The Applicability of International Humanitarian Law in the Fight
against Organized Crime
Inés González Piñeiro inesgp1@hotmail.com Student Number: 12859451
L.L.M. in International and European Law: Public International Law University of Amsterdam, Amsterdam Law School
Thesis Supervisor: Prof. T.D. (Terry) Gill July 2020
2 ABSTRACT
The proliferation of internal armed conflicts over the last decades has raised many questions regarding their regulation as the characteristics of contemporary violence differ from the classic conceptions once discussed during the drafting of the basic rules and principles of IHL. Old debates require reformulation in the light of events such as the ‘War on Drugs’ or the ‘War on Gangs’. What was once a clear distinction between crime and war is now blurred by the violent activity of groups such as the drug cartels operating in Mexico or criminal gangs in Brazil, and the consequent State reaction to the security threat they pose. The main question of this research is defined as the possibility of applying IHL regime to the fight against organized crime. However, the reality of this debate makes the depth of this question branch out into a study that balances the conceptions that governed non-international armed conflicts (NIACs) during the drafting of the Geneva Conventions and its contemporary considerations, being the drug related violence in Mexico and Brazil the best examples to illustrate the controversies of this debate. The way Mexican drug cartels and Brazilian gangs are organized and the level of violence they have spread during years in their countries has raised the question about the applicability of IHL in the fight against organized criminal groups. Therefore a study focused on the ‘War on Drugs’ and ‘War on Gangs’ will illuminate the specific characteristics of the organized crime groups involve and the degree of violence ongoing in the above mentioned States which additionally will be legally compared with the IHL thresholds and indicative factors established by the ICTY and ICTR case law, leading this study to weighed down the possibility of characterize the criminal violence in some of this cases as a NIAC. This will be followed by an analysis of the leading arguments supporting both sides of the debate on whether is possible to consider the criminal violence as a NIAC. Finally this research would shed light on the second aim, whether is it desirable for States to officially recognize this criminal violence within the IHL parameters and for that matter reconsidering the thresholds that trigger a NIAC.
Keywords: International Humanitarian Law, Non-International Armed Conflict, Organized Crime Groups, Drug Cartels, Gangs, Mexico, Brazil, Intensity, Organization.
3 TABLE OF CONTENTS
TABLE OF ABBREVIATIONS ... 4
INTRODUCTION ... 6
METHODOLOGY AND STRUCTURE ... 7
1. THE CRIMINAL VIOLENCE IN MEXICO AND BRAZIL ... 8
1.1.THE NATIONAL POLICIES IN THE FIGHT AGAINST ORGANIZED CRIME AND THE JUSTIFICATION OF THE MILITARY INVOLVEMENT .. 8
2. NON-INTERNATIONAL ARMED CONFLICT AND OTHER TYPES OF VIOLENCE ... 15
2.1NOTION OF NON-INTERNATIONAL ARMED CONFLICT ... 15
2.2.THRESHOLDS OF NON-INTERNATIONAL ARMED CONFLICT:ICTYINDICATORS ... 18
2.2.1 Intensity Requirement ... 18
2.2.2. Organizational Requirement ... 19
2.2.3. The Existence of Political Aspirations as a Possible Additional Criterion ... 20
2.3VIOLENCE UNDER THE THRESHOLDS ... 22
3. THE CHARACTERIZATION OF THE CRIMINAL VIOLENCE IN THE CONTEXT OF THE ‘WAR ON DRUGS’ AND THE ‘WAR ON GANGS’ ... 24
3.1CRIMINAL VIOLENCE IN MEXICO ... 24
3.1.1 Intensity Requirement of CDS and CJNG ... 25
3.1.2 Organizational Requirement of CDS and CJNG ... 27
3.2CRIMINAL VIOLENCE IN BRAZIL ... 29
4. CONSEQUENCES OF THE APPLICATION OF IHL IN COMPARISON WITH IHRL AND CRIMINAL LAW ... 30
CONCLUSION ... 36
APPENDIX 1 ... 38
APPENDIX 2 ... 40
4 TABLE OF ABBREVIATIONS
AMLO: Andrés Manuel López Obrador
API: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)
APII: Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)
CDS: Sinaloa Cartel
CFREU: Charter of Fundamental Rights of the European Union
CIHL/CIL: Customary International Humanitarian Law/ Customary International Law CJNG: Jalisco New Generation Cartel
CV: Comando Vermelho
ECHR: European Convention on Human Rights
GCs: Geneva Conventions for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
HRW: Human Rights Watch IAC: International Armed Conflict
IACHR: Inter- American Commission on Human Rights IACtHR: Inter-American Court of Human Rights
ICC: International Criminal Court
ICCS: Rome Statute of The International Criminal Court ICRC: International Committee of the Red Cross
ICTR: International Criminal Tribunal for Rwanda
ICTY: International Criminal Tribunal for the Former Yugoslavia IHL: International Humanitarian Law
IHRL: International Human Rights Law
INEGI: Mexico National Institute of Statistics and Geography NIAC: Non-International Armed Conflict
PCC: Primeiro Comando da Capital POW: Prisoner of War
5 UNGA: United Nations General Assembly UNSC: United Nations Security Council
UNTOC: United Nations Convention against Transnational Organized Crime WWII: World War II
6 INTRODUCTION
For decades, Latin America has experienced a crisis of violence that has put some of its countries in the international community map as examples of States victimized by the internal criminal violence spread by some organize crime groups. This situation has had a deep impact on the development of their societies, slowing down their democratic processes and destabilizing their political structures, resulting in a direct repercussion on the levels of corruption and the lack of correct responses. This criminal violence seems to be increasing every year through the sophistication and gradual integration of organized criminal armed groups into society and economy, going from being a marginal phenomenon located on the streets of these countries to one that crosses borders and is reflected in complex transnational crime networks that pose a challenge not only for these countries, but also for the international community at large.
In Latin America the seriousness of criminal related violence is represented in the scale of intentional homicides and disappearances which often exceed many situations occurring in armed conflicts.1 Countries like Mexico and Brazil have become a good example of this criminal violence. These countries are at the top of world rankings in terms of measuring levels of violence outside a traditional armed conflict situation.
Therefore, the above-mentioned level of organization of these criminal groups which had became in recent years has become increasingly sophisticated, in addition to the spread of the violence, which is comparable to a situation of armed conflict, leads to the question of its possible qualification as an armed conflict under IHL and whether or not it justifies the use of militarized law enforcement methods to fight the organized crime groups. Criminal violence has generally been characterized as falling within the law enforcement and human rights paradigms as its characteristics are normally understood to fall short of the thresholds required for a NIAC situation which is covered by IHL.
