Good Law for "bad Hombres"

• Citation: Vol. 32 No. 2
• Publication year: 2018

Good Law for "Bad Hombres"

Matthew Neely

GOOD LAW FOR "BAD HOMBRES"

Matthew Neely^*

Abstract

This Article responds to President Trump's proclamation that he may send, with Mexico's consent, the U.S. military into Mexico to fight drug cartels. It particularly considers whether, during such an expedition, the U.S. military would be constrained by the law of armed conflict, human rights law, or neither. The Article concludes that the law of armed conflict would not apply but human rights law would. In support of this conclusion, the Article examines why the drug cartel violence in Mexico cannot legally be considered an armed conflict. The Article then explains why human rights law, on the other hand, would apply to any U.S. military action inside the territory of Mexico. In doing so, the Article discusses the U.S. government's historical position that the United States has no extraterritorial human rights legal obligations. This Article argues to the contrary—that the United States does have extraterritorial human rights legal obligations within the specific scenario of a U.S. military expedition into Mexico because of both treaty and customary international law. This Article is important because it examines topical issues: the Mexican drug war, the possible involvement of the U.S. military, and the application of the law of war and human rights law to hybrid conflicts.

Introduction

The United States and Mexico share a border, are trading partners, and have a mutual interest in each other's stability.¹ It is not surprising, then, that the United States views the illicit Mexican drug trade, and its attendant violence, as an increasingly cancerous threat to U.S. security.² Since 2006, the Mexican government has made defeating the drug cartels behind the illicit trade a priority. Still, their progress has been slow and President Trump said he

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might, with Mexico's consent, deploy the U.S. military to help defeat these "bad hombres."³

As a candidate, President Trump criticized recent uses of the U.S. military as having been too "politically correct."⁴ President Trump further claimed the targeting and killing of civilians is appropriate in some circumstances,⁵ but later clarified "the U.S. is bound by laws and treaties and [he] will not order our military or other officials to violate those laws . . . ."⁶ President Trump's rhetoric makes ascertaining what law applies to a potential U.S. military engagement with Mexican drug cartels important for two reasons. First, the United States is founded on democratic principles and a respect for the law, and the United States' failure to identify and follow applicable law would undermine its own legitimacy.⁷ Second, the United States' security and prosperity hinges in part on a rules-based international order; therefore, the United States should use its power to underwrite that international order rather than erode its relevance.⁸

Concerns over jus ad bellum international legal issues are immediately dispensed with because, under my proposed scenario, the U.S. military would enter Mexico with Mexico's consent.⁹ Jus ad bellum is the body of international law that guides state behavior vis-à-vis the use of force.¹⁰ Jus ad bellum protects the principle of state sovereignty.¹¹ When one state consents to another state's use of force within its own territory, as is proposed in this Article, the issues of sovereignty and jus ad bellum become moot.¹² What

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remains is identifying the law that governs the military's conduct once inside Mexico.

Is it international humanitarian law (IHL) (i.e., jus in bello or law of armed conflict)? If there is no armed conflict in Mexico, then IHL is not applicable.¹³ Is it international human rights law (IHRL)? The U.S. government holds the position, as discussed infra, that it has no treaty-based IHRL obligations in territories where it is not the controlling governmental authority. If neither IHL nor IHRL applies, the military could be ordered to conduct operations in a manner that is not too "politically correct" for President Trump.

This Article concludes that there is no armed conflict in Mexico, so IHL would not apply, but that the U.S. military would be bound by IHRL while conducting operations against Mexican drug cartels. To that end, Part I of this Article provides background facts concerning the Mexican campaign against drug cartels. Part II considers why the Mexican drug cartel violence is not an armed conflict and why IHL is accordingly not applicable. Part III examines why IHRL is applicable. Part IV discusses how U.S. domestic law requires the President, and by extension the military, to follow IHRL. Part V offers concluding analysis.

I. Background on Mexican "Drug War"

Part I(A) examines the drug cartel violence in Mexico. Part I(B) discusses the organizational structures of the drug cartels.

