Humanitarian Law at Wits' End: Does the Violence Arising from the "War on Drugs" in Mexico Meet the International Criminal Court's Non-International Armed Conflict Threshold?

Abstract

The determination of whether there is an actual non-international armed conflict (NIAC) in the context of the violence in Mexico among the drug cartels themselves and with Mexican governmental authorities is controversial. This paper reopens the debate as to whether the violence meets the Rome Statute's NIAC threshold when assessed against the International Criminal Court (ICC) tripartite criteria of duration, organisation and intensity. It concludes that the violence generally regarded prima facie meets these criteria and that the ICC's war crimes provisions would provide an opportunity for accountability for acts of criminality expressly proscribed by Article 8 of the Statute in relation to war crimes, but not expressly criminalised by Article 7 on crimes against humanity.