Containing the spillover effect: the use of rule of law to combat drug-related violence in Mexico.

Author:Durand, Rissel
  1. INTRODUCTION II. DRUG VIOLENCE IN MEXICO AND THE SPILLOVER EFFECT A. Mexico's drug violence B. DTO-related violence threatens U.S. national security III. A WEAK RULE OF LAW IN MEXICO A. The connection between a weak rule of law and increased violence B. The Mexican criminal justice system IV. REBUILDING RULE OF LAW THROUGH MEXICO'S CONSTITUTIONAL REFORMS AND MERIDA INITIATIVE A. Mexico's judicial reforms attempt to rebuild rule of law B. The United States" efforts to rebuild rule of law in Mexico through Merida V. CONSTITUTIONAL REFORMS AND MERIDA HAVE NOT RESTORED RULE OF LAW IN MEXICO A. Difficulties implementing judicial reforms in Mexico B. The Merida Initiative and the one-size-fits-all dilemma C. Other factors indicating an evasive rule of law VI. REVISITING RULE OF LAW: LESSONS LEARNED FROM TRANSITIONAL JUSTICE MODELS A. The Middle Eastern model: The use of international partners, green zones, and judge advocates B. The Guatemalan model: The case for hybrid tribunals VII. CONCLUSION I. INTRODUCTION

    "If you see dust in the air, don't worry because we are cleaning the house." (1)

    The United States leads the world in demand for illicit drugs, with Mexican drug trafficking organizations (DTOs) as its leading supplier. (2) When Mexico's ex-President, Felipe Calderon, took office in December 2006, he deployed fifty thousand troops to wage war on DTOs in Mexico's most violent cities. (3) In November 2012, just one month before Calderon was due to leave office, the death toll related to criminal violence in Mexico had reached a staggering 57,449, (4) seven times more casualties than endured by all members of the coalition forces in Iraq and Afghanistan since 2001. (5)

    Mexico's war against DTOs has been criticized as unsuccessful, (6) and is expected to mar Calderon's presidential legacy. (7) Nevertheless, Mexico's newly elected President, Enrique Pena Nieto, has vowed to advance a security strategy against organized crime. (8) As a result of continued enforcement efforts, cartel violence is expected to plague Mexico and will inevitably impact the U.S. southwestern border and other regions where DTOs are active. (9)

    Primarily, this Comment focuses on the use of rule of law as a means of eliminating DTO related violence. Strengthening rule of law and reforming the Mexican criminal justice system is just one facet of a larger effort to eliminate the threat of DTO violence on both sides of the border, however, other efforts are beyond the scope of this Comment. (10)

    Part II of this Comment provides a brief background of Mexico's drug-related violence and its effect on U.S. national security interests. It will also consider a new approach to defining spillover violence that is relevant to the threat that DTOs present.

    Part III introduces the rule of law concept and analyzes how the implementation of rule of law (or lack thereof) can influence the level of violence in society. These theories are applied to Mexico's criminal law system to examine some of the judicial deficiencies that have weakened rule of law in Mexico and permitted unprecedented violence to flourish.

    Part IV examines specific Mexican and U.S. efforts to use rule of law measures to reduce violence in Mexico and ultimately protect U.S. national security. These measures include the 2008 Mexican constitutional reforms that overhauled the criminal justice system and the enactment of the Merida Initiative, a $1.9 billion appropriation designated to aid Mexico's drug war and support Mexico's recent constitutional reforms. (11) However, an analysis of the societal impact indicates that these approaches are failing.

    Part V presents alternate rule of law strategies that combine recent advances made in Iraq, Afghanistan, and Guatemala and are relevant to Mexico's current conditions. This section suggests that implementing these novel initiatives in Mexico may prevent drug-related violence and ultimately contain the spillover effect.

    Mexico's inability to defeat DTOs, incessant criminal violence, and weakened judicial processes, directly threatens U.S. national security interests. (12) Recent efforts to transfuse a U.S.-style criminal justice system in Mexico have not been well received and have not shown signs of curtailing DTO-related violence. (13) This Comment argues that the recovery of Mexico's criminal justice system and the protection of U.S. national security will require the contribution of international stakeholders and the revitalization of rule of law through initiatives that have been proven in comparable countries facing similar crises.