A. Violence

In 2006, Mexican President Felipe Calderón "declared war on the [drug] cartels."¹⁴ President Calderón increased the number of Mexican soldiers tasked with fighting the drug cartels from 20,000 to 50,000.¹⁵ The Mexican drug cartels have violently resisted President Calderón's crackdown. It is estimated that the ensuing violence resulted in a minimum of 80,000 deaths between 2006 and 2015.¹⁶ The violence has spread, existing between cartels themselves

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and between the government and the cartels.¹⁷ It is predominantly marked by "shootouts" often involving the use of high caliber rifles and automatic weapons, the use of grenades, and sporadic use of car bombs.¹⁸ It has also included "coordinated attacks against the Mexican military" and, in one notable instance, the "downing of a military helicopter."¹⁹ The violence can be gratuitous, as the drug cartels are known to dismember their murdered victims and attach messages to them. For example, "criminal groups and their allies deposited 14 headless bodies in front of the city hall" and "have left 18 dismembered bodies in vans near Lake Chapala, an area frequented by tourists and U.S. retirees outside Guadalajara. They used a dump truck to unload 49 more corpses, missing not only heads but also feet and hands, outside Monterrey, Mexico's main industrial city."²⁰

In 2011, the Mexican political scientist Eduardo Guerrero-Gutiérrez identified two types of drug cartel violence.²¹ The first is "drug-trafficking violence," and the second is "mafia ridden violence."²² Drug-trafficking violence intends "to maintain or gain control over drug-trafficking routes, points of entry and exit, and distribution markets."²³ Mafia-ridden violence is "kidnapping, extortion and executions" motivated by profit or to "keep or gain control over a limited territory (a few blocks of a neighborhood) in which the organization could run its illegal activities."²⁴

In December 2012, Enrique Peña Nieto assumed the Office of the President of Mexico. Since then, the rate of drug cartel violence-related deaths has slowly declined.²⁵ The cartels have instead, "furthered their expansion into other illegal activities, such as extortion, kidnapping, and oil theft, and the organizations now pose a multi-faceted organized criminal challenge to

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governance in Mexico . . . ."²⁶ This suggests that "mafia ridden violence" is on the rise while "drug-trafficking violence" is on the decline. Indeed, the drug cartels' expansion into other illegal activities can be understood as an adaptive means to achieve the cartels' central aim: making money. Accordingly, "drug cartels are similar to legitimate profit-making enterprises. They seek to fill market demand or stimulate new demand for their products."²⁷

The use of the Mexican military to combat the drug cartels has not been without criticism.²⁸ The Mexican Defense Minister insists the military is not the right instrument for the anti-drug cartel campaign.²⁹ The Defense Minister explains that the military is being used against the drug cartels to "chase criminals," which is a mission for the police.³⁰ The Defense Minister also claims it was a mistake to deploy the Mexican military against the drug cartels in the first place.³¹ The Defense Minister has also implied that the military is being used only because the Mexican police are so poorly trained.³² In other words, an assessment of the poor capabilities of the police appears to be the impetus for the use of the Mexican military against the drug cartels rather than the nature of the threat posed by the drug cartels themselves.

B. Mexican Drug Cartels' Organization

It is also necessary to understand how the drug cartels are organized to properly analyze whether Mexican drug cartel violence is an armed conflict under international law. In 2015, the Congressional Research Service identified nine "major" Mexican drug cartels.³³ These cartels generally appear to have an organizational structure that reflects a tiered hierarchy.³⁴ At the top of this

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hierarchy are the "bosses," followed by "specialized operators such as lawyers and accountants," then come the "logistics operators," and at the "lowest level is the operative base, composed by drug dealers, drivers and drug smugglers."³⁵ The exceptions to this common hierarchal structure are the Sinaloa and Los Zetas drug cartels. The Sinaloa cartel is comprised of semi-autonomous branches operating under a single top leader who can pool together these branches when necessary.³⁶ Los Zetas' organization is believed to be similar to a franchise, or affiliated independent cells, rather than the classic tiered-hierarchy structure.³⁷

II. APPLICABILITY OF IHL

Part II(A) examines the applicability of IHL generally. Part II(B) explains why IHL is not applicable to the Mexican drug cartel violence discussed above in Part I. Before proceeding, however, a cursory understanding of the differences between IHL and IHRL is necessary. Their differences in the treatment of taking lives and the arresting or imprisoning of individuals are the most germane and...