Do the Laws of Armed Conflict Apply to Drug-Related Violence?

Date: 11 February 2013

Summary

Expert panelists at the second debate organized by the ICHRDP cases like Mexico’s drug-related violence pose challenges and new questions to the applicability of the International Law of Armed Conflict. This event was organised jointly by the International Centre on Human Rights and Drug Policy,   the University of Essex, the Human Rights Institute and Rightslink at Columbia Law School.

Is the ‘war on drugs’ in Mexico rhetorical? If considered a non-international armed conflict, who would be considered as armed parties in the conflict and what would be the responsibilities on them as well as on the State-actors? Despite there being drug-related violence in other countries, the panelists focused on the case of Mexico in order to isolate it from other types of armed conflict, for example conflicts motivated by ethnic and political strife.

After giving an overview of International Humanitarian Law, Prof. Marco Prof Marco Ssassoli, academic at the University of Geneva, argued that drug violence in Mexico fits the criteria of a protracted non-international armed conflict.  Considering the intensity of violence, such as the 14,000 reported deaths and the 1.6 million internally displaced civilians, Prof. Ssasoli said that denying the existence of an armed conflict based on the political objective is not pragmatic.

Citing cases of summary executions of civilians, Prof. Ssasoli argued that this ‘is a phenomena that happens when you deny an armed conflict and set up unrealistic human rights ideals: armed forces get impatient. When they see they arrest or release judges the armed forces get impatient.’ Thus, distinguishing combatants from drug dealers civilians is essential.

Noam Lubell, Reader at the University of Essex,argued differentiation would be counterproductive because the military would be targeting poor and teenage criminals protecting the turfs while drug kingpins would be protected by immunity. 

He added that International Human Rights Law and national criminal law are more appropriate frameworks for addressing drug-related violence because drug cartels lack a political objective and they don’t have the same level of organizational structure of an armed group. In view of the latter, the intensity of violence is rather fragmented and potentially leading to impractical strategies on the ground.

Whether the armed group has a political objective was one of the issues most salient issues in the debate according to moderator Gabor Rona, International Legal Director of Human Rights First. While international law does not set it as an absolute requirement to consider drug cartels under International Humanitarian Law, one should focus on objective criteria, such as the consequences and quality of the violence.

Other salient questions in the debate where the possibility of engaging in a peace process with drug cartels, corruption, the role of governments in accepting that an armed group is merely a criminal or a party of an armed conflict, as well as the use of high-tech weaponry to target combatants. 

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The Panel

Speakers: 

• Marco Sassòli is professor of international law and Director of the Department of international law and international organization at the University of Geneva. He is also associate professor at the Université du Québec à Montreal, and at the University de Laval Canada. Prof Sassoli chairs the board of Geneva Call, an NGO engaging armed groups to respect international humanitarian norms.He has worked in the past for the International Committee of the Red Cross at the headquarters and in the field, in Jordan, Syria and the former Yugoslavia. During a sabbatical leave in 2011, he joined the ICRC, as legal adviser to its delegation in Islamabad. He has published extensively on international humanitarian law, human rights law, international criminal law, the sources of international law and the responsibility of states and non-state actors.

• Noam Lubell is a Reader in the School of Law, University of Essex. He has taught on international human rights law and the laws of armed conflict in a number of academic institutions, including the National University of Ireland, Oxford University, and in Israel and the US. In addition to his academic work, during the last 15 years Dr. Lubell has worked for various human rights organisations working on conflict, including within the Israeli-Palestinian conflict, and has provided consultancies and training for international bodies, government bodies, and the BBC.  He was a member of the Executive Committee of Amnesty International (Ireland). Dr. Lubell is the author of books and articles in this field, and he is currently the Rapporteur of the International Law Association's Committee on the Use of Force.

Moderator:

• Gabor Rona is the International Legal Director of Human Rights. He advises Human Rights First programs on questions of international law and coordinates international human rights litigation. He also represents Human Rights First with governments, intergovernmental and non-governmental organizations, the media and the public on matters of international human rights and international humanitarian law (the law of armed conflict). Before coming to Human Rights First, Gabor was a Legal Advisor in the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva. At the ICRC he focused on the application of international humanitarian and human rights law in the context of counter-terrorism policies and practices. He represented the ICRC in intergovernmental, nongovernmental, academic and public forums and his articles on the topic have appeared in the Financial Times, the Fletcher Forum on World Affairs and the Chicago Journal of International Law, among other publications. In addition, he represented the ICRC in connection with the establishment of international and other criminal tribunals, including the International Criminal Court. He has also taught International Humanitarian Law and International Criminal Law in several academic settings, including the International Institute of Human Rights in Strasbourg, France and the University Centre for International Humanitarian Law in Geneva, Switzerland.

