RECOGNIZE THE MEXICAN SITUATION AS A "NON-INTERNATIONAL ARMED CONFLICT" AND DEMAND THE CONSISTENT APPLICATION OF IHL.

I invite you to reflect on the relevance of the international legal qualification in relation to the Mexican strategy to combat transnational criminal organizations and common crime, using the Mexican armed forces, with an important deployment throughout the territory and performing public security functions that should be carried out by civil institutions. Everything from the perspective of international humanitarian law, which regulates international and non-international armed conflicts. After going through different aspects of this Mexican conflict, it is necessary to have the legal feasibility of recognizing the situation of violence in Mexico as a "non-international armed conflict" (CANI) and therefore, demand the corresponding measures of International Humanitarian Law.

It is important to have on the radar that recently the federal Congress last September approved a bill backed by the president that modified four secondary laws and thus paved the way for the security force to be placed under the control of the armed forces.

López Obrador argued that the National Guard needed to be under the control of the military to prevent corruption and guarantee the force’s professionalism.

At the time, opposition senators challenged the legislation passed by the ruling Morena party and its allies, arguing that it was unconstitutional. The National Guard was established in 2019 under a constitutionally-enshrined civilian command.?

The Supreme Court (SCJN) ruled on Tuesday that the transfer of control over the National Guard from the civilian Security Ministry (SSPC) to the Defense Ministry (Sedena) was unconstitutional, a decision that President López Obrador asserted was based on political bias rather than legal criteria.

Eight of 11 Supreme Court justices agreed Tuesday that the reform bill was unconstitutional.

The court noted in a statement that it had invalidated the transfer to Sedena of “organic, administrative, budgetary and managerial” control over the National Guard as the constitution “expressly establishes” that the force “will be a civilian entity” and that its “actions, plans and programs” are the responsibility of the civilian Security Ministry.

The Supreme Court also invalidated the power of the federal defense minister to nominate the chief of the National Guard and the reform’s rule that the Guard must be headed by a high-ranking military official.

In addition, the court ruled that National Guard personnel who were previously military police cannot continue to be considered active members of the military as that situation “distorted the civilian character” of the Guard and violated the constitution.

Supreme Court Justice Javier Laynez, one of the eight who voted to invalidate the transfer of control, said that giving operational and administrative responsibility for the National Guard to Sedena amounted to constitutional “fraud.”?

The court’s ruling deals a significant blow to López Obrador, who has relied heavily on the military for public security and a range of other nontraditional tasks since he took office in late 2018.

Without military control, the president has argued, the National Guard is at risk of succumbing to corruption, as he claims occurred with the now-defunct Federal Police.

López Obrador said last week that declaring the transfer of control over the National Guard to Sedena as unconstitutional would be a “grave” and “enormous” mistake. He urged the SCJN justices to take into account that the Federal Police had been “completely spoiled” and “corrupted” under civilian leadership, including that of former security minister Genaro García Luna, who was convicted in the United States on drug trafficking charges earlier this year.

After the decision of the Supreme Court; at his Wednesday morning news conference, the president asserted that the eight justices who invalidated the transfer of control “acted in a partisan way,” employing political rather than legal criteria and “defending the old practices of the authoritarian and corrupt regime.”

The Supreme Court “responded to the interests” of the elite and didn’t listen to “the voice of the people,” López Obrador said.

Opposition parties, government critics and some human rights organizations pointed to the transfer of control over the National Guard to the army as another example of the militarization of Mexico that they say has occurred during the current government.

President of the National Action Party, Marko Cortés, said on Twitter that the Supreme Court’s decision on Tuesday was a “triumph in the face of Morena’s authoritarianism.”

Alejandro Moreno, a federal deputy and president of the Institutional Revolutionary Party, said that the ruling was a “good move to guarantee the civilian character of the National Guard.”

“That’s why we voted against [the transfer of control] in the Chamber of Deputies and the Senate. Militarization is not the solution to the nation’s problems. Building a safer and more peaceful Mexico is possible through civilian institutions,” he wrote on Twitter.