The controversy about the qualification of drug related violence as potentially falling within the parameters of IHL is not new. But since the first time this debate was raised in relation to the ‘War on Drugs’ in Mexico, it seems to have reached an impasse. The preference in State practice for the use of IHRL instead of IHL, and its advocacy in the literature, seems to have led most commentators to dismiss the applicability of IHL, which in turn coupled with the lack of effectiveness in the fight against organized crime in this context, has ignored the increase in violence and the rise in corruption and impunity.
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The more recent violent activity and the characteristics of the governmental responses against it, brings with it the need to reformulate this debate under new terms. This study aims not only to analyze the possibility of applying IHL to the proposed cases but also to answer the question of whether the arguments against considering organized criminal armed organizations as a party to a NIAC should still prevail in light of the new facts on whether the rejection of IHL applicability can be justified in legal terms or conversely whether this is mainly based on political considerations. This analysis will lead us to assess the advisability of reconsidering the thresholds that trigger a NIAC in the light of the excessive increase of violence spread by such organized crime groups and to recognize if the path that has been followed is accurate in legal terms or conversely is helping to perpetuate this form of violence.
Methodology and Structure
The object of this research is to focus on the situation of extreme violence in Mexico and Brazil carried out by organized crime groups. Chapter 1 through the use of a combination of descriptive empirical methodology set out the factual situation of Mexico and Brazil where the increase of criminal violence in combination with weak and corrupted governmental structures lead these States to find the solution in the incorporation of military forces on law enforcement functions which leads to the overlapping of manifestly different institutions and to the permissibility of the use of force outside its natural sphere of armed conflict by introducing strategies based in military methods. This will lead us to question whether the role of these armed forces and the effects of their strategies are in fact changing our perception of how criminal violence has to be fought.
Chapter 2 will follow by a presentation of the accepted thresholds for the applicability of IHL in NIAC which is likewise largely descriptive. In addition, the lack of a specific mention during the drafting of the GCs about the exclusion of organized crime groups from the application scope of IHL will be assessed in conjunction with the debate introduced by the delegates during the drafting of Common Article 3 regarding the possibility of including a political motivation requirement for triggering a NIAC situation, as this remains as one of the controversial key arguments today for the qualification of internal armed violence as an armed conflict.
This will be followed, in Chapter 3, by an analysis whether the violence used and level of organization demonstrated by armed criminal organizations in Mexico and Brazil meet the required thresholds for constituting NIAC under IHL.
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Once covered the possibility of acknowledge as matter of law that the criminal violence in the ‘War on Drugs’ and the ‘War on Gangs’ can fall within IHL parameters Chapter 4 will discuss whether the traditional thresholds and criteria for determining an armed conflict need to be reconsidered which combines an analytical with a more prescriptive normative approach. Finally, this research would lead us to give answer through an advisory approach to the second aim, whether or not is it desirable for States to officially recognize this criminal violence within the IHL parameters and for that matter reconsidering the thresholds that trigger a NIAC.
1. The Criminal Violence in Mexico and Brazil
1.1. The National Policies in the Fight against Organized Crime and the Justification of the Military Involvement
The current situation of Mexico and Brazil, where the increase of criminal violence in combination with weak and corrupted governmental structures lead these States to solve the problem by incorporating military forces into law enforcement functions producing an overlap between manifestly different institutions and the permissibility of the use of force outside its natural sphere of armed conflict by introducing strategies based in military methods. This will lead us to question whether the role of these armed forces and the effects of their strategies are in fact changing our perception on how criminal violence has to be fought and whether or not the correct parameters had been applied.
On these paradigmatic cases the presence of non-state armed actors is strongly rooted in the economy and society and the organization and development of these criminal groups generally surpasses the state's own capacities to deal with them effectively. Consequently, the reality experienced by these states has led their governments to try to put an end to the situation of insecurity generated by this violence through the use of all means at their disposal, developing strategies with a strong reactive character that ultimately give way to new legal issues.
Mexico fight against drug cartels had led since 2006, under Felipe Calderon presidency, to the adoption of a militarized approach to fight back drug violence2. The militarization of Mexico reached its peak in 2017 with the Ley de Seguridad Interior (Internal Security Law) which
2 Andrea Nill Sanchez, ‘Mexico’s Drug “War”: Drawing a Line Between Rhetoric and Reality’(2013) 38 (2) YJIL 467, 471
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submits civilian institutions to military authority,3 this controversial law crash against Mexican constitution which established in article 129 that “[d]uring peace time no military authority shall execute more powers than those directly related to military discipline […].” The unconstitutionality of the Internal Security Law was declared by Mexico Supreme Court in 2018, “[a]ccording to the Court, the institutional weakness of the State has created an opening for the Armed Forces to take on public security responsibilities normally carried out by civilian forces. […] The Court referred to the jurisprudence of the [IACtHR] to recall that the use of military forces is allowed to address citizen security problems, as long as it follows logic of last resort [ultima ratio] and is limited by certain parameters.”4
Andrés Manuel López Obrador his current president, referred to generally as AMLO, had tried an unsuccessful approach of pacification with ‘Hugs not Bullets’5
policy which differs from the famous ‘War on Drugs’ started with his predecessor.6
“As candidate, AMLO vowed to de-militarize the fight against organized crime, but as President elected, he has suggested creating a military-controlled National Guard.”7AMLO still prioritizes the role of the military in the fight against Cartels with the promotion of the creation of a National Guard which is supposed to institutionalize a new security force composed of a mix between Federal Police, Naval Police and Military Police.8 “The law regulating the National Guard allows its members to take part in criminal investigations and undertake intelligence activities with “preventive” purposes.”9
The National Guard has been operating since March 2019 without any positive result yet but quite the opposite being this year the higher in homicide rate.10 In the case of Brazil, its Constitution regulates the armed forces separately from the public security forces (i.e. federal police, federal highway police, federal railway police, civil police, military police and military fire brigade) in article 142 and 144 respectively. Civil police in
3 Gina Hinojosa & Maureen Meyer, ‘Five Years On, What’s Still Missing from Mexico’s National Anti- Corruption System?’ (15 April 2020) WOLA Advocacy for Human Rights in the Americas.
4 Columbia Global Freedom of Expression, ‘Unconstitutionality of the Internal Security Law in Mexico’, Columbia University.
5 David Agren, ‘Mexico murder rate reaches new high as violence rages amid Covid-19 spread’ (3 April 2020) The Guardian.
6 Mary Speck, ‘Great Expectations and Grim Realities in AMLO’S Mexico’ (2019) 8 (1) PRISM 68, 68: ‘Some 230,000 people were murdered between 2008 and 2017, more than double the number killed in the previous decade.’
7
Ibid 70
8 Alejandro Chanona, ‘México: la reforma del sector seguridad y la estrategia contra la delincuencia organizada de Andrés Manuel López Obrador’ (8 January 2019) Real Instituto Elcano.
