Group features of relevance to negotiation possibilities

The assumption that organized crime exists solely for the pursuit of illicit self-enrichment is misguided. While the pursuit of self-enrichment is a central feature of these groups – one that is programmed into their corporate DNA – organized crime groups are, in fact, highly diverse in their origin, nature, size, structure, sophistication, aspirations and identity, as well as in the scope of their territorial and social control. Varying from martial arts gangs in Timor-Leste to the maras in El Salvador, and from pirates in Bangladesh to Mexican cartels or Italian mafia, the spectrum of organized crime is eclectic.

In some cases, criminal activity emerges through necessity and the anarchic void left by the State's absence or dysfunction. Yet, it can also arise as part of a quest for personal survival or protection or for the vindication of a forged group identity – such as the Latin Kings in Spain and Ecuador, and the biker gangs in Denmark and Norway. Moreover, research shows that organized crime groups can offer collective protection in communities rife with poverty, exclusion and stigmatization – including after processes of migration or mass deportation. The role played by organized crime groups in offering local communities various forms of security, in turn, produces complex forms of allegiance and social interaction that must inform any serious effort to negotiate reduced violence.

The familial nature, identity and sense of belonging of these types of organized crime groups can both assist and hinder negotiations with them. Families of the biker gangs of Denmark and Norway, the Italian mafia, and MS-13 and M-18 in El Salvador and Honduras all involve a certain amount of enmeshing of families, sometimes quite strong. For example, in the negotiations between the Oslo Police District and biker chapters in the city in Norway,Footnote ³ and between the government and the maras in El Salvador,Footnote ⁴ wives and children were influential promoters and trustworthy back channels for negotiation efforts at key junctures. In Bangladesh, rough living conditions in the Sundarbans and the separation of pirates from their families was a key incentive for their engagement with the government.Footnote ⁵

Identity may also manifest through internal codes, symbols and physical appearance styles. Repressive approaches aiming to undermine the association and the sense of self-identity of organized crime groups with these features tend to worsen the problem; this is a pattern present in many of the cases examined in IFIT's research. By contrast, in Ecuador, the government decided to legalize some gangs – namely, the Sacred Tribe Atahualpa of Ecuador (STAE), the Ñetas and the Masters of the Street – allowing them to keep their identity (including distinctive clothes) and social cohesion, as well as associate with each other in public, producing a significant decline in homicides.Footnote ⁶

Inter-group violence is another matter. This can reach heightened levels in the face of threats to identity or familial honour, prestige grievances and lex talionis (the law of retaliation) – described by a mediator in the Gonzalez gang truce in Trinidad and Tobago as “issues of prior misdeeds”.Footnote ⁷ In 2012, 90% of deaths in El Salvador were reportedly attributed to inter-gang confrontation;Footnote ⁸ between 1994 and 1997, a war between motorcycle gangs in Denmark, Finland, Norway and Sweden resulted in the killing and wounding of many, using heavy military weapons such as explosives;Footnote ⁹ in Belize, inter-gang violence made it one of the most violent countries in terms of homicide rates in 2012;Footnote ¹⁰ and in Jamaica, war between rival gangs over territorial control involved entire populations being barricaded.Footnote ¹¹ Such realities are challenging for any effort to negotiate peace or violence reduction, since the reality is that most organized crime groups operate within a larger criminal market.

When organized crime groups proliferate in weak and easily co-opted States where corruption is deep-seated and ubiquitous, they can often achieve surprising levels of social and territorial control, filling governance gaps and achieving competitive advantages vis-à-vis the State. In Bangladesh, for example, pirates have imposed taxes on local communities and rules on fishing and trade;Footnote ¹² in Jamaica, gangs have filled vacuