A complementarity conundrum: international criminal enforcement in the Mexican drug war.

• Author: Thomas, Spencer

ABSTRACT

Drug-related violence in Mexico has claimed over 34,000 lives since Mexican President Felipe Calderon initiated his crackdown on Mexico's drug cartels in 2006 with the deployment of military troops to Michoacan. Somewhat surprisingly, Mexico's drug war has garnered rather little attention from the international community, despite a wealth of headlines in popular media. This Note takes up the question of international criminal enforcement in Mexico against Los Zetas, widely considered Mexico's most violent drug cartel. By setting up a hypothetical--but possible--International Criminal Court (ICC) prosecution of Los Zetas cartel leader Heriberto Lazcano, this Note demonstrates that the ICC Prosecutor could likely show sufficient evidence of Lazcano's liability for Crimes Against Humanity for the purposes of obtaining an arrest warrant from the Pre-Trial Chamber. However, assuming Mexico would in fact prosecute Lazcano domestically, significant admissibility issues would arise given that Mexico lacks a domestic codification of Crimes Against Humanity, the relevant ICC crime. This presents a unique situation to analyze whether a concurrent domestic prosecution for "ordinary crimes" could lead to a finding of "unable to prosecute" under Article 17 of the Rome Statute, which would result in the admissibility of the case before the ICC despite concurrent state action. The ordinary crimes analysis with respect to Mexico's inability (or ability) to prosecute this potential case has broad implications for the nature of the ICC's complementarity regime as an effective guardian of state sovereignty.

TABLE OF CONTENTS I. INTRODUCTION II. ELEMENTS OF THE PROSECUTION A. The Act in Question: The Tamaulipas Massacre B. Elements of the Crime Against Humanity of Extermination 1. Conduct Element 2. Mass Killing and Civilian Population 3. Widespread or Systematic Attack Directed Against a Civilian Population 4. Mens Rea C. Individual Liability: Command Responsibility 1. Effective Control 2. Mens Rea 3. Failure to Act III. ADMISSIBILITY: ARTICLE 17'S "UNABLE TO PROSECUTE" PROVISION A. Substantial Collapse of the National Judicial System B. Unavailability of the National Judicial System 1. The Debate on Domestic "Ordinary Crimes" Prosecutions 2. The Admissibility of Lazcano's Case IV. THE IMPLICATIONS OF ORDINARY CRIMES PROSECUTIONS V. CONCLUSION I. INTRODUCTION

On December 16, 2009, Mexican naval forces raided the hideout of Arturo Beltran Leyva, one of Mexico's most prominent drug lords. (1) Beltran Leyva was a close ally of Los Zetas, an up-and-coming narcotrafficking organization with extensive paramilitary capabilities. (2) The "Boss of Bosses," as Beltran Leyva was known, was killed during the raid in a great victory for President Felipe Calderon's ongoing offensive against the drug cartels. (3) Ensign Angulo Cordova of the Mexican Navy also lost his life during the two-hour gunfight. (4) As President Calderon celebrated Angulo Cordova's bravery and service with a state funeral, armed members of Los Zetas went to the fallen hero's home and murdered his grieving family. (5)

In total, drug-related violence has killed over 34,000 people in Mexico since President Calderon's 2006 crackdown on the cartels. (6) The violence is affecting neighboring countries as well. (7) At the heart of this violence is Los Zetas, Mexico's most dangerous trafficking organization that has killed civilians and murdered government officials in defiance of the Mexican state. (8) Given the pervasive violence and the number of deaths, the Mexican drug war is a situation of serious concern to the international community as a whole, which could warrant attention from the International Criminal Court (ICC). (9) Using a hypothetical prosecution, this Note focuses on Los Zetas leader Heriberto Lazcano's potential ICC liability stemming from a mass execution of seventy-two migrants by Los Zetas in August 2010. (10) On the charge of the Crime Against Humanity of Extermination, this Note shows that the ICC Prosecutor could prove the substantive crime and Lazcano's individual liability for the purposes of obtaining an arrest warrant from the ICC Pre-Trial Chamber.

