Chapter

International humanitarian law and transnational organised crime

Sven Peterke and Joachim Wolf

International law and transnational organised crime

Oxford ; New-York : Oxford University Press, 2016

p. 381-405

English

International humanitarian law (IHL) was not developed to deal with transnational organised crime (TOC). On the contrary, states were and still are reluctant to classify its violent manifestations as ‘acts of war’ or to accord the status of a warring party to such perpetrators. Nonetheless, the barring of organised crime from the ambit of IHL is not of a categorical nature since some IHL rules may be interpreted more broadly than originally envisaged. The laws of armed conflict have loopholes under which, in extreme cases of open clashes with the state security forces or paramilitary rivals, perpetrators of TOC might enjoy a collective or individual legal status. Unfortunately, it often falls within the discretion of the state party to a conflict to decide whether this legal regime will come into play under such circumstances. This is primarily attributable to the vagueness of the criteria established for verifying the applicability of the Geneva Conventions and their Additional Protocols. There are many legal and political risks involved in regard to the applicability of IHL to TOC, which should be considered carefully. If one goes beyond the state-centric perspective that is embodied by codified IHL and considers violent conflicts of TOC groups with state and non-state actors, like that in Mexico, which resembles a non-international armed conflict, it appears that a new type of armed conflict is emerging and that international legal doctrine is not yet able to address that satisfactorily.

• International law and transnational organised crime / ed. by Pierre Hauck and Sven Peterke