López Obrador, who pledged to withdraw the military from the nation’s streets before he took office, has denied the claim he is militarizing the country, despite putting the National Guard under Sedena’s control and giving the armed forces responsibility for a wide range of tasks including public security, infrastructure construction and the management of customs and ports.

Almost 130,000 National Guard troops and tens of thousands of soldiers and marines are deployed across Mexico to carry out public security tasks, but violent crime, including homicides, remains a major problem in some parts of the country.

The National Guard has been criticized for lacking the capacity to investigate crimes, and the conduct of some of its members has been the subject of criminal investigations. Guardsmen are accused of killing two people including a pregnant teenager in an allegedly unprovoked attack in Nuevo Laredo, Tamaulipas, last Sunday.

The Government of Mexico are involved in two parallel non-international armed conflicts against the Cartel Jalisco Nueva Generación (CJNG, Jalisco Cartel New Generation) and the Sinaloa Cartel (CDS). Furthermore, violence between the CDS and the CJNG amounted to a non-international armed conflict.

The Government of Mexico has been engaging in armed violence against a number of cartels over the past decades. Notably, it was party to two parallel non-international armed conflicts against at least the CJNG and the CDS. Furthermore, sustained armed violence between cartels has been a constant feature for decades. Specifically, the CJNG was party to a non-international armed conflict against the Sinaloa Cartel.

In 2022, violence between government and cartels, as well as between cartels, remained high.

Two criteria need to be assessed in order to answer the question whether a situation of armed violence amounts to a non-international armed conflict.

• First, the level of armed violence must reach a certain degree of intensity that goes beyond internal disturbances and tensions.

• Second, in every non-international armed conflict, at least one side to the conflict must be a non-state armed group which must exhibit a certain level of organization in order to qualify as a party to the non-international armed conflict. Government forces are presumed to satisfy the criteria of organization.

Although criminal organizations pursue mainly economical objectives, this does not imply that they cannot be party to a conflict under IHL. This was confirmed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Limaj case, where it was specified that: he determination of the existence of an armed conflict is based solely on two criteria: the intensity of the conflict and organization of the parties, the purpose of the armed forces to engage in acts of violence or also achieve some further objective is, therefore, irrelevant.

Various indicative factors are used to assess whether a given situation has met the required intensity threshold, such as the number, duration and intensity of individual confrontations; the types of weapons and military equipment used; the number of persons and types of forces participating in the fighting; the number of casualties; the extent of material destruction; the number of civilians fleeing; and the involvement of the United Nations Security Council.

In reaction to drug-related violence, the Mexican government has approved changes to the Constitution and various laws to authorize the use of military and navy personnel to combat public safety risks. The new laws authorize the armed forces, intelligence and the National Guard of Mexico to "identify threats to internal security, collect information from civilian institutions and direct security operations." Since then, law enforcement standards have become increasingly militarized.

During his electoral campaign, President López Obrador; who was elected on 2 July 2018, committed to address the issue of drug violence with ‘hugs, not bullets’. However, in March 2019 a constitutional reform was approved, which created the National Guard. The idea underpinning the creation of this new guard is that it would represent an alternative to the deployment of the army. Nevertheless, it is doubtful whether the National Guard will constitute a real break from the past.

The Jalisco Cartel New Generation (CJNG) is considered the most powerful and dangerous criminal organization by Mexico and US authorities and was involved in a non-international armed conflict (NIAC) against the Mexican government.

Throughout the administration of President López Obrador, the violence between the Mexican armed forces and the CJNG continues unabated.

Since November 2021, CJNG has increased its armed activities as it has been establishing its control over Michoacan drug market.

Violence between the Sinaloa Cartel and the Mexican forces had been ongoing for more than 10 years. Notably, since the capture of Joaquín ‘El Chapo’ Guzmán, leader of the cartel in January 2016, armed confrontations steadily increased and dramatically affected the local population. This is particularly true for the period between El Chapo’s arrest and his extradition to the US; which took place the following year.

Fighting between the cartel and governmental forces has continued in the following years.

