. It can be argued that these groups have a commercial structure. While this implies a degree of organization, a society for profit is not sufficient in itself. Moreover, as will be further explained in the following section, the aims of a group, whether commercial or political, do not alter their legal status. Nevertheless, these purposes may well have an impact on the organizational design of the group, altering the legal classification of the group as such. As the degree of organization is key to qualifying a collective as an armed group within the existence of a NIAC, the lack of this element converts these collectives to mere criminal associations, whose legal characterization would depend on domestic criminal legislation.
Organized for commerce?
In Mexico, the organizational structure of the cartels has been transformed over the past two decades. The implementation of the so-called “kingpin strategy” by President Calderón, which is based on the killing or capture of the leaders of each organization, has resulted in the disintegration of some cartels and the strengthening of others. In general, however, the absence of leaders has occasioned power struggles between ranks, resulting in more violence and less cohesion in each organization.Footnote 36 For example, in the case of the BLO, the capture of founding member Arturo Beltrán Leyva in 2009 resulted in the dissolution of the group into independent cells that lost any sense of common membership.Footnote 37 The disappearance of kingpins has led to the creation of many smaller and more violent drug gangs, struggling for a share of the market and with no clear cohesive element between them, apart from opportunistic alliances.Footnote 38 This shows the difficulties of finding the links between the groups that could allegedly compose a party to a conflict. Cartels such as the BLO do not show a de facto relationship of belonging to a hierarchy or the existence of leadership that exerts overall control of these cells.Footnote 39
Some general characteristics can be extracted from the situation of most of these organizations. Most cartels have diversified into other profitable activities (kidnapping, extortion) and have become more decentralized in their organizations in order to maximize their profit.Footnote 40 Consequently, these groups present a structure that is organized not with the aim of confronting the government, but with the aim of pursuing profitable activities.Footnote 41 The alliances between the cells and the main organization are primarily commercial. Cells are franchises, not branches – they fight each other for drug distribution chains (plazas).Footnote 42 Moreover, the International Law Association has suggested that as long as the aim of these groups is not to topple the government but to protect their criminal activities, the situation cannot be classified as a NIAC.Footnote 43
In this regard, it should be noted that the ICTY has asserted in the Limaj case that “the purpose of the armed forces to engage in acts of violence or also achieve some further objective is … irrelevant”.Footnote 44 In response, Vité has stressed that “[t]he reverse position would, moreover, raise problems that it would be difficult to resolve in practice. The motives of armed groups are never uniform and cannot always be clearly identified.”Footnote 45 The applicability of IHL depends on objective elements, irrespective of the approach taken by the parties or how they are denominated.Footnote 46 One could argue, however, that the aims of the cartels condition the way in which they are organized. As will be addressed in the section below entitled “A Surge of Violence in Mexico?”, violence, in this context, represents a by-product of drug trafficking and not a direct consequence.Footnote 47
The structure of cartels puts into question their suitability under the organization requirement of CA3. Cartels are designed not to engage in armed confrontation but to protect plazas.Footnote 48 These organizations fall more appropriately under the provisions of the UN Convention against Transnational Organized Crime than the notion of CA3.Footnote 49 In other words, the structure of most cartels is not suitable for IHL implementation because they are not usually prepared to engage in armed confrontations as required by CA3, arguably, under the element of organization. Cartels usually outsource violent actions to exogenous organizations or hire hitmen for specific actions.Footnote 50 When these branches start to work as an armed wing for a cartel, the experience shows that these links are transitory. Most of the time such associations are sporadic or limited in duration; for example, the BLO started as an armed branch for the protection of the Sinaloa Cartel against the armed wing of the enemy Gulf Cartel (Los Zetas), until it began to operate as an autonomous organization.Footnote 51 Another relevant example is the CJNG, which posted a video on social media showing its military-grade weapons and armoured vehicles,Footnote 52 but which relies on alliances with local gangs and individuals to advance over new markets within the country.Footnote 53 Because of these ephemeral structures, it is doubtful that cartels could have the ability to implement IHL.
