Law and Violence in the Global South: The Legal Framing of Mexico’s ‘NARCO WAR’

Law and Violence in the Global South: The Legal Framing of Mexico’s ‘NARCO WAR’ Abstract Many scenarios of conflict in the global south are economically driven but have experienced such extreme forms of violence that commentators have reviewed the law of non-international armed conflict (NIAC) in light of the ‘war on drugs’ in several countries of Latin America, and elsewhere. The article also addresses this issue but with a view to better understand the relationship between law and violence. International Humanitarian Law (IHL) is not understood here as a mere set of neutral normative hypotheses which may or not apply to factual situations, but rather as an important means through which war is constructed. This relationship is reviewed in the framework of the struggle of the Mexican government against powerful drug cartels as well as among the latter, in particular during the administration of President Calderón, from 2006 to 2012. It does so, by analysing the legal narratives that have structured the discourse about Mexico’s violence. By simplifying its complexity, these narratives facilitate the qualification of the situation as internal war. This is contestable as a matter of lex lata. Moreover, it is counterproductive as it reinforces the strategic shifts between the law of war and the law of peace. The article concludes by arguing that the acknowledgment of the complexities of these conflicts is of the utmost importance for IHL, since they put into light the contingent character of some of its structuring categories. This sounds self-defeating but it is necessary for avoiding that this body of law reinforces what it seeks to contain. 1. Introduction Many scenarios of armed violence in the ‘global south’ are complex postmodern conflicts in which ‘the boundaries between such things as war, crime and peace appear increasingly vague and blurred’.1 In recent years, commentators have reviewed the law of non-international armed conflict (NIAC) in light of the ‘war on drugs’ in several countries of Latin America and elsewhere.2 In this commentary, I also address this issue but with a view to better understand the relationship between law and violence. Following Nathaniel Berman,3 I regard law as a means through which war can be enabled. Indeed, by framing forms of conflict as ‘combat’ or ‘armed conflict’, scenarios of violence are not only legally construed as war, but also violence is channelled ‘into certain forms of activity engaged in by certain kind of people, while excluding other forms engaged in by other people’.4 In other words, the metaphor ‘war on drugs’ is more than figurative speech articulating an analogy of the sort x is like y (‘the struggle against drug-related crime is like a war’); it actually contributes to blurring the lines between law enforcement operations and armed conflict.5 The ‘global war on drugs’ shows to what extent law and violence coexist in a complicit relationship. This ‘war’ takes place in several arenas of the global south like Brazil, Colombia, and Mexico, large parts of Central America and the Philippines. Here, I focus on Mexico’s ‘narco war’, referring to organized crime centred on illegal narcotics trafficking. I will limit the analysis to the administration of Felipe Calderón (2006–2012). Not because the situation has changed; it continues until today, and was unfortunately reinvigorated by the 2017 Law on Interior Security.6 But it was Calderón’s government which started this ‘war’, and it was also during his administration that the discursive shifts in regard to war and law enforcement were most evident. After briefly describing the contours of the situation experienced during Calderón’s administration (Section 2), I will examine the qualification of Mexico’s violence as a NIAC (Section 3). I will argue that such qualification is viable from a lex lata point of view, and as such contestable from the very same perspective. However, my basic claim is that qualifying Mexico’s situation as a NIAC is misleading and counterproductive: misleading as a matter of diagnosis which fails to capture the complexity of the situation; counterproductive as it reinforces those narratives that help making the war case, and thereby contributes to uphold a situation of nonsensical violence. This, in turn, shows that structural categories of IHL are under strain by the actual situations of violence in the global south (Section 4). 2. Mexico’s Narco-related Violence (2006–2012) A. Calderón’s war: Mexico’s humanitarian tragedy The initial point of this episode in Mexican history is usually dated on 11 December 2006, when Felipe Calderón launched Operación Conjunta Michoacán, sending 4260 soldiers and 54 members of the Mexican navy, along with 1400 federal police forces to fight criminal organisations in the state of Michoacán.7 From that moment on, Calderón’s government engaged in a ‘frontal combat’8 against the narco. This combat consisted in pursuing drug lords in an attempt to disarticulate Mexico’s major drug trafficking cartels. In this endeavour, about 50 000 military troops and an unspecified number of navy members were deployed over several states of the republic in support of federal and local police forces.9 Although, many kingpins were captured or killed,10 the biggest narco organisations, like the Sinaloa, Golf and Juárez cartels, as well as Los Zetas and the Knights Templar (the successor of La Familia) still operate, new powerful cartels have emerged (Cartel Jalisco Nueva Generación – CJNG), and others have split into numerous middle- and small-size syndicates.11 This fragmentation led to a diversification of illicit activities, such as kidnapping and extortion. Especially between 2008 and 2011, the situation acquired well-known dimensions of extreme violence, making war analogies by the Mexican and international media commonplace.12 Suffice it here to recall the tragic death toll ranging from 50 000 to 70 000 people during Calderón’s administration,13 an estimate of 140 000 people internally displaced,14 about 25 000 disappeared persons,15 and the grave crimes suffered by vulnerable Central American migrants on their way to the USA.16 Human rights’ abuses, including by the armed forces, have risen considerably,17 further contributing to what political scientist Sergio Aguayo calls ‘Mexico’s humanitarian tragedy’.18 Today, there is a near-consensus among Mexican public opinion leaders that the ‘narco war’ has failed,19 and the results of the elections of June 2012 can be read as a strong disapproval of ‘Calderón’s war’.20 B. The historical and international context of a failed war: how we got there Mexico’s combat against the narco intensified dramatically during Calderón’s administration, but its first manifestations go back to the 1970s with Operation Condor,21 and it is to a great extent the consequence of adopting the US conception of the ‘war on drugs’.22 It is, therefore, important to recall an episode which has been accurately termed the ‘Mexican alternative’.23 Recognizing the failure of the prohibitionist paradigm in Mexico during the 1930s, President Lázaro Cárdenas issued a federal decree on drug addiction on 17 February 194024 which treated the drug problem as a matter of public health. This regulation established ‘public drug dispensaries’ under medical supervision, where controlled doses were sold for low prices to patients, who in turn had to engage in rehabilitation programmes, and the doses were then reduced over time. This federal administrative act rejected the ‘system of persecution’, acknowledging that its ‘only result’ had been to ‘excessively increase the price of drugs, a circumstance that led to great profits for traffickers’.25 Despite its promising start, the Reglamento Federal de Toxicomanías of 1940 was practically abrogated only 4 months after it entered into force. The reason for this was the pressure exercised by the government in Washington D.C. As Mariana Flores documents: Five days after the first drug dispensary was opened, the US government communicated to Mexico’s Ministry of Foreign Relations its decision to prohibit exports of all kinds of drugs to Mexico because of the risks that that these substances could be used for non-medical and illegitimate purposes.26 This embargo proved particularly painful for the Mexican public health system because of World War II and the difficulties to obtain medicines from Europe – Germany was the other important provider of medicines to Mexico. Cárdenas’ decree whereby the previous regulation was ‘suspended’ indefinitely, made explicit reference to this: ‘As long as the European War lasts, the Department [of Health] is not in the position to fulfil the Regulation.’27 The ‘Mexican alternative’ was never reintroduced.28 This episode is telling in regard to the role of law in creating and shaping real situations beyond the dominant assumptions about its neutrality and the intrinsic value of the rule of law. As Alvaro Santos argues, drug trafficking and the current situation in Mexico should be analysed ‘not as a failure of law or as a phenomenon where law is absent, but rather as a legal regime’.29 C. The war frame Once the prohibitionist paradigm was in place, the war on drugs was carried out over the years with a rather low intensity until the government of President Calderón made it the top national priority, adopting a strategy of enhanced law enforcement, the use of the military, and an intensified security cooperation with the USA through the Mérida Initiative, an informal bilateral security arrangement of major implications, adopted in 2007.30 Calderón denied that he referred to his strategy as a ‘war’,31 but there are at least 50 documented cases in which he qualified his anti-crime policy quite dramatically as ‘war’.32 The main policy strategy of his administration, the National Development Plan 2007-2012, speaks of a ‘frontal combat’,33 and other official documents refer to an ‘integral combat’.34 During addresses to the media, high-ranking members of the military referred to ‘collateral damage’ and ‘civilians’, opposing them to