Emerging Voices: Drug Cartels, Bacrim, and Other Militarized Criminal Organizations–A New Role for the Inter-American System?

[David L. Attanasio is a professor of international law at the Jorge Tadeo Lozano University in Bogotá, Colombia]

The last few years have seen a rapidly changing landscape for serious human rights violations in the Americas.  Instead of government abuses committed in the alleged fight against left-wing guerilla groups, militarized criminal organizations now perpetrate many, if not most, serious human rights violations (or what would be such violations were they committed by state actors). While the Mexican drug cartels operating throughout Mexico and Central America are well known, Colombia has a serious problem with similar groups, the so-called Bacrim (criminal bands).  Although less known, Bacrim groups are representative of the regional trend, violently seeking control of drug production and trafficking routes—among other activities.  Reflecting their national significance, the Colombian Constitutional Court recently held that Bacrim victims have the right to reparations similar to those for other armed conflict victims.

The contentious case mechanism of the Inter-American Human Rights system has been an important tool to combat serious human rights violations, as individuals can use it to denounce specific state human rights violations.  But, given the new dynamics of human rights violations in the hemisphere, the mechanism must adapt to the sharp increase in violations committed by non-state, criminal actors.  To do so, the system should embrace a role as a secondary guarantor of human rights.   It should leave states with the primary responsibility for stopping violations by these non-state actors but should review state efforts to protect in a broad range of circumstances.  The dynamics of Bacrim indicate that there is a large risk of inadequate state protection against such militarized criminal organizations, a risk the Inter-American system could help to correct.

Adapting the contentious case mechanism to the changing dynamics of serious human rights violations is difficult because it is designed primarily to enforce state compliance with human rights norms: contentious suits can only be brought against states.  This mechanism is not directly useful to combat violations by non-state actors like militarized criminal organizations.  However, the Inter-American Court has recognized a state obligation to protect since its first merits decision in Velasquez Rodriguez v. Honduras, providing a potential way for the system to engage with non-state human rights violations. The system could adapt to become a secondary guarantor of human rights against militarized criminal organizations by ensuring that states adequately protect against the threats they pose.  While the system would not (and cannot) directly enforce human rights norms against these groups, it could require states to aggressively protect against them.

Unfortunately, current Inter-American Court doctrine allows review of state protection efforts only in a small set of cases: state officials must have known of (or should have known of) a particular threat to the non-state actor’s victim (or a small group to which the victim belonged).  But Bacrim and other militarized criminal organizations are by nature clandestine, at least to an extent. States currently can escape international review and responsibility even when their officials knew that a violent group was operating in a given area and failed to act with available resources.  The narrowness of current review prevents the system from adequately ensuring that states protect against these organizations. If the system is to be an effective guarantor of human rights against Bacrim and similar groups, review must be allowed in a broader set of circumstances.  For example, the mere knowledge of group presence and activity in a particular region should be sufficient for reviewing the measures that local state security forces took to reduce group activity, even when the state lacked knowledge of a threat to the specific victim.

It is important for the Inter-American system to take on this role as a secondary guarantor of human rights because of the substantial risk that states will take inadequate measures to protect against militarized criminal organizations.  Action by the Inter-American system could defuse some of this risk.

The nature of these groups and of the human rights violations they commit creates a risk of inadequate state protection for a number of reasons.

Fundamentally, these organizations are not revolutionary or even particularly political in nature, characteristics that might otherwise incite a state response to a violent non-state group.   Instead, their primary objectives are economic: to conduct a range of illegal businesses that require free operation in a given territory.  They can coexist with the state and state authority so long as state officials do not seek to disrupt their businesses.  For these reasons, in Colombia Bacrim have provoked relatively few direct confrontations with the security forces, especially in comparison to the constant fighting among different Bacrim groups.

Beyond the failure to incite a state response, militarized criminal organizations have other characteristics that accentuate the risk of an insufficient state response.

Importantly, they pervasively corrupt state officials, both those who might be tasked with opposing them but also those who might otherwise facilitate their illegal businesses.  Corruption from the Bacrim in Colombia has reached a range of state authorities, from members of the police and military to local elected officials, and possibly even national officials like members of the Colombian congress.  Coopted officials have undermined efforts to dismantle Bacrim groups: alias Cuchillo—the former leader of a Bacrim group operating in the eastern Colombian plains—repeatedly evaded capture using information received from corrupt officials.

Equally problematically, criminal organizations like the Bacrim primarily affect marginalized populations of limited interest to state officials.  The main areas where Bacrim have control are rural areas suitable for the manufacturing or transportation of cocaine and impoverished zones in cities such as Medellín.  Those living in these areas have to suffer violence incident to contests for local power or extortion from those groups that have consolidated control.  Despite the negative impact of Bacrim presence, authorities are less like to respond to the needs of these areas because the populations have limited or non-existent political influence.  Perhaps the best illustration is somewhat counterintuitive:  When a Bacrim group murdered two University of the Andes (an elite Colombian university) students in 2011, the national government immediately reacted with a focused anti-Bacrim initiative.

While the Inter-American system is not a panacea, active enforcement of state protection efforts can help reduce the risk that states will inadequately protect their citizens.  The reasons are not particular to its potential role as a secondary guarantor of human rights against militarized criminal organizations, although they apply here as well:  Simply by reviewing individual contentious cases, the system can provide international accountability and monetary liability for failures.  This review creates some direct incentive for states to adequately protect, partly counteracting the risk of inaction.  But beyond direct review, the system can mobilize other actors to enforce state compliance.  Decisions in concrete contentious cases can provide more general standards that the international community and domestic civil society can use to pressure states.  Through the contentious case mechanism, the Inter-American system can focus attention on a state protection, mobilizing others to force states to act.

[For those interested, David has written an article covering this topic in depth. You can download it here.]