Alibi jun. 2019 - ICRC report

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ICRC REPORT LOS ZETAS AND THE MEXICAN GOVERNMENT: A NONINTERNATIONAL ARMED CONFLICT?

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Juni 2019 | ALIBI Magazine

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“THE MEXICAN DRUG WAR IS A CONFLICT BETWEEN THE MEXICAN GOVERNMENT AND SEVERAL DRUG CARTELS COMPETING FOR POWER AND INFLUENCE OVER DRUG TRAFFICKING ROUTES”

DANIEL DE BRUIJN Daniel schreef dit stuk voor de minor internationaal recht The Mexican Drug War is a conflict between the Mexican government and several drug cartels competing for power and influence over drug trafficking routes. The conflict has its origins in Colombia where the once mighty Medellín Cartel (in the 70’s and 80’s) and Cali Cartel (in the 80’s and 90’s) successively controlled almost all of the American and European market for drugs.1 After the Colombian cartels lost (most of) their power a vacuum emerged. In search of money and influence, the already present Mexican cartels seized the opportunity and took control of the very profitable drug trafficking routes to the United States and Europe. The Institutional Revolutionary Party (PRI), which ruled Mexico as a one party state from 1929 until 2000, focussed on destroying small drug plantations and making deals with cartel leaders to avoid confrontations and limit drug related violence. However, due to the total absence of large-scale and high-profile (military) operations, the cartels were able to expand their power and corruption.2 After the newly elected president of Mexico, Felipe Calderón, sent 6500 soldiers to Michoacán in 2006 to end drug related crime the violence quickly escalated.3 If there is a non-international armed conflict, it started on this date. Over 200,000 people have died and 30,000 people went missing since the conflict begun.4 With an estimated death toll of 23,000 in 2016 and 25,000 in 2017 Mexico is the second deadliest conflict area in the world, leaving first place to Syria.5 In this report, I will determine whether the violent conflict between the Mexican government and the cartels has risen to the level of a non-international armed conflict, which is relevant for the applicability of international humanitarian law, in the context of the Mexican War on Drugs.

Los Zetas The specific gang I will investigate is Los Zetas as they are one of the most notorious and dangerous Mexican cartels. The group was originally founded in 1999 as the paramilitary wing of the Gulf Cartel until the cartels split up in 2010.6 The founding members of Los Zetas were all former Mexican Special Forces and therefore very welltrained in military tactics, ruthless and violent.7 This combination makes Los Zetas extremely difficult to combat.

Although many of the initial founders have been killed or arrested, most of their current members have received paramilitary training as well and/

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or were recruited from special forces and the military in Mexico, Guatemala and the United States.8 In terms of geographical presence, Los Zetas was the largest organized crime group in Mexico, until their influence diminished in the past few years.9 Also unique about the cartel, is that their revenue is — apart from drug trafficking significantly gained from (extortion with) murder, torture, rape and kidnapping, next to theft and prostitution. Los Zetas are primarily based along the eastern part of the Mexican-American border and have ties to European criminal organizations such as the ‘Ndrangheta in Italy.10

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In contrast to other drug trafficking syndicates the Los Zetas cartel specifically targets civilians, next to fighting the Mexican government and rivaling gangs. Civilians are often randomly targeted by Los Zetas to extort them (plata o plomo), to set an example if someone cooperates with the government, refuses to pay or in many cases just to spread fear with explicite and indiscriminate violence. Some of the most gruesome examples of Los Zetas’ violent tactics against innocent civilians are the 2010 San Fernando massacre (72 deaths), the 2011 San Fernando massacre (193 deaths), the 2011 Monterrey casino attack (52 deaths) and the 2011 massacre at the village of Allende, Coahuila (300+ deaths).11 The shock effect of such atrocities is amplified due to the sophisticated use of propaganda by Los Zetas and other cartels. Executions are often captured on camera and posted on social media in well-edited propaganda videos.12 The goal of the videos is to send a message and intimidate rivals. Although their violent tactics and propaganda were two of the reasons why the Los Zetas were able to become so powerful, so quickly, it also made them one of the top priorities of the Mexican government and the American authorities. After new military bases were set up in their primary areas of operation in 2012 and multiple leaders of the cartel were captured or killed in the following years, their power diminished.13 Currently the cartel is not acting as one structured organization anymore; however several independent Los Zetas-cells are still active.14

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Therefore, if there was a noninternational armed conflict between the Mexican government and Los Zetas, acting as the paramilitary wing of the Gulf Cartel and later independently, this would have been the case between 2006 and 2012.

