Square Pegs and Round Holes: Mexico, Drugs, and International Law
Open AccessThe drug-related violence in Mexico has become so ubiquitous that President Calderon is using the Mexican Army to fight the drug cartels. This paper argues that this situation rises to the level of a non-international armed conflict and discusses the international legal obligations and rights that arise from that designation under international humanitarian law. It then proposes several means of ensuring compliance with these rights and obligations.Under international humanitarian law, to qualify as a non-international armed conflict, there must be protracted armed violence involving at least one sufficiently organized non-state party. This requirement does give any guidance on how to answer the threshold question of how much or what kind of organization is sufficient. The paper proposes a brightline test for determining the existence of a non-international armed conflict based on the text of the Geneva Conventions. Every armed conflict, if between two or more states, is either an international armed conflict, or a non-international armed conflict. The existence of a non-international armed conflict places specific obligations on both parties, such as humane treatment of those not actively involved in hostilities.This paper addresses the non-international armed conflict taking place between Mexico and the drug cartels, and then proposes options that Mexico and the international community can undertake to curb the violence and ensure compliance with its international humanitarian law obligations. These options include referral of these violations to the International Criminal Court, the United States conditioning funding for Mexican anti-narcotics efforts on compliance with international humanitarian law, and ICRC engagement with Mexico and the cartels to promote compliance and protect civilians.
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