the ‘narcos’.35 The usage of this martial vocabulary coupled with the denials by the government of Calderón that they were actually talking about war, is a clear manifestation of the ‘strategic instrumentalization’ of the separation between the law of war and the law of peace, ie of Nathaniel Berman’s notion that the distinction itself is employed ‘for partisan advantage-seeking to achieve practical or discursive gains through shifting back and forth between war and non-war’.36 It is not difficult to see what sort of advantages were sought by Calderón: the legal and political approval of enhanced law enforcement measures which fall short of war tactics, and the overall strengthening of executive powers. The correlation between the war frame and the increase in executive powers is a lesson learned from the George W. Bush administration and several other national executives engaged in the war on terror. As cognitive linguists, international lawyers and political scientists have argued, the ‘war on terror’ metaphor activates ideas that support presidential war powers, such as that of a strong commander in chief capable of defending the nation against its enemies, while at the same time it deactivates the law enforcement frame, ie the idea of fighting terrorism through police action and criminal law mechanisms.37 In other words, the war metaphor is used to activate the idea that a situation of exception is taking place which justifies the recourse to exceptional measures against the enemy, be it terrorists or narcos. Under this rhetoric, narcos became the enemies to be defeated rather than the criminal offenders to be prosecuted. Apart from this ‘de-judicialization’, narcos were ‘de-individualized’,38 and exhibited—dead or alive—in a perverse alliance with visual media. Mexico’s penal law has experienced a shift towards what some German criminal lawyers describe as ‘enemy criminal law’ (Feindstrafrecht),39 indicating that suspected criminals are treated like enemies in war. Among the main characteristics of this trend is the increased use of special national and international task forces, a general move to prevention and surveillance, and measures that curtail the liberty of those presumed dangerous. This is done for the sake of public/national/transnational security, and pushes criminal law to its limits.40 In Mexico, the use of special, national as well as binational task forces with the USA clearly augmented in the framework of the Mérida Initiative.41 Moreover, the arraigo is a case in point for the curtailment of liberties of those presumed dangerous. This pretrial custody designed for organised crime can be prolonged up to 80 days, and was given constitutional status with the 2008 criminal law reform.42 Despite harsh criticisms,43 the figure remains in place. 3. The War Case: Mexico’s Violence and the Law of NIAC In 2011, a communication was filed at the Office of the Prosecutor of the International Criminal Court (ICC), requesting the investigation of alleged war crimes and crimes against humanity by President Calderón, some top officials of his administration, and major narco bosses, like Joaquín ‘El Chapo’ Guzmán, the legendary head of the Sinaloa cartel.44 Conflict research institutes have catalogued the situation as a non-state armed conflict,45 and an academic debate on the existence or non-existence of a NIAC has taken place.46 The legal reasoning of those affirming the existence of a NIAC in Mexico consists of a few simple legal syllogisms, almost exclusively premised on information provided by US media, think tanks like Stratfor, and reports of global NGOs and to the US Congress.47 First, the argument goes, the ‘Mexican drug war’ involves state-armed forces fighting non-state armed groups, as well as non-state armed forces fighting each other inside the territory of a high-contracting party to the Geneva Conventions, so that the basic requirements for the application of common Article 3 are fulfilled.48 As is well known, this norm does not say much, and the Tadić-criterion adopted by the International Tribunal for the Former Yugoslavia (ICTY) has become the locus classicus for the specification of its meaning and scope. Accordingly, a NIAC has to be distinguished from internal tensions, disturbances, riots and other acts of banditry. Hence, a NIAC exists whenever: (i) armed violence between government authorities and non-state-armed groups, or among such groups is protracted; (ii) hostilities have reached a certain level of intensity, which may be the case when they are of a collective character or when the government is obliged to use the military; and (iii) the non-state-armed groups are considered ‘parties to the conflict’, meaning that they must possess an organisational structure and the capacity to sustain military operations.49 The point is then made that violence in Mexico resulting from the state’s actions against the narcos and among them has been going on now for several years, so that there is a protracted armed violence situation. The military had to be called in to fight a well-armed enemy, and the violence is getting out of control, so the requirement of intensity is satisfied. Finally, it is claimed that the level of organisation of the drug cartels is beyond doubt, considering their structure as organised groups with armed capabilities.50 At first sight, this matches what everyone hears in the media. However, the subsequent jurisprudence of the ICTY shows that the intensity requirement is not just about extreme violence. Time and spatial elements, such as the continuity and prolongation of armed confrontations, and their simultaneity over different parts of the territory have to be considered too,51 and here the evidence is not that evident anymore. Regarding the organisational requirements, it is true that basic command structures and military capabilities like training, the use of tactics and recruitment are difficult to deny in the case of Los Zetas, which originated from co-opted elite forces of the Mexican army, as well as the CJNG and the Knights Templar which copied many things from the Zetas. Sinaloa and other traditional narco organisations work together with armed groups that denote some of these characteristics. However, when it comes to the more sophisticated elements of the organisational requirement things are not that clear. The definition of duties and the existence of an ordered chain of military hierarchy may be attributed to some of these organisations. But, to what extent can the Templar’s Code, for example, be interpreted as an element of organisational structure and hierarchy? This code is a mixture of a religious sect guidebook inspired by John Eldrege’s bestseller Wild at Heart, and of a criminal code of honour with some elements of left-wing insurgency ideologies.52 Everything indicates that the ‘rules’ are never followed by the ‘Knights’, and that they only serve as a disguise for the purely lucrative intentions that drive this cartel. The organisational requirement is further complicated by the fragmentation of many of these groups, and their reliance on minor gangs and street criminals to commit many of their crimes.53 One can hardly speak of negotiation capacities and external representation functions54 in the case of criminal groups that seek to stay underground in the pursuit of the illegal accumulation of capital. Mexico has officially denied the existence of an armed conflict in its territory.55 More important, however, is how the Mexican state addresses the use of force against organised crime. In the Boškoski case, the ICTY establishes: … it may be instructive to analyse the use of force by governmental authorities, in particular, how certain human rights are interpreted, such as the right to life and the right to be free from arbitrary detention, in order to appreciate if the situation is one of armed conflict. As is known, in situations falling short of armed conflict, the State has the right to use force to uphold law and order, including lethal force, but, where applicable, human rights law restricts such usage to what is no more than absolutely necessary and which is strictly proportionate to certain objectives.56 According to the security protocols adopted by Calderón’s government,57 Mexican armed forces are obliged to use force only as a last resort and in conformity with internationally recognised human rights standards, such as those enshrined in the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.58 This has been acknowledged by the International Law Association (ILA).59 Moreover, the ILA comments that given that the criminal gangs are not challenging ‘civil authorities for the right to govern’, Mexico has not become the scene of a NIAC.60 This is crucial. While the qualification of an organized armed group has to follow objective criteria, and the ICTY had good reasons in the Limaj case for not engaging in a subjective analysis of the armed groups’ motivations, such as ethnic cleansing,61 this dictum cannot be taken as if produced in a vacuum. The very purpose of IHL seems to be misunderstood by applying it to criminal organisations that use ‘cruel and arbitrary practices’ exclusively to defend their illegal transnational business as usual.62 It is important to underline that narco organisations are purely economically driven and that their clandestine operations are actually tied to institutional structures they are just not interested in overriding; their work is illegal and violent but as pragmatic as that of other major business corporations. In the end, the qualification of the situation in Mexico as a NIAC is legally contested. Conclusive arguments are difficult to reach in face of the indeterminacies of IHL and the challenges it faces with the emergence of conflicts that do not easily fit into the categories for which it was created. But what matters most is that this qualification does not serve anyone.63 The legal protections triggered by common Article 3 are not worth invoking vis-à-vis the shield granted by international and national human rights law.64 Even if the Mexican government should eventually decide to declare the state of