9
Kenneth Roth, ‘Mexico Events of 2019’ (14 January 2020) Human Rights Watch.
10 News Agencies, ‘Mexico murder rate hits record high in 2019’ (21 January 2020) Aljazeera; BBC news, ‘Mexico murder rate rises in first three months of 2019’ (22 April 2019) BBC; AP News, ‘Mexico homicide rate edges up in 2019; rate of rise slows’ (21 January 2020) AP.
10
Brazil is really limited in comparison with its Military Police which became the main police force and “should be considered as an auxiliary reserve force for the Army.”11
Article 142 established that armed forces apart from its general task of defense the Country and guarantee of the constitutional powers they can be assigned by the President to law enforcement activities, which following the militarize approach, Michel Temer (2016 Brazilian President) signed an emergency decree where the police were handed over to the military, being this policy the first of its kind since the end of the last military dictatorship in 1985.12 This emergency measure was taking in a localized way to control the ongoing violence between drug gangs and police forces in the favelas of Rio de Janeiro.13 This constitutional clear distinction between institutions plus the exceptional character of the measures are more similar with the international conception of the separation between military and police structures, however this distinction seems to be more in paper than in practice as "the recurrence of military interventions represents a much more fluid and daily use of the Armed Forces in defense of public security than constitutional terms determined."14 Additionally, to this recurrent practice, “a 2017 law moved trials of members of the armed forces accused of unlawful killings of civilians from civilian to military courts, in contravention of international norms.”15
Consequently the violence crisis remained, leading to 2018 election of President Jair Bolsonaro who had encouraged the police to kill suspects and is gradually militarizing the executive branch in Brazil by introducing senior army officers into the government (e.g Brazil’s Chief of Staff General Walter Souza Braga Netto).
The institutional weaknesses of the States have a direct reflection on how to deal with organized armed groups which will differ in each region, as the cultural context and political heritage will define the modus operandi in each geographical area significantly differently. The consequence of this is that problems relating to internal and external security will be confronted through different models and strategies characterized by the political tendencies of each state. However, as it has been observed they have in common a tendency towards the militarization of law enforcement activities.
11 Jorge Zaverucha, ‘La militarización de la seguridad pública en Brasil’ (January/ February 2008) Nueva Sociedad (NUSO), Tema Central, nº 213
12 Liliana Muscarella, ‘Brazil: High Level of Armed Gang Violence but Not a Non-International Armed Conflict’ in Annyssa Bellal (ed.) The War Report- Armed Conflicts in 2018 (The Geneva Academy 2019) 76 13 Ibid 73
14 Ignacio Pirotta, ‘Los militares, Bolsonaro y la democracia brasileña’ (April 2019) Nueva Sociedad (NUSO) Opinión.
15
11
International actors struggle with security problems like the political violence, organized crime and riots, “which after all defy distinctions that are at the core of the modern democratic state: between internal and external security, crime and war, and police and military work.” 16
This distinction between the military and the police forces has to be understood as the general international tendency rooted in democratic stream but without meaning that the aforementioned cases are isolated, in fact “many countries have been militarizing their police, as indicated by the rise of gendarmerie forces. As distinctions between crime and war, an internal and external security, collapses, so did distinctions between police and military tasks within liberal democracies.”17
The military and police strategies do not have necessarily to be exclusive.18 In comparison with other States with a strong democratic tradition, where the institutional organization functions and there is competence to guarantee the social and legal state, when acts of violence occur outside the scope of a NIAC, the fight against crime is the responsibility of the police forces. In the case of the EU, the Member States cooperate with the police and the judiciary in criminal matters and in the prevention of crime and terrorism in accordance with the CFREU. In these States, assistance between Police Forces and Military Forces in situations of special emergency makes sense within a time frame limited to the situation of need, and at the request of a civilian authority, since both institutions are clearly differentiated and regulated separately, thus avoiding institutional contamination. There are many examples where this institutional collaboration had end in positive solutions. Normally the type of collaboration between this two security branches is meant to be of an exceptional character limited in time to the duration of the domestic emergency (e.g. the collaboration between military and police forces in disaster relief, to suppress riots, terrorism crisis or as a recent example to enforce quarantine measures). For the specific field of the fight against organized crime we can find successful examples in Italy, where the “[f]ormal rules give the Italian military a significant role in internal security”19
which have had a good impact in the fight against criminal violence in Sicily (Vespri Siciliani operation 1992-1998) or against Napoli’s Camorra. 20
16 Cornelius Friesendorf, International Intervention and the Use of Force: Military and Police Roles (SSR Paper 4, DCAF 2012) 6
17 Ibid 14
18 Daniel Sansó- Rubert Pascual, ‘La seguridad ciudadana y las Fuerzas Armadas: ¿despropósito o último recurso frente a la delincuencia organizada’ ( 2013) 55 (2) Revista Criminalidad 119, 130.
19 Friesendorf (n16) 37 20
12
Conversely, in the case of Mexico instead of collaboration limited in time they opt for a permanent tendency on assimilation of functions and intense militarization of the law enforcement apparatus, therefore the deep connection between military and police forces is not of an exceptional character here.
Mexico and Brazil had increased their reactive strategies against organized crime together with the attempt to make compatible manifestly different institutions in charge of different security-related areas. The main difference between military and police forces are material (equipment and technologies) and educational characteristics, cultural straits, different legal status and control by different ministries.21 Their organizational structures vary and their operational characteristics differed as military are mend for combat tasks, while police forces are tasked to prevent and investigate crime.22 This gradually militarization of law enforcement institutions end up generating confusion in the tasks of each one and therefore from their collapse and overlapping derive a lack of effectiveness in the fight against these groups.23 Therefore, as in a vicious cycle, this overlapping of institutions, lack of control over them and impunity24 lead to abusive behaviors and violations of human rights25 which at the same time has a reflection on the escalation of the violence by the criminal groups.
In Mexico and Brazil the state apparatus is influenced by the political legacy and a slow and difficult democratic transition, which translates into the use of the armed forces in a more generalized manner leading to confusion between National Security and Internal Security that result in strong legal insecurity. 26 Therefore, the political heritage is probably part of the reason for the current attitude towards the armed forces27 and the popular acceptance of their widespread use.28 A common practice in these countries has been to increase the
21 See, Friesendorf (n16) 22- 23 22 Ibid
23
See, Parker Asmann; Patrick Corcoran & Chris Dalby, ‘GameChangers 2019: Homicidios aumentan en México y AMLO se queda sin propuestas’ (16 January 2020) InSight Crime.