Mexico has been affected by armed violence between cartels and within splinter groups and factions within the same cartels. The reasons for the struggles inside the cartels are the aforementioned kingpin strategy and the fact that the cartels have recruited elite soldiers. Indeed, according to Mexico’s Ministry of Defence more than 1.300 elite soldiers have deserted between 1994 and 2015. ‘Defectors included members of units that received training in counter-terrorism, counter-intelligence, interrogation and strategy from French, Israeli and US advisers.

The fight against the cartels has been going on for decades and continues to escalate. More and more areas of the country's territory are affected by armed violence between cartels.

Half of the Mexican territory has a red and orange alert from the US for violence, narcoterrorism and kidnapping.

Besides; it is important to analyze that, due to the fragmentation of the main criminal organizations and the subsequent creation of small groups that are weakly organized, but very violent and associated with the two large cartels, we conclude that these situations of violence can reach the threshold established by international law humanitarian to have a non-international armed conflict. Over the past years in Michoacán state the CJNG and Los Viagras have been engaging in heavy fighting to control criminal markets and the avocado industry. Violence between the two cartels can be brutal and often results in macabre massacres.

The CJNG, by wanting to expand, also generates violence in other parts and against other organizations such as the CDS, its main competitor.

The CJNG and the CDS are considered Mexico’s two most powerful cartels and have been fighting over the control of drug and other criminal markets.?Since 2016, the quick rise of CJNG and the capture of Joaquin ‘El Chapo’ Guzmán, leader of the Sinaloa Cartel, led to a sharp increase in violence between the two criminal organizations.

The two cartels compete over the control of strategic areas of Mexico. It is worth recalling that, while a number of cartels are party to NIACs in Mexico, not all its members are members of an armed group with a continuous combat function, but only the members of its armed wing. While in practice this distinction might be challenging, not every drug dealer is a legitimate target, even if they belong to a cartel that is a party to a non-international armed conflict.

The two cartels and their allied local criminal groups in Mexico and abroad compete for control of strategic areas. It should be remembered that, although several criminal organizations are part of the CANI in Mexico, not all of its members are members of an armed group with a continuous combat function, but only the members of its armed wing. While this distinction can be challenging in practice, not all drug traffickers are a legitimate target, even if they belong to a cartel that is part of a non-international armed conflict.

Over the past decade, Mexico has adopted the so-called kingpin strategy, whereby the leaders of the major cartels have been systematically killed or arrested. While this led to the positive outcome of weakening the most powerful criminal organizations operating in Mexico and of bringing to justice their most prominent members, it has also led to the fragmentation of cartels. For instance, the capture of Joaquín 'El Chapo' Guzmán, the notorious leader of the Sinaloa Cartel, led to profound fractures within the criminal organization and triggered an internal wave of violence that affected the whole country.

Splinter groups and factions have started to fight each other. Characterised by a loose organization, heavily armed, and determined to fill the void left by the old cartels, the new criminal groups have posed crucial challenges to the Mexican government. The fact that they have been engaging in armed confrontations both against each other and against the government, they do meet the organisation requirement and thus are party to a non-international armed conflict.

The Cartel de Jalisco Nueva Generacion (CJNG – New Generation of the Jalisco Cartel) is a clear example of criminal organization that emerged as a result of the aforementioned kingpin strategy.?It was created in 2010 following the death of the former Sinaloa Cartel capo Ignacio Coronel, alias “Nacho,” killed by the Mexican security forces. The power vacuum caused by Nacho’s death triggered an internal struggle that led to the creation of the CJNG.?Since then, the group has taken advantage of the decline of other cartels as well. For instance, it has expanded its operations in Michoacán, once stronghold of the Familia Michoacána cartel.

CDS is organized in a command-like structure, it operates as a federation rather than a typical cartel. Specifically, the Sinaloa cartel ‘depends on plaza bosses to coordinate and operate the smuggling of drugs and contraband from Sinaloa to the US and vice versa; these plaza bosses employ sicarios, or hitmen, and maintain their power through violence.’