emergency – something which is often feared as possibly augmenting human rights abuses – Mexico’s law of emergency is strictly regulated in Article 29 of the Constitution.65 This norm specifies a list of non-derogable rights, which is broader than that contained in the ‘mini-convention’. The list includes the non-derogability of judicial guarantees for the protection of the other rights constitutionally excluded from suspension.66 In addition, Mexico’s Supreme Court has declared the binding force of the jurisprudence of the Inter-American Court of Human Rights (IACHR), including in those cases where Mexico has not been a party to the dispute, whenever this proves to be more favourable to the protection of rights.67 The IACHR has developed rather strict restrictions on the suspension of human rights in times of emergency, especially regarding judicial protection.68 The problems related to the ‘overclassification’ of armed conflicts are well known.69 The simultaneous application of IHL and human rights law would contribute to the lowering of human rights standards, and this would augment an atmosphere of impunity, which in turn tends to exacerbate violence.70 Arguments in favour of applying common Article 3 in Mexico tend to be based on two fallacious assumptions. On the one hand, this qualification is said to be able to reduce the horrific violence caused by narcos and the numerous human rights abuses by governmental forces. This situation is undeniable.71 However, faith in common Article 3 and the more robust international pressure mechanisms this norm is said to trigger,72 is naïve. First, some of the mechanisms that are mentioned in this context, eg US pressure and ICC involvement, are not dependent on the said qualification. Secondly, arguing that a ‘carrots and sticks’ approach by the USA would contribute to the solution of the problems which were only exacerbated by the very same war approach the USA has promoted in Mexico via the Mérida Initiative, is problematic, to say the least. Mexico’s rule of law challenges cannot be solved through economic and political pressure from Washington, and the possible effects of legal pressure from The Hague are clearly overestimated in this context. Finally, concerning an eventual role of the International Committee of the Red Cross (ICRC)73 in trying to ensure that parties to the conflict comply with what would be the applicable IHL, presupposes that the most violent narco cartels would be interested in applying it. This is very difficult to imagine concerning highly lucrative organisations which employ extreme violence as one of their main business tactics. The other argument in favour of the qualification mentions that this would enable the Mexican military ‘to engage in the method of warfare that will maximize its odds of disabling the drug cartels’.74 This is fallacious and self-defeating. The frontal combat has proven to be a failed anti-crime strategy that has caused tremendous human, social and material costs without delivering effective results – actually, the situation has worsened as a consequence of it. It also denotes a complete lack of understanding of the complex narco phenomenon which cannot be defeated like an enemy in war. Most important, this argument shows that the NIAC case is strategically advanced for creating, sustaining and incrementing nonsensical violence. 4. Conclusion Qualifying Mexico’s extreme violence as a NIAC is contested as a matter of lex lata. Moreover, the law of NIAC is ill-suited for describing complex situations between war and peace in which the driving force of violence is a highly lucrative illegal business and the accumulation of capital through transnational clandestine networks. This reveals a major problem that IHL faces today: the qualification of postmodern conflicts. The most significant challenge for law in these new settings of violence in the global south is not adapting existing principles or rules of IHL to the new circumstances, but the avoidance of the strategic instrumentalisation of this corpus iuris.75 IHL should not serve to obscure the complexities of these settings by forcing them into its structural categories. It is interesting to note that the Constitutional Court of Colombia has emphasised the complexities of Colombia’ long-lasting conflict, adopting a notion of violence that does not fit neatly into IHL as we know it.76 A way of addressing this problem of qualification is by looking closer at what the actual settings of armed violence reveal about the law and its relationship with violence. This implies a conception of law in the everyday life of those affected, beyond the traditional assumption of neutral sets of rules, principles and doctrine. From this angle, the relevant questions are not whether this or that rule applies to these violent contexts, but whether these rules translate into violence, as well as whether they serve to perpetuate violence.77 Indeed, this relates to the uncomfortable acknowledgement that realities escape constantly our mental categories. Legal science is based on a strong belief in stable categories. Anything else may be felt as an affront to IHL’s (and international law’s) objective rationality expressed in a set of positive rules that apply (or not) to factual situations of conflict. Conceptualising IHL as an instance of conflict creation is tantamount to abandoning this positivist paradigm. I am aware that there is much at risk in opening IHL’s structuring categories to context. However, ignoring this and minimising the perils of dedifferentiation entail a more serious threat for a body of law that seeks to contain violence: this threat consists in becoming co-constitutive of violence, ie in turning into law and violence (in the global south). Footnotes 1 M Duffield, ‘Post-modern Conflict: Warlords, Post-adjustment States and Private Protection’ (1998) 1 Civil Wars 65, 67. 2 See P Hauck and S Peterke, ‘Organized Crime and Gang Violence in National and International Law’ (2010) 92 Int’l Rev Red Cross 407; S Peterke and J Wolf, ‘International Humanitarian Law and Transnational Organized Crime’ in P Hauck and S Peterke (eds), International Law and Transnational Organized Crime (OUP 2016) 381; P Gallahue, ‘Mexico’s War on Drugs – Real or Rhetorical Armed Conflict?’ (2011) 24 Humanitäres Völkerrecht 39. 3 See N Berman, ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’ (2004) 43 Colum J Transnat’l L 1. 4 ibid 5. 5 See G Lakoff and M Thompson, Metaphors We Live By (Chicago University Press 2003); on the ‘war on drugs’ metaphor see A Rodiles, ‘Las narrativas globales sobre el combate al narco en México y el derecho internacional’ (2013) Este País 32. 6 Ley de Seguridad Interior, Diario Oficial de la Federación (21 December 2017) 2. 7 See C Herrera, ‘El gobierno se declara en guerra contra el hampa; inicia acciones en Michoacán’ La Jornada (Mexico City, 12 December 2006). 8 Presidencia de la República, Plan Nacional de Desarrollo 2007-2012, 59. 9 See D Luhnow, ‘Felipe Calderón defiende la guerra contra el narcotráfico’ (19 May 2010) <https://www.seguridadjusticiaypaz.org.mx/narcotrafico/180-felipe-calderon-defiende-la-guerra-contra-el-narcotrafico> accessed 23 February 2018. 10 See ‘Mexico’s drug lords: Kingpin bowling’ The Economist (20 October 2012) <https://www.economist.com/news/americas/21564897-most-wanted-men-mexico-are-tumbling-will-crime-follow-suit> accessed 23 February 2018. 11 See A Méndez, ‘En el país, entre 60 y 80 cárteles: PGR’ La Jornada (Mexico City, 19 December 2012). 12 For a particularly dark picture of Mexico’s ‘'guerre de grande envergure’, see ‘Mexique, la spirale de la barbarie’ Le Monde (Paris, 23 August 2012). 13 There is a debate about the data’s accuracy, especially since Calderón’s government decided to stop publishing the murder rate in order to not prejudice criminal proceedings. The last official calculus of his government reported 47 515 deaths as of 30 September 2011; see H Prado, ‘Sepultan – también – cifra de ejecutados’ Reforma (Mexico City, 15 August 2012). 14 See NM Birkeland, E Jennings and EJ Rushing (eds), Global Overview 2011, People Internally Displaced by Conflict and Violence (iDMC/NRC, 2012) 59–60. 15 W Booth, ‘Mexico’s Crime Wave has Left about 25,000 Missing, Government Documents Show’ Washington Post (Washington DC, 29 November 2012). 16 JA Cedillo, ‘Migrantes, Los más Vulnerables’ Proceso (Mexico City, 20 May 2012). 17 See Comisión Nacional de los Derechos Humanos (CNDH), Press Release CGCP/315/12 (21 November 2012); Human Rights Watch, Neither Rights nor Security. Killings, Torture, and Disappearances in Mexico’s ‘War on Drugs’ (2011) <http://www.hrw.org/sites/default/files/reports/mexico1111webwcover_0.pdf> accessed 23 February 2018; Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc A/HRC/19/58/Rev1 (2012) paras 344–75. 18 See S Aguayo, ‘Persona Non Grata’ Reforma (Mexico City, 26 December 2012). 19 See eg R Aguilar and JG Castañeda, El Narco: La Guerra Fallida (Punto de Lectura, 2009); L Astorga, ‘Estado, Drogas Ilegales y Poder Criminal: Retos Transexenales’ [2012] Letras Libres 26; E Guerrero, ‘La Estrategia Fallida’ (Nexos, 1 December 2012). 20 Calderón’s National Action Party (PAN) not only lost the presidency to the Institutional Revolutionary Party (PRI), but suffered heavy losses in Congress too. According to a survey released in November 2012, 55% of the population considered Calderón’s strategy a failure, see ‘Exhiben el Fracaso de Plan Anticrimen’ Reforma (Mexico City, 22 November 2012). 21 A military campaign launched in the mid-1970s against the narco in the north of Mexico with the participation of the US Drug Enforcement Administration (DEA); see R Craig, ‘Operation Condor, Mexico’s Anti-Drug Campaign Enters a New Era’ (1980) 22 J Interam Stud Wld Aff 345. 22 See E Dufton, ‘The War on Drugs: How President Nixon Tied Addiction to Crime’ [2012] The Atlantic. 23 See M Flores, La Alternativa Mexicana al Marco Internacional de Prohibición de Drogas durante el Cardenismo (doctoral dissertation, submitted at El Colegio de México, Mexico City, 2013). On file with the author. 24 Reglamento Federal de Toxicomanías, Diario Oficial de la Federación (17 February 1940) 5. 25 ibid (the Reglamento is accompanied by an explanatory note). 26 Flores (n 23) 153–54. 27 Decreto que suspende la vigencia del Reglamento Federal de Toxicomanías, Diario Oficial de la Federación (3 July 1940) 12. 28 Although a recent ruling by Mexico’s Supreme Court allowing for recreational use of marihuana under special circumstances may open this path again; see SCJN, Amparo en revisión 237/2014 (4 November 2015) (the ‘SMART case’). 29 A Santos, ‘International Law and Its Discontents: Critical Reflections on the War on Drugs or the Role of Law in Creating Complexity’ (2012) 106 ASIL Proceedings 172, 174; see also Fleur Johns, Non-Legality in International Law – Unruly Law (CUP 2012) 25–26. 30 See <http://www.state.gov/j/inl/merida/> accessed 23 February 2018; on this bilateral arrangement, see A Rodiles, ‘The Tensions between Local Resilience-Building and Transnational Action - US-Mexican cooperation in crime affected communities in Northern Mexico, and what this tells about global urban governance’ in HP Aust and A du Plessis (eds), The Globalization of Urban Governance – Legal Perspectives on Sustainable Development Goal 11 (Routledge forthcoming). 31 See A Urrutia and G Castillo, ‘Niega el jefe del Ejecutivo haber utilizado el concepto “guerra”’ La Jornada (Mexico City, 13 January 2011). 32 See C Bravo, ‘Una ayudadita de memoria para Felipe Calderón’ (Nexos, 28 January 2011). 33 Presidencia de la República (n 8). 34 Programa Sectorial de Defensa Nacional 2007-2012, Diario Oficial de la Federación (24 Janaury 2008) 14. 35 See ‘Muertes de civiles en el combate al crimen, “daños colaterales”: Galván’, La Jornada (Mexico City, 13 April 2010). 36 Berman (n 3) 7. 37 See G Lakoff, Don’t Think of an Elephant! Know Your Values and Frame the Debate (Chelsea Green Publishing 2004) 69–78; see also M Delmas-Marty, ‘The Paradigm of the War on Crime: Legitimating Inhumane Treatment?’ (2005) 5 J Int’l Crim Just 584 (2005), D Kennedy, ‘Lawfare and Warfare’ in J Crawford and M Koskenniemi, The Cambridge Companion to International Law (CUP 2012) 158, 165; S Peterke, Rio de Janeiros ‘Drogenkrieg’ im Lichte der Konfliktforschung und des Völkerrechts. Eine Fallstudie zur Behandlung organisierter bewaffneter Gewalt (Berliner Wissenschaftsverlag 2009) 101ff; G Kolliarakis, ‘Networks and the Study of Criminal and Terrorists Organizations’ in Wolfgang Benedek and others (eds), Transnational Terrorism, Organized Crime and Peace-Building: Human Security in the Western Balkans (Palgrave Macmillan 2010) 81. 38 On ‘de-judicializing’ and ‘de-individualizing’ as a consequence of the ‘logic of war’, see Delmas-Marty ibid. In a case unrelated to the narco (Florence Cassez case), Mexico’s Supreme Court criticised the show-casting politics of Calderón’s law enforcement apparatus; see SCJN, Amparo Directo en Revisión 517/2011 (23 January 2013). 39 See G Jakobs, ‘Kriminalisierung im Vorfeld einer Rechtsgutsverletzung’ (1985) 97 Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) 751; U Sieber, ‘Grenzen des Strafrechts’ (2007) 119 ZStW 1. 40 See U Sieber, ‘Blurring the Categories of Criminal Law and the Law of War – Efforts and Effects in the Pursuit of Internal and External Security’ in M Maroto and D Scheunemann (eds), Criminal Law between War and Peace: Justice and Cooperation in Criminal Matters in International Military Interventions (Universidad de Castilla-La Mancha 2009) 35, 40ff. 41 See C Ribando and KM Finklea, US-Mexican Security Cooperation: the Mérida Initiative and Beyond (CRS Report for Congress, 16 February 2011) 32ff. 42 See Constitución Política de los Estados Unidos Mexicanos (art 16), <http://www.diputados.gob.mx/LeyesBiblio/pdf/1.pdf> and Ley Federal contra la Delincuencia Organizada (art 12) <http://www.diputados.gob.mx/LeyesBiblio/pdf/101.pdf> both accessed 23 February 2018. 43 See Human Rights Watch, Abolish ‘Arraigo’ Detention from Constitution (25 April 2013) <http://www.hrw.org/news/2013/04/25/mexico-abolish-arraigo-detention-constitution> accessed 23 February 2018. 44 See N Sandoval, ‘México en Guerra’ Proceso (Mexico City, 2 February 2012). 45 See Heidelberg Institute for International Conflict Research (HIIK), Conflict Baramoter 2013: disputes, non-violent crises, violent crises, limited wars, wars (HIIK 2014) 85; see also S Casey-Maslen, The War Report 2012 (OUP 2013) 126ff. 46 Arguing in favour, see C Bergal, ‘The Mexican Drug War: The Case for a Non-International Armed Conflict Classification’ (2011) 34 Fordham Int’l LJ 1042; CA Bloom, ‘Square Pegs and Round Holes: Mexico, Drugs, and International Law’ (2012) 34 Hous J Int’l L 345; contra Gallahue (n 2) and A Nill Sánchez, ‘Mexico’s Drug “War”: Drawing a Line Between Rhetoric and Reality’ (2013) 38 Yale J Int’l L 467. 47 Bergal, ibid and Bloom, ibid. 48 Mexico is not a party to the Second Additional Protocol, so that the higher threshold for the determination of a NIAC established in that instrument, and which would be relevant for its application, needs not to be evaluated here. 49 See The Prosecutor v Dusko Tadić, Judgment, No IT-94-1-T (7 May 1997). See also L Moir, The Law of Internal Armed Conflict (CUP 2002) 30ff. 50 Although Bloom acknowledges that making all the factors fit each specific conflict is like attempting to insert ‘a set of square pegs … into round holes’, and opts instead for the US Supreme Court’s methodology in Hamdan v Rumsfeld, basically equating narco organisations with Al Qaeda; see Bloom n 46 377ff. 51 See The Prosecutor v Limaj, Judgment, No IT-03-66-T (30 November 2005) paras 138ff; for a different precedent, see the much criticised Tablada case of the Inter-American Commission of Human Rights (IACHR), where the intensity requirement was significantly lowered down, see IACHR Report No 55/97, Case No 11.137, Argentina, OEA/Ser/L/V/I1.97, Doc 38 (30 October 1997). 52 On the bizarre ideology of La Familia/the Knights Templar, see W Finnegan, ‘Silver or Lead: The drug cartel La Familia gives local officials a choice: Take a bribe or a bullet’ The New Yorker (31 May 2010). 53 Nill Sánchez (n 46) 485. 54 See The Prosecutor v Limaj, Judgment, No IT-03-66-T (30 November 2005) paras 94–134. 55 See UN Doc, CRC/C/OPAC/MEX/1 (5 February 2010) para 5. 56 The Prosecutor v Boškoski, No IT-04-82-T, Judgment (10 July 2008) para 178. 57 Directiva que regula el uso legítimo de la fuerza por parte del Ejército y Fuerza Aérea Mexicanos; Acuerdo Secretarial, Diario Oficial de la Federación (23 April 2012). 58 See the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, 27 August–7 September 1990); see also P Alston, Study on Targeted Killings by the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc A/HRC/14/24/Add.6 (28 May 2010) paras 31–33. 59 International Law Association, Final Report on the Meaning of Armed Conflict in International Law (2010) 28. 60 ibid. 61 The Prosecutor v Limaj, Judgment, No IT-03-66-T (30 November 2005) para 170. 62 See Hauck and Peterke (n 2) 433; see also Aguilar and Castañeda (n 19) and E Desmond Arias, ‘The Dynamics of Criminal Governance: Networks and Social Order in Rio de Janeiro’ (2006) 38 J Lat Am Stud 293, 301. 63 See Nill (n 46) 489ff; Rodiles (n 5); as well as Peterke (n 37) 99–124 (on Brazil). 64 In June 2011, a major human rights reform entered into force that gives constitutional status to all human rights contained in treaties in force in Mexico; see M Carbonell and P Salazar, La Reforma Constitucional de Derechos Humanos: Un Nuevo Paradigma (UNAM 2011). 65 See Constitución Política de los Estados Unidos Mexicanos (n 42). This is also why the new Law on Interior Security has been challenged before the Supreme Court. It confers upon the President wide discretion to make ‘declarations on the protection of interior security’, which give federal forces, including the army, broad powers for identifying and preventing risks, thus coming close to a quasi-state of emergency that circumvents or even contradicts art 29 of the Constitution; see Ley de Seguridad Interior, n 6. 66 This is important insofar as one of the few derogable elements of common art 3 is precisely the judicial guarantees enshrined in art 3(1)(d); see also Moir (n 49) 44. 67 Suprema Corte de Justicia de la Nación, Contradicción de Tesis 293/2011 (2013). 68 See IACHR, Habeas Corpus in Emergency Situations (arts 27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87 (1987) Series A No 8; Judicial Guarantees in States of Emergency (arts 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87, (1987) Series A No 9. 69 See M Sassòli, ‘The Implementation of International Humanitarian Law: Current and Inherent Challenges’ (2007) 10 YIHL 45, 50–52. 70 Hauck and Peterke (n 2) 431. 71 See Open Society Justice Initiative, Atrocidades Innegables: Confrontando Crímenes de Lesa Humanidad en México (Open Society Foundation 2016). 72 Bloom (n 46) 397ff. 73 ibid 402–04. 74 Bergal (n 46) 1088. 75 Berman (n 3). 76 See Constitutional Court of Colombia (CCC), C-781/12 (10 October 2012); T-834/14 (11 November 2014). See further, A Rodiles, ‘International Humanitarian Lawmaking in Latin America: Between the International Community, Humanity, and Extreme Violence’ in H Krieger (ed), Legitimacy and Law-Making in International Humanitarian Law (forthcoming). 77 This reminds of Walter Benjamin’s Critique of Violence where he argues that the inherent violence of law lies in its drive to self-preservation, see W Benjamin, ‘Zur Kritik der Gewalt’ in W Benjamin, Angelus Novus (ausgewählte Schriften Band 2) (Suhrkam 1988) 42, 61. This also reveals the risks of law being effective for its own sake only, which in the present case study would mean that law creates and preserves a violent situation due to an intrinsic and violent imperative ‘of keeping up its own order, of establishing and enforcing its own categories, perspective, and language—for the sake of its power’ (as explained by C Menke, ‘Law and Violence’ (2010) 22 Law and Literature 1, 11). © Oxford University Press 2018; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

Law and Violence in the Global South: The Legal Framing of Mexico’s ‘NARCO WAR’