It is clear from a legal perspective that, for the purposes of identifying the entity behind violent acts, there must be a cohesive and organized structure with the ability to engage in military confrontations. Without dismissing the interpretation of the ICTY in the Limaj case, it can be argued that the aims of the cartels have moulded the way in which they organize, as well as the patterns of violence that are associated with them. This latter element may have an impact on the classification of the situation, so it is therefore necessary to analyze the characteristics of the violence in Mexico to assess whether there is an armed confrontation between the cartels and the government.
Is it sufficient to talk about protracted armed violence?
In relation to CA3, States argued during the 1949 Diplomatic Conference of Geneva that the scope of the article did not include all forms of violence.Footnote 54 Many States considered at the time that situations of violence between individuals, crimes, and riots, should be excluded, as their inclusion would give criminal organizations a pretext for claiming the benefits of CA3.Footnote 55 Still today, however, there is no clear-cut definition of the minimum threshold of violence that must be reached to trigger the applicability of CA3.Footnote 56 According to some authors, it is only through “creative ambiguity” that an agreement over the wording of CA3 could be reached at its inception.Footnote 57
The notion of violence, legally and symbolically speaking, is fundamental to understanding the nature of events in Mexico. In relation to the concept of violence within IHL, the ICTY further explored the requirement of protracted armed violence in the Haradinaj case. The Trial Chamber established that the analysis must focus on the intensity of the violence rather than on its duration.Footnote 58 Regarding the indicative factors to be used, the ICTY has referred to non-exhaustive elements such as the number, duration and intensity of the confrontations; the types of weapons and military equipment used; the number and calibre of the munitions fired; and the number of casualties.Footnote 59 The ICTY revisited almost immediately the question of the intensity of violence in the Boškoski case. Amongst the indicative factors of violence, it is possible to highlight the existence of armed clashes and the mobilization and distribution of weapons to the parties; the types of weapons and military equipment used; the number of casualties caused by shelling or fighting; the quantity of troops deployed; and the closure of roads.Footnote 60 These criteria have also been reaffirmed by the ICC Trial Chamber in the Lubanga case.Footnote 61
Yet, it is challenging to interpret these elements in a context of generalized violence, where many of them may get entangled with unrelated crimes. Engagements in activities involving armed force or armed violence do not seem to be an exclusive prerogative of armed groups under IHL, according to the ICRC.Footnote 62 Many non-State actors that are not necessarily engaged in armed conflicts are involved in violent actions.Footnote 63 In defining armed conflict, the International Law Commission has explicitly referred to armed force in its Draft Articles relating to the Effects of Armed Conflicts on Treaties.Footnote 64 The ICRC has defined NIACs as protracted armed confrontations that must reach a minimum level of intensity;Footnote 65 this allows us to distinguish NIACs from other situations of mass violence and civil unrest.Footnote 66 Still, it seems that the ambiguity persists.
Again, the question of the threshold of intensity for distinguishing NIACs from internal disturbances presents several challenges. A situation involving a high number of casualties would not necessarily entail the existence of a NIAC, as shown by the cautious approach of the ICRC in classifying the unrest in Syria as an armed conflict.Footnote 67 The historical patterns of criminality in Mexico demonstrate how ambiguous the implementation of these elements can be.
A surge of violence in Mexico?
Mexico has experienced a resurgence in violence since 2007 (see Figure 1), presenting a record number of registered homicides since 2018.Footnote 68 These patterns of violence are “highly localized, sporadic, and geographically specific”.Footnote 69 At the same time, most of these violent actions have been attributed to organized crime.Footnote 70 It is commonly believed that the fragmentation produced by the kingpin strategy has resulted in confrontations between the middle ranks of the leadership and has had a direct impact on the increase in violence.Footnote 71
Victims of intentional homicide in Mexico and Central America, 1990–2018. Source: © United Nations Office on Drugs and Crime, 2020.
