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Mexicans were killed in Mexico in August 2011 when members of the Zetas drug cartel entered through the door of a Monterrey based casino and poured gasoline and set it on fire. Former Mexican President Felipe Calderón responded to the killing by condemning it as an aberrant act of terror and barbarity. Also, he later asserted that it is evident that we are not faced with ordinary delinquents but by actual terrorists who know no boundaries. [ Jennifer Gonzales, Mexico Offers Reward for Casino Killers.
There was a huge debate arising out of the issue as to whether the drug cartel could be regarded as terrorists, insurgents or not and whether the struggle between the government and the drug cartels would qualify as an armed conflict or not. This article has addressed the contentious question by answering why the situation cannot be termed as an armed conflict under international humanitarian law.
Drug cartels have existed in Mexico since the early half of the twentieth century. Mexican President Miguel de la Madrid, during 1980s, announced that drug trafficking was a national security problem of Mexico.
Despite this militarized measure, the rate of drug cartel did not reduce. Analysts however predicted that the step of government might help to fill the ‘security gap’.
On the other side of the border, the United States, under President George W. Bush agreed to initiate ‘ Mérida Initiative’. The main objective of the plan was to maximize the effectiveness of collective efforts to fight criminal organizations’.
Apart from this initiative, the Pentagon has also escalated its involvement in Mexico over the years. Mexico received military training programs funded through the State Departments International Military Education and Training program. Department of Homeland Security (DHS) Secretary Janet Napolitano conceded that, in certain limited ways, the U.S. military has been working with the Mexican military to combat drug cartels.
Although Mexican government has explicitly rejected an armed conflict designation, the rhetoric of war is nonetheless often employed within its borders. Mexican legal scholars Pedro Salazar and Ugarte Mexican officials have invoked a vocabulary of war, emergency, urgency, necessity, and power, and have imposed corresponding restrictions to create an impression of extraordinary circumstances that demand an exceptional reaction by the State. President Calderón by reminding Mexican citizens that the war against the drug cartels will be costly, both economically and in terms of human lives, directed peoples minds towards a premise that the current situation could be an armed conflict.
In March 2011, Representative Michael McCaul introduced a legislation that would require the Secretary of State to place six drug cartels on the Foreign Terrorist Organization (FTO) list. McCaul argued that Mexican drug cartels operated like al Qaeda, the Taliban, or Hezbollah which are terrorist organizations.
Common Article 3 and Additional Protocol II are the two principal treaties that regulate NIACs under international law.
Geneva conventions in common article 3 stipulates that armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties’. Additional Protocol II stipulates NIACs as ‘conflicts that occur solely between non-state armed groups.
In the jurisprudence of the ICTY in Prosecutor v. Tadi, the ICTY embraced a definition of armed conflict much broader than that envisioned by Additional Protocol asserting that one 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.
The elements for NIAC provided by Additional Protocol II are not satisfied in the instant case because the majority of the conflict does not involve the High Contracting Party, the Mexican government, but is instead taking place between drug cartels. Ninety percent of all drug-related homicides in Mexico consist of one cartel member killing the member of another cartel. The ICTY also noted that [t]he intensity of the conflict has ensured the continuous involvement of the Security Council since the outbreak of fighting. There are reports notifying that the drug cartels are acquiring dangerous military weaponry. However, the present situation does not qualify as a NIAC because far more complex considerations have not been satisfied as required by court jurisprudence.
Referring to Common article 3s commentary, for drug cartels to have engaged in a NIAC, they must be an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.
However, the drug cartels do not possess such characteristics. The drug cartels are incapable of defining a military strategy and coordinating and carrying out sophisticated military operations.
The Mexican drug cartels are structured more like businesses than armies, employing contractors including chemists, pilots, accountants, lawyers, architects, and assassins to manage different aspects of their enterprise.
Here the author compares that there is a vast difference between KLA (Kosovo liberation army) and Mexican drug cartels. KLA was motivated to prepare the citizens of Kosovo for a liberation war. However, the Mexican drug cartels are driven by individual profit.
