Last week a group of human rights organizations submitted a letter to the ICC requesting investigation into crimes committed by state security forces in their battle against drug cartels. It is not the first time human rights organizations have requested intervention by the ICC in the brutal Mexican Drug War. Yet, like the last request in 2011, it is unlikely the ICC will take up the case. There are several reasons why the ICC is not interested in the violence in Mexico but the changing nature of conflict and organized crime suggests that it may be time for the court to reconsider its position.

How did Mexico get here?

While Colombia once dominated the drug trafficking industry in Latin America, the decline of major Colombian cartels in the 1990s and the rise in cross-border traffic for goods and services due to the implementation of NAFTA gave Mexican cartels a competitive edge in drug trafficking. Since then, Mexican cartels have dominated the drug trade in North America with devastating human consequences.

For a variety of reasons the exact number of people killed or missing since the drug war began is hard to calculate. Experts estimate that only about 25% of crimes are reported, meaning homicide statistics are largely culled from the number of bodies discovered and reported by government officials. Numerous people have questioned the statistics released by the government, suggesting that the government is underplaying the real numbers and intentionally obscuring which deaths are related to the drug trade and which are not. The other main method is by tracking news reports of homicides but even here not all deaths are reported and it is not always clear when organized crime is involved and when it isn’t. Nonetheless, during former President Felipe Calderón term from 2006 to 2012, an estimated 60,000 to 70,000 people were killed in relation to the drug trade. In addition to this, another 27,000 people were reported as missing but did not match the descriptions of any unclaimed bodies. After peaking in 2011, homicides decreased slightly in 2012 and 2013 but still represents a shockingly high homicide rate

Without question some of these deaths are due to fighting between and within the cartels as well as revenge murders of activists and journalists speaking out against the cartels, but the Mexican military and security forces are also responsible for bloodshed.

Does the Mexican Drug War meet the requirements for the ICC?

According to the International Committee of the Red Cross, non-international armed conflict under Common Article III of the Geneva Conventions is a protracted violent conflict that must reach a certain level of intensity – such as requiring a state to deploy the military rather than rely on police actions, which Mexico has done since 2006 – and must be between parties with an organized command structure. In prosecuting crimes committed during the Balkan wars, the ICTY confirmed that multiple armed groups confronting one another, without the presence of government forces, also falls under the definition of non-international armed conflict. Thus on its face it would appear that the violence between the government and the cartels would meet this definition and go beyond “common crime”.

Under the Rome Statute, a crime against humanity occurs when a party commits a widespread or systematic attack against a civilian population that includes certain acts such as murder, imprisonment without due process, torture, rape, enforced disappearances, or other inhumane acts. War Crimes are similarly defined although mainly applying to the treatment of the opposing party. The most recent complaint filed alleges a systematic pattern by military forces where roughly 100 civilian victims in Baja California subject to arrest without a warrant, torture, forced confessions, and planted drug evidence to prove their guilt. This too would appear to meet the threshold set forth by the ICC.

Mexico is a state party to the Rome Statute so the ICC would not need intervention by the UN Security Council to prosecute. But under the principle of complementarity, the court only gains jurisdiction if it is also shown that Mexico is unwilling or unable to prosecute the crimes itself. The recent petition appears to address this as well by noting that despite a 500% increase in complaints of torture by the Mexican military and state security forces, no one has yet to be charged, let alone tried, for these crimes. Likewise the complaint alleges thousands of enforced disappearances and more than 8,000 people arbitrarily detained without charges according to government statistics, but again the government has failed to investigate. In this context it would appear that any investigation by the ICC would meet the qualifications of complementarity.

So why is it unlikely the ICC will open up an investigation?

Despite the appearance that the Mexican Drug War meets all the qualifications for ICC jurisdiction, it is still unlikely the court will open a preliminary investigation, let alone open any cases related to this conflict. The death toll and human rights abuses during Calderón’s term prompted several human rights organizations to present a petition with 23,000 signatures to the ICC in 2011 requesting the court to investigate the Mexican government and leading cartel figures. The ICC has declined to open a preliminary investigation, with then-Chief Prosecutor Luis Moreno-Ocampo stating in a speech in Mexico City that he did not believe the violence met the definition of war crimes or crimes against humanity and suggesting the request was more an attempt to litigate the political choices of the Mexican government.

This may seem incredulous in light of the accusations but in many ways is not surprising.

Despite the evolution of conflict and the rise of non-state actors since the end of the Cold War, there is still an institutional culture that views conflict as being between certain kinds of armed groups but not all armed groups. Most of the time, these groups will have political goals set of seizing or maintaining the political power of the state. Drug cartels, with their predominately economic motivations, simply do not conform to this notion.

Given this backdrop, it is highly unlikely the ICC will consider the latest request by international and Mexican human rights organizations to consider the numerous documented acts of torture, forced disappearances and murder by state security forces in Baja from 2006 to 2012 as crimes against humanity. The points Moreno-Ocampo outlined in 2011 still hold true, namely that many consider the violence in Mexico – as severe as it is – as a common crime problem rather than an issue of armed conflict.

Why the ICC should do so anyway

Unfortunately this leaves a large gap in international criminal law. While extensive academic literature is dedicated to the possibility of the ICC investigating transnational organized crime, the court itself has made no indication that it plans to wade into this realm. This means that powerful crime organizations, often too much for state institutions to handle, have no institution that can effectively hold them accountable regardless of the level of violence they use. The lack of accountability feeds the rise and power of the cartels, which makes it even harder for states to combat. This creates a cycle that is playing out in Mexico and Central America today.

The consequences of that cycle include over 50,000 unaccompanied children from Central America who have fled the violence from organized crime and drug cartels in their own countries to apply for asylum in the US. Over the past few months, UNHCR pressured the US to treat these children as refugees fleeing armed conflict. This means that one UN agency based on an international legal convention is pushing for acknowledgement that rampant organized crime does constitute armed conflict while another agency charged with holding international criminals accountable is saying it isn’t.

In contrast to the indifference the ICC has demonstrated towards these issue, the court did open a preliminary investigation on the possibility that crimes against humanity were committed in the aftermath of the 2009 coup d’etat in Honduras. The Center for Constitutional Rights and the International Federation for Human Rights submitted a report to the ICC in 2012 that outlined their belief in why human rights abuses committed by the current government during and after the coup constituted crimes against humanity.

The report details 20 deaths related to the coup and a further 50 related to land rights activism that threatened holding of the government’s key supporters as well as other human rights abuses. Such crimes certainly should be prosecuted, but why this warrants attention by the ICC but tens of thousands of deaths in Mexico do not is a bit baffling.

The lack of consistency by the ICC in choosing which conflicts to investigate is concerning but also highlights how slow the international system is to adapting to changing circumstances. In this instance, Mexico provides a model example for a much needed paradigm shift for the ICC.

Discussion

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