Qualification of conflict The Geneva Convention relative to the Protection of Civilian Persons in Time of War, in short the Fourth Geneva Convention, was adopted in august 1949. At the time it was a unique treaty as the first three Geneva Conventions dealt with (the rights of) combatants.

The Fourth Geneva convention is about humanitarian protection for civilians in an armed conflict. According to article 2 of the convention an international armed conflict is any military confrontation between the military forces of two of more states, or the invasion of one state by another, including occupation and regardless of length. In the groundbreaking Prosecutor v. Dusko Tadic case in 1997, the International Criminal Tribunal for the former Yugoslavia (ICTY) gave a more simple definition and stated that an “an armed conflict exists whenever there is a resort to armed force between States”.15 Regarding the Mexican War on Drugs, use of armed force exists, but between the Mexican government and criminal gangs and not between Mexico and any other state. Therefore an international armed conflict is not the case and I will further examine the possibility of a non-international armed conflict in Mexico.

“LOS ZETAS IS INFAMOUS FOR THEIR VIOLENT TACTICS - OFTEN EXERCISED WITH MILITARY PRECISIONAND COMMITTED ATROCITIES AGAINST CIVILIANS”

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Regarding non-international armed conflicts (NIAC) there are two legal sources to determine what a NIAC constitutes under international humanitarian law: article 3 of the fourth Geneva Convention and article 1 of the second additional protocol.

Article 3 of the Convention states the rights and duties for contracting parties and applies to “armed conflicts not of an international character occurring in the territory of one of the High Contracting Parties.” These include armed conflicts in which one or more non-governmental armed groups are involved.16 This provision was later supplemented by the second additional protocol which was meant to extend the humanitarian rules from international to internal conflicts. A narrower definition of a non-international armed conflict was adopted in article 1 of the aforementioned protocol. The provision applies to armed conflicts “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations.” The

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latter definition is narrower because of the requirement of territorial control and since it only applies to armed conflicts between state forces and other armed groups; conflicts between nonstate groups only are not included.

However, the additional Protocol II “develops and supplements” article 3 of the Convention ”without modifying its existing conditions of application”. This means that this restrictive definition is relevant for the application of Protocol II only, but does not extend to the law of NIAC in general. Furthermore Mexico is not a party to Additional Protocol II so this definition will not (directly) apply to them. Therefore I will not apply the definition of article 1 Additional Protocol II to the violence between the Mexican government and the cartels, more specifically between the government and Los Zetas between 2006 and 2012.

The definition of a non-international armed conflict in the sense of article 3 of the Convention was further specified by the ICTY in Prosecutor v. Dusko Tadic in 1997 as “whenever there is [...] protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”.17 Three criteria can be derived from

this judgement: (I) protracted armed violence, (II) between the government and organized armed groups or between organized armed groups (III) within a state. In this definition, involvement of the government in the violence is not necessary to qualify as a noninternational armed conflict.

Less serious forms of violence, such as riots and banditry, have to be distinguished from an (noninternational) armed conflict in the meaning of article 3 of the Convention.

It has been generally accepted that the lower threshold found in Article 1(2) of the second additional protocol, which excludes internal disturbances and tensions from the definition of NIAC, also applies to article 3 of the Convention.