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Abstract

Abstract Many scenarios of conflict in the global south are economically driven but have experienced such extreme forms of violence that commentators have reviewed the law of non-international armed conflict (NIAC) in light of the ‘war on drugs’ in several countries of Latin America, and elsewhere. The article also addresses this issue but with a view to better understand the relationship between law and violence. International Humanitarian Law (IHL) is not understood here as a mere set of neutral normative hypotheses which may or not apply to factual situations, but rather as an important means through which war is constructed. This relationship is reviewed in the framework of the struggle of the Mexican government against powerful drug cartels as well as among the latter, in particular during the administration of President Calderón, from 2006 to 2012. It does so, by analysing the legal narratives that have structured the discourse about Mexico’s violence. By simplifying its complexity, these narratives facilitate the qualification of the situation as internal war. This is contestable as a matter of lex lata. Moreover, it is counterproductive as it reinforces the strategic shifts between the law of war and the law of peace. The article concludes by arguing that the acknowledgment of the complexities of these conflicts is of the utmost importance for IHL, since they put into light the contingent character of some of its structuring categories. This sounds self-defeating but it is necessary for avoiding that this body of law reinforces what it seeks to contain. 1. Introduction Many scenarios of armed violence in the ‘global south’ are complex postmodern conflicts in which ‘the boundaries between such things as war, crime and peace appear increasingly vague and blurred’.1 In recent years, commentators have reviewed the law of non-international armed conflict (NIAC) in light of the ‘war on drugs’ in several countries of Latin America and elsewhere.2 In this commentary, I also address this issue but with a view to better understand the relationship between law and violence. Following Nathaniel Berman,3 I regard law as a means through which war can be enabled. Indeed, by framing forms of conflict as ‘combat’ or ‘armed conflict’, scenarios of violence are not only legally construed as war, but also violence is channelled ‘into certain forms of activity engaged in by certain kind of people, while excluding other forms engaged in by other people’.4 In other words, the metaphor ‘war on drugs’ is more than figurative speech articulating an analogy of the sort x is like y (‘the struggle against drug-related crime is like a war’); it actually contributes to blurring the lines between law enforcement operations and armed conflict.5 The ‘global war on drugs’ shows to what extent law and violence coexist in a complicit relationship. This ‘war’ takes place in several arenas of the global south like Brazil, Colombia, and Mexico, large parts of Central America and the Philippines. Here, I focus on Mexico’s ‘narco war’, referring to organized crime centred on illegal narcotics trafficking. I will limit the analysis to the administration of Felipe Calderón (2006–2012). Not because the situation has changed; it continues until today, and was unfortunately reinvigorated by the 2017 Law on Interior Security.6 But it was Calderón’s government which started this ‘war’, and it was also during his administration that the discursive shifts in regard to war and law enforcement were most evident. After briefly describing the contours of the situation experienced during Calderón’s administration (Section 2), I will examine the qualification of Mexico’s violence as a NIAC (Section 3). I will argue that such qualification is viable from a lex lata point of view, and as such contestable from the very same perspective. However, my basic claim is that qualifying Mexico’s situation as a NIAC is misleading and counterproductive: misleading as a matter of diagnosis which fails to capture the complexity of the situation; counterproductive as it reinforces those narratives that help making the war case, and thereby contributes to uphold a situation of nonsensical violence. This, in turn, shows that structural categories of IHL are under strain by the actual situations of violence in the global south (Section 4). 2. Mexico’s Narco-related Violence (2006–2012) A. Calderón’s war: Mexico’s humanitarian tragedy The initial point of this episode in Mexican history is usually dated on 11 December 2006, when Felipe Calderón launched Operación Conjunta Michoacán, sending 4260 soldiers and 54 members of the Mexican navy, along with 1400 federal police forces to fight criminal organisations in the state of Michoacán.7 From that moment on, Calderón’s government engaged in a ‘frontal combat’8 against the narco. This combat consisted in pursuing drug lords in an attempt to disarticulate Mexico’s major drug trafficking cartels. In this endeavour, about 50 000 military troops and an unspecified number of navy members were deployed over several states of the republic in support of federal and local police forces.9 Although, many kingpins were captured or killed,10 the biggest narco organisations, like the Sinaloa, Golf and Juárez cartels, as well as Los Zetas and the Knights Templar (the successor of La Familia) still operate, new powerful cartels have emerged (Cartel Jalisco Nueva Generación – CJNG), and others have split into numerous middle- and small-size syndicates.11 This fragmentation led to a diversification of illicit activities, such as kidnapping and extortion. Especially between 2008 and 2011, the situation acquired well-known dimensions of extreme violence, making war analogies by the Mexican and international media commonplace.12 Suffice it here to recall the tragic death toll ranging from 50 000 to 70 000 people during Calderón’s administration,13 an estimate of 140 000 people internally displaced,14 about 25 000 disappeared persons,15 and the grave crimes suffered by vulnerable Central American migrants on their way to the USA.16 Human rights’ abuses, including by the armed forces, have risen considerably,17 further contributing to what political scientist Sergio Aguayo calls ‘Mexico’s humanitarian tragedy’.18 Today, there is a near-consensus among Mexican public opinion leaders that the ‘narco war’ has failed,19 and the results of the elections of June 2012 can be read as a strong disapproval of ‘Calderón’s war’.20 B. The historical and international context of a failed war: how we got there Mexico’s combat against the narco intensified dramatically during Calderón’s administration, but its first manifestations go back to the 1970s with Operation Condor,21 and it is to a great extent the consequence of adopting the US conception of the ‘war on drugs’.22 It is, therefore, important to recall an episode which has been accurately termed the ‘Mexican alternative’.23 Recognizing the failure of the prohibitionist paradigm in Mexico during the 1930s, President Lázaro Cárdenas issued a federal decree on drug addiction on 17 February 194024 which treated the drug problem as a matter of public health. This regulation established ‘public drug dispensaries’ under medical supervision, where controlled doses were sold for low prices to patients, who in turn had to engage in rehabilitation programmes, and the doses were then reduced over time. This federal administrative act rejected the ‘system of persecution’, acknowledging that its ‘only result’ had been to ‘excessively increase the price of drugs, a circumstance that led to great profits for traffickers’.25 Despite its promising start, the Reglamento Federal de Toxicomanías of 1940 was practically abrogated only 4 months after it entered into force. The reason for this was the pressure exercised by the government in Washington D.C. As Mariana Flores documents: Five days after the first drug dispensary was opened, the US government communicated to Mexico’s Ministry of Foreign Relations its decision to prohibit exports of all kinds of drugs to Mexico because of the risks that that these substances could be used for non-medical and illegitimate purposes.26 This embargo proved particularly painful for the Mexican public health system because of World War II and the difficulties to obtain medicines from Europe – Germany was the other important provider of medicines to Mexico. Cárdenas’ decree whereby the previous regulation was ‘suspended’ indefinitely, made explicit reference to this: ‘As long as the European War lasts, the Department [of Health] is not in the position to fulfil the Regulation.’27 The ‘Mexican alternative’ was never reintroduced.28 This episode is telling in regard to the role of law in creating and shaping real situations beyond the dominant assumptions about its neutrality and the intrinsic value of the rule of law. As Alvaro Santos argues, drug trafficking and the current situation in Mexico should be analysed ‘not as a failure of law or as a phenomenon where law is absent, but rather as a legal regime’.29 C. The war frame Once the prohibitionist paradigm was in place, the war on drugs was carried out over the years with a rather low intensity until the government of President Calderón made it the top national priority, adopting a strategy of enhanced law enforcement, the use of the military, and an intensified security cooperation with the USA through the Mérida Initiative, an informal bilateral security arrangement of major implications, adopted in 2007.30 Calderón denied that he referred to his strategy as a ‘war’,31 but there are at least 50 documented cases in which he qualified his anti-crime policy quite dramatically as ‘war’.32 The main policy strategy of his administration, the National Development Plan 2007-2012, speaks of a ‘frontal combat’,33 and other official documents refer to an ‘integral combat’.34 During addresses to the media, high-ranking members of the military referred to ‘collateral damage’ and ‘civilians’, opposing them to the ‘narcos’.35 The usage of this martial vocabulary coupled with the denials by the government of Calderón that they