Square pegs and round holes: Mexico, drugs, and international law.

• Author: Bloom, Craig A.

1. INTRODUCTION II. THE SITUATION IN MEXICO A. The Historical Underpinnings of Drug Trafficking B. More Than Organized Crime C. Who are the Drug Cartels? D. Mexican President Felipe Calderon's Response to the Violence III. THE INTERNTATIONAL LEGAL FRAMEWORK APPLICABLE TO THE SITUATION IN MEXICO A. The Situation in Mexico is an Armed Conflict B. The Situation in Mexico is a Non-International Armed Conflict C. Key Rules that Apply to Constrain the Parties IV. ENSURING COMPLIANCE WITH INTERNATIONAL HUMANITARIAN LAW A. Mexico's National Legal Obligations B. The Role of the ICRC C. The United States and the Merida Initiative D. The International Criminal Court V. CONCLUSION I. INTRODUCTION

   It is twenty minutes after midnight on Sunday, January 20, when Julian Chairez Hernandez is found dead by gunshot. He is a lieutenant in the municipal police and thirty-seven years old. Seven hours and ten minutes later, Mirna Yesenia Munoz Ledo Marin is found inside her own home. She is naked and has been stabbed several times. She is ten years old. On Monday, January 21, at 7:50 A.M., Francisco Ledesma Salazar is killed in his SUV. He is thirty-five years old and the coordinator of operations for the municipal police. The gunshots come from men in a minivan. At 9:30 A.M., the body of Erika Sonora Trejo is found by police in the bathroom of her home. She is thirty-eight and eight months pregnant, and officers think her father-in-law has had at her with an axe. Later, that Monday, at 5 P.M., a year-old skeleton turns up in the desert. That evening around 8:40 P.M., Fernando Lozano Sandoval is cut down in his SUV by a barrage of fifty-one rounds. He is fifty-one and the commander of the Chihuahua Bureau of Investigations. Two vehicles, a red SUV and a gray car, figure in the attack. Later, Lozano is transported to an El Paso Hospital since Juarez has had recent incidents of killers visiting the wounded in hospitals in order to finish their work. A list appears on a Juarez monument to fallen police officers. Under the heading THOSE WHO DID NOT BELIEVE are the names of five recently murdered cops. And under the heading FOR THOSE WHO CONTINUE NOT BELIEVING are seventeen names. (1) These morbid descriptions of life in Juarez, Mexico, just across the border from El Paso, Texas, provide a view into the ongoing struggle being waged between the Mexican government and a handful of Mexican drug trafficking organizations (2) (DTOs) throughout Mexico. These DTOs, in addition to fighting the Mexican Government, are also locked in a power struggle between each other for control over the supply and distribution routes of illegal drugs. (3) Caught in the crossfire are innocent civilians, soldiers, Mexican law enforcement, and even United States citizens (4) in and around Mexican border towns. (5) It is almost impossible to know for sure how many lives have been lost as a result of this violence, but estimates place the number of murders at over 5,000 in 2008, an almost 100% percent increase from 2007. (6) Juarez alone experienced over 870 drug-related murders between January and May of 2010. (7)

   Since taking power in 2006, Mexican President Felipe Calderon's response to the increasing violence has been to dispatch the Mexican Army to fight the DTOs and restore law and order to the country. (8) While the Mexican government has been able to slightly diminish the power of the cartels, drug-related violence continues to escalate. (9) As a result of Mexican counter-narcotics efforts, the drug cartels have become more resourceful both in their methods for moving the drugs and for surviving attacks from the Mexican Government. (10)

   This article argues that the violence in Mexico rises to the level of an "armed conflict" within the meaning of international law. Because the violence is concentrated between the Mexican Government and the drug trafficking organizations, and not between Mexico and another State, the armed conflict cannot be classified as an "international armed conflict;" it is, however, a non-international armed conflict within the meaning of Common Article 3 of the 1949 Geneva Conventions. Support for the proposition that a non-international armed conflict exists in Mexico can be found in the United States Supreme Court's decision in Hamdan v. Rumsfeld, which held that the United States is engaged in a non-international armed conflict with Al Qaeda.

