Mexico, war crimes and a slippery slope

The drug war in Mexico has left tens of thousands of people dead and the country in peril. What difference will a new war crimes charge brought against the government make?
Patrick Gallahue
3 January 2012

The drug war in Mexico has left tens of thousands of people dead and the country in peril.

The crisis is so grave and the abuses so dire that human rights activists are charging the Mexican government with war crimes at the International Criminal Court. Mexican human rights lawyer, Netzai Sandoval, said of the complaint, “We want the prosecutor to tell us if war crimes and crimes against humanity have been committed in Mexico, and if the president and other top officials are responsible.”

But while there’s no denying the need to investigate the horrendous abuses committed in Mexico’s ‘war on drugs’ – it has to be asked if it’s actually a war. The violence in Mexico is certainly more severe than many modern armed conflicts but for a War Crimes charge to stick, it will require that other factors be met.

The Rome Statute of the International Criminal Court, upon which the Mexican claim (the full text of which this writer has not yet seen) must be based, defines a non-international armed conflict (i.e., civil war) as a “protracted armed conflict between governmental authorities and organized armed groups or between such groups.”

This definition emphasises two factors for a situation to qualify as an armed conflict – the level of hostilities (protracted armed violence) and the organisation of the parties (organised armed groups).

These definitions matter because not every violent incident is an act of war. Criminal violence may be rife in Detroit but it doesn’t mean that every mugging would warrant a response from the US military nor is every purse-snatcher an enemy combatant.

According to the International Criminal Tribunal for the former Yugoslavia, the definition of armed conflict that is used by the ICC is intended to “distinguish an armed conflict from banditry.”

So if it’s not a war – war crimes cannot have been committed.

According to widely published reports, the complaint to the Prosecutor of the ICC implicates Mexican President Felipe Caldéron and Sinaloa cartel leader Joaquin “El Chapo” Guzman.

But the Sinaloa cartel is only one of seven principal drug trafficking organisations in the country. If the Mexican government is at war – which organisation is it fighting? Is it only at war with the Sinaloa cartel (which is possible) or all seven cartels – which could make it seven different armed conflicts?

If each cartel represents a separate party to a different armed conflict, then are they also fighting each other in a number of mini-civil wars? If that’s the case, how can the violence begin to be measured? After all the Mexican government claims that 60 percent of drug related deaths in Mexico are between the criminal groups (though the evidence of this claim is certainly worth investigating).

Perhaps the most important aspect of all is whether it is even a good idea to claim the situation is an armed conflict.

Theoretically the laws of armed conflict are binding on all sides and it is a chilling spectre to imagine cartels arguing their grisly murders should be weighed against military necessity.

Moreover, what might an armed conflict paradigm mean for government-led violence?

Traditionally, drug offenders (including growers, manufacturers, traffickers and dealers) are criminal suspects with a right to trial, presumption of innocence, legal representation, et cetera. In a drug war, are they ‘members’ of an armed group?

Even if growers are discounted and ‘membership’ is limited to gangsters of the pistol-packing variety, then when would it be appropriate to argue they were acting on behalf of a cartel (a presumptive party to an armed conflict) rather than committing a garden-variety civilian crime?

Anyone who has studied targeted killings in the war on terror knows how slippery this slope can be.

There are still other concerns.

What is the status of cartel members currently in prison?

One of the most relevant treaties to the law of armed conflict – the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (of which Mexico is not a party) – states: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

Granting amnesty to people who engaged in the violence in Mexico would undoubtedly be a bad idea.

All in all, this complaint should inspire some reflection on counter-narcotics strategies in Mexico and elsewhere. It is after all an act of desperation from a population that is on the front lines of “poorly designed drug law enforcement practices [that] can actually increase the level of violence, intimidation and corruption associated with drug markets.”

The communication to the ICC also charges crimes against humanity, which may inspire some enlightening discussion.

But with respect to armed conflict, it seems better to avoid calling the Mexican crisis a ‘war’ even if its recent experience has been a far cry from peace.

Newspapers reported that the Mexican government itself “denied it is ‘at war’” – and with good reason.  After all, if it’s a war, what if the drug cartels were to win?

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