were actually talking about war, is a clear manifestation of the ‘strategic instrumentalization’ of the separation between the law of war and the law of peace, ie of Nathaniel Berman’s notion that the distinction itself is employed ‘for partisan advantage-seeking to achieve practical or discursive gains through shifting back and forth between war and non-war’.36 It is not difficult to see what sort of advantages were sought by Calderón: the legal and political approval of enhanced law enforcement measures which fall short of war tactics, and the overall strengthening of executive powers. The correlation between the war frame and the increase in executive powers is a lesson learned from the George W. Bush administration and several other national executives engaged in the war on terror. As cognitive linguists, international lawyers and political scientists have argued, the ‘war on terror’ metaphor activates ideas that support presidential war powers, such as that of a strong commander in chief capable of defending the nation against its enemies, while at the same time it deactivates the law enforcement frame, ie the idea of fighting terrorism through police action and criminal law mechanisms.37 In other words, the war metaphor is used to activate the idea that a situation of exception is taking place which justifies the recourse to exceptional measures against the enemy, be it terrorists or narcos. Under this rhetoric, narcos became the enemies to be defeated rather than the criminal offenders to be prosecuted. Apart from this ‘de-judicialization’, narcos were ‘de-individualized’,38 and exhibited—dead or alive—in a perverse alliance with visual media. Mexico’s penal law has experienced a shift towards what some German criminal lawyers describe as ‘enemy criminal law’ (Feindstrafrecht),39 indicating that suspected criminals are treated like enemies in war. Among the main characteristics of this trend is the increased use of special national and international task forces, a general move to prevention and surveillance, and measures that curtail the liberty of those presumed dangerous. This is done for the sake of public/national/transnational security, and pushes criminal law to its limits.40 In Mexico, the use of special, national as well as binational task forces with the USA clearly augmented in the framework of the Mérida Initiative.41 Moreover, the arraigo is a case in point for the curtailment of liberties of those presumed dangerous. This pretrial custody designed for organised crime can be prolonged up to 80 days, and was given constitutional status with the 2008 criminal law reform.42 Despite harsh criticisms,43 the figure remains in place. 3. The War Case: Mexico’s Violence and the Law of NIAC In 2011, a communication was filed at the Office of the Prosecutor of the International Criminal Court (ICC), requesting the investigation of alleged war crimes and crimes against humanity by President Calderón, some top officials of his administration, and major narco bosses, like Joaquín ‘El Chapo’ Guzmán, the legendary head of the Sinaloa cartel.44 Conflict research institutes have catalogued the situation as a non-state armed conflict,45 and an academic debate on the existence or non-existence of a NIAC has taken place.46 The legal reasoning of those affirming the existence of a NIAC in Mexico consists of a few simple legal syllogisms, almost exclusively premised on information provided by US media, think tanks like Stratfor, and reports of global NGOs and to the US Congress.47 First, the argument goes, the ‘Mexican drug war’ involves state-armed forces fighting non-state armed groups, as well as non-state armed forces fighting each other inside the territory of a high-contracting party to the Geneva Conventions, so that the basic requirements for the application of common Article 3 are fulfilled.48 As is well known, this norm does not say much, and the Tadić-criterion adopted by the International Tribunal for the Former Yugoslavia (ICTY) has become the locus classicus for the specification of its meaning and scope. Accordingly, a NIAC has to be distinguished from internal tensions, disturbances, riots and other acts of banditry. Hence, a NIAC exists whenever: (i) armed violence between government authorities and non-state-armed groups, or among such groups is protracted; (ii) hostilities have reached a certain level of intensity, which may be the case when they are of a collective character or when the government is obliged to use the military; and (iii) the non-state-armed groups are considered ‘parties to the conflict’, meaning that they must possess an organisational structure and the capacity to sustain military operations.49 The point is then made that violence in Mexico resulting from the state’s actions against the narcos and among them has been going on now for several years, so that there is a protracted armed violence situation. The military had to be called in to fight a well-armed enemy, and the violence is getting out of control, so the requirement of intensity is satisfied. Finally, it is claimed that the level of organisation of the drug cartels is beyond doubt, considering their structure as organised groups with armed capabilities.50 At first sight, this matches what everyone hears in the media. However, the subsequent jurisprudence of the ICTY shows that the intensity requirement is not just about extreme violence. Time and spatial elements, such as the continuity and prolongation of armed confrontations, and their simultaneity over different parts of the territory have to be considered too,51 and here the evidence is not that evident anymore. Regarding the organisational requirements, it is true that basic command structures and military capabilities like training, the use of tactics and recruitment are difficult to deny in the case of Los Zetas, which originated from co-opted elite forces of the Mexican army, as well as the CJNG and the Knights Templar which copied many things from the Zetas. Sinaloa and other traditional narco organisations work together with armed groups that denote some of these characteristics. However, when it comes to the more sophisticated elements of the organisational requirement things are not that clear. The definition of duties and the existence of an ordered chain of military hierarchy may be attributed to some of these organisations. But, to what extent can the Templar’s Code, for example, be interpreted as an element of organisational structure and hierarchy? This code is a mixture of a religious sect guidebook inspired by John Eldrege’s bestseller Wild at Heart, and of a criminal code of honour with some elements of left-wing insurgency ideologies.52 Everything indicates that the ‘rules’ are never followed by the ‘Knights’, and that they only serve as a disguise for the purely lucrative intentions that drive this cartel. The organisational requirement is further complicated by the fragmentation of many of these groups, and their reliance on minor gangs and street criminals to commit many of their crimes.53 One can hardly speak of negotiation capacities and external representation functions54 in the case of criminal groups that seek to stay underground in the pursuit of the illegal accumulation of capital. Mexico has officially denied the existence of an armed conflict in its territory.55 More important, however, is how the Mexican state addresses the use of force against organised crime. In the Boškoski case, the ICTY establishes: … it may be instructive to analyse the use of force by governmental authorities, in particular, how certain human rights are interpreted, such as the right to life and the right to be free from arbitrary detention, in order to appreciate if the situation is one of armed conflict. As is known, in situations falling short of armed conflict, the State has the right to use force to uphold law and order, including lethal force, but, where applicable, human rights law restricts such usage to what is no more than absolutely necessary and which is strictly proportionate to certain objectives.56 According to the security protocols adopted by Calderón’s government,57 Mexican armed forces are obliged to use force only as a last resort and in conformity with internationally recognised human rights standards, such as those enshrined in the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.58 This has been acknowledged by the International Law Association (ILA).59 Moreover, the ILA comments that given that the criminal gangs are not challenging ‘civil authorities for the right to govern’, Mexico has not become the scene of a NIAC.60 This is crucial. While the qualification of an organized armed group has to follow objective criteria, and the ICTY had good reasons in the Limaj case for not engaging in a subjective analysis of the armed groups’ motivations, such as ethnic cleansing,61 this dictum cannot be taken as if produced in a vacuum. The very purpose of IHL seems to be misunderstood by applying it to criminal organisations that use ‘cruel and arbitrary practices’ exclusively to defend their illegal transnational business as usual.62 It is important to underline that narco organisations are purely economically driven and that their clandestine operations are actually tied to institutional structures they are just not interested in overriding; their work is illegal and violent but as pragmatic as that of other major business corporations. In the end, the qualification of the situation in Mexico as a NIAC is legally contested. Conclusive arguments are difficult to reach in face of the indeterminacies of IHL and the challenges it faces with the emergence of conflicts that do not easily fit into the categories for which it was created. But what matters most is that this qualification does not serve anyone.63 The legal protections triggered by common Article 3 are not worth invoking vis-à-vis the shield granted by international and national human rights law.64 Even if the Mexican government should eventually decide to declare the state of emergency – something which is often feared as possibly augmenting human rights abuses – Mexico’s law of emergency is