Description
This paper asks whether IHL should apply to contexts of large-scale criminal violence. Through analysis of contemporary criminal groups in Latin America, it argues that while many would meet the IHL threshold for intensity of violence, fewer would meet the threshold for organization. Nonetheless, some could do so—and several scholars have argued that some parts of Mexico, for example, have been characterised as NIAC at least some of the time since 2006. Drawing on recent security studies literature on the characteristics of criminal violence, the paper argues that an important but only implicit assumption of IHL—namely that the parties to conflict are fighting to win a military victory—does not hold for criminal groups, and hence that the basic logic of IHL, according to which military necessity is weighed against humanitarian concerns, does not apply. This argument is further developed by considering what scholarship on civil wars tells us about the factors determining the level of compliance with IHL by non-state armed groups, and assessing the extent to which these might apply to criminal groups. The paper then turns to examine the wider consequences of a NIAC classification and the application of IHL. Since IHL is more permissive than IHRL in terms of the use of force, a NIAC classification risks increasing violence in state efforts to combat criminal groups. However, a NIAC classification can also serve to facilitate a more robust international response in terms of the ICRC, international justice, and the UNSC/R2P. Finally, the paper concludes with an overall assessment and some recommendations.