In general two criteria are used to distinguish an armed conflict from internal tensions: the level of intensity of hostilities and non-governmental groups must be considered a party to the conflict, meaning that they, for instance, possess organized armed forces, have the capability to carry out military operations and possess a command structure.18

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Applicability The Mexican war on drugs and more specifically the involvement of Los Zetas meet the threshold of article 1(2) of the second additional protocol, which also applies to article 3 of the Convention, to distinguish the conflict from less serious forms of conflict. The intensity of the hostilities is quite high as a growing number of soldiers (6.500 in 2006 and currently up to 45.000) have been deployed to fight the cartels with heavy weaponry, such as machine guns, armored vehicles and helicopters.19 The cartels retaliate with barbaric and indiscriminate violence.20 Over 200.000 people have died since the conflict begun and criminals and governmental forces are not the only ones involved in the violence as civilians, politicians and journalists are also targeted or forced to take part in the conflict. Los Zetas can be considered a party to the conflict, as they consist of extremely well-trained armed forces, often with a background in the military and possess a command structure with different divisions and clear hierarchy as their leaders are also known as the number that represents their position in the cartel (Los Zetas’ founder is ‘Z1’, his substitute ‘Z2’, and so on).21 Furthermore Los Zetas has the capability to carry out military operations, of which capability they

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often make use. Examples are attacks on prisons to free imprisoned cartel members or organized attacks on rival territory.

As mentioned above, the ICTY gives three criteria for a non-international armed conflict in the sense of article 3 of the fourth Geneva Convention in the famous Tadic-case: protracted armed violence, between the government and organized armed groups or between organized armed groups, within a state.

The conflict begun in 2006, almost 12 years ago, and the number of deadly casualties (in total and annually) has been increasing ever since. The past two years Mexico has been the second deadliest conflict area in the world.

The criterium of protracted armed violence is therefore easily met. Even if we only consider the period between 2006 (the Mexican army is deployed) and 2012 (Los Zetas’ power peaks and starts to diminish) the yearly number of drug related murders grew from a few dozen to over 20.000 and Los Zeta’s most violent attacks took place in this period. The violence takes place between the Mexican government and cartels and between the cartels themselves.

Examples are the attacks by Los Zetas on federal prisons to free inmates, government operations to capture

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“THE VIOLENCE BETWEEN LOS ZETAS, THE MEXICAN GOVERNMENT AND OTHER CARTELS BETWEEN 2006 AND 2012 MEETS THESE REQUIREMENTS AND THEREFORE FORMS A NONINTERNATIONAL ARMED CONFLICT (NIAC) IN THE SENSE OF ARTICLE 3 OF THE GENEVA CONVENTION” cartel leaders or firefights between cartels for control over a specific area or drug trafficking route. Therefore the second criterium is met as well. The aforementioned protracted violence between the Mexican government and cartels takes place in Mexico.

Although the Mexican government is financially supported by the United States and the cartels often have ties to criminal networks (and are active) in other countries the conflict itself is still fought by Mexican cartels and Mexican state forces. Therefore the third criterium is also met. The violence between the Mexican government and the cartels, more specifically between the government and Los Zetas between 2006 and 2012, meets all requirements formulated by the ICTY in Prosecutor v. Dusko Tadic and therefore is a noninternational armed conflict (NIAC) in the sense of article 3 of the Genevan Convention.

Concluding observations The Mexican Drug War is a conflict between the Mexican government and several drug cartels competing for power and influence over drug trafficking routes. The conflict started after the president of Mexico, Felipe Calderón, sent 6500 soldiers in 2006 to

end drug related crime. Over 200.000 people have died and 30.000 people went missing since the conflict begun.

Los Zetas is one of the toughest and most difficult to combat Mexican cartels as their members are recruited from the Mexican military and SouthAmerican special forces. Los Zetas is infamous for their violent tactics - often exercised with military precision - and committed atrocities against civilians.

At the beginning of this decade they were one the most profitable cartels and in terms of geographical presence even the most powerful cartel. After the government intervened in 2012 and the cartel split up in several factions their power diminished. The ICTY shed some light on the definition of NIAC in the sense of article 3 of the Convention in Prosecutor v. Dusko Tadic. Three criteria can be derived: protracted armed violence, between the government and organized armed groups or between organized armed groups, within a state.

The violence between Los Zetas, the Mexican government and other cartels between 2006 and 2012 meets these requirements and therefore forms a non-international armed conflict (NIAC) in the sense of article 3 of the Geneva Convention. •

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S.L. Miller, ‘Medellín to keep the peace’, Christian Science Monitor 2010. UNODC 2009, ‘Report on Cocaine World Drug Trade’.

J.S. Beittel, ‘Mexico: Organized Crime and Drug Trafficking Organizations’ Congressional Research Service 2015.