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Video

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Further Questions

• Do you think the  legalization of drugs could reduce drug-related violence?

• Could governments begin a peaceful settlement with drug cartels?

• Considering that a high number of violent drug offenders in Mexico are children and young people, which framework is more suitable to address their vulnerability? What about children and young people involved in drug-related violence? 

• Does IHL prohibit or allow certain forms of conduct? What are the arguments in favor or against targeting drug cartel combatants?

• Why would an IHL approach be better than Criminal Law/Human Rights Law? Is it dependent on context, strength of a nation's rule of law?

• What are the problems mentioned in the debate about over-stretching the concept of non-international armed conflicts?
• If a country decided to legalize drugs in order to reduce  violence, it would be contravening its obligations under the International Drug Control Treaties, but hypothetically fulfilling its obligations under other laws (IHRLor IHL)? How would the law of treaties apply here?
• How would the IHL analysis differ in other cases involving drug-violence? For example, in countries like Brazil, Colombia, Afghanistan, to name a few? Could you identify and list the number of countries where the are high levels of drug-related violence?

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Further Reading

Cornell, Svante E., ‘Narcotics and Armed Conflict: Interaction and Implications’ (2007) 30 Studies in Conflict & Terrorism, 207.  Available in the e-library.

Glusing, Jens, 'Violence in Rio de Janeiro: Child Soldiers in the Drug Wars' ( 2 March 2007) Der Spiegel <http://www.spiegel.de/international/spiegel/violence-in-rio-de-janeiro-child-soldiers-in-the-drug-wars-a-469510.html> accessed July 16, 2013.

Hoffman, Michael H., ‘Emerging combatants, war crimes and the future of international humanitarian law’ (2000) 34 Crime, Law and Social Change, 99.  Available in the e-library.

Human Rights Watch, ‘Uniform Impunity: Mexico's Misuse of Military Justice to Prosecute Abuses in Counter-narcotics and Public Security Operations,’ (29 April 2009).  Available in the e-library.

Lubell, Noam, ‘Challenges in Applying Human Rights Law to Armed Conflict’ (2005) 87 International Review of the Red Cross, 737.  Available in the e-library.

Peterke, Sven, ‘Regulating “Drug Wars” and other Gray Zone Conflicts: Discussion Paper 2' (October 2012) Humanitarian Action in Situations other than War, International Relations Institute of the Catholic University of Rio de Janeiro < hasow.org/uploads/trabalhos/80/doc/689482518.pdf  ‎> accessed 14 March 2013.  Available in the e-library.

Peterke, Sven, ‘Urban Insurgency, ‘Drug War’ and International Humanitarian Law: The Case of Rio de Janeiro’ (2010) 1 Journal of International Humanitarian Legal Studies, 165.  Available in the e-library.

Saab, Bilal Y., and Alexandra W. Taylor, ‘Criminality and Armed Groups: A Comparative Study of FARC and Paramilitary Groups in Colombia’ (2009) 32 Studies in Conflict & Terrorism, 455.  Available in the e-library.

Sainz-Borgo, Juan Carlos, ‘The International Criminal Court, Drug Trafficking and Crimes against Humanity: A local Interpretation of the Rome Statute’ (2012) 15 The Journal Jurisprudence, 373.  Available in the e-library.

Sassòli, Marco, ‘State responsibility for violations of international humanitarian law’ (2010) 84 Revue Internationale de la Croix-Rouge/International Review of the Red Cross, 401.  Available in the e-library

Sassòli, Marco, Antoine Bouvier, and Anne Quintin, ‘How Does Law Protect in War? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law’ (1999) 81 Revue Internationale de la Croix-Rouge/International Review of the Red Cross, 960.

Seagrave, Alan, ‘Conflict in Colombia: How Can Rebel Forces, Paramilitary Groups, Drug Traffickers, and Government Forces Be Held Liable for Human Rights Violations in a Country Where Impunity Reigns Supreme’ (2000) 25 Nova Law Review, 525.  Available in the e-library.

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