Mexico' Drug War - Callin Kerr

The Modern Day War

The traditional law of war paradigm is antiquated. Consequently, the modern interpretation of what
constitutes a war may lead to the classification of the Mexican drug war as a legal war.

Because the drug war is solely within one state, with only one state entity involved, the conflict is not an
international armed conflict. Common Article 3 of the Geneva Convention of 1949, which applies in non-
international conflicts, may apply to the Mexican drug war.

To determine whether a drug war is a non-international armed conflict, it must be determined whether
the nature of the conflict rises to the level of a non-international armed conflict. Must classify cartels as
armed groups within the definition of Common Article 3.

ICRC Factors to determine whether a hostile situation is a non-international armed conflict:

1) Does the group have an organized military force?

2) Are members of the group subject to some authority?

3) Does the group control some territory?

4) Does the group demonstrate respect for the law of war?

5) Does the government respond to the group with regular armed forces?

What law applies? Mexico follows two models of enforcement against drug cartels - the law-
enforcement model and the law-of-war model. Whereas in the former, the focus is on apprehending
suspects and charging them with violations of state law, in the latter, the focus is the "customary and
treaty law applicable to the conduct of warfare on land and to relationships between belligerents and
neutral states."

What force can Mexico use against the drug cartels?

Under this model, the government may kill a cartel member as a first resort, unlike in a law-enforcement
model where the police would only be able to use lethal force against cartel members as a last resort.

The Less Distinctive Principle of Distinction

Applying the laws of war to the Mexican drug war, the Mexican government could openly kill a cartel
member without any attempt to subdue him, arrest him or question him. This will increase the level of
violence in Mexico but will also expose the civilian population to a gruesome war.

Another concern is identifying the enemy in contrast to an innocent civillian which is difficult in a non-
international armed conflict. The principle is that a distinction must always be made in the conduct of
military operations between military objectives and civilian objects. This principle applies as a matter of
customary international law to a non-international armed conflict. While the enemy may have been
easily identifiable in traditional warfare, the same is not true today.

How is the Term Armed Conflict Defined under International Humanitarian Law? International
Committee of the Red Cross (ICRC Opinion Paper, March 2008)

IHL distinguishes between two types of armed conflicts. A non-international armed conflict exists
between governmental forces and non-governmental armed groups or between such groups only.

Within the meaning of Common Article 3, a NIAC refers to armed conflicts not of an international
character occuring in the territory of one of the High Contracting Parties. To distinguish an armed
conflict from other serious forms of violence, the situation must reach a threshold of confrontation. The
two criteria for the same are as follows: the hostilities must reach a minimum level of intensity and that
the non-governmental groups involved in the conflict must be considered as parties to the conflict,
meaning that they possess organized armed forces or that they have to be under a certain command
structure and have the capacity to sustain military operations.

A non-international armed conflict is a protracted armed confrontations between governmental armed

forces and the forces of one or more armed groups or between such groups arising on the territory of a
State. The armed confrontation must reach a minimum level of intensity and the parties involved in the
conflict must show a minimum of organisation.

The Optional Protocol to the Convention on the Right of the Child on the Involvement of Children in
Armed Conflict - Towards Universal Ratification

In the face of the changing tactics of modenr warfare, children are increasingly becoming subjects of
targeted attacks and military recruitment.

First international instrument which provided for the initial standards for prohibition of child
recruitment are found in the Geneva Conventions of 1949 and their Additional Protocols which apply to
both international and internal armed conflicts.
Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed
Conflict (OPAC) was adopted on May 25, 2000 by the United Nations and it entered into force on
February 12, 2002. This legal instrument for the protection of children's rights established 18 as the
minimum age for compulsory recruitment and participation in hostilities. 132 countries have signed and
ratified the Optional Protocol and 24 more have signed but not yet ratified,