US Council on Foreign Relations 2015, ‘report on Mexico’s Drug War’.

CNN 16 July 2018, ‘Mexico Drug War Fast Facts 2018’. C. Bergal, The Mexican Drug War: the case for a non-international armed conflict classification (Notes Fordham University), 2011.

D. Agren, ‘Mexico’s montly murder rate reaches 20-year high’, The Guardian 21 June 2017.

S.L. Persio, ‘Drug War Turned Mexico Into World’s Deadliest Conflict Zone After Only Syria: Survey’, Newsweek 10 May 2017.

S. Logan, ‘A Profile of Los Zetas: Mexico’s Second Most Powerful Drug Cartel’, CTC Sentinel 2012, volume 5 issue 2.

S. Kazi, ’The cartels behind Mexicos Drug War’, CBS News 14 May 2012. S. Logan, ‘A Profile of Los Zetas: Mexico’s Second Most Powerful Drug Cartel’, CTC Sentinel 2012, volume 5 issue 2.

S. Kazi, ’The cartels behind Mexicos Drug War’, CBS News 14 May 2012. S. Logan, ‘A Profile of Los Zetas: Mexico’s Second Most Powerful Drug Cartel’, CTC Sentinel 2012, volume 5 issue 2.

Stratfor ‘Mexico Security Memo: Guns, Money and Los Zetas Incursions in Sinaloa Territory’, Worldview assessments 25 January 2012.

A. Hope, ‘Why kidnapping, extorting boomed in Mexico’, Insight Crime 19 November 2015.

G. Earle & A. West, ‘The 6 most infamous crimes committed by Mexico’s Zetas cartel’, PRI 16 July 2013. S. Logan, ‘A Profile of Los Zetas: Mexico’s Second Most Powerful Drug Cartel’, CTC Sentinel 2012, volume 5 issue 2.

G. Fleming, ‘Drug Wars: Narco Warfare in the 21st Century’, Booksurge publishing 2008.

‘Nueva ofensiva contra Los Zetas; instalarán cuarteles en frontera norte’, Excélsior 10 October 2012. ‘Confirma Rubido muerte de ‘El Z-9’, Milenio 20 November 2018. S. Logan, ‘A Profile of Los Zetas: Mexico’s Second Most Powerful Drug Cartel’, CTC Sentinel 2012, volume 5 issue 2. P. Corcoran, ‘The Rise and Fall of Los Zetas’, Insight Crime 13 October 2017.

S. Logan, ‘A Profile of Los Zetas: Mexico’s Second Most Powerful Drug Cartel’, CTC Sentinel 2012, volume 5 issue 2. P. Corcoran, ‘The Rise and Fall of Los Zetas’, Insight Crime 13 October 2017.

ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT94-1-A, 2 October 1995, para. 70. ‘ICRC Opinion Paper: How is the Term “Armed Conflict” Defined in International Humanitarian Law?’, March 2008.

‘ICRC Opinion Paper: How is the Term “Armed Conflict” Defined in International Humanitarian Law?’, March 2008.

ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT94-1-A, 2 October 1995, para. 70.

S. Kazi, ’The cartels behind Mexicos Drug War’, CBS News 14 May 2012. S. Logan, ‘A Profile of Los Zetas: Mexico’s Second Most Powerful Drug Cartel’, CTC Sentinel 2012, volume 5 issue 2.

S. Kazi, ’The cartels behind Mexicos Drug War’, CBS News 14 May 2012. S. Logan, ‘A Profile of Los Zetas: Mexico’s Second Most Powerful Drug Cartel’, CTC Sentinel 2012, volume 5 issue 2.

C. Bergal, The Mexican Drug War: the case for a non- international armed conflict classification (Notes Fordham University), 2011. R. Beckhusen, ‘The Tools of Mexico’s Drug Cartels, From Landmines to Monster Trucks’, Wired 30 November 2012.

S. Kazi, ’The cartels behind Mexicos Drug War’, CBS News 14 May 2012. S. Logan, ‘A Profile of Los Zetas: Mexico’s Second Most Powerful Drug Cartel’, CTC Sentinel 2012, volume 5 issue 2.

S. Logan: ‘Los Zetas: Evolution of a criminal organization’, ISN 6 March 2009.

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