24 Kenneth Roth, ‘Mexico Events of 2018’ (18 January 2019) Human Rights Watch. ‘[In Mexico][a]n investigation by the [WOLA] found that regular criminal justice prosecutors had initiated 505 investigations between 2012 and 2016 into crimes and human rights violations committed by soldiers, but had obtained only 16 convictions.’; Also see, Kenneth Roth, ‘Brazil: Police Abuse Unabated. Congressional Proposals Would Exacerbate Problems’ (18 January 2018) Human Rights Watch. ‘Congress made matters worse by approving a bill in October that shields members of the armed forces accused of unlawful killings of civilians from prosecution in civilian courts, moving such trials to military courts.’
25 Roth, ‘Mexico Events of 2018’(n24) ‘[In Mexico][b]etween December 2012 and January 2018, the National Human Rights Commission received more than 4,600 complaints about alleged abuses committed by the military.’
26
IACHR, ‘Report on Citizen Security and Human Rights’ OEA/Ser.L/V/II. Doc.57 (31 December 2009) para 101
27 Roth (n15) ‘e.g. President Bolsonaro has praised the dictatorships in Brazil and other South American countries.’
28
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responsibilities of the military forces, which carried out their work with complete autonomy from public policies and therefore outside any state control, which in turn facilitated the emergence of abuses of power.29
The confusion between Citizen Security and National Security has as a direct consequence in the confusion between military armed forces and police forces. Today, the continued use of the armed forces in the fight against crime is justified on the grounds of police inefficiency in meeting their obligations and a high degree of internal corruption, in addition to the lack of training and specialization of the police forces
The problem with the use of armed forces against non-State armed actors outside the context of a NIAC is that it tends to involve the militarization of citizen security, which in turn results in serious human rights violations. When the state armed forces carry out police tasks in a generalized manner, as is the case in these countries, the confusion of two manifestly different institutions leads to greater abuses of power and an increase in impunity in their actions, because the military armed forces do not answer to the same government bodies as the police. Mexico and Brazil are illustrative examples where the police are subordinated to the military, serving as a support mechanism for the military and exercising the use of force in an abusive and arbitrary manner.
The IACHR, in its Report on Citizen Security and Human Rights of 31 December 2009 makes a series of recommendations regarding this very conflictive area of institutional confusion and overlap. The report advises a clear distinction between these institutions, a demilitarization of the police forces. The police forces must carry out citizen security tasks under strict control by parliament and the judicial system, ensuring respect for civil and human rights.
In short, collaboration or assimilation of functions between what are commonly considered different branches of security is not a phenomenon isolated to these States. The intensity and exceptionality of the use of highly militarized strategies depends on domestic legislation, which in turn is influenced by the political processes experienced in each state, which differ from one another. It bears noting, that this research is not an institutional analysis and what intends to highlight from these examples is how the conception of these institutions in these States has a direct impact on their perception of how to deal with organized crime.
29
14
The militarization of the law enforcement is a practice that still growing today with no prospect that it will stop and this may be in connection with the demands of immediate responses, which cannot be matched with institutional reforms and quality public policies, since these require a certain amount of time for their effective development. However, the repercussion in the long term implies the displacement of effective protection of human rights based on the lack of efficient state control of the military forces. But it should be borne in mind that it is not only the population that accepts this widespread use of the armed forces, but through the results produced in the specific areas of the fight against organized crime engaged in drug trafficking, it has resulted in acceptance by the international community, which in turn is reflected in the use of concepts such as "War on Drugs", opening the door to the use of methods and means typical of the conduct of hostilities.30
The operational scope of the armed forces seems clear when it comes to conventional armed conflicts, since these forces are in charge of National Defense, a means by which National Security is intended to be made effective, safeguarding the integrity, identity, independence and sovereignty of the State in question.
“The distinction between the functions of the armed forces, which are limited to defending national sovereignty, and the functions of the police, which has exclusive responsibility in the matter of citizen security, is an essential premise that cannot be overlooked when devising and implementing public policy on citizen security. The Court has held that “[...] the States must restrict to the maximum extent the use of armed forces to control domestic disturbances, since they are trained to fight against enemies and not to protect and control civilians, a task that is typical of police forces.”31
The need to clarify whether we are dealing with a NIAC or not is a necessary requirement in relation to the limits applicable to the use of force, because the principles of proportionality and necessity differ between the legislation of IHL, applicable to armed conflicts, or if, on the contrary, we are dealing with a situation of internal violence that affects the maintenance of public security, where the competence would fall to the police forces and would be under the regulation of the internal law, of the State in question, together with IHRL.
IHL defines a military objective as persons and property against which the use of force is lawful, and in this regard and during the course of hostilities, armed forces may lawfully use
30 Also see, Ibid para 103 31
15
lethal force against combatants and military objectives, always within the obligation to ensure that collateral damage is not excessive in relation to the concrete and direct military advantage anticipated, as indicated by the principle of proportionality. Conversely, when we are not within the parameters of an armed conflict and its regulation, the police forces, in their law enforcement task of maintaining security and public order, have access to the use of force in a much more restricted manner, only in cases of necessity to safeguard lives and as a last resort. The problem is exacerbated by the difficulty of characterizing certain non-State armed actors and concluding whether they meet the requirements of organization and violent activity for the constitution of a NIAC as happened with the drug cartels and gangs in the already mentioned Latin American States.