Moreover, while the resurgence in homicide rates could be attributed to the declaration of the “war against drugs” by President Calderón, there are other factors that may explain this phenomenon, such as the historical roots of violence in Mexico, the weakening of political institutions, and persistent social inequality.Footnote 72 While prior to 2007 the homicide rate was diminishing, other crimes (kidnapping, extortion, drug trafficking) were exponentially growing.Footnote 73
The fact that cartels may be involved in thousands of individual homicides does not necessarily discount these actions from being part of a hypothetic armed conflict, as IHL also regulates unlawful acts of violence, such as attacks directed at civilians.Footnote 74 However, the core of this question is to define which kinds of acts may fall outside of armed conflict and which may fall within.Footnote 75 A common misunderstanding is to attribute all violence that occurs in the context of drug trafficking to specific criminal organizations. While criminal gangs are frequently held responsible for urban violence, there are no reliable data on which crimes are directly linked to group actions.Footnote 76 Moreover, high levels of criminality are not exclusive to countries where IHL is (or may be) applicable. Other countries have suffered high levels of homicide associated with criminality and drug trafficking, such as Guatemala and El Salvador.Footnote 77
Another common misconception is to excessively rely on the participation of military forces in law enforcement operations since 2007 for the affirmation of an armed conflict between the government and some cartels.Footnote 78 These assessments disregard the historical role of the Mexican armed forces in law enforcement operations against drug trafficking and criminal organizations since the 1930s.Footnote 79 The intervention of armed forces may be an indicator of IHL applicability, but it is not determinative in itself.Footnote 80
2019 was one of the most violent years in the history of Mexico, with a consistent rise in the number of homicides, which remained stable until the end of 2020.Footnote 81 However, many of these homicides cannot necessarily be attributed to the cartels as an entity, as they are related to other sources of criminality.Footnote 82 Moreover, with the notable exception of Los Zetas (currently disarticulated),Footnote 83 studies show that most cartels use armed violence only as a last resort, prioritizing bribing and extortion.Footnote 84 While Los Zetas have resorted frequently to violent actions with visual impact (e.g., decapitated bodies, mass executions), these were part of a communication strategy rather than done for military purposes.Footnote 85 The final aim of this strategy was to generate revenues by intimidating and extorting less powerful gangs and the local population.Footnote 86
An analysis of trends in homicide rates is certainly revealing. As shown by data from the United Nations Office on Drugs and Crime (UNODC), Mexico's homicide rate is one of the highest in the world, but it is still lower than those of countries such as El Salvador, Jamaica and Venezuela.Footnote 87 In 2021, there were 28,262 intentional homicides in Mexico, of which only 1.41% (401) resulted in the death of security forces officials.Footnote 88 At the same time, since López Obrador took power in 2018, there has been a general increase of almost 5.5% in the homicide rate.Footnote 89 While there are no public data regarding alleged members of cartels being killed, these trends show that only a small amount of cases are related to violence between State officials and others (groups or individuals). This opens two questions regarding the applicability of IHL: how to establish which homicides were part of armed confrontations, and how to determine whether the persons engaged in these episodes belonged to a “party”.
The case of the city of Tijuana can be revealing in this regard. As a result of a violent campaign by the Sinaloa Cartel against rivals and former allies, Tijuana went from the national average of homicides to becoming the most violent city in Mexico.Footnote 90 Confrontations between former partner cartels resulted in a surge of many new criminal organizations, from small-scale drug traders up to the involvement of macro-organizations such as the Sinaloa Cartel and CJNG.Footnote 91 Most confrontations occur between organizations that want to contest the control of the Sinaloa Cartel over the drug distribution in the city.Footnote 92 This has shaped the concept of violence in Tijuana, which has converted from high-profile confrontations into a multiplication of lower-profile homicides resulting from battles over the control of shares of the distribution market (from street corners to entire neighbourhoods).Footnote 93
Indeed, there is a link between the increase in the rate of homicides and drug-related homicide. However, sociological studies suggest that the patterns of homicide and violence in Mexico are mainly explained by drug consumption combined with inequality and poverty, which also explains why most of these crimes are concentrated in the marginal neighbourhoods in urban areas.Footnote 94 While many of these cases may be connected with cartels, they are not necessarily relevant to assessing the existence of protracted armed violence. Most situations involve cells or individuals that are connected to cartels in a business relationship but do not belong to a hierarchical command structure.Footnote 95 In the hypothesis of an armed conflict, the nexus between the parties and the violent actions would be extremely frail.Footnote 96
Therefore, it seems that not all crimes in which Mexican cartels are engaged are suitable for ascertaining the intensity of violence in relation to the requirement of CA3. This challenge is maximized in the case of criminal organizations whose violent actions are intrinsic to their (profitable) activities.Footnote 97 Two potential solutions, when analyzing the intensity of violence and the capacity to fulfil the organization criterion for the purposes of the application of IHL, would be either to focus on the notion of armed confrontation or to dismiss the applicability of IHL altogether and to address the (sole) suitability of the law enforcement paradigm.
