Mexico has been one of the most violent fronts of the global prohibitionist drug policy that is mainly promoted by the United States of America. The national authorities have been using the armed forces to destroy drug crops since the end of the 1960s, first in three northern states (Durango, Chihuahua, and Sinaloa) and later in the rest of the country.[1] Over the years, the measures taken to confront drug-trafficking organisations have toughened, using the full punitive power of the state by means of criminalisation of activities related with harvest, production, and marketing, the establishment of a regime of exception in criminal matters and a criminal law of the enemy, and the use of soldiers and marines to combat those engaged in these illegal activities.[2]
The most extreme manifestation of the drug policy came in December 2006 when the then president, Felipe Calderón Hinojosa, deployed thousands of military personnel to confront and dismantle drug-trafficking organisations and thus to recover state control of the territories concerned. In order to preserve and expand their businesses, these criminal groups turned to arms.
Official data reveal that, between 1 January 2007 and 31 December 2020, members of the Secretaría de la Defensa Nacional (SEDENA – Secretariat of National Defence) engaged in 4,995 armed clashes with “civilian aggressors”.[3] Personnel from Secretaría de Marina (SEMAR – Mexican Navy) were involved in 389 confrontations[4] between 2008 and 2020, while members of the now disbanded Federal Police and its successor the National Guard (mainly consisting of military personnel) have reported 1,751 clashes and, from the time it became operational in July 2019 until 30 December 2020, the National Guard reported 156 incidents.[5]
Not since the Mexican Revolution (1910-1917/1920) had there been a situation of prolonged armed violence—informally known in the period in question as the “war on drugs”—of such dimensions.
Human rights protection mechanisms have independently demonstrated human rights violations against the civilian population in this framework of the war on drugs. They have revealed, for example, the intolerable figures of extrajudicial executions,[6] forced disappearances,[7] and torture,[8] committed by both public servants and criminal organisations. They also found that the situation in Mexico went beyond that of a country dealing with high crime rates and that these were non-sporadic acts of victimisation. Accordingly, they concluded that this was a crisis of violence, security, violations of human rights, and impunity.[9] The present United Nations High Commissioner for Human Rights, Michelle Bachelet, in 2019,[10] and her predecessor Zeid Ra’ad Al Hussein (2014-2018), in 2015,[11] both stated, although without acknowledging the existence of an armed conflict, that the figures of violent deaths were shocking and typical of a country at war. Both called on the authorities to tackle impunity to avoid repetition of the abuses.
The current situation of violence in Mexico can only be described in terms of international law as a non-international armed conflict
Official records report that 93,212 people are missing (in October 2021)[12] and more than 350,000 murders have been committed, at least 58% of them with firearms.[13] In this regard, SEDENA reports that 5,042 “alleged criminals” and 42 victims “unrelated to the events”[14] have died in the clashes. SEMAR reports the deaths of 510 alleged criminals.[15] Moreover, the National Guard states that, in conflicts in which it has participated, 68 people (identified as aggressors) have died.[16]
Atrocities are perpetrated by criminal organisations as a way of instilling fear and controlling regions to secure the running of their illegal businesses. They are also committed by authorities from the three levels of government (federal, state, and municipal) as part of their security strategy. Nevertheless, no national institution with the appropriate authority has been tasked with clarifying and investigating the alleged confrontations, or the deaths that have occurred in or related with them and, much less, have they established political, social, administrative, or prosecutorial responsibilities against the perpetrators of, or accomplices in atrocious crimes.
The authorities have claimed that they have the duty to conduct public safety functions and that armed violence is the result of criminal activities, thus denying the possibility of accurately describing the situation and exploring alternatives for ending it. Since then, and with ever increasing intensity, they have depended on the armed forces, as a result of which the conflicts continue.
The limited characterisation of violence by the incumbent presidential administration
President López Obrador won the 2018 elections with broad social support after his campaign promise that his security policy would differ from that of his predecessors. Now in office as president, he has referred to the fact that previous administrations generated violence by authorising the armed forces to confront criminal organisations and use lethal force to kill their leaders and members.