2. Non-International Armed Conflict and other Types of Violence
2.1 Notion of Non-International Armed Conflict
IHL is only applicable during armed conflicts and all parties involved must respect its norms and principles. IHL makes an important distinction between IACs32 and NIACs33 in order to know which set of rules are applicable in the different context, and neither of this classifications are dependent on the recognition by states.34
Therefore, IHL is not applicable to other situations of violence, such as internal disturbances or internal tensions, which lack the status of armed conflict.35 The differentiation between NIAC and internal disturbances and tensions is not expressly addressed by Common Article 3 to the GCs36, as a matter of fact, “[a]t the time of the drafting of the [GCs], the legal meaning of ‘armed conflict’ was undefined.”37
The vague wording of Common Article 3 to the GCs and the lack of guidelines for its application38 leaves a broad margin of maneuver for States to decide about IHL application, “In practice this wording has left room for Governments to
32 See, Common Article 2 to the GCs
33 See, Common Article 3 to the GCs; Also see, Article 1(1) of APII 34
Dieter Fleck (eds.), The Handbook of International Humanitarian Law, (3rd edition, OUP 2013) 581; Also see, ICRC, Commentaries to the GCI, Commentary of 2016 on Common Article 3, para392
35 See, Fleck (n34) 593 ‘[IHL] generally does not apply to internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of similar nature’; Article 1(2) APII
36
Fleck (n34) 594
37 Anthony Cullen, The Concept of Non-International Armed Conflict in International Humanitarian Law (CUP 2010) 27; Also see; ICRC, Commentaries to the AP II, Commentary of 1987 on Material Field of Application, para 4448
38
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contest its applicability to situations of internal violence inside their countries.”39
The simplicity in the wording of Common article 3 is the result of the historical context when the article was drafted, back in 1949. At that time, the need to regulate internal conflicts arose in the context of civil wars such as those experienced in Spain and Greece.40 The lack of reference to internal disturbances and tensions in Common Article 3 and the absence of thresholds to differentiate those situations derived from the need to reach a consensus41 among those delegates at the Diplomatic Conference who “disproved of the inclusion of any provision governing NIAC in the new Conventions, [while] others were in favor of regulating all NIACs.”42
The delegates understood that NIACs were the same as civil wars and while this interpretation has change over the years in connection with the application of Common Article 3 and CIHL, the APII set the thresholds back to civil war dimensions.43
By the time of the incorporation of APII the minimum standards of protection settled by Common Article 3 were expanded. However, its application was limited by new thresholds of intensity and nature demanded during a NIAC which would narrowed down the scope of application of the protocol, specially the high threshold of territorial control required.44 Additionally, APII incorporates for the first time in its Article 1(2) a specific mention to differentiated NIACs from “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature”, excluding them from the application scope of the protocol.45 As expressed by Anthony Cullen “the heightened threshold serves to strengthen the discretionary power of states to deny the Protocol’s applicability”46
It was not until 1995 when the definition of armed conflict in the Tadic Case settles a precedent for the recognition of NIACs situations:
39 UN ECOSOC, ‘Minimum Humanitarian Standards: Analytical Report of the Secretary-General Submitted pursuant to Commission on Human Rights Resolution 1997/21’ UN Doc. E/CN.4/1998/87 (5 January 1998) para 74
40 Commentaries to Common Article 3 (n34) paras 363-366 41 Ibid para 385
42 Ibid paras 376 & 386 43
Cullen (n37) 49
44 Fleck (n34) 587; Also see, Ibid 50 ‘this latter requirement of territorial control distinguishes [NIACs] under APII from other [NIACs]’
45 UN ECOSOC (n39) para 78 46
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“[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”47
ICTY applied a new test base on the organization of the parties involved and the intensity of the conflict in order to recognize a NIAC situation for the application of Common Article 3. The organization and intensity requirements settled by the ICTY in Tadic Case, now generally considered CIL, have also been referred about by subsequent case law, to the first time by ICTR48 in the Akayesu Case in order to evaluate the existence of a NIAC as a different situation from “mere acts of banditry or unorganized and short-lived insurrections” 49
which were considered by the tribunal as forms of internal disturbances and tensions, and as already mentioned are not subject to IHL.50
It bears noting, that the inclusion of protracted violence between organized crime groups within a State in the definition provided by ICTY “confirms the applicability of [IHL] to conflicts lacking any involvements of governmental authorities.”51
In the Rutaganda Case for the determination of the nature of the conflict, ICTR mentioned that due to the abstract character of the concept of armed conflict, extracted from the Tadic Case the determination of a situation as such, within common article 3 criteria, should be assessed on a case-by-case basis.52
2.2. Thresholds of Non-International Armed Conflict: ICTY Indicators
2.2.1 Intensity Requirement
The existence of ‘protracted armed violence’ is one of the criteria settle by the Tadic Case in order to recognize the existence of NIAC within the meaning of Common Article 3.53 This factual criterion requires an analysis of the specific events on the ground in order to establish the level of intensity demanded for a NIAC to be triggered.54 “This degree of intensity hinges
47 Prosecutor v Dusko Tadic a/k/a “Dule”, IT-94-1, ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 70.
48
Cullen (n37) 133
49 Prosecutor v Jean-Paul Akayesu, ICTR-96-4-T, ICTR Judgment, 2 September 1998 [Akayesu Case] para 620 50 Prosecutor v Dusko Tadic a/k/a “Dule”, IT-94-I, ICTY Trial Chamber Judgment, 7 May 1997, para562 51 Cullen (n37) 146; See, Article 8 (2) (f) ICCS; Also see, Commentaries to the AP II (n37) para4461; Fleck (n34) 50
52
Prosecutor v. Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-T, ICTR Judgment, 6 December 1999, para. 93
53 See, Commentaries to Common Article 3 (n34) para 387
54 Jelena Pejic, ‘The protective scope of Common Article 3: more than meets the eye’ (2011) 93(881) International Review of the Red Cross, 4
18 on the interpretation of the word protracted”55
which has been “interpreted in practice, including by the Tadic Trial Chamber itself, as referring more to the intensity of the armed violence than to its duration.”56
However, before a NIAC is triggered and consequently IHL applied by the fulfillment of the requirements stipulated before, the situation generally would be preceded by a period of internal disturbances and tensions.57 The duration of the latter has been assessed by the IACHR, according to which if the material conditions triggering a NIAC situation “are met despite being brief in duration” 58 IHL would apply, and if the requirements are met the temporal scope do not need to “exceed a couple of days.” 59
The ‘protracted armed violence’ therefore should be asses taking into account the integral period of the hostilities leaving aside the interpretation where military operations are required to be conducted in a ‘sustained’ or continuous manner.60
There are some indicators to measure the level of intensity required for triggering a NIAC. The jurisprudence has taken similar approaches for this matter and they have been contrasted by the ICTY61 which has stated that:
“[…] Trial Chambers have relied on indicative factors relevant for assessing the “intensity” criterion, none of which are, in themselves, essential to establish that the criterion is satisfied. These indicative factors include the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict”62
55 Cullen (n37) 127
56 Prosecutor v Haradinaj, Balaj, and Brahimaj, IT-04-84-T, ICTY Trial Chamber Judgment, 3 April 2008, [Haradinaj Case], para 49; Also see Jens David Ohlin, Research Handbook on Remote Warfare, (Edward Elgar Publishing 2017) 107-108 ‘There is no protracted armed violence, [in targeted killings against possible terrorists even if using heavy weaponry], because we are usually dealing with single incidents of selected strikes against criminals […] who are hiding in specific locations.’ Therefore, the interpretation of protracted should be taking into account in order to distinguish single incidents from armed conflicts, being the Tablada Case the only exception of this recognized till now.
