This article addresses the situation of Mexican cartels in relation to the applicability of international humanitarian law (IHL). The analysis starts with a theoretical examination of the International Criminal Tribunal for the former Yugoslavia criteria on intensity of violence and level of organization established for assessing the existence of an organized armed group in the context of a non-international armed conflict. The article further examines legal and non-legal literature with the purpose of providing elements to consider the rightness of applying IHL to criminal organizations, also considering similar scenarios in Latin America. The aim of this assessment is to provide additional elements for the consideration of whether IHL is suitable when addressing confrontations between certain criminal gangs and States. Additionally, the article assesses how the commercial purposes of these groups affect their organization and the nature of the violence in which they engage.

Richard Baxter famously stated that “the first line of defence against international humanitarian law is to deny that it applies at all”. While “under-classification” remains an issue today, a parallel trend needs to be acknowledged. This is the tendency to over-classify situations of violence, especially in relation to transnational terrorist organizations such as the so-called Islamic State group or Al-Qaeda. This tendency stems from practical difficulties inherent in the changing operational environment. The last few years have witnessed a proliferation of armed non-State actors that are labelled or designated as terrorists (e.g., in Iraq, Syria, Mali, Nigeria and Yemen). Terrorist groups are characterized by opaque, often volatile organizational structures and tend to operate in decentralized networks rather than clear hierarchies. The formation of splinter groups, changing alliances, temporary reunification and even open hostility among former allies are common phenomena. This complex factual situation has led to the proliferation of theories of conflict classification, many of them arguing in favour of more flexible classification via the loosening of existing standards. Because international humanitarian law is in many respects less protective than international human rights law, particularly regarding the rules on the use of force and detention, classifying a situation of violence as an armed conflict when the threshold has not been met is a problem that should not be underestimated. In this article, we revisit the criteria of intensity and organization, as well as the related matter of the role of motives in conflict classification, considering conflicts involving armed groups described as terrorists. Our goal is to identify minimum requirements that could diminish the risk of over-classification by various stakeholders.

This paper focuses on the “continuous combat function” concept and proposes to extend its application. First, the article will demonstrate that the continuous combat function concept should be extended to certain members of organized armed groups in cases where those groups do not belong to any of the parties to an international armed conflict and whose actions do not reach the level of intensity required for a separate non-international armed conflict (NIAC) to exist. Secondly, the paper will look at the extension of this concept in order to determine individual membership in State armed forces in the context of a NIAC, while arguing that the notion of “armed forces” should be interpreted differently depending of the nature of the conflict, be it international or non-international.

The ICRC, following extended discussions with a large group of experts, has adopted and issued a non-legally binding document entitled ‘Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law’ consisting of ten recommendations and about fifty pages of related commentary. The discussion process which preceded production of the Interpretive Guidance was contentious and no consensus was reached on the issue of Direct Participation in Hostilities. As the result, the ICRC, as it was entitled to do, issued its own interpretation of the applicable law. The author of this article, who was involved in all of the expert meetings, reviews and comments on the Interpretive Guidance and attempts to make an assessment of its general viability and of its acceptability to the wider IHL community.