Mexican President Felipe Calderon and Sinaloa Cartel leader "Chapo" Guzman have been accused of crimes against humanity before the International Criminal Court (ICC), raising questions about the application of international humanitarian law to the "war on drugs."

The official complaint was filed in the ICC on November 25 by an enterprising team of legal scholars, activists, and journalists, and was supported by a petition bearing more than 20,000 signatures. According to human rights lawyer Netzai Sandoval, who is spearheading the case, the appeal to international law rather than Mexico’s courts was necessary because the Mexican judicial system lacks the “will and ability… to judge crimes against humanity.”

When the complaint was filed at the International Criminal Court, it garnered significant media attention in the US, and was been followed by analysts and pundits discussing the merits of the case. Last month Excelsior op-ed contributor Ricardo Aleman endorsed the charges against Calderon, predicting that “upon leaving office, he will become the most prosecuted of Mexican presidents."

The Inter-American Dialogue’s Michael Shifter also recently told McClatchy that the charges could pose a threat to Calderon’s legacy once he left the presidency. "People like Calderon are a lot more nervous than they used to be. There's a lot more scrutiny. You have the trend toward global justice, and you never know what's going to happen once you leave office," Shifter said.

Meanwhile, however, Calderon appears to be nonplussed by the proposed charges. His administration has played them down, with Labor Secretary Javier Lozano calling them “irrelevant.” Last week while speaking at a luncheon in Guadalajara, the president was interrupted by a youth who stood up and heckled the leader about his controversial security strategy, asking "Where will you live when your term is finished?" Calderon took the heckling in stride, quickly responding “here in Guadalajara, mi estimado.”

There is no question that Mexico’s judicial system is highly defective. Corruption in the country’s police force is common, which in turn reduces public faith in authorities and ensures that only a fraction of crimes are ever reported. When they are reported, there is no guarantee that they will be prosecuted effectively. According to a 2010 study by the Monterrey Institute of Technology and Higher Education (ITESM), only 15 percent of reported crimes are investigated, and only 1.75 percent of all criminal suspects are ever convicted. This impunity persists in spite of a judicial reform package passed in 2008, which has progressed slowly and has not been uniformly enacted across Mexico’s states.

Access to justice is especially limited when it comes to military abuses. Although a July 2011 ruling by Mexico’s Supreme Court called for allegations of human rights abuses against members of the army to be investigated in civilian courts, the ruling was non-binding and did not set a legal precedent. The vast majority of such cases are investigated internally in military courts, which critics claim lack impartiality.

This impunity is especially alarming given the high incidence of human rights abuses committed by police and the military. A recent Human Rights Watch analysis of Mexico’s five most violent states documented 170 cases of torture, 39 disappearances, and 24 extrajudicial killings committed by security forces since Calderon took office in December 2006. The ICC complaint itself goes even further. It is over 700 pages long, and specifically faults Calderon, the leaders of the country’s various security forces, and Sinaloa Cartel head Joaquin “El Chapo” Guzman for some 470 human rights violations committed over the past several years.

Still, at least for the moment the president’s cool attitude towards his accusers seems to be justified. While it may be true that human rights activists in Mexico are confronted with a high degree of impunity in their own country, it is unclear whether they classify as crimes against humanity and war crimes. The 1998 Rome Statute of the International Criminal Court, which Mexico has signed and ratified, mandates that in order for someone to be successfully tried on these charges, the crimes must be widespread and systematic, and there must be significant evidence linking them to the crimes.

Thus, even if the Court accepts that human rights abuses committed against Calderon constitute war crimes, Sandoval’s team must prove that the president tolerates or condones them. Considering that the Calderon administration has portrayed itself as doing the best it can to safeguard human rights while going after drug traffickers, and has even made attempts at reducing the military’s control over investigations into abuses, this will be a tall order.

The charges against Guzman are equally problematic, even putting aside the fact that law enforcement agents have been unable to locate the kingpin. While Guzman has doubtlessly ordered atrocious acts of violence to be committed against civilians firsthand, the application of international humanitarian law to such acts is controversial. For one thing, the charges operate under the assumption that Calderon’s “drug war” can be classified as an internal conflict between two armed groups. While Mexican security forces are certainly subject to the laws of war, Mexico’s drug cartels are not as well organized, do not follow a consistent command structure, and do not significantly distinguish themselves from the civilian population.

Even if the case is accepted in the Court it will take years to progress, and Calderon likely will not be troubled by it anytime soon. However, the case is about more than the prosecution of individuals. National Autonomous University of Mexico (UNAM) legal professor John Ackerman, who is a supporter of the case, told InSight Crime that its aim is more systemic than personal, and geared at changing the culture of impunity in the country. “What we’re going for is an institutional transformation, it’s not a personal thing against Felipe Calderon or Joaquin Guzman,” said Ackerman.

Investigations

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