57 Fleck (n34) 60 58 Cullen (n37) 145 59
Ibid 143
60 Cullen (n37) 588-589; Cullen (n37) 128 61 Haradinaj Case (n56) para 37- 49
62 Ibid para 49; See, Prosecutor v. Slobodan Milosevic, IT-02-54-T, ICTY Trial Chamber, Decision on Motion for Judgment of Acquittal, 16 June 2004 [Milosevic Case] paras 31, 28; Also see, Prosecutor v. Fatmir Limaj,
19 2.2.2. Organizational Requirement
The ICRC in accordance with ICTY case law has expressed the necessity of the organizational requirement meaning that the non-state armed actors should have organized armed forces which “have to be under a certain command structure and have the capacity to sustain military operations [and] ‘[w]hile the group does not need to have the level of organisation of state armed forces, it must possess a certain level of hierarchy and discipline and the ability to implement the basic obligations of IHL’”63
The organizational requirement settled by Tadic Case should be asses in a case-by-cases basis as the intensity test. As well as the previous requirement in this case international jurisprudence had also developed some indicators to guide in relation of when a non-state actor reaches the organizational requirement:64
“Such indicative factors include the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords”65
2.2.3. The Existence of Political Aspirations as a Possible Additional Criterion
As has been mentioned at the beginning of this chapter, the classification of an armed conflict is not dependent on its recognition by States but conversely the characterization of the existence of an armed conflict is based on objective criteria.66 However, it has been suggested over the years that other criteria may be necessary for the evaluation of the applicability of IHL and subsequent qualification as a NIAC. This extra requirement for the application of IHL implies that non-state armed groups must have a political motivation that drives them to
Haradin Bala and Isak Musliu, IT-03-66-T, ICTY Trial Chamber II Judgment, 30 November 2005 [Limaj Case] paras. 166, 150, 134, 142, 142, 167
63Commentaries to Common Article 3 (n34) para 429; Also see, Sandesh Sivakumaran, The Law of
Non-International Armed Conflict (OSAIL 2012) 175 ‘Responsible command […] simply requires that there be some
sort of relationship of effective control by which one individual has the power to control the acts of another, in particular the power to prevent or punish particular acts of that other individual.’
64 Pejic (n54) 4
65 Haradinaj Case (n56) para 60; See, Limaj Case (n62) paras 94–134; Also see, Prosecutor v. Ljube Boškoski and Johan Tarčulovski,IT-04-82-T, ICTY Trial Chamber II Judgment, 10 July 2008, paras 199–203
66
20
engage in fighting and thus become part of an armed conflict, this interpretation is backed by State practice.67
Since WWII there has been a proliferation of internal conflicts in comparison with international ones, the majority over a long portion of the postwar period took place in a context of ideologically motivated civil conflict or national liberation wars and this trend has shaped the interpretation in which NIACs are driven by political motives. The “ICRC has suggested that armed groups would normally seek to overthrow the government in power or alternatively to bring about a secession so as to set up a new state”68
However, this clear political conception driving past conflicts has become blurred in the light of contemporaneous considerations of NIACs, e.g. under recent scenarios that have been qualified as “privatization of violence”. Organized crime groups within this concept, such as the Mexican cartels, are mainly characterized by criminal purposes and indiscriminate use of force, differing therefore with the inherent political objectives leading NIACs till now.69 The purely criminal characterization of some groups has led scholars to defend the necessity of a political purpose which will serves as a filter meant to distinguish armed conflict violence from criminal violence even if the latter is also well organized and intense.70 This interpretation flows from the traditional considerations regarding “participation in small wars [where] “[b]andits in search of nothing more than lucre are excluded; they are usually not interested in shaking up the established order, just in profiting from it.”71
Drug Cartels activities’, even if they can challenge the stability of the State and its control, are driven by economic gain and the violence spread is considered as a collateral damage to achieve lucrative goals.72 Cartels’ violence is not driven by their desire to overthrow the Mexican government and assuming its powers, and these criminal groups are not willing to impose “disciplinary rules and mechanism to guarantee respect for IHL [even though, compliance with IHL is not needed]” 73
67 See, Cullen (n37) 130 ‘Governments have been known to deny the applicability of [IHL] on the grounds of not recognizing the cause of an organized armed group’
68
Andrew Clapham, Paola Gaeta, Marco Sassòli, The 1949 Geneva Conventions: A Commentary (Oxford University Press 2015) para 46
69 Frank R. Pfetsch & Christoph Rohloff, National and International Conflicts, 1945-1995: New Empirical and
Theoretical Approaches (Routledge 2013) 11
70 Commentaries to Common Article 3 (n34) para 447 71
Keneth Watkin OMM, CD, QC, Fighting at the Legal Boundaries: Controlling the Use of Force in
Contemporary Conflict (OUP 2016) 167
72 Annyssa Bellal, The War Repor: Armed conflict in 2014 (OUP 2016) 515-516
73 Pierre Hauck and Sven Peterke, ‘Organized Crime and Gang Violence in National and International Law’(2010) 92 (878) International Review of the Red Cross 407, 433
21
However, this conception of purely criminal organizations lacking any political objectives is not an easy criterion to asses in practice as these groups “are not static phenomena, but are often in a process of transformation.”74
Armed groups are known to have started criminal activities in order to follow their political agenda (e.g. the FARC in drug trafficking) and vice versa, when “criminal organizations might engage in political activities in order to facilitate their criminal ones.”75
Some scholars have suggested that “[t]he only value [the political] factor could add would be to prevent the application of IHL to internal disturbances and tension”76, however this is already considered accomplished by the distinction left by ICTY indicative factors. Therefore, the inclusion of this extra requirement does not bring a clear benefit, but conversely will only lead to confusion or serve as an excuse for States to disqualify the nature of an armed conflict.