strictly regulated in Article 29 of the Constitution.65 This norm specifies a list of non-derogable rights, which is broader than that contained in the ‘mini-convention’. The list includes the non-derogability of judicial guarantees for the protection of the other rights constitutionally excluded from suspension.66 In addition, Mexico’s Supreme Court has declared the binding force of the jurisprudence of the Inter-American Court of Human Rights (IACHR), including in those cases where Mexico has not been a party to the dispute, whenever this proves to be more favourable to the protection of rights.67 The IACHR has developed rather strict restrictions on the suspension of human rights in times of emergency, especially regarding judicial protection.68 The problems related to the ‘overclassification’ of armed conflicts are well known.69 The simultaneous application of IHL and human rights law would contribute to the lowering of human rights standards, and this would augment an atmosphere of impunity, which in turn tends to exacerbate violence.70 Arguments in favour of applying common Article 3 in Mexico tend to be based on two fallacious assumptions. On the one hand, this qualification is said to be able to reduce the horrific violence caused by narcos and the numerous human rights abuses by governmental forces. This situation is undeniable.71 However, faith in common Article 3 and the more robust international pressure mechanisms this norm is said to trigger,72 is naïve. First, some of the mechanisms that are mentioned in this context, eg US pressure and ICC involvement, are not dependent on the said qualification. Secondly, arguing that a ‘carrots and sticks’ approach by the USA would contribute to the solution of the problems which were only exacerbated by the very same war approach the USA has promoted in Mexico via the Mérida Initiative, is problematic, to say the least. Mexico’s rule of law challenges cannot be solved through economic and political pressure from Washington, and the possible effects of legal pressure from The Hague are clearly overestimated in this context. Finally, concerning an eventual role of the International Committee of the Red Cross (ICRC)73 in trying to ensure that parties to the conflict comply with what would be the applicable IHL, presupposes that the most violent narco cartels would be interested in applying it. This is very difficult to imagine concerning highly lucrative organisations which employ extreme violence as one of their main business tactics. The other argument in favour of the qualification mentions that this would enable the Mexican military ‘to engage in the method of warfare that will maximize its odds of disabling the drug cartels’.74 This is fallacious and self-defeating. The frontal combat has proven to be a failed anti-crime strategy that has caused tremendous human, social and material costs without delivering effective results – actually, the situation has worsened as a consequence of it. It also denotes a complete lack of understanding of the complex narco phenomenon which cannot be defeated like an enemy in war. Most important, this argument shows that the NIAC case is strategically advanced for creating, sustaining and incrementing nonsensical violence. 4. Conclusion Qualifying Mexico’s extreme violence as a NIAC is contested as a matter of lex lata. Moreover, the law of NIAC is ill-suited for describing complex situations between war and peace in which the driving force of violence is a highly lucrative illegal business and the accumulation of capital through transnational clandestine networks. This reveals a major problem that IHL faces today: the qualification of postmodern conflicts. The most significant challenge for law in these new settings of violence in the global south is not adapting existing principles or rules of IHL to the new circumstances, but the avoidance of the strategic instrumentalisation of this corpus iuris.75 IHL should not serve to obscure the complexities of these settings by forcing them into its structural categories. It is interesting to note that the Constitutional Court of Colombia has emphasised the complexities of Colombia’ long-lasting conflict, adopting a notion of violence that does not fit neatly into IHL as we know it.76 A way of addressing this problem of qualification is by looking closer at what the actual settings of armed violence reveal about the law and its relationship with violence. This implies a conception of law in the everyday life of those affected, beyond the traditional assumption of neutral sets of rules, principles and doctrine. From this angle, the relevant questions are not whether this or that rule applies to these violent contexts, but whether these rules translate into violence, as well as whether they serve to perpetuate violence.77 Indeed, this relates to the uncomfortable acknowledgement that realities escape constantly our mental categories. Legal science is based on a strong belief in stable categories. Anything else may be felt as an affront to IHL’s (and international law’s) objective rationality expressed in a set of positive rules that apply (or not) to factual situations of conflict. Conceptualising IHL as an instance of conflict creation is tantamount to abandoning this positivist paradigm. I am aware that there is much at risk in opening IHL’s structuring categories to context. However, ignoring this and minimising the perils of dedifferentiation entail a more serious threat for a body of law that seeks to contain violence: this threat consists in becoming co-constitutive of violence, ie in turning into law and violence (in the global south). Footnotes 1 M Duffield, ‘Post-modern Conflict: Warlords, Post-adjustment States and Private Protection’ (1998) 1 Civil Wars 65, 67. 2 See P Hauck and S Peterke, ‘Organized Crime and Gang Violence in National and International Law’ (2010) 92 Int’l Rev Red Cross 407; S Peterke and J Wolf, ‘International Humanitarian Law and Transnational Organized Crime’ in P Hauck and S Peterke (eds), International Law and Transnational Organized Crime (OUP 2016) 381; P Gallahue, ‘Mexico’s War on Drugs – Real or Rhetorical Armed Conflict?’ (2011) 24 Humanitäres Völkerrecht 39. 3 See N Berman, ‘Privileging Combat? Contemporary Conflict and the Legal Construction of War’ (2004) 43 Colum J Transnat’l L 1. 4 ibid 5. 5 See G Lakoff and M Thompson, Metaphors We Live By (Chicago University Press 2003); on the ‘war on drugs’ metaphor see A Rodiles, ‘Las narrativas globales sobre el combate al narco en México y el derecho internacional’ (2013) Este País 32. 6 Ley de Seguridad Interior, Diario Oficial de la Federación (21 December 2017) 2. 7 See C Herrera, ‘El gobierno se declara en guerra contra el hampa; inicia acciones en Michoacán’ La Jornada (Mexico City, 12 December 2006). 8 Presidencia de la República, Plan Nacional de Desarrollo 2007-2012, 59. 9 See D Luhnow, ‘Felipe Calderón defiende la guerra contra el narcotráfico’ (19 May 2010) <https://www.seguridadjusticiaypaz.org.mx/narcotrafico/180-felipe-calderon-defiende-la-guerra-contra-el-narcotrafico> accessed 23 February 2018. 10 See ‘Mexico’s drug lords: Kingpin bowling’ The Economist (20 October 2012) <https://www.economist.com/news/americas/21564897-most-wanted-men-mexico-are-tumbling-will-crime-follow-suit> accessed 23 February 2018. 11 See A Méndez, ‘En el país, entre 60 y 80 cárteles: PGR’ La Jornada (Mexico City, 19 December 2012). 12 For a particularly dark picture of Mexico’s ‘'guerre de grande envergure’, see ‘Mexique, la spirale de la barbarie’ Le Monde (Paris, 23 August 2012). 13 There is a debate about the data’s accuracy, especially since Calderón’s government decided to stop publishing the murder rate in order to not prejudice criminal proceedings. The last official calculus of his government reported 47 515 deaths as of 30 September 2011; see H Prado, ‘Sepultan – también – cifra de ejecutados’ Reforma (Mexico City, 15 August 2012). 14 See NM Birkeland, E Jennings and EJ Rushing (eds), Global Overview 2011, People Internally Displaced by Conflict and Violence (iDMC/NRC, 2012) 59–60. 15 W Booth, ‘Mexico’s Crime Wave has Left about 25,000 Missing, Government Documents Show’ Washington Post (Washington DC, 29 November 2012). 16 JA Cedillo, ‘Migrantes, Los más Vulnerables’ Proceso (Mexico City, 20 May 2012). 17 See Comisión Nacional de los Derechos Humanos (CNDH), Press Release CGCP/315/12 (21 November 2012); Human Rights Watch, Neither Rights nor Security. Killings, Torture, and Disappearances in Mexico’s ‘War on Drugs’ (2011) <http://www.hrw.org/sites/default/files/reports/mexico1111webwcover_0.pdf> accessed 23 February 2018; Human Rights Council, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc A/HRC/19/58/Rev1 (2012) paras 344–75. 18 See S Aguayo, ‘Persona Non Grata’ Reforma (Mexico City, 26 December 2012). 19 See eg R Aguilar and JG Castañeda, El Narco: La Guerra Fallida (Punto de Lectura, 2009); L Astorga, ‘Estado, Drogas Ilegales y Poder Criminal: Retos Transexenales’ [2012] Letras Libres 26; E Guerrero, ‘La Estrategia Fallida’ (Nexos, 1 December 2012). 20 Calderón’s National Action Party (PAN) not only lost the presidency to the Institutional Revolutionary Party (PRI), but suffered heavy losses in Congress too. According to a survey released in November 2012, 55% of the population considered Calderón’s strategy a failure, see ‘Exhiben el Fracaso de Plan Anticrimen’ Reforma (Mexico City, 22 November 2012). 21 A military campaign launched in the mid-1970s against the narco in the north of Mexico with the participation of the US Drug Enforcement Administration (DEA); see R Craig, ‘Operation Condor, Mexico’s Anti-Drug Campaign Enters a New Era’ (1980) 22 J Interam Stud Wld Aff 345. 22 See E Dufton, ‘The War on Drugs: How President Nixon Tied Addiction to Crime’ [2012] The Atlantic. 23 See M Flores, La Alternativa Mexicana al Marco Internacional de Prohibición de Drogas durante el Cardenismo (doctoral dissertation, submitted at El Colegio de México, Mexico City, 2013). On file with the author. 24 Reglamento Federal de Toxicomanías, Diario Oficial de la Federación (17 February 1940) 5. 