International humanitarian law (IHL or ius in bello) is one of the most relevant contemporary instruments for identifying, regulating and sanctioning war issues, which legally limits the way in which it is conducted. Among others, such restrictions refer to the type of weapons used, the military objectives that can be attacked and the manner in which such attacks are carried out. Additionally, IHL holds combatants legally and internationally responsible for their actions in the conflict.

Given that not every scene of violence involves a war, the application of the legal body of IHL depends on such a distinction. In practice, the identification of armed conflicts of an international nature entails fewer difficulties than that of internal conflicts, since foreign invasions or occupations easily distinguish them, while it is more difficult to discern whether the internal violence of a country has reached the parameters of a war.

Additionally, while a State may consider better reporting and regulating an international conflict, something else happens with internal conflicts. They tend to favor discourses that minimize violence, given that the application of IHL limits the repressive measures to which the State can resort, generates greater scrutiny at the international level and considers them subject to sanctions in case of non-compliance.

To these challenges in identifying internal conflicts, we can add the difficulty derived from the transformation of war conflicts. Under the concept of "new unconventional wars".

In this sense, the violence related to organized crime and drug trafficking seems to have more in common with this type of war than with those that motivated the emergence and development of important IHL instruments -mainly in the 19th and 20th centuries-.

As a consequence of this, although the efforts to hold States accountable for their actions in armed conflicts are laudable, it seems that the current IHL legal framework implies a kind of abandonment regarding problems related to drug trafficking and other related with organized crime.

It is incredible that in the 21st century, in the Latin American region it seems not worth distinguishing between war and peace. In addition to facing violence, we face a reluctance to acknowledge - and even wonder - whether our seemingly invisible wars could constitute armed conflict.

The case of Mexico seems to illustrate this situation, as it is a country that has been besieged for several decades by acts that have resulted in a context of generalized violence, accompanied by the militarization of the country's institutions and the militarization of criminal organizations.

Derived from this situation of legal invisibility, I leave this article to you to reflect on and analyze the feasibility of framing the Mexican conflict as a non-international armed conflict, and analyze the legal suggestions that this would entail.

Regardless of the various opinions that may arise, my particular opinion is that yes; and I consider that the armed conflict in Mexico against the cartels and the various criminal organizations that generate violence in Mexico that fight among themselves and against the State, may suspect this situation as a non-international armed conflict in accordance with the various existing legal instruments.

Despite the position against considering the Mexican conflict as a NIAC by the State and some analysts, the Mexican conflict meets the criteria to be classified as such in accordance with the provisions of the three most relevant instruments on the matter. , which have been ratified by the country: Article 3, common to the Geneva Conventions; the Rome Statute, the highest instrument of the International Criminal Court and the Jurisprudence of the Tadic case, which lays the foundations for the interpretation of the law. Exclusively, PA II presents the discussion on the criteria of sustained military operations and a reason unrelated to the analysis, which is the ratification by Mexico of this instrument. The consideration of IHL offers relevant elements of protection, to the extent that it would mean establishing ethical limits to the conduct of war; It would imply greater international scrutiny of the actions of the Mexican armed forces and would allow the perpetrators of the crimes to be brought before the International Criminal Court.

Among the pending issues is the situation of the "new unconventional wars" or atypical conflicts, where the combatants are elements of organized crime whose motivations are economic and not political. This kind of conflicts -which, as we have seen, are not excluded a priori as possible armed conflicts- does require recognition of the specificities and governmental collusion with which they operate, since this makes it difficult to assign responsibilities.

Given the strength of the empirical evidence in favor of considering it a CANI and the regulations that would be imposed, a lack of political will to recognize the nature of the conflict in Mexico seems to be evident. And yet, along with the non-recognition of a war scenario, what has been seen in the country has been an increasing dependence on the armed forces to contain the violence. Thus, there is a context of ambiguity where, on the one hand, the use of military units throughout the territory continues; as in a war scenario, and, on the other, IHL measures or mechanisms are not applied. international surveillance that regulates the conduct of hostilities. If the seriousness of the situation requires the continuous use of the armed forces, it is imperative that this precede with the prior recognition of the CANI and the consequent application of international legislation that monitors and regulates the management of the conflict.