Towards a theory of armed confrontation?
When analyzing the concept of a “party” in NIACs, the War Report of the Geneva Academy has referred to a factual requirement. According to the Report, these groups must be “in regular and intense armed confrontations with armed forces or other organized armed groups. … There must be actual combat.”Footnote 98 This approach goes in line with the ICRC's 2016 Commentary on CA3, referring to the capacity to engage in (and the existence of) highly armed confrontations.Footnote 99
International jurisprudence and practice have advanced in defining the content of armed violence. In the Abella v. Argentina case, the Inter-American Commission on Human Rights (IACHR) established, whilst affirming that a military engagement that lasted less than forty-eight hours constituted a CA3 NIAC, that “the attackers involved carefully planned, coordinated and executed an armed attack, i.e. a military operation, against a quintessentially military objective – a military base.Footnote 100 The Court of Justice of the European UnionFootnote 101 and the San Remo Manual on the Law of Non-International Armed Conflict have also raised the concept of armed confrontations when referring to the concept of NIACs under IHL. While assessing the level of violence in Kosovo in 1998, the ICTY referred to “armed clashes” between the Kosovo Liberation Army and the Serbian Armed Forces.Footnote 102 According to the Geneva Academy War Report, certain actions such as emplacing improvised explosive devices or landmines are not sufficient to assess the existence of a NIAC if not combined with direct “hostilities”.Footnote 103
As shown in the previous section, defining the violence connected to Mexican cartels as “armed confrontations” can be challenging. Most of the violence related to cartels is connected to limiting competing organizations’ influence over shares of the market or curtailing the expansion of other groups. It is possible to pinpoint certain examples of armed confrontation, such as the targeting of “H2” or the capture of Ovidio Guzman; other notable examples are the failure to capture “El Mencho” (leader of the CJNG) in 2015 when members of the CJNG shot down a Mexican military helicopter, or the recent attack on the secretary of public security in Mexico City.Footnote 104 These are notable exceptions, however; most cases of drug-related violence are connected to homicides that cannot be equated to armed confrontations. This can be observed in the wave of isolated and unconnected murders that followed the capture of “El Marro” (head of the Santa Rosa de Lima Cartel).Footnote 105 In addition, Cartels usually avoid engaging in open confrontation with State forces; moreover, a tangible trend in the targeting of State officials is connected with cases of corrupt officials who are de facto working with other cartels, turning attacks against them into revenge crimes.Footnote 106 In many crimes connected to drug-related violence, such as the Ayotzinapa massacre, some State officials acted together with, not against, cartels.Footnote 107
Notably, the analysis of the ICTY in relation to armed confrontations has related to cases of intensive artillery bombardment and prolonged shelling.Footnote 108 Again, international tribunals have affirmed that violence (as with organization) must be assessed on a case-by-case basis.Footnote 109 It seems that equating cases of direct confrontation with all violence emanating from criminal organizations would entail conflating criminality with armed confrontation. Indeed, Mexico presents a situation of extreme violence that has generated the displacement of over 345,000 persons and thousands of deaths over the years.Footnote 110 However, it is difficult to distinguish these episodes of violence from similar situations in El Salvador or Venezuela.
The idea of armed confrontation shows the necessity of ascertaining which violence is relevant for the purposes of affirming the existence of an armed conflict. The statistics in relation to the death of State officials in Mexico reveal that the percentage relevant for this analysis (i.e., in terms of overall homicide cases) may be quite limited. This does not dismiss the applicability of IHL in itself, but it reduces the bulk of pertinent violence, which is relevant to analyzing the fulfilment of the threshold.