Another important element cited in both Common Article 3 and Additional Protocol II is that NIAC parties typically exert some type of territorial control analogous to KLA controlling fifty percent of Kosovos territory. But, organized crime groups are not primarily concerned with capturing territory. Thus, the criterion of an organized structure does not suffice.
Mutilated bodies, decapitations and torture have become the hallmarks of the drug cartels reign, using the tactics of the terrorist. Craig Bloom argues that the violence in Mexico rises to the level of an armed conflict within the meaning of international law. He even argues that the Mexican drug cartels and al Qaeda are indistinguishable. But it has been noted that drug cartels could never pose a terrorist, insurgent, or armed-conflict threat to Mexico.
Human Rights Watch claims that the Mexican military has committed serious human rights violations, including murder, torture, and disappearances. Mexican Human Rights Commission received complaints of nearly 5,800 human rights violations committed by the military between 2007 and 2011.
Although IHL imposes various restraints on the use of force, it provides much less guidance on the detention and prosecution of combatants in NIACs.
The Mexican drug cartel doesnt display the characteristics of prisoners of war which is stipulated in article 4 of the third Geneva convention. Under the third Geneva Convention, POWs may not be prosecuted for their participation in the hostilities. It was explained in U.S. Supreme Court, the purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. It has been clearly evident that drug cartels are not committed to conduct violence and may actually behave quite peacefully when doing so coincides with their profit motives. Therefore, the drug cartels do not pose a continuous security threat in the same way that a traditional combatant does.
It was referred that the drug cartel can be regarded as the second category of combatants who do not enjoy the immunity from prosecution for their participation in armed conflict as lawful combatants do.
Mexico has been curtailing basic rights of the suspects of the organized crime. For example, those suspected of engaging in organized crime can be detained in solitary confinement cells in special detention centers up to eighty days without criminal charges. Human Rights Watch notes that torture is a serious problem during the period in between arbitrary detention. Mexico has been influenced with the criminal justice system of United States for detaining and prosecuting individuals during an armed conflict. It is unclear how Mexico might choose to prosecute drug cartel members under the laws of war. In 2008, Mexicos Constitution was amended by aligning with criminal justice system of United States. This reform was designed to improve the efficient administration of justice, increase transparency, protect rights, stamp out impunity and reign in corruption.
The U.N. Convention Against Transnational Organized Crime states that an organized criminal group is a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.
Scholars argue that Mexicos Drug cartel appropriately fit under the terminology of the organized crime because of non-ideological, profit driven motives and fluid organizational structure characteristic. Drug cartels do not easily qualify as either terrorists or insurgents. Similarly, drug cartels have no interest in fully controlling the state apparatus. Profit maximization is the ultimate goal.
Both Mexico and the United States are signatories to U.N. Convention Against Transnational Organized Crime (UNTOC), however the UNTOC has been criticized for having some critical deficiencies that make it difficult to track its progress. UNTOC lacks a governing body that can conduct evaluations. The Washington Office on Latin America has suggested that the United States invest in drug prevention and treatment to reduce the domestic demand.
Drug-related violence in Mexico cannot be considered as a non-international armed conflict (NIAC). Firstly, because the intensity of the violence is questionable. Secondly, the existence of an organized structure is absent.
Drug cartel does not comprise of an organized structure with a political objective. Drug cartel is driven by profit motive. Therefore, this is not an armed conflict. Even though the drug war appears to be an armed conflict, it does not suffice all the requirements of an armed conflict. The drug cartels are incapable of defining a military strategy and coordinating and carrying out sophisticated military operations.
The essay helps in understanding the situation wherein there is commencement of an armed conflict not of an international character. War has winners and losers however in the case of drug cartels, there aren’t winner or losers. The notion of using military force to eradicate drug cartel is very unreasonable. One of the main ways to eradicate this could be discouragement of the consumers. The author concluded that the war is a metaphor. The real struggle in Mexico is for responsible governance, economic opportunities, and justice.
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