25 ibid (the Reglamento is accompanied by an explanatory note). 26 Flores (n 23) 153–54. 27 Decreto que suspende la vigencia del Reglamento Federal de Toxicomanías, Diario Oficial de la Federación (3 July 1940) 12. 28 Although a recent ruling by Mexico’s Supreme Court allowing for recreational use of marihuana under special circumstances may open this path again; see SCJN, Amparo en revisión 237/2014 (4 November 2015) (the ‘SMART case’). 29 A Santos, ‘International Law and Its Discontents: Critical Reflections on the War on Drugs or the Role of Law in Creating Complexity’ (2012) 106 ASIL Proceedings 172, 174; see also Fleur Johns, Non-Legality in International Law – Unruly Law (CUP 2012) 25–26. 30 See <http://www.state.gov/j/inl/merida/> accessed 23 February 2018; on this bilateral arrangement, see A Rodiles, ‘The Tensions between Local Resilience-Building and Transnational Action - US-Mexican cooperation in crime affected communities in Northern Mexico, and what this tells about global urban governance’ in HP Aust and A du Plessis (eds), The Globalization of Urban Governance – Legal Perspectives on Sustainable Development Goal 11 (Routledge forthcoming). 31 See A Urrutia and G Castillo, ‘Niega el jefe del Ejecutivo haber utilizado el concepto “guerra”’ La Jornada (Mexico City, 13 January 2011). 32 See C Bravo, ‘Una ayudadita de memoria para Felipe Calderón’ (Nexos, 28 January 2011). 33 Presidencia de la República (n 8). 34 Programa Sectorial de Defensa Nacional 2007-2012, Diario Oficial de la Federación (24 Janaury 2008) 14. 35 See ‘Muertes de civiles en el combate al crimen, “daños colaterales”: Galván’, La Jornada (Mexico City, 13 April 2010). 36 Berman (n 3) 7. 37 See G Lakoff, Don’t Think of an Elephant! Know Your Values and Frame the Debate (Chelsea Green Publishing 2004) 69–78; see also M Delmas-Marty, ‘The Paradigm of the War on Crime: Legitimating Inhumane Treatment?’ (2005) 5 J Int’l Crim Just 584 (2005), D Kennedy, ‘Lawfare and Warfare’ in J Crawford and M Koskenniemi, The Cambridge Companion to International Law (CUP 2012) 158, 165; S Peterke, Rio de Janeiros ‘Drogenkrieg’ im Lichte der Konfliktforschung und des Völkerrechts. Eine Fallstudie zur Behandlung organisierter bewaffneter Gewalt (Berliner Wissenschaftsverlag 2009) 101ff; G Kolliarakis, ‘Networks and the Study of Criminal and Terrorists Organizations’ in Wolfgang Benedek and others (eds), Transnational Terrorism, Organized Crime and Peace-Building: Human Security in the Western Balkans (Palgrave Macmillan 2010) 81. 38 On ‘de-judicializing’ and ‘de-individualizing’ as a consequence of the ‘logic of war’, see Delmas-Marty ibid. In a case unrelated to the narco (Florence Cassez case), Mexico’s Supreme Court criticised the show-casting politics of Calderón’s law enforcement apparatus; see SCJN, Amparo Directo en Revisión 517/2011 (23 January 2013). 39 See G Jakobs, ‘Kriminalisierung im Vorfeld einer Rechtsgutsverletzung’ (1985) 97 Zeitschrift für die gesamte Strafrechtswissenschaft (ZStW) 751; U Sieber, ‘Grenzen des Strafrechts’ (2007) 119 ZStW 1. 40 See U Sieber, ‘Blurring the Categories of Criminal Law and the Law of War – Efforts and Effects in the Pursuit of Internal and External Security’ in M Maroto and D Scheunemann (eds), Criminal Law between War and Peace: Justice and Cooperation in Criminal Matters in International Military Interventions (Universidad de Castilla-La Mancha 2009) 35, 40ff. 41 See C Ribando and KM Finklea, US-Mexican Security Cooperation: the Mérida Initiative and Beyond (CRS Report for Congress, 16 February 2011) 32ff. 42 See Constitución Política de los Estados Unidos Mexicanos (art 16), <http://www.diputados.gob.mx/LeyesBiblio/pdf/1.pdf> and Ley Federal contra la Delincuencia Organizada (art 12) <http://www.diputados.gob.mx/LeyesBiblio/pdf/101.pdf> both accessed 23 February 2018. 43 See Human Rights Watch, Abolish ‘Arraigo’ Detention from Constitution (25 April 2013) <http://www.hrw.org/news/2013/04/25/mexico-abolish-arraigo-detention-constitution> accessed 23 February 2018. 44 See N Sandoval, ‘México en Guerra’ Proceso (Mexico City, 2 February 2012). 45 See Heidelberg Institute for International Conflict Research (HIIK), Conflict Baramoter 2013: disputes, non-violent crises, violent crises, limited wars, wars (HIIK 2014) 85; see also S Casey-Maslen, The War Report 2012 (OUP 2013) 126ff. 46 Arguing in favour, see C Bergal, ‘The Mexican Drug War: The Case for a Non-International Armed Conflict Classification’ (2011) 34 Fordham Int’l LJ 1042; CA Bloom, ‘Square Pegs and Round Holes: Mexico, Drugs, and International Law’ (2012) 34 Hous J Int’l L 345; contra Gallahue (n 2) and A Nill Sánchez, ‘Mexico’s Drug “War”: Drawing a Line Between Rhetoric and Reality’ (2013) 38 Yale J Int’l L 467. 47 Bergal, ibid and Bloom, ibid. 48 Mexico is not a party to the Second Additional Protocol, so that the higher threshold for the determination of a NIAC established in that instrument, and which would be relevant for its application, needs not to be evaluated here. 49 See The Prosecutor v Dusko Tadić, Judgment, No IT-94-1-T (7 May 1997). See also L Moir, The Law of Internal Armed Conflict (CUP 2002) 30ff. 50 Although Bloom acknowledges that making all the factors fit each specific conflict is like attempting to insert ‘a set of square pegs … into round holes’, and opts instead for the US Supreme Court’s methodology in Hamdan v Rumsfeld, basically equating narco organisations with Al Qaeda; see Bloom n 46 377ff. 51 See The Prosecutor v Limaj, Judgment, No IT-03-66-T (30 November 2005) paras 138ff; for a different precedent, see the much criticised Tablada case of the Inter-American Commission of Human Rights (IACHR), where the intensity requirement was significantly lowered down, see IACHR Report No 55/97, Case No 11.137, Argentina, OEA/Ser/L/V/I1.97, Doc 38 (30 October 1997). 52 On the bizarre ideology of La Familia/the Knights Templar, see W Finnegan, ‘Silver or Lead: The drug cartel La Familia gives local officials a choice: Take a bribe or a bullet’ The New Yorker (31 May 2010). 53 Nill Sánchez (n 46) 485. 54 See The Prosecutor v Limaj, Judgment, No IT-03-66-T (30 November 2005) paras 94–134. 55 See UN Doc, CRC/C/OPAC/MEX/1 (5 February 2010) para 5. 56 The Prosecutor v Boškoski, No IT-04-82-T, Judgment (10 July 2008) para 178. 57 Directiva que regula el uso legítimo de la fuerza por parte del Ejército y Fuerza Aérea Mexicanos; Acuerdo Secretarial, Diario Oficial de la Federación (23 April 2012). 58 See the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders (Havana, 27 August–7 September 1990); see also P Alston, Study on Targeted Killings by the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, UN Doc A/HRC/14/24/Add.6 (28 May 2010) paras 31–33. 59 International Law Association, Final Report on the Meaning of Armed Conflict in International Law (2010) 28. 60 ibid. 61 The Prosecutor v Limaj, Judgment, No IT-03-66-T (30 November 2005) para 170. 62 See Hauck and Peterke (n 2) 433; see also Aguilar and Castañeda (n 19) and E Desmond Arias, ‘The Dynamics of Criminal Governance: Networks and Social Order in Rio de Janeiro’ (2006) 38 J Lat Am Stud 293, 301. 63 See Nill (n 46) 489ff; Rodiles (n 5); as well as Peterke (n 37) 99–124 (on Brazil). 64 In June 2011, a major human rights reform entered into force that gives constitutional status to all human rights contained in treaties in force in Mexico; see M Carbonell and P Salazar, La Reforma Constitucional de Derechos Humanos: Un Nuevo Paradigma (UNAM 2011). 65 See Constitución Política de los Estados Unidos Mexicanos (n 42). This is also why the new Law on Interior Security has been challenged before the Supreme Court. It confers upon the President wide discretion to make ‘declarations on the protection of interior security’, which give federal forces, including the army, broad powers for identifying and preventing risks, thus coming close to a quasi-state of emergency that circumvents or even contradicts art 29 of the Constitution; see Ley de Seguridad Interior, n 6. 66 This is important insofar as one of the few derogable elements of common art 3 is precisely the judicial guarantees enshrined in art 3(1)(d); see also Moir (n 49) 44. 67 Suprema Corte de Justicia de la Nación, Contradicción de Tesis 293/2011 (2013). 68 See IACHR, Habeas Corpus in Emergency Situations (arts 27(2) and 7(6) of the American Convention on Human Rights), Advisory Opinion OC-8/87 (1987) Series A No 8; Judicial Guarantees in States of Emergency (arts 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87, (1987) Series A No 9. 69 See M Sassòli, ‘The Implementation of International Humanitarian Law: Current and Inherent Challenges’ (2007) 10 YIHL 45, 50–52. 70 Hauck and Peterke (n 2) 431. 71 See Open Society Justice Initiative, Atrocidades Innegables: Confrontando Crímenes de Lesa Humanidad en México (Open Society Foundation 2016). 72 Bloom (n 46) 397ff. 73 ibid 402–04. 74 Bergal (n 46) 1088. 75 Berman (n 3). 76 See Constitutional Court of Colombia (CCC), C-781/12 (10 October 2012); T-834/14 (11 November 2014). See further, A Rodiles, ‘International Humanitarian Lawmaking in Latin America: Between the International Community, Humanity, and Extreme Violence’ in H Krieger (ed), Legitimacy and Law-Making in International Humanitarian Law (forthcoming). 77 This reminds of Walter Benjamin’s Critique of Violence where he argues that the inherent violence of law lies in its drive to self-preservation, see W Benjamin, ‘Zur Kritik der Gewalt’ in W Benjamin, Angelus Novus (ausgewählte Schriften Band 2) (Suhrkam 1988) 42, 61. This also reveals the risks of law being effective for its own sake only, which in the present case study would mean that law creates and preserves a violent situation due to an intrinsic and violent imperative ‘of keeping up its own order, of establishing and enforcing its own categories, perspective, and language—for the sake of its power’ (as explained by C Menke, ‘Law and Violence’ (2010) 22 Law and Literature 1, 11). © Oxford University Press 2018; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of Conflict and Security LawOxford University Press

Published: Mar 16, 2018

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