The question of the nexus
In order to affirm the existence of an armed confrontation, it is necessary to assess which acts of violence are relevant for that purpose. In this sense, it is fundamental to focus on the notion of nexus, as not all violent actions that have a link with the group will be relevant. IHL can only apply to conducts connected with an armed conflict. According to Marco Sassòli, the standard for nexus developed by international criminal law may well be suitable for IHL purposes.Footnote 111 In this sense, according to the ICTY, there must be a nexus between the acts of individuals and the armed conflict. Action must be “closely related” to the hostilities.Footnote 112
The concept of nexus is fundamental to distinguishing ordinary crimes related to gang violence from violence derived from hostilities.Footnote 113 For the purposes of IHL, only those acts with the “impetus to vanquish the foe in the NIAC” are relevant, while ordinary crimes “spurred by personal stimuli (anger, revenge, fear, greed, lust)” are not.Footnote 114 Even in the context of a NIAC, fighters can commit ordinary crimes despite their personal connection to the conflict. For the purposes of IHL, there must be a direct link.Footnote 115 Notably, in the Kunarac case, the ICTY mentioned the purposes of the action and military goals as elements for distinguishing war crimes from domestic offences.Footnote 116 Based on this interpretation, Fortin has suggested that issues which do not have a clear nexus with an armed conflict (based on individual status, membership, or military strategy) should only be regulated by IHRL.Footnote 117
As seen in the case of Mexico, the statistics show that only a small percentage of violent crimes may be relevant as armed confrontations. This fact does not exclude the possibility that some of these confrontations have become so intense and sustained in relation to a specific cartel as to suggest the existence of a NIAC.
Comprehending the process of militarization
From the international law perspective, if a situation does not reach the threshold of an armed conflict, the conduct of hostilities paradigm is inapplicable.Footnote 118 This entails the sole applicability of human rights obligations of the State involved.Footnote 119 In other words, the concept of law enforcement involves all actions taken by a State to impose public security, law and order under IHRL (as applicable to the State).Footnote 120 Under the law enforcement paradigm, any situation entailing the use of force must be in accordance with the application of the principles of legality, necessity, proportionality and precaution under IHRL.Footnote 121 The use of lethal force is highly restricted and must be limited to what is strictly necessary to achieve a legitimate aim.Footnote 122 Furthermore, it is expected that States develop non-lethal incapacitating weapons to reduce potential injuries or casualties.Footnote 123 Even when the use of violent means is inevitable, force should be used to “stop a suspect” (“shooting to stop” rule) and only intended to be lethal when unavoidable in order to save another life.Footnote 124 Any other scenario would entail a clear violation of the right to life due to arbitrary deprivation of a person's life.Footnote 125 It must be recalled that the fact that military authorities participate in law enforcement operations does not directly entail the application of IHL.Footnote 126
The applicability of the law enforcement paradigm was foreseen in the original Commentaries to the Geneva Conventions for situations that fall short of being an armed conflict, particularly for tensions, when force is used preventively to maintain respect for law and order, and for internal disturbances, when the State uses armed force to maintain order.Footnote 127
As we have seen, cartels are involved in numerous violent activities that could certainly trigger the response of the State under the law enforcement paradigm. Notwithstanding the fact that law enforcement operations may occur during armed conflicts, cartels’ activities are not necessarily relevant to establishing the existence of an armed conflict.Footnote 128
In 2006, the Government of Mexico started a process of deployment of armed forces to shadow the work of police forces and oversee domestic law enforcement.Footnote 129 The institutional participation of armed forces in law enforcement operations has focused on the notion of “internal security”, which entails cases of social instability that are not of sufficient gravity to be considered a threat to national security.Footnote 130 The government of President Enrique Peña Nieto (2012–18) passed a law of internal security that allowed the direct intervention of the military in law enforcement operations.Footnote 131 While the legislation of the Peña Nieto administration was repealed by the Supreme Court of Justice of Mexico as unconstitutional, the issue of participation of the military in law enforcement operations was revisited by the current administration of President López Obrador and ultimately formalized via a presidential decree.Footnote 132 While the existent legal framework has faced criticism from an IHRL perspective in relation to the principles of the use of force (legality, necessity, proportionality, prevention and protection of the right to life) by organizations such as Amnesty International, it provides a certain improvement from former regulations in the country and a step forward in a region where many countries lack any regulation on the matter whatsoever.Footnote 133 Proper review mechanisms, however, are necessary to provide effective remedies to the use of force and avoid lack of accountability.Footnote 134 Despite the possibilities for improvement, the approach of the government has been explicitly to be consistent in the interpretation of these standards under IHRL, using armed forces in support of public security operations.Footnote 135 This may be an additional indication that IHL is not applicable, as it has been argued that the applicability of the law enforcement paradigm systematically may be an indication that IHL is unsuitable.Footnote 136
The current implementation of the law enforcement framework against cartels may be an indicative factor of how the Mexican government interprets the limitation on the use of force below the threshold of armed conflict.Footnote 137 A parallelism can be drawn, in this regard, from the experience of the Mexican forces fighting against the Zapatista Army of National Liberation (Ejercito Zapatista de Liberación Nacional, EZLN), particularly during the uprising in the State of Chiapas in 1994. While there was a military deployment based on a “war strategy” against the EZLN, the strategy in 2006's “war against drugs” was one of defence or reaction.Footnote 138
Concluding observations
When establishing the existence of a NIAC, analyses should focus on the notion of armed confrontation in order to assess the violence. Mexico is an important example of the suitability of the armed confrontation test when assessing the twofold criteria of NIACs. The fluctuant nature of the violence in Mexico makes classification challenging: it is difficult to assess when the intensity of violence has reached the threshold of armed conflict and when to affirm that the conflict has ended.Footnote 139 However, the case of Mexico can provide tools for assessing situations in which the dividing line between law enforcement and IHL is even more blurred, such as in Brazil or El Salvador.