The application of new criteria should be assessed in balance with the aspects mentioned during the drafting of Common Article 3 in accordance with the new considerations of an armed conflict, and the inclusion of a political motivation requirement would go against the object and purpose of the GCs. Its official introduction “was discussed during the negotiations of Common Article 3”77
leading to the conclusion that “too much detail risked weakening the provision, as it was impossible to foresee all future circumstances and as the character of a situation is independent of its motives.”78
Additionally, in the words of René Provost:
“A decision was made at the Conference not to make the Conventions applicable to a narrow type of internal conflict, but rather to adopt a widely applicable but substantively limited regime. There is therefore no justification for the adoption of the elements of a restrictive definition of internal armed conflict in the context of Article 3.”79
During the Limaj Case, ‘[i]n addressing the argument that an armed conflict could not exist in Kosovo because Serbian operations had been aimed at ‘ethnic cleansing’ rather than defeat of the enemy army” 80 the ICTY rejected the possibility of applying a political motivation
74 Ibid 75 Bellal (n72)
76 Jason Raether, ‘Drug war: international law and counter-narcotics’ (2012) 9 (3) University of St. Thomas Law Journal 933, 953-954
77 Ibid para 448 78 Ibid endnote 163 79 Cullen (n37) 152 80
22
threshold in order to trigger a NIAC. Therefore, there is no legal basis supporting this doctrine, no extra requirement was included for the characterizations of the violence as a NIAC, indeed, subsequent analysis and case law confirmed the irrelevance of the purpose which leads the parties to engage in armed violence, being the determination of the existence of a NIAC based solely on the criteria already mentioned: intensity and organization.81
2.3 Violence under the Thresholds
Situations of internal disturbances and tensions has been assessed by the ICRC which described both in a negative way, the former consists in the use of armed force by the State to maintain order but without reaching an armed conflict level, while the latter without being an internal disturbance situation is also characterize by the use of force by the State, this time in a preventive way to maintain respect for law and order. 82
In sum, both jurisprudence and doctrine, seems to be clear when setting up the necessary criteria in order to distinguish a NIAC situation from civil disturbances or internal strife, as expressed by D. Schindler:
“In the first place, the hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces. Secondly, as to the insurgents, the hostilities are meant to be of a collective character, that is, they have to be carried out not only by single groups. In addition, the insurgents have to exhibit a minimum amount of organization. Their armed forces should be under a responsible command and be capable of meeting minimal humanitarian requirements.” 83
Taking into account Schindler’s words we can perceive the importance that it is given to the use of armed forces, understood as States military forces, in this scenarios working as another mechanism to measure the level of violence. During the negotiations of article 1(2) APII the Netherlands followed the same approach highlighting that the use of armed forces instead of regular police forces operates as an indicator that the violence is reaching the level of a NIAC,
81 Limaj Case (n62) para 170; Also see, Sivakumaran (n63) 182
82 Commentaries to the AP II (n37) para 4477; Also see, Ibid paras 4475, 4476
83 Dietrich Schindler, ‘The Different Types of Armed Conflicts According to the Geneva Conventions and Protocols’ (1979) 163(ii) RCADI 119, 147
23
this idea came straight from the wording of Article 1(2) APII as Netherlands understood that it is open for diverse interpretations.84
Despite this, it bears noting that the concept of armed forces in NIACs can include other types of organizations apart from military forces such as paramilitary police units and gendarmerie corps as falling within the definition of ‘armed forces’. Additionally, as explained in Chapter 1, there are some scenarios where the violence, even when remaining under the NIACs threshold, demands the participation of armed forces to back up the police during internal disturbances or tensions. Therefore, although this factual consideration can assist in drawing the line between types of violence, it is not determinative and should be assessed under the light of the previous factual indicators.85
As can be seen from the preceding, despite the existence of generally accepted criteria for determining the existence of a NIAC, the criteria leave considerable room for conflicting interpretations and particularly in borderline situations, the determination of the existence of an armed conflict can often be open to different conclusions and leave considerable latitude for States to deny or accept the existence of an armed conflict on the basis of subjective and often politicized application of the criteria to the situation in question.
3. The Characterization of the Criminal Violence in the Context of the ‘War on Drugs’ and the ‘War on Gangs’
3.1 Criminal Violence in Mexico
In the case of Mexico, as was discussed in Chapter 1, by the end of Calderon’s Government (2006-2012) the violence spread by drug cartels represented by murders per year grew from 8,972 in 2007 to 26,063 in 2012 as reflected by INEGI.86 As a consequence, in 2011 the Prosecutor’s Office of the ICC was requested to investigate alleged war crimes and crimes against humanity committed by the Mexican Government along with some heads of drug cartels like El Chapo Guzmán from the Sinaloa cartel.87 By that time the situation had begun to be considered by many as a NIAC88, therefore giving support to the 'War on Drugs'
84 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva (1974–1977) Vol. 8, 222, para 39 (Netherlands) 85 Sivakumaran (n63) 169
86
‘Mexico’s Cartels and the Rule of Law’ (2020) 26(1) Strategic Comments vii, vii
87 Alejandro Rodiles, ‘Law and Violence in the Global South: The Legal Framing of Mexico’s NARCO War’ (OUP 2018) 23 (2) Journal of Conflict & Security Law 269, 276
88 See, Carina Bergal, ‘The Mexican Drug War: The Case for a Non- International Armed Conflict Classification’ (2011) 34 Fordham International Law Journal 1042
24
concept as an official term which represents an armed conflict de jure to which IHL could be applicable, leading in turn to the controversy around the application of IHL in this context.89 Today the debate continues under the administration of the current president, Mr. Lopez Obrador, who has been in office since 2018. This period has witnesses an alarming rise in the violence without precedence. Thus, an analysis of the recent violent activity of the most important drug cartels in Mexico will be necessary in order to determine if the characteristics of the violence match with the indicative factors established by recent case law described in the previous chapter leading us to a conclusion about IHL applicability in this context.
In Mexico’s context we can take the existence of confrontations between different cartels and confrontation of the governmental authorities against them as a starting point for this analysis.90 These non-state armed groups are characterized by being “heavily armed with sophisticated weapons”91
and by the extreme degree of violence which they employ in carrying out their operations. Some of Mexico´s most dangerous drug cartels include the Sinaloa (CDS) and Jalisco New Generation (CJNG) groups.92 However, for reaching the NIAC threshold there are “far more complex considerations” to be taken into account than simply the cartels being heavily armed and violent in their methods,93 therefore both intensity and organizational thresholds need to be assessed on a case-by-case basis within the context of the CDS and CJNG practice.94
3.1.1 Intensity Requirement of CDS and CJNG
With regard to the criterion of protracted armed violence needed for meeting the NIAC threshold it bears noting that it is not required for the application of Common Article 3 “[…] the existence of large-scale and generalized hostilities or a situation comparable to a civil war in which dissident armed groups exercise control over parts of national territory […].”95
The criminal activity of these actors will be analyzed under the parameters established by ICTY in the Haradinaj Judgement.96
89
Also see, Sanchez (n2) 467 for a position against the qualification of drug related violence as a NIAC. 90 As a matter of length limitation this research will only assess the confrontations between drug Cartels against Mexico and not between them.
91 Sanchez (n2) 481
92 Strategic Comments (n86) vii ‘[between others like Santa Rosa de Lima,] Los Zetas and La Familia Michoacana and its various splinter factions’
