Criminal Organisations Party to an Armed Conflict and the Question of Targeting

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| Jan 19, 2024

Criminal organisations

This post is drawn from the authors’ article-length work, “Targeting Drug Lords: Challenges to IHL Between lege lata and lege ferenda” appearing in the International Review of the Red Cross.

Criminal organisations have been a threat to State stability for decades. Indeed, over the past years, some of the most heinous episodes of violence have taken place in countries where they operate.

These entities are mainly economic actors; they do not aim to supplant existing governments. Instead, their objective is to pursue illicit business, often benefiting from a weak State structure. Accordingly, they engage in armed confrontations against State forces only when it is strictly necessary to run their criminal activities.

Nevertheless, there are times when violence between criminal organisations and the government is such that it might amount to a non-international armed conflict (NIAC), provided that the group is sufficiently organised. This circumstance poses challenging questions for international humanitarian law (IHL), most notably with regard to the rules on targeting. For example, is every member of a criminal organisation a potential legitimate target? How does a State identify members of the armed wing of a criminal organisation? This post seeks to answer to these and related questions.

Criminal Organisations as Parties to an Armed Conflict

In its traditional form, a NIAC takes place between State forces and armed groups fighting to become the new government. Therefore, it might appear that criminal organisations would be excluded from becoming a party to a NIAC, as they are primarily economic actors whose main objective is illicit business activity and profit. While there are times when these groups engage in armed confrontations against governmental forces, they do so to the extent that it is necessary to run their unlawful business pursuits.

On the other hand, the government might want to use force against criminal organisations to put a stop to their unlawful activities. Therefore, we may wonder whether criminal organisations can become party to a NIAC.

A NIAC exists whenever there is “protracted armed violence between government authorities and organized armed groups or between such groups within a State.” The International Criminal Tribunal for the former Yugoslavia (ICTY) has identified two cumulative criteria necessary to determine the beginning of a conflict: the intensity of violence; and the organization of the parties. Accordingly, as long as the two aforementioned criteria are met, it seems as though nothing would prevent a criminal organization from becoming a party to a NIAC.

Nevertheless, some scholars maintain that only armed non-State actors (ANSA) that pursue political objectives can be party to a NIAC. Some have even cautioned that treating criminal organisations as parties to an armed conflict would grant them “implicit political legitimacy.” Such concerns are not new, although their basis is more in policy than law. From a legal point of view “the application of parts or all of IHL never confers any legal status upon an armed group.”

Other authors have argued that in violent situations involving criminal organisations, human rights law and domestic law enforcement offer better protection to civilians than IHL. This is especially true given that IHL not only allows for the deployment of the army to fight against ANSAs, but also for collateral damage under certain circumstances.

It should be noted that a number of States currently engaged in a “war on drugs” against criminal organisations have deployed members of the army. They have even created ad hoc hybrid armed units, composed of both members of the army and police forces. For instance, Mexican President Andrés Manuel López Obrador created the National Guard, members of which are mainly former soldiers, to fight against drug cartels. This phenomenon, referred to as the militarization of the war on drugs, has raised serious and well-founded concerns regarding the protection of the population. Indeed, while members of the armed forces have been instructed to operate under a law enforcement paradigm, their deployment has reportedly had the effect of substantially increasing armed violence.

Likewise, the Inter-American Court of Human Rights has highlighted that:

[A]lthough the States Parties to the Convention could deploy the Armed Forces to perform tasks other than those strictly related to armed conflicts, this use of the military should be limited to the maximum extent possible and respond to conditions of strict exceptionality to address situations of criminality or internal violence, because the military forces are trained to defeat an enemy and not to protect and control civilians, which is the specific training provided to police forces . . . . [A]s a general rule, the Court reaffirms that maintaining internal public order and public safety should, above all, be reserved to civil police agencies.

Be that as it may, the ICTY in the Limaj case (2005) has clarified that the reason why an armed group is fighting is irrelevant to determine whether it can be party to a NIAC. The determination of the existence of an armed conflict is based solely on two criteria: the intensity of the conflict; and organization of the parties. Under these criteria, the purpose of the armed force—whether it is to engage in acts of violence or also achieve some further objective—is irrelevant.

There are strong arguments supporting the ICTY’s conclusion in Limaj. Notably, determining the objectives of an ANSA can be extremely challenging, as exemplified by the situation in Colombia. The country has been engaging in armed violence against, on the one hand, “traditional” ANSAs such as the Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP or FARC) and the Ejército de Liberación Nacional (ELN), which fight with the objective of becoming the new government.

On the other hand, governmental forces have also been deployed to fight against a number of criminal organisations. While the FARC was created as a political group, in the 1980s it realised that engaging in criminal activities could have financially supported its political struggle. Therefore, it started producing and trafficking cocaine, to the point that it became one of the main drug cartels in Colombia. Accordingly, armed confrontations between the FARC and the government were not only motivated by political reasons, but were also related to the group’s criminal activities.

Targeting Members of Criminal Organisations: A Teleological Approach

Clarifying that criminal organisations can be party to a NIAC raises a number of questions regarding how IHL applies in such circumstances. Notably, the rules on targeting seem particularly challenging when these actors are party to an armed conflict.

The principle of distinction establishes that civilians, unlike combatants, may not be targeted during armed conflicts. Because combatant status does not exist in NIACs, the majority view, supported also by the ICRC, argues that members of State forces and ANSAs can be targeted at all times. Nevertheless, it is unclear how to determine who is a member of an armed non-State actor group for targeting purposes. While State forces must identify themselves with distinctive signs, it is at least debatable whether members of ANSAs bear the same obligation.

