Mexico ratified the International Criminal Court (ICC) Statute in 2006. Since that time, in the context of the ongoing conflict with drug cartels, there are credible reports (from governmental and non-governmental sources) of tens of thousands of killings, tens of thousands of disappearances, and thousands of cases of torture. While the precise figures are disputed, the numbers are large. The 2014 kidnapping and disappearance of 43 Ayotzinapa students by police drew international outrage, but it is part of a bigger pattern. In terms of the scale and nature of the crimes, these figures would appear to place the situation among the gravest within the ICC’s jurisdiction. Yet international criminal lawyers generally tend to give limited attention to the violence in Mexico, and hesitate to apply the label of crimes against humanity.
Against compartmentalization: drug-related violence as crimes against humanity?
In international criminal law practice, we are most accustomed to two configurations of crimes against humanity: state repression of political opponents, and atrocities by parties to armed conflict. By contrast, we tend to label the violence in Mexico as “drug-related violence” and therefore not as crimes against humanity.
But should we separate crimes into watertight compartments? After all, we recognize that an act of terrorism can also be a crime against humanity or war crime. We should not assume that organized crime, or responses to organized crime, must fall into a completely separate compartment. Instead, we should look at the elements of crimes against humanity. The motives behind the crimes (eg. economic motives or the laudable goal of restraining cartels) do not per se prevent widespread and systematic violence against civilians from constituting crimes against humanity.
Addressing factual controversy
Another obstacle is the difficulty of ascertaining the scope and patterns of the crimes, given the scale of crimes (thousands of killings and disappearances) and limited records. The Mexican government has launched several important initiatives to collect and systematize information on crimes and victimization, and NGOs have also embarked on valuable projects.
Recently, Mexican officials have reacted vehemently against the conclusion of the UN Special Rapporteur on Torture that torture is “generalized”. However, on a dispassionate assessment, the sheer number of reported cases and the consistency of patterns support such a conclusion, at least on a “reasonable basis to believe” standard.
Addressing legal uncertainty
The situation in Mexico requires us to clarify the boundaries of crimes against humanity. Important questions include (1) what is a “State or organization” and (2) what is needed to show a “policy”.
On the first question, the law of crimes against humanity was initially regarded as an offshoot of human rights law, and thus often tended to focus on repression by the state. It is now well-recognized that the law of crimes against humanity also applies to non-state actors. The ICC Statute (Article 7) expressly refers to states or organizations. While Judge Hans Peter Kaul notably argued in the Kenya authorization decision that organizations must be “state-like”, that view has not prevailed in the jurisprudence. Chambers are consistently adopting formulations that capture the various types of non-state actors with the capacity to inflict massive harm on civilian populations. As Leila Sadat notes, this more “modern” understanding allows the law to address contemporary violence, and as Gerhard Werle notes, it accords with the ordinary meaning of the term ‘organization’.
The Mexico situation is complex, inter alia because offences are reportedly carried out by (i) organs of the state (army, navy, police), (ii) by drug cartels, and (iii) by state officials corrupted and infiltrated by drug cartels. On the modern understanding, each of those variations could constitute crimes against humanity.
On the second question, what evidence is needed to show a “state or organizational policy”? Some read that element as requiring a formalized policy adopted at the highest level. But that is precisely what the jurisprudence has always emphasized is not required. The requirement of state or organizational policy was included only to ensure that crimes must be connected in some way in order for them to be described as an ‘attack directed against a civilian population’, as opposed to widespread but random common crime. The policy element has always been explicitly accompanied by key points to ensure that it is not a burden to legitimate prosecutions:
- The purpose of the policy element is to screen out “ordinary crime”, ie. acts of individuals on their own unconnected criminal initiatives.
- The term “policy” is not equivalent to the term “systematic”. “Policy” does not necessarily require deliberate planning, direction or orchestration. It requires only that some state or organization must have at least encouraged the attack, either actively or passively.
- A policy need not implicate the highest levels of a state or organization.
- Most importantly, a policy need not be expressly stated or formalized. A policy may be implicit. The existence of a policy can be inferred from the manner in which the acts occur. In particular, it can be inferred from the implausibility of coincidental individual activity.
These points are emphasized in the Yugoslav Tribunal’s seminal Tadic decision, and have consistently appeared in a large body of transnational jurisprudence, which has often been neglected in the mainstream debate. I’ve tried to draw attention to these cases and these points, because it is essential to keep them in mind if the law is not to become unworkable.
Accordingly, proving policy does not require directives and instructions or insider testimony. It can be more simply proven by looking at the patterns of crimes, evidence of planning, preparation or coordination, repetition of acts, utterances of perpetrators, similarities in modus operandi or in who is targeted, and generally the implausibility of random occurrence. As I’ve noted, Latin American jurisprudence has been instructive in this regard.
Addressing political sensitivity
The issue is understandably a sensitive one. However, the questions raised here do not entail any general judgment on Mexico or its accomplishments and stature in the world. The violence in Mexico would pose great difficulties for any state.
The questions asked here are simply evidentiary and legal. What are the parameters of crimes against humanity? Does the available information provide at least a reasonable basis to believe that such crimes have occurred?
If the label of crimes against humanity is applicable, it may further galvanize international and national calls for decisive action to restrain and punish these abuses. Communications on the Mexico situation have been submitted to the ICC. The ICC may be hesitant to open a preliminary examination of the situation, perhaps because of the ‘compartmentalization’ habit mentioned above. But if one clarifies crimes against humanity, the situation seems to warrant preliminary examination as much as any other situation before the Court. Given the exceptional scale of the crimes and the paucity of actual prosecutions, the gravity and complementarity tests would also seem to be met. ICC scrutiny can add one more reason to the already urgent reasons for effective national action.