93
Hauck & Peterke (n73) 430
94 See, RULAC, ‘Non-International Armed Conflicts in Mexico’ (10 March 2020) Geneva Academy.
95 Juan Carlos Abella v. Argentina, Case 11.137, Report 55/97, IACtHR, 18 November 1997 [Tablada Case] para 152.
96
25
Both the CDS and CJNG have been active for a long time now with several examples of high intensity confrontations against Mexican armed forces and police taking place during different periods of time. For CJNG 2015 represented the most violent period of its confrontations against the Mexican government, leading to a series of systematic attacks within the context of ‘Jalisco Operation’. Several violent attacks have been taken place since then in a recurrent manner. 97
In relation with the CDS an especially intense event should be mentioned which took place in Culiacan on 17 October 2019. The violence which took place was described by some news platforms as a war zone.98 This event can serve as the clearest example of the degree of violence and organization of CDS, which demonstrated the capacity to besiege a city during hours and engage in a series of coordinated attacks. The Culiacan attack was the response by CDS to the capture of ‘El Chapo’ Guzman’s son.99
During these confrontations different types of weapons and military equipments were used by CDS, from a mix of small arms to heavy machine guns100 besides body armour and load-bearing equipment. The weaponry in the possession of CJNG enabled them on May 2015 to shoot down one of the EC 725 Super Cougar helicopters used by the military.101
The heavy deployment of forces by Mexico102 is meant to fight back the CDS, whose strength includes 500 leaders and 30,000 soldiers/armed fighting forces, and in the case of CJNG 5,000 (armed) members globally.103
Some scholars have suggested that despite the impressive number of Mexican soldiers deployed against these cartels it cannot be considered as a factor to measure the degree of violence in order to reach the intensity threshold because armed forces “are tasked with serving a law enforcement function including arresting traffickers, establishing checkpoints, burning marijuana and opium fields, and interdicting drug shipments along the Mexican
97 See, Appendix 1a) para 1
98 Infobae, ‘Culiacán, una zona de Guerra como Irak: testimonies sobre el terror vivido a manos del Cártel de “El Chapo” Guzmán’ (20 Octubre 2019); El Dictamen ‘Culiacán en zona de guerra: bloqueos, balaceras y autos incendiados desquician la ciudad’ (17 Octubre 2019).
99
See, Appendix 1a) para 2
100 The ARES Team, ‘Weapons used by Sinaloa Cartel sicarios in Culiacán Mexico’ (18 October 2019) ARES Armament Research Service.
101
The Situation of Drug-Related Violence in Mexico from 2006 - 2017: A Non-International Armed Conflict? (Leiden IHL Clinic Report-Series No. 28, 2018) 216 para 165; Also see, June S. Beittel, ‘Mexico: Organized Crime and Drug Trafficking Organizations’ (2015) Congressional Research Service 4; See, Appendix 1b) 102
See, Appendix 1c) 103
26 coasts.”104
On the contrary, this study considers that the magnitude of the operations in which Mexican soldiers have been involved differs from normal peacetime law enforcement activities. Moreover, the other factors mentioned in this chapter (i.e. military capacity of the drug cartels and the number of casualties) suggests that the paradigm of hostilities is more suitable to confront the “intensity of the violence and the degree of control over areas/circumstances [exercised by these cartels]”105 like in Culiacan 2019 where it seems clear that the violence resulted in the existence of something close to a conflict zone.106 It bears noting that the conflict zone argument above had been denied as an additional requirement for being too subjective, however it can be seen as a useful tool in order to clarify that the situation lived in Sinaloa goes beyond the limited law enforcement functions mentioned. Additionally, the type of armed forces used by Mexico nowadays, as reflected in Chapter 1, are constantly taking steps forward this law enforcement function which seems to be more clear in paper than in practice.107
From January to May in 2019, more than 6,427 executions were carried out by organized crime groups, “an average of 42 cases per day […] [T]here was a reported decrease compared to the same period in 2018 [...] 9,403 homicides were committed.”108
Between Calderon and Peña Nieto’s presidencies more than 260,000 civilians were force to flee their homes in order to escape drug related violence.109
Not all the indicators are necessarily required to be achieved in order for Common Article 3 to become applicable.110 Besides, “[t]he level of armed violence required for the application of Common Article 3 must be high enough to exclude isolated or sporadic acts of violence, but low enough to include situations of internal conflict where hostilities are not necessarily carried out on a continuous basis.”111
In accordance with this and in addition with the already analyze indicators and the fact that the government was obliged to use military force instead
104 Sanchez (n2) 481
105 Terry D. Gill & Dieter Fleck, (eds), The Handbook of The International Law of Military Operations, (2nd edition, OUP 2015) 80-81
106 Ibid 73-74 ‘Specific activities amounting to Hostilities […] includes not only open combat, but also the placing of explosive devices […] military operations preparatory to specific attacks, geographical deployments to and withdrawal from attacks, […] and the construction of roadblocks impending military deployments.’ All this conducts, which took place during Culiacán in 2019, amounts to hostilities from an operational point of view.
107 RULAC (n94) ‘Furthermore, while the Guard is officially under the civilian Ministry of Security and Citizen Protection, it is headed by an army general and it collaborates closely with the army.’
108
Infobae News, ‘Las alarmantes cifras de la violencia del crimen organizado: 6,427 mexicanos fueron ejecutados en lo que va de 2019’ (8 June 2019) Infobae; See, Appendix 1d)
109 Leiden IHL Clinic Report-Series (n101)209, para 137; See, Appendix 1f) 110 Hauck & Peterke (n73) 430; See, Appendix 1e) & g)
111
27
of mere police forces,112 as reflected in chapter 1, leads to the conclusion that CDS and CJNG reach the protracted armed violence threshold.113
3.1.2 Organizational Requirement of CDS and CJNG
As is the case for the intensity requirement, the ICTY has developed some indicators for helping to assess if a non-state armed group reaches the organizational thresholds required to trigger a NIAC114
The CDS possesses a hierarchical structure based mainly on family relationships and blood ties.115 It has also been described as a federation structure because it is dependent on plaza chiefs (territorial managers) in order to develop the logistics of the drug trade.116 The CJNG has also been recognized as having a command structure, led by ‘El Mencho’, who is considered the head of the cartel. However, there is a lack of enough information about its internal structured to give a more detailed picture.117 But, “[responsible command] does not necessarily mean that there is a hierarchical system of military organization similar to that of regular armed forces”118
that is why it has been possible to conclude positively about its basic command structure requirement based on other factors like its military capabilities in relation with recruitment and training.119
It has been argued that “the drug cartels in Mexico do not exert administrative control over their territory […] [and they] do not strive to control the State and assume governance responsibilities.”120
As it was mentioned in the previous Chapter there is no political motivation requirement besides it has been proof that in some areas drug cartels exercise some degree of governance121 and facilitate public services which reflects control over the
112 Schindler (n83) 147 113
RULAC (n94) which also supported this conclusion. 114 Haradinaj Case (n56) para. 60
115 Leiden IHL Clinic Report-Series (n101) 168, para 22; See, Appendix 2a) para 1 116
Ibid 58, para 80 117 RULAC (n94)
118 Prosecutor v. Alfred Musema, ICTR–96–13- IT, Trial Chamber, Judgement and Sentence , 27 January 2000, para 257
119 Sanchez (n2) 474; See, Appendix 2a) para 2 120
Ibid 488
121 Sandra Ley; Shannan Mattiace & Guillermo Trejo, ‘Indigenous Resistance to Criminal Governance: Why Regional Ethnic Autonomy Institutions Protect Communities from Narco Rule in Mexico’ (2019) 54 (1) LARR 181, 183 ‘[…] [D]rug cartels and OCGs are more likely to develop subnational criminal governance regimes where central authorities have left local authorities politically unprotected.’; See, Appendix 2b)