Regardless of whether a legal obligation exists, in practice, the majority of members of ANSAs do not distinguish themselves from the civilian population. This is particularly true for members of criminal organisations, who must avoid being recognised in order to run their criminal activities. Furthermore, not every member of an ANSA is a legitimate target, but only members of its military wing. In a similar manner, not every member of the State apparatus can be legitimately targeted, but only members of its armed forces.

Identifying the Military Wing of a Criminal Organisation Party to a NIAC

Scholarship has suggested three possible means by which a State might identify which members of a criminal organisation are lawful military targets.

First, some scholars affirm that membership should be based on conduct. In other words, individuals could be targeted only based on their current conduct. While this approach ensures the principle of distinction is respected, it would create an unfair imbalance between members of State forces—who can be targeted at all times, even when they are not fighting—and members of armed groups who can be targeted only when they are taking part in hostilities. Furthermore, this would undermine the distinction between civilians and members of ANSAs.

Second, others have suggested that membership could be based on status. However, this solution would risk excessively broadening the notion of membership of an ANSA for targeting purposes. Furthermore, this assessment would be context-dependent and it might not always be feasible to determine the status of an individual. Therefore, the ICRC has concluded that “membership in such groups cannot depend on abstract affiliation, family ties, or other criteria prone to error, arbitrariness or abuse.”

Lastly, the ICRC, in its Interpretative Guidance on the Notion of Direct Participation in Hostilities, suggests a solution that has been widely accepted by scholars and practitioners alike. According to the ICRC, members of the military wing of ANSAs are those who exercise a continuous combat function (CCF). This categorization encompasses individuals whose specific function in the group is “to continuously commit acts that constitute direct participation in hostilities.” The difficulty comes when determining who, in practice, has a CCF.

The ICRC in its Interpretative Guidance posits that “[c]ontinuous combat function requires lasting integration into an organized armed group acting as the armed forces of a non-state party to an armed conflict,” while “[i]ndividuals who continuously accompany or support an organized armed group, but whose function does not involve direct participation in hostilities . . . remain civilians assuming support functions, similar to private contractors and civilian employees accompanying State armed forces.” In practice, determining who performs a CCF could be deduced from a number of indicia, such as if the individuals concerned were trained by the group, if they received weapons, and if they were trusted with specific targets.

While the notion of CCF applies relatively easily to “traditional” armed groups, determining who belongs to the military wing of a criminal organisation is particularly challenging. It is even questionable whether criminal organisations can have a military wing in the first place. Nevertheless, in some exceptional cases, these groups do have a military wing close to the traditional sense of the term. For instance, the Gulf Cartel created Los Zetas as an elite armed wing composed of former members of the Mexican Airborne Special Forces who defected to join the cartel as hitmen, bodyguards, and drug runners.

However, this circumstance is exceptional and does not reflect the normal structure of criminal organisations. Furthermore, the fact that Los Zetas was specifically created as the military wing of the cartel does not necessarily mean that other members of the group could not also qualify as having a CCF.

In cases where a criminal organisation does not have a clear military wing, CCF could be assessed through a teleological approach. This idea rests on the rationale underpinning the principle of distinction. The reason why individuals belonging to State forces and the military wing of armed groups can be legitimately targeted is because they can, in turn, target the enemy at all times. In line with this approach, civilians are protected in as much as they do not take a direct part in hostilities. Therefore, members of criminal organisations “should be considered to have a continuous combat function if their role within the cartel encompasses using force against enemy soldiers” (see here). In other words, if a member of a criminal organisation is trained to use force, is provided with weapons, and is authorised to use them not only in self-defence, but also to attack, they should be considered has having a CCF, and therefore as being a legitimate target.

Such an approach might raise concerns with regard to the protection of members of the non-military wing of these organizations, who retain their status as civilians. In order to limit the risk of broadening the notion of CCF, the principle of precaution plays a crucial role. It is often suggested that in the fog of war reliable intelligence is limited, hence determining who has a CCF might be nearly impossible. Nevertheless, when criminal organisations are parties to the conflict, State armed forces normally have the opportunity to plan their military operations in advance and to take constant care and all feasible precautions to spare civilians and civilian objects. This includes making sure that those who are targeted perform a continuous combat function.

Conclusion

There are no legal grounds to affirm that criminal organisations cannot be party to a conflict. It is sufficient that the intensity of violence meets the required threshold and that the parties are organised. The fact that criminal organisations pursue mainly economic aims as opposed to having a political agenda does not affect the classification of the conflict. Having said that, it would be preposterous to assert that IHL is well developed to address the specific challenges posed by criminal organisations that are parties to a conflict, such as identifying the military wing of the group and who is a legitimate target. In this post, we have suggested a solution that would allow applying the current IHL rules to criminal organisations.

Do we need new rules? In many ways, we do. While this post has shown that the existing legal framework can be interpreted to address issues that emerge when criminal organisations are party to a conflict, the distinct nature of these groups prompts a call for new regulations. The challenges raised by criminal organisations-related violence could be more effectively tackled through the negotiation of new, context-specific rules. In the interim, the teleological interpretation of the existing legal framework appears to be the most viable approach for addressing these complexities.

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Chiara Redaelli is a Senior Legal Adviser at Diakonia IHL Centre and visiting professor at the Catholic University of Lille and the University of La Sabana in Bogotà.

Carlos Arévalo is a Professor of International Law and International Humanitarian Law at Universidad de La Sabana in Colombia.

 

 

 

Photo credit: Nahal via Wikimedia Commons