Will the International Criminal Court Investigate Mexico’s ‘Drug War’?

SHARETweet about this on TwitterShare on FacebookShare on LinkedInShare on Google+

The violence of Mexico’s so-called “war on drugs” has caught the attention of the international community, with calls for the International Criminal Court (ICC) to turn its attention to the country. If they’re successful, high-level government officials — or even leaders of drug trafficking organizations — may be prosecuted in the Hague. But it’s a difficult road ahead.

The ICC’s Office of the Prosecutor (OTP) is the body that will decide if there’s evidence that the most serious atrocities under international law have taken place in Mexican territory. According to the Rome Statute, drug trafficking isn’t within the ICC’s jurisdiction, but the way that different actors may either fight or defend the drug trade is — if, for example, war crimes are committed, or crimes against humanity. 

Under international law, a war crime can only occur during an armed conflict. To define a situation as such, jurisprudence requires that both sides in the conflict are organized and are engaged in intense combat. In Mexico, this could encompass the armed capacity of the drug trafficking organizations, and the state’s use of military force to combat them. There have been episodes of intense violence involving the Zetas and the Gulf Cartel in northern Mexico, like the May 2014 killings in Tamaulipas.

Nevertheless, there has been no coordinated effort among the cartels to confront the security forces — every organization works on its own. They haven’t yet overcome their differences to unite against the state and become something like a belligerent force.

Nor are the criminal groups hierarchical. The Zetas’ so-called “military outlook” is marked by their frequent use of violence. They’ve used tactics that have caused widespread terror, but they haven’t declared war against the state. In that sense, their case is similar to that of Colombian criminal group the Urabeños. Although ICC prosecutors describe the latter group as having a vertical structure, this isn’t a general dynamic and the group essentially operates in a decentralized way, acting on its economic interests.

SEE ALSO: Zetas News and Profile

In Mexico, this dynamic has resulted in an asymmetrical conflict involving fluid drug trafficking organizations, which use violence as one tactic among many. At times these organizations prefer to co-opt individual members of the security forces. Others are able to gain protection from institutions, as seen with the Knights Templar’s infiltration of the government in Michoacan state. There are also cartels that support the security forces in combating other gangs, such as the Jalisco Cartel – New Generation (CJNG).

If there is a war in Mexico, its characteristics have no precedent. And it has been difficult for ICC prosecutors to accept this.

Are there “Crimes against Humanity” in Mexico?

In order to define an act as a “crime against humanity,” there doesn’t need to be an armed conflict, but there does need to be a widespread or systematic use of force against the civilian population. The perpetrators need to be state actors or an equivalent organization that acts as the highest authority in a given area, thanks to its control of the region, or the group’s structure and use of military means. Colombia’s FARC rebels and AUC paramilitary group are examples of this in Latin America. A “crime against humanity” must involve continuous attacks marked by a policy or an ideology before they can be considered “systematic.” These cannot be isolated acts, regardless of the cruelty involved or the number of victims.

Organizations like the Zetas have committed extremely serious crimes. In San Fernando, Tamaulipas, between 2010 and 2012, they massacred migrants with no clear objective. According to recent revelations, in 2010 dozens of residents disappeared in Allende, Coahuila, which has been attributed to the group. The strength of Mexico’s drug trafficking organizations within a given region — like the Knights Templar in Michoacan or the Sinaloa Cartel in Juarez — have fed doubts over the government’s ability to tackle violent crime. But it is unlikely that these organizations are following a wider policy of committing systematic attacks against the civilian population — which would enable a body like the ICC to link separate crimes like those in San Fernando and Allende, and define them as part of a common plan. 

Human rights violations by Mexican state actors — including apparently isolated acts such as the execution of 22 alleged drug traffickers in Tlatlaya, and structural ones like the cases of torture denounced by Amnesty International — would also need to form part of a wider policy in order to qualify as crimes against humanity. Cases that form part of a wider pattern within the armed forces have been documented, but the level and scale of these abuses is unknown.


If there is a war in Mexico, its characteristics have no precedent. And it has been difficult for ICC prosecutors to accept this.


Currently, the ICC is looking into crimes committed in Baja California between 2006 and 2013. In that peninsular state, evidence has been found of acts similar to the “false positives” committed in Colombia. These acts consist of the government’s torture, deprivation of liberty and forced disappearance of working and middle-class citizens in order to show results in the “drug war.” This is very different from bad practices or negligence by the security forces. 

SEE ALSO: Coverage of Human Rights

Another possible scenario that the OTP could investigate is whether — in supporting the Michoacan self-defense forces that emerged to combat the Knights Templar — the state tolerated widespread or systematic extrajudicial killings of individuals allegedly linked to cartels. Another question is how deeply authorities may be implicated in joint operations between security forces and drug traffickers — which journalist Juan Velediaz reported was the trigger for the disappearance of 43 students in Guerrero in late September.

According to the criteria described above, the OTP decided that crimes violating international law took place during Colombia’s internal armed conflict, but that the country was undertaking its own investigations in this regard. The ICC prosecutors also examined crimes committed during and after Honduras’ coup in June 2009, but did not find evidence of crimes against humanity. 

As a signatory to the Rome Statute, Mexico can bring a case that complies with the requisites described above to the ICC. This is also true for any other state party to the agreement, and the OTP may also open a case on its own initiative. Although this is quicker and generates greater publicity than complaints brought by individuals, the OTP has not yet gone down this road. This could be for strictly legal reasons, but politics shouldn’t be ruled out. An international prosecution of the “drug war” would come up against Mexico’s traditional reluctance to recognize human rights abuses. The capacity to militarize security, meanwhile, is a manifestation of sovereignty that no government wants to lose.

*Jesus Perez Caballero has a Ph.D. in International Security from the Instituto Universitario General Gutierrez Mellado (Madrid, Spain) and works as an independent investigator on organized crime, drug trafficking and criminal law in Latin America.

SHARETweet about this on TwitterShare on FacebookShare on LinkedInShare on Google+