Classifying the legal nature of the response of governments and criminal organizations to the issue of drug- and gang-related violence is not a purely legalistic issue. The “war against drugs” has left thousands of severe humanitarian consequences, including the displacement of thousands of persons, enforced disappearances and generalized torture by action (or omission) of State officials.Footnote 140 Pragmatic and legally clear definitions are needed to protect people affected by the scourge of drug-related violence, whether through IHL, IHRL or both.Footnote 141
One should not dismiss the magnitude of the problem of criminality in Mexico and in the region. Nevertheless, when analyzing the suitability of IHL application to the cartels, one should take into account that IHL does not necessarily always provide the best answer for this type of violence. There are several justifications to affirm that applying IHL as broadly as possible could have negative effects.Footnote 142 “Over-application” of IHL could lead to depriving persons of better protection applicable in peace and weakens the willingness to apply IHL in situations in which it should be applied.Footnote 143 This does not entail accepting the legal vacuum and conceding a carte blanche to the State in dealing with the cartels. As explained, IHRL, and more precisely the law enforcement paradigm, provides a legal framework that grants rights to individuals and confers obligations to the State in relation to any use of force against (at least) most of these criminal groups.
Some overall conclusions can be taken from the Mexican case in relation to the applicability of IHL and IHRL:
1. In order to surpass the threshold of CA3, one should distinguish between organizations for commercial purposes (not relevant) and organizations prepared for confrontation.Footnote 144 As explained in the above section entitled “Organized for Commerce?”, the purposes or aims of the armed groups are not relevant as an indication of the organization element required for the existence of a NIAC. Protracted armed violence, however, must be committed by identifiable groups that have a degree of organization which enables them to enter into a military confrontation. The fact that these groups are part of a commercial structure is not relevant to the organization criterion under IHL. The ability of a group to engage in armed confrontation cannot exist without an organization to that end. Organized armed violence can only come from organized groups prepared, at least, to confront.Footnote 145
2. In order to analyze violence for the purposes of establishing an armed conflict, one must only examine those acts that show a level of minimum intensity necessary to be considered as armed confrontations between the identifiable parties, and must dismiss criminal actions (criminal homicides) which cannot be clearly attributed to the confrontation as collateral damage from a particular clash. In order to make such an attribution, there must be a direct nexus between the violent action and the armed confrontation.
3. Membership in a group can only be established when there is a hierarchical relationship in an armed wing that allows for the coordination of military confrontations. In the case of cartels, this can only be observed in the biggest cartels and for a limited period of time (such as through the establishment of armed wings).
4. Unlawful acts that one has to consider under the conduct of hostilities paradigm (e.g., breach of the principle of distinction) may not be suitable when ascertaining the existence of a NIAC. For the purposes of reaching the threshold of armed conflict, the stress should be on the intensity of the armed confrontation between the hypothetical parties.
5. The inapplicability of IHL does not generate a legal vacuum. On the contrary, the law enforcement paradigm provides stringent conditions that governments must comply with when using force against criminal organizations. In order to use force in law enforcement operations, however, countries such as Mexico must establish the proper legal mechanisms to be in compliance with the requirements set out by IHRL.