    The ongoing conflict between rival drug cartels and the ensuing Mexican military intervention continue to fuel the Mexican drug war. Drug-related violence has spread throughout Mexico and also presents a non-traditional threat to U.S. national security. It is non-traditional in that the motivation behind the violence is not to attack U.S. assets or citizens for political or social motives. (14) Instead, the goal is simply to get drugs across the border. Nevertheless, the means that Mexican drug cartels use to execute this objective threatens U.S. interests and the safety of its citizens.

    1. Mexico's drug violence

      The drug-related violence in Mexico originated from seven Mexican DTOs (Sinaloa Cartel, Los Zetas, Gulf Cartel, Juarez Cartel, Beltran-Leyva Organization, La Familia Michoacana, and Tijuana Cartel) battling each other for control over routes and territories to smuggle drugs into the United States. (15) The DTOs also fight within their own ranks when their leadership is eliminated due to death or incarceration. (16) In addition, the cartel violence has continued to spread as these larger cartels splinter into smaller groups, comprising as many as sixty to eighty factions. (17) Mexico's current attorney general, Jesus Murillo Karam, has publicly blamed the Calderon administration's former drug war policies, which targeted cartel leaders, as the cause of this splintering effect. (18)

      In response to the growing cartel presence, Mexico's ex-President Calderon waged war against the DTOs throughout Mexico, especially in border cities. (19) He began the crusade by deploying fifty thousand soldiers in the ten most violent Mexican states, mainly across the shared border with the United States. (20) The areas alongside California, Arizona, New Mexico, and Texas were targeted because they are the principal entry points for illicit drugs into the United States and are among the most dangerous cities in Mexico. (21) As a means of protecting their yearly drug trafficking revenues, conservatively estimated between $6.2 and $6.6 billion, (22) the cartels unleashed unprecedented violence that included beheadings, torture, bombings, and the use of war weapons and tactics. (23) DTOs have also attacked Mexican law enforcement officials, incited defections in police departments, and implemented lawlessness in entire Mexican border towns, (24) which are used as staging areas for the mass exodus of drugs from Mexico into the United States. (25) This ensuing battle between the Mexican government and DTOs has resulted in tens of thousands of casualties in Mexico, (26) and possibly as many as twenty-five thousand disappearances. (27)

    2. DTO-related violence threatens U.S. national security

      Although drug-related crimes in Mexico are not dissipating,2s some question whether spillover violence is a potential threat to U.S. national security. (29) In an effort to analyze the risk that drug-related violence presents to U.S. national security, it is crucial to first define what constitutes spillover violence. The U.S. Drug Enforcement Agency (DEA) reports that the interagency community has limited spillover violence to:

      deliberate, planned attacks by the cartels on U.S. assets, including civilian, military, or law enforcement officials, innocent U.S. citizens, or physical institutions such as government buildings, consulates, or businesses. This definition does not include trafficker on trafficker violence, whether perpetrated in Mexico or the U.S. (30) The DEA's statement to Congress goes as far as requiring that violence be comparable to terrorism before it can be classified as spillover. (31) However, Mexican DTO violence committed on U.S. soil or against American citizens is not considered terrorism because it is not politically or socially motivated. (32)

      This narrow definition of spillover violence is not inclusive of the totality of violence attributable to cartel activity. (33) The limitations of the interagency definition are evident when one considers second-hand violence that does not directly target U.S. assets for the sake of those assets' nationality or even to directly harm them, but nevertheless, results in jeopardizing their security. (34) In Phoenix, Arizona, where many cases of kidnapping involve torture, (35) there were two hundred fifty-four reported kidnappings in 2008 and approximately seven hundred kidnappings combined in 2009 and 2010. (36) However, it is believed that these statistics do not represent an accurate number of kidnappings, most of which are unreported because the victims are also involved in criminal activity or are undocumented immigrants afraid of deportation. (37) Although these types of crimes do not conform to the interagency definition of spillover violence, they pose a threat to the lives of U.S. citizens caught in the crossfire or targeted by drug traffickers due to their familial relationships with other traffickers. (38) Excluding trafficker-on-trafficker and second-hand violence from the spillover equation can lead to an inaccurate assessment of threatened security within U.S. borders.

      When considering the broader spillover "effect" (instead of the narrower term, spillover "violence"), there are non-violent factors that threaten U.S. security, but do not fit within the interagency definition of spillover violence. (39)...

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