However, critical procedural roadblocks remain that could derail the ICC's perceived legitimacy among its member states. The ICC's complementarity regime is designed to balance the interests of state sovereignty with the international community's collective interest in putting an end to impunity for atrocities. (11) Language from the ICC Statute's Preamble indicates that the drafters were acutely aware of these competing interests. The Preamble declares that the states parties enacted the statute "[r]ecognizing that such grave crimes [as atrocities] threaten the peace, security and well-being of the world," (12) and that the parties are "[d]etermined to put an end to impunity for ... these crimes." (13) However, the Preamble also says that the states parties "[r]ecall[] that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes," (14) and "[e]mphasiz[e] that the International Court established under this Statute shall be complementary to national criminal jurisdictions." (15) Codifed at Article 17 of the ICC Statute, complementarity is widely referred to as the cornerstone principle of the ICC. (16)

Article 17's text, in relevant part, prohibits the ICC from exercising jurisdiction over a case concurrently being investigated or prosecuted domestically, unless the state is "unwilling or unable genuinely to prosecute." (17) The framework gives states parties primacy over the ICC in terms of prosecutorial jurisdiction over alleged atrocities. (18) Only when a state fails to exercise its duty to prosecute or investigate, or undertakes that duty in a way consistent with an unwillingness or inability to genuinely prosecute, is the ICC permitted to exercise jurisdiction. (19) Accordingly, the ICC is said to be complementary to domestic prosecutions, and merely serves to fill in gaps where domestic prosecutions are inadequate.

As a result, the definitions of "unwilling to prosecute" and "unable to prosecute" are critically important to an effectively functioning complementarity regime. (20) While Article 17 provides some guidelines for determining unwillingness or inability, these guidelines are very broad and leave many ambiguities. (21) The situation in Mexico provides an opportunity to examine the scope of these ambiguous criteria. (22) Mexico, it turns out, lacks a domestic codification of Crimes Against Humanity. (23) Thus, Mexico cannot prosecute conduct meeting the elements of Crimes Against Humanity as such a crime, and may only prosecute such conduct as an "ordinary crime"; for example, domestic murder. (24) The critical question thus becomes whether Mexico is "unable to prosecute" under Article 17, given that it cannot charge the perpetrator with the relevant international crime. (25) If the ICC Pre-Trial Chamber were to hold that Mexico is unable to prosecute, the ICC would then be permitted to try the case. Such a result would ensure that the crime would be prosecuted as the atrocity it is, serving the global humanitarian interest in prosecuting such horrific conduct as an international crime. (26) But in doing so the ICC would obligate states parties to charge any act potentially meeting the elements of an ICC crime as an international crime, just to ensure they retain jurisdiction. (27) This would call into question whether the ICC is truly complementary to domestic prosecutions. On the other hand, if it were to hold that Mexico is able to prosecute, the ICC would respect Mexico's right to prosecute crimes occurring on its sovereign territory. (28) But this would allow what is substantively an atrocity crime to be prosecuted as an ordinary crime, thus trivializing the nature of the crime and aiding impunity. (29) Given this context, if the ICC initiates an investigation in Mexico, severe consequences could follow for the nature of Article 17's inability definition, and by extension, the ICC's complementarity regime. This Note uses the hypothetical prosecution of Los Zetas leader Heriberto Lazcano to address the oft-debated, but still unanswered question of whether ordinary crimes prosecutions amount to an inability to prosecute under Article 17 of the ICC Statute. (30)

This Note argues that, assuming Mexico would pursue charges against Lazcano, Mexico is not unable to investigate and prosecute Lazcano under the ICC statute, despite its lack of a domestic codification of Crimes Against Humanity as defined under international law. (31) The ICC would improperly usurp Mexico's sovereign right to prosecute offenses occurring within its territory if it held Lazcano's case admissible based on Mexico's inability to charge him with an international crime. In addition, this Note posits that the ICC would damage its foundational complementarity regime if it were to categorically hold that a state is "unable to prosecute" under Article 17 when it lacks the domestic implementation of an ICC crime.

Part II gives a brief background on Los Zetas and the particular conduct serving as the actus reus for this hypothetical crime, before moving into a discussion of the elements of the charged crime and Lazcano's individual liability. Part III is the heart of this Note, as it discusses Mexico's potential inability to prosecute the case under Article 17, which of course would determine whether the ICC could exercise jurisdiction over the case. (32) Part IV suggests that the proper method of criminal sanctions against Lazcano is a domestic prosecution in Mexico, and offers a framework under which the ICC could analyze concurrent ordinary crimes prosecutions for admissibility purposes. Part V concludes, and suggests that the facts pertaining to the admissibility of this hypothetical particular prosecution are applicable to other ICC...