Nivedita Sharma[i]

INTRODUCTION

Over the years, countries such as Colombia have been struggling to calm down the vague enemies of drugs and terror and Mexico has been turned into a host of brutal organized crime by gang members. As per WHO review on Psychotropic substances, it can be stated that mere presence and abuse of dangerous substances at the consumer level with easy accessibility implies the prevalence of drug trafficking. Illicit drug sales have become a major source to finance terrorist organizations. The continuous increase in the interaction shows that they are being used in increasing the enemies’ fighting capability. This situation is infecting for both human resources and the economic and political structures globally. It is time that the International structures of law and justice intervene to take robust actions against the same.

This article will highlight the recent status of International Criminal Court [“ICC”] with respect to drug crimes. Further, it will argue that targeting drug based infrastructure could be a legitimate move under International Humanitarian Law [“IHL”]. We have an option to view the war on drug and terror situation through the lens of military necessity.

ICC ON DRUG-BASED CRIMES

There are multiple treaties addressing the issue of drug trafficking presently as it has become an international criminal activity, none of which seems to land upon a distinct mechanism. This being the reason, the question arises whether ICC should take charge to explicitly include it as a crime.

However, the efforts of the UN are the only internationally recognized efforts towards combating such a large scale crisis.  Ironically initially, ICC was considered for drug crimes, but the final draft of the Rome statute did not mention it due to problems arising in the degree of precision of targeting a drug crime.

The present jurisdiction does not allow ICC to contribute towards drug trafficking explicitly. Drug dealing is considered as an illegal contract between seller and buyer with the consent and not a “widespread or systematic attack”, which is the basic feature of the crimes covered by ICC. Further, somewhere drug mafias are functioning against the government, and somewhere the state authority is a part of aiding and abetting these crimes in greed of getting the funding from them. Thus, there is no universal remedy or even a broader arena to form laws for drug trafficking.

Additionally, the countries that use potentially harmful drugs in their cultural beliefs would not let drug trafficking succeed ‘complementarity’ test given under Article 17 of the Statute. The test says that ICC may exercise the jurisdiction if states are unable to do so. Hence, state parties will discard incorporating drug trafficking in international rules to save themselves from the embarrassment of inability and one more way of intervention by ICC.

Thus, these reasons push us over the edge to see a new aspect with respect to the provisions embodied under IHL.

TARGETING PSYCHOTROPIC DRUGS AS DUAL-USE OBJECTS

 Dual-use objects are those which can serve civilian as well as military objectives in a war regime as described under Article 51 of Additional Protocol I [“AP I”]. When there is a sufficient likelihood of such objects being used, directly or indirectly, to support and sustain enemy’s war-fighting capability, even if they are economic targets, they are not just any civilian objects and can be subjected to attack. Thus, they become legitimate targets under IHL. There is no exhaustive list of those objects that can make a legitimate military object in wartime.

Further, Article 52 of AP I discusses attack limitations on civilian and military objectives. In order to prove dual-use, according to Article 52(2) of the same, we need to analyze whether a) the object is contributing effectively to the military action of the enemy by b) its nature, location, purpose, or use and c) its destruction, capture, or neutralization has to offer a definite military advantage for the other side.

 A simple object such as raw cotton was destroyed by the Union forces during the civil war on the ground that the sale of cotton provided funds (an economic target) for almost all confederate arms and ammunition. However, there is always a debate whether an economical source could come under “War sustaining Capability” as it is too remote and vague, in the general sense. However, in the cases of drugs, we have evidence of them being a chief economic source of terrorism thus fulfilling the first condition.

Additionally, we need to look at the nature, purpose, location or use of drugs. Those scientific researches which can be reasonably anticipated to provide products that could be directly misapplied by others to pose a threat to public health, the environment or material can be stated as “dual – use research of concern.” Thus, intrinsic nature of psychotropic drugs falls under this category. If a “threat”  exists in that time and place, then there is a strong likelihood that it is being used for war sustenance. As per ICRC commentary, “the purpose is concerned with the intended future use of an object, while use, with its present function.” That implies that an object in civilian use which can be used for military purposes by its intrinsic nature can also be targeted on the outbreak of hostilities.

On reading, Article 52 and bio–terrorism , co-jointly, they emphasize the “circumstantial” aspect of drugs contributing to military action, i.e. by their nature, location or use. In the current cases, drug syndicates are gaining control over a large portion of a civilian population by targeting innocents. At the same time, they are acting as a channel for public money getting delivered to terrorist organizations.

That means there will be a military advantage for the better if the drug situation gets neutralized while curbing terrorism targets. Thus, for the countries struggling with Narco-terrorism, the second and third conditions are fulfilled.

Attack on drug syndicates would mean violent forces against drug bases, destructing their infrastructures and capturing individuals possessing drugs in a country at war on drugs and terrorism.. An instance of the same can be the destruction of opium cultivation by the US in Afghanistan. If these actions are governed by IHL explicitly, it will pave a way to concrete laws in the International jurisdictional system regarding this issue.

The following section expands how targeting drug-based infrastructure will be able to come under IHL if they are considered as dual-use objects. As diplomacy, economic sanctions and other political counter-measures are not sufficiently performing in the cases of terrorism. The author is suggesting an alternative so that these actions could get under the shadow of International Law.

FEASIBILITY OF THE ACTION

An organized crime at a large scale is significant enough to grant criminal justice agencies enhanced investigatory powers and the possibility to impose harsher sentences.

 Article 49(1) of 1977 AP I recognizes non-international armed conflicts, i.e., intense conflicts between a State and an organized armed group. Further, there are two categories for segregating war situations, namely Jus ad bellum and jus in bello.

 A state can be involved in an act of self-defense, and other states can come to the aid of the former facing an “armed attack” by a certain group under Article 51 of the UN Charter. It comes under Jus ad bellum which in present cases encompasses all types of armed conflicts between state and terrorist groups where the state initiates force.

 Further, the attack on drug syndicates would come under jus in bello where state deals with who and what may be targeted to minimize the effect of war so that excessive and unnecessary harm can be avoided in cases of armed conflicts.

The added benefit of viewing the attack on drug bases as jus in bello is that commanders who are governing the attack would always be under the scrutiny of IHL. This would ensure that they refrain from launching attacks that would likely cause excessive incidental loss of civilian life and encourage taking precautions to avoid disproportionate harm. Their actions could be governed by the concept of Individual Criminal Responsibility under customary law and could be tried by ICC. But, as far as the collateral damage is limited, the military can exercise its power. Hence, in an armed conflict between organized groups and states, targeting drug-based infrastructure falls under international law.

FINAL COMMENTS:

 This article has tried to justify that targeting drug-based infrastructures can be governed under international law.  This way the link between drug trafficking and terrorism will not suffer excuses about not being in the jurisdiction, gradually could be weakened and lawlessness would not survive.  Going by the statutory definition mentioned under the UN charter, terrorism is an armed conflict and the discussion on “legitimate” armed conflicts is beyond the scope of this article.  Whenever terror and drugs both prevail, to curb the former, we have to grab the latter. The author has attempted to symbolize sympathy for the innocents clutched in the shackles of Narco–terrorism and showed urgency to not leave out this area from international law.


[i] Nivedita Sharma is currently a third year student, studying at National Law University Jodhpur.