The federal government’s policy document recognises that this was a war that privileged the use of force, with chief aim of eliminating the leaders of criminal organisations,[17] while the present administration has decided to change to focus in order to tackle “[…] the very roots of criminal lawlessness and loss of security with the immediate aim of reducing crime rates”.[18] On more than one occasion, President López Obrador has personally acknowledged that the security strategy of earlier administrations was outright warfare,[19] an irresponsible approach[20] in which many lives were lost, both civilian and of members of the armed forces.[21]
Atrocities are perpetrated by criminal organisations as a way of instilling fear and controlling regions to secure the running of their illegal businesses
While the existence of armed conflict during previous administrations is acknowledged, present policy has not changed in practice. On the contrary, military measures to confront and crush criminal organisations are still being used.
The increasing militarisation of security and of the public administration
Paradoxically, the current federal government condemns past practices on the one hand while, on the other, deploys thousands of soldiers to combat criminal organisations as well as militarising the federal police force. At the end of 2018, President López Obrador pushed for, and a few months later achieved, approval of a constitutional amendment to abolish the federal police and to establish a civilian national guard. This change temporarily authorised the possibility of deploying the armed forces to carry out public security functions for five years (2019-2024), on condition that such engagement was exceptional, regulated, supervised, subordinate, and complementary.[22]
In undisguised non-compliance with these conditions, the president named an active military officer as head of the national guard and filled it with military personnel. At the same time, he increased military deployment in security tasks, to such an extent that the Ministry of National Defence recently reported that 300,000 military personnel are engaged in such work over a large part of the country.[23]
Moreover, in contravention of what the Constitution itself stipulates,[24] the president has extended the powers of the armed forces to carry out tasks in areas that should correspond to civilian authorities, for example immigration control, public works, health, education, and social policy. A recently published study reveals that, in recent years, the armed forces have taken on 246 tasks that are the responsibility of civilian authorities.[25]
Armed conflict in Mexico
The current situation of violence in Mexico can only be described in terms of international law as a non-international (or internal) armed conflict, which is to say that the levels of armed violence and organisation of the opposing groups satisfy the criteria laid down by international humanitarian law (IHL), the law of war. As shown above, the federal government has recognised that, during previous administrations (2006-2018), Mexico was in a situation of war, thus falsely trying to convince the population that the present reality is different. In fact, both the armed forces and the national guard continue to engage in armed clashes with criminal organisations.
Mexican armed forces as well as a considerable number of criminal organisations represent the degree of organisation that is necessary for them to be deemed armed groups in accordance with IHL
In this regard, expert studies in the field[26] have found that the Mexican armed forces as well as a considerable number of criminal organisations represent the degree of organisation that is necessary for them to be deemed armed groups in accordance with IHL, in terms of their command structure, internal discipline, control of territory, access to equipment and recruits, ability to sustain military operations, inter alia.
Not only this, but the clashes between the Mexican armed forces and the armed groups, or among the latter, is also of sufficient intensity to be categorised of sufficient intensity in accordance with IHL because of their widespread presence in the country, their durability, the type of high calibre weapons used, the death toll, the numbers of those wounded and of internally displaced persons,[27] destruction of civilian property, etcetera.
Given all the above, it can be stated that the Mexican armed conflict that began in December 2006 is ongoing. However, the official narrative ascertains that Mexico is going through a complex security situation, that the armed forces are working to enforce the law, and that they are no longer being ordered to kill and eliminate members of organised crime even while the killing of leaders of criminal organisations continues to be celebrated as the successful outcome of military operations.[28] Hence, responses to challenges issued by government actors with regard to reducing violence focus on the efficacy of security policies. These responses lead to reinforced military participation in these tasks, without addressing either the causes of the conflict or its effects on the human rights of people who do not directly take part in the hostilities, including the civilian population, the wounded, the sick, combatants who have laid down their arms, journalists, human rights defenders, health workers and others.
Acknowledgement that the situation of armed combat between criminal organisations and security forces since 2006 is in fact armed conflict could entail at least three advantages. First, such recognition would submit armed personnel to the rule of law as they would be obliged to apply the rules of use of force as stipulated in IHL. This would mean that soldiers and marines would apply the principle of distinction of civilians and civilian objects of military targets, which they do not do at present. Furthermore, the upper echelons would be obliged to prevent the troops under their command from targeting in their attacks the civilian population and others who are participating directly in hostilities, which also means complying with the obligation to treat humanely, at all times, the civilian population, detainees, health workers, journalists, human rights defenders, those who have laid down arms, the sick and the wounded.