   Since the conflict in Mexico constitutes a non-international armed conflict, international law, and in particular Common Article 3, imposes important obligations on and grants certain privileges to each party to the conflict. For example, under the law of armed conflict, a soldier is allowed to shoot and kill an enemy soldier at any time, so long as the enemy soldier is actively taking part in the hostilities. (11) Conversely, those obligations placed on parties to the conflict include the prohibition on committing violence, killing, mutilating, torturing, and treating cruelly any person not actively involved in the conflict. (12) While it is simple to posit certain rights and obligations, there remain practical problems in the implementation and enforcement of these obligations. Specifically, the greatest hurdles to compliance with international humanitarian law include getting the parties to acknowledge the existence of a non-international armed conflict, ensuring that the parties comply with the mandates of Common Article 3, and holding those who commit violations of the Geneva Conventions responsible for their actions. (13)

   Part II of this article recounts the background to the conflict, including the rise of the cartels, the unique forms of violence they employ, and several of the methods used to obtain and secure control over sections of Mexico. Part III addresses the requirements for the application of international humanitarian law under the Geneva Conventions, with a specific emphasis on conflicts "not of an international character." (14) Focusing on the problems inherent in defining and recognizing the existence of non-international armed conflicts, Part III proposes a new methodology for applying international humanitarian law to the violence in Mexico. Finally, Part IV addresses the privileges and obligations placed on both the Mexican Government and the drug cartels. It also proposes several options available to international actors to ensure compliance with international humanitarian law by Mexico and the DTOs.

2. THE SITUATION IN MEXICO

   Understanding how the DTOs function, the power they wield, and Mexico's military response provides the background for why this conflict constitutes a non-international armed conflict. Traditionally, domestic violations of law, such as isolated incidents of murder, rape, arson, and kidnapping have been under the exclusive purview of the domestic legal system. (15) The current violence in Mexico has become so omnipresent and the DTOs have been, to a significant extent, successful in infiltrating the ranks of law enforcement that the only effective response Mexico feels that it has is to utilize its armed forces against the DTOs. (16) In doing so, the Mexican Army, however, is operating outside the bounds of the law through internationally proscribed tactics such as the torture and indiscriminate killing of civilians. (17)

   1. The Historical Underpinnings of Drug Trafficking

      The DTOs have been operating for just under a century, first by smuggling rum into the United States during prohibition, (18) and now by smuggling drugs, people, (19) and weapons. (20)

      Each DTO has great economic incentive to survive, as the global illegal drug trade generates earnings of $500 billion annually. (21) While about four-tenths of one percent of Mexico's population (22) is addicted to drugs, the true consumers are located just north; the United States is responsible for consuming almost $64 billion worth of drugs per year. (23) In 2009 alone, 21.8 million Americans, or 8.7% of the population, had used illegal drugs. (24) With that kind of market for illicit substances, (25) it is not surprising that one of the largest drug operations in history is taking place just south of the border.

      The market for these drugs started during the American Civil War, where morphine became heavily prescribed to deal with a host of medical issues. As generations passed, the population became increasingly addicted to these drugs, and the U.S. Government sought to regulate the drug market. (26) In 1912, the United States Government and twelve other nations entered into the International Opium Convention, (27) agreeing to "limit the manufacture, trade and use of these products to medical use, cooperate in order to restrict use and to enforce restriction efficiently, ... penalize possession, ... and prohibit selling to unauthorized persons," (28) effectively creating a new black market for opium products.

      During World War II, Mexico became a provider of morphine to the legal market and heroin to the illegal one. (29) After the war, some American service members returned home with a drug addiction, and the demand for other drugs such as marijuana, methamphetamines, and cocaine began to take off as well. (30) Since then, the cartels have been capitalizing on demand in the United States and using those profits to challenge the power of the Mexican Government, the United States Drug Enforcement Agency, and other cartels. (31)

      It is estimated that each year, more than 200 tons of cocaine, 1,500 tons of marijuana, 15 tons of heroin, and 20 tons of methamphetamines are brought into the United States from Mexico alone. (32) The post-North American Free Trade Agreement (NAFTA) climate has been a disaster for governments attempting to combat the drug trade, as it has made the movement of goods (and drugs) from Mexico into the United States and Canada much easier. (33) As a direct result of NAFTA, there are more trucks heading north and not enough customs agents to search every truck...