By Stuart Casey-Maslen
More than 9,500 people were killed in Mexico in 2012 as a result of armed violence, primarily as the result of conflict between the Sinaloa cartel, the Las Zetas gang, and the state. Tens of thousands of Mexican troops and police were involved in these conflicts, and more than 400 were killed during the year. In one battle in June, which lasted for many hours, the security forces were confronted by ammunition fired from rocket and grenade launchers as well as assault rifles, including from an armoured vehicle. This level of violence, of firepower, and of human cost looks exactly like an armed conflict.
How does one identify and classify armed conflicts in accordance with international humanitarian law (IHL) — determining whether a given situation amounts to an international armed conflict (including foreign military occupation) or a non-international armed conflict (NIAC)?
It is generally agreed that a non-international armed conflict exists when intense armed violence occurs either between the security forces and one or more organized armed groups or between two or more organized armed groups. This is clearly the case in Mexico. Nowhere does international humanitarian law stipulate that a group must have political or ideological motivations in order to be party to a conflict; purely lucrative incentives therefore suffice.
And why does qualifying a situation of armed violence as an armed conflict matter in practice? First, once an armed conflict exists under international law, there are significant implications for the use of force. Generally, parties to an armed conflict may resort to weapons and tactics — and the use of lethal force — that would be almost unthinkable (and invariably unlawful) in a situation of law enforcement. Second, when an armed conflict is in progress the commission of a war crime amounts to an international crime punishable not only by national courts but also by international tribunals.
Due to the potential consequences for the lawful use of force, a decision to classify a situation as an armed conflict should never be taken lightly. But when something looks like a duck, walks like a duck, and quacks like a duck, it is disingenuous to pretend that it is actually a different kind of beast.
Dr Stuart Casey-Maslen is the editor of The War Report: 2012. He is Head of Research at the Geneva Academy of International Humanitarian Law and Human Rights. His research concerns international weapons law, international law and armed groups, and the qualification of armed conflicts. He has consulted and published widely on the international law of armed conflict, including Commentaries on Arms Control Treaties (OUP, 2005) and The Convention on Cluster Munitions: A Commentary (OUP, 2010). The War Report: 2012 found 38 armed conflicts during the year, across 24 states and territories, 29 of which were non-international armed conflicts. Of these, perhaps the most controversial were the three non-international armed conflicts that the editors believe occurred in Mexico.
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