Recognising the situation as armed conflict would allow more effective action by international humanitarian organisations and war crimes could be investigated
Second, recognising the situation as armed conflict would allow more effective action by international humanitarian organisations whereby they can provide adequate assistance to the victims of the conflict, including the hundreds of thousands of internally displaced persons who are, at present, totally defenceless. More specifically, the mandate of the International Committee of the Red Cross for situations of armed conflict, and those of the United Nations Office for the Coordination of Humanitarian Affairs and the United Nations High Commissioner for Refugees could be more effectively and smoothly applied.
Third, war crimes committed by parties to the conflict, and especially by agents of the state, in which the victims are civilians or persons protected by IHL, could be investigated, prosecuted, and punished by national jurisdictions of third countries and by international courts with the authority to do so, for example the International Criminal Court (ICC). It should not be forgotten that, as the Security Council has noted on several occasions, impunity for atrocious crimes is a threat to national peace and security.
The armed conflict presently occurring in Mexico is of a highly singular nature when compared with armed conflicts from the past, when the armed forces traditionally combatted left-wing armed groups with politically explicit aims, for example to bring about regime change or what was called national liberation.[29] Nowadays, the situation is that armed groups seek to control territory in order to continue or expand their businesses without aspiring, or not openly at least, to hold government office. This is relevant because, contrary to what some people may believe, IHL does not stipulate that, in order for a situation of armed violence to be classified as conflict, the organised groups clashing with the authorities must be politically motivated.
Final considerations
I am convinced that, if peace is to be achieved in Mexico, the existence of an armed conflict must first of all be recognised, not only because of the advantages described above, but also because this would entail changing the military security paradigm, demilitarising police institutions, and purging law enforcement agencies of officials responsible for committing atrocities. All this would be reinforced by bringing to trial, together with their accomplices, the perpetrators of human rights abuses, crimes against humanity, and serious breaches of IHL It would also help to prevent repetition of such crimes.
In recent years, there has been a proliferation of studies suggesting that international prohibitionism has failed, that its stated goals have not been achieved, and that they cannot be achieved if the present punitivist and security-based approach is maintained. It has been demonstrated that democracies that have regulated the harvest, production, commerce, and consumption of drugs, with an emphasis on preventing risks and damages to the health of consumers, have reduced violence related with the drug market, and have generated tax revenues so that problematic substance consumption can be dealt with from the health sector.
Mexicans have been unable to end armed violence but the international community must accept their responsibility. There is still time to construct a just peace process
In this regard, Mexico would have to reform its drug policy to incorporate a regime for regulating harvest, production, distribution, and commercce of all the substances that are produced, processed, and consumed in Mexico, and also for establishing a health protection system with a view to avoiding risks and damage for consumers, as well as providing proper attention for those affected by problematic drug use.
At the same time, a national disarmament programme should be established, especially for criminal individuals and groups. In order to weaken them, priority should be given to tackling the financial structures of illegal operations and bringing their members to trial for crimes against human rights (for example, murders, kidnappings, human trafficking, disappearances, and forced displacement of populations).
Demilitarisation of security is a legitimate demand of Mexican society, which has organised around a social movement called Seguridad Sin Guerra (Security without War),[30] calling for the return of military personal and marines to their constitutionally defined peacetime duties, consolidation of civilian police, purging from the security forces officials who have been involved in human rights abuses, and the establishment of a transitional justice policy that would bring to trial all those responsible for abuse, including those at the highest levels.
Mexicans have been unable to end armed violence that began almost fifteen years ago. Given the enormity of the atrocities committed in a situation of armed conflict of a non-international nature, and especially given the unwillingness of the authorities to protect the civilian population, the international community must accept their responsibility. There is still time to construct a just peace process before Mexico’s fledgling democracy deteriorates further.
[Article translated from the original in Spanish]
[1] See Amaya Ordorika Imaz, José Antonio Guevara Bermúdez, and Olga Guzmán Vergara. El costo social de la guerra contra las drogas en México: militarización y vulneración sistemática de los derechos humanos,Ed. Ubijus, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos and Universidad Autónoma de Tlaxcala, Mexico City, 2018, p. 38 and ff.
[2] In this regard, see Eugenio Raúl Zaffaroni, El enemigo en el derecho penal, Ed. Coyoacán, Mexico City, 2011.
[3] SEDENA, answer to a request for information with folio 0000700078821, 17 February 2021.
[4] SEMAR, answer to a request for information with folio 0001300032021, 17 February 2021.
[5] Guardia Nacional (National Guard), answer to a request for information with folio 2800100021321, 17 February 2021.
[6] A/HRC/26/36/Add.1.
[7] A/HRC/19/58/Add.2, parags. 16, 17 and 76; CED/C/MEX/CO/1, parags. 10 and 27.
[8] A/HRC/28/68/Add.3, parags. 23 and 32.
[9] OEA/Ser.L/V/II, 31 December 2015, parags. 27, 11, 61, 63, 66, 105, 160, 192 to 214; CCPR/C/MEX/CO/6, parag. 22.
[10] Statement of the UN High Commissioner for Human Rights, Michelle Bachelet, on the occasion of her visit to Mexico, 9 Abril 2019.
[11] Statement of the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, on the occasion of his visit to Mexico.
[12] Figures from the Registro Nacional de Personas Desaparecidas y No Localizadas (National Register of Disappeared and Missing Persons) on 18 October 2021.
[13] 2006 to 2019
[14] SEDENA, answer to a request for information with folio 0000700078821, 17 February 2021.
[15] SEMAR, answer to a request for information with folio 0001300032021, 17 February 2021.
[16] Guardia Nacional, answer to a request for information with folio 2800100021321, 17 February 2021.
[17] Programa Nacional de Derechos Humanos (National Human Rights Programme), published in the Diario Oficial de la Federación (Official Federal Gazette) on 10 December 2020.
[18] Plan Nacional de Desarrollo (Official Development Plan) 2019-2024, published in the Diario Oficial de la Federación (Official Federal Gazette), 12 July 2019.
[19] Stenographic version of the morning press conference given by President Andrés Manuel López Obrador on 23 October 2019.
[20] Stenographic version of the morning press conference given by President Andrés Manuel López Obrador on 11 December 2019.
[21] Stenographic version of the morning press conference given by President Andrés Manuel López Obrador on 23 October 2019.
[22] Decree amending, supplementing and derogating various provisions of the Political Constitution of the 22 United Mexican States concerning the National Guard). Published in the Diario Oficial de la Federación (Official Federal Gazette) on 26 March 2019.
[24] Article 129 of the Constitution stipulates that, in times of peace, the armed forces can only engage in activities pertaining to the military professional domain.
[25] CIDE. Inventario Nacional de lo Militarizado, in Plataforma de Proyección de Datos Abiertos.
[26] Leiden University-Grotius Centre for International Legal Studies. La situación de la violencia relacionada con las drogas en México del 2006 al2017: ¿Es un conflicto armado no internacional?, Instituto Tecnológico de Estudios de Occidente (ITESO – Jesuit University of Guadalajara) and Comisión Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH – Mexican Commission for the Defence and Promotion of Human Rights), Mexico 2019. See also Chiara Radaelli. “Engaging with Drug Lords: Protecting Civilians in Colombia, Mexico and Honduras”, in The War Report. Armed Conflict in 2014, Oxford University Press, Oxford; Julie Lambin. “Mexico: Armed Gang Violence Sliding into Armed Conflict?”, in The War Report. Armed Conflicts in 2017, Academy of International Humanitarian Law and Human Rights a Joint Center of the Graduate Institute of International and Development Studies and the Faculty of Law of the Geneva University, pp. 83-91. AlsoAndreas Schedler. En la niebla de la guerra. Los ciudadanos ante la violencia criminal organizada, Centro de Investigación y Docencia Económicas, Mexico 2015.
[27] On forced internal displacement in Mexico as a result of widespread violence, armed conflict, and/or violation of human rights, see several studies by the CMDPDH (Mexican Commission for the Defence and Promotion of Human Rights): Report 2017, Report 2018, Entre la invisibilidad y el abandono. See alsoMaría Cristina Díaz Pérez and Raúl Romo Viramontes. La violencia como causa de desplazamiento interno forzado. Aproximaciones a su análisis en México, Secretaría de Gobernación-Consejo Nacional de Población-Fondo de Población de las Naciones Unidas, Mexico 2019.
[28] The Mexican Army strikes at the structure of the criminal organisations of the “Golfo” and “Pacífico” cartels. Communique of the Ministry of National Defence, on 24 October 2021:
[29] This happened with the clashes between the Mexican army and the 1970s guerrillas, and also the Ejercito Zapatista de Liberación Nacional (Zapatista Army of National Liberation) in the state of Chiapas in 1994.
[30] See, in English.
Photography
Mexico City, Mexico; September 26, 2020: Mothers of missing students during a demonstration to commemorate the sixth anniversary of the disappearance of the 43 Ayotzinapa students. By GuillermoGphoto (Shutterstock).