A Complementarity Conundrum: International Criminal Enforcement in the Mexican Drug War
Thomas, Spencer, Vanderbilt Journal of Transnational Law
Drug-related violence in Mexico has claimed over 34,000 lives since Mexican President Felipe Calderon initiated his crackdown on Mexico's drug cartels in 2006 with the deployment of military troops to Michoacan. Somewhat surprisingly, Mexico's drug war has garnered rather little attention from the international community, despite a wealth of headlines in popular media. This Note takes up the question of international criminal enforcement in Mexico against Los Zetas, widely considered Mexico's most violent drug cartel. By setting up a hypothetical--but possible--International Criminal Court (ICC) prosecution of Los Zetas cartel leader Heriberto Lazcano, this Note demonstrates that the ICC Prosecutor could likely show sufficient evidence of Lazcano's liability for Crimes Against Humanity for the purposes of obtaining an arrest warrant from the Pre-Trial Chamber. However, assuming Mexico would in fact prosecute Lazcano domestically, significant admissibility issues would arise given that Mexico lacks a domestic codification of Crimes Against Humanity, the relevant ICC crime. This presents a unique situation to analyze whether a concurrent domestic prosecution for "ordinary crimes" could lead to a finding of "unable to prosecute" under Article 17 of the Rome Statute, which would result in the admissibility of the case before the ICC despite concurrent state action. The ordinary crimes analysis with respect to Mexico's inability (or ability) to prosecute this potential case has broad implications for the nature of the ICC's complementarity regime as an effective guardian of state sovereignty.
TABLE OF CONTENTS I. INTRODUCTION II. ELEMENTS OF THE PROSECUTION A. The Act in Question: The Tamaulipas Massacre B. Elements of the Crime Against Humanity of Extermination 1. Conduct Element 2. Mass Killing and Civilian Population 3. Widespread or Systematic Attack Directed Against a Civilian Population 4. Mens Rea C. Individual Liability: Command Responsibility 1. Effective Control 2. Mens Rea 3. Failure to Act III. ADMISSIBILITY: ARTICLE 17'S "UNABLE TO PROSECUTE" PROVISION A. Substantial Collapse of the National Judicial System B. Unavailability of the National Judicial System 1. The Debate on Domestic "Ordinary Crimes" Prosecutions 2. The Admissibility of Lazcano's Case IV. THE IMPLICATIONS OF ORDINARY CRIMES PROSECUTIONS V. CONCLUSION
On December 16, 2009, Mexican naval forces raided the hideout of Arturo Beltran Leyva, one of Mexico's most prominent drug lords. (1) Beltran Leyva was a close ally of Los Zetas, an up-and-coming narcotrafficking organization with extensive paramilitary capabilities. (2) The "Boss of Bosses," as Beltran Leyva was known, was killed during the raid in a great victory for President Felipe Calderon's ongoing offensive against the drug cartels. (3) Ensign Angulo Cordova of the Mexican Navy also lost his life during the two-hour gunfight. (4) As President Calderon celebrated Angulo Cordova's bravery and service with a state funeral, armed members of Los Zetas went to the fallen hero's home and murdered his grieving family. (5)
In total, drug-related violence has killed over 34,000 people in Mexico since President Calderon's 2006 crackdown on the cartels. (6) The violence is affecting neighboring countries as well. (7) At the heart of this violence is Los Zetas, Mexico's most dangerous trafficking organization that has killed civilians and murdered government officials in defiance of the Mexican state. (8) Given the pervasive violence and the number of deaths, the Mexican drug war is a situation of serious concern to the international community as a whole, which could warrant attention from the International Criminal Court (ICC). (9) Using a hypothetical prosecution, this Note focuses on Los Zetas leader Heriberto Lazcano's potential ICC liability stemming from a mass execution of seventy-two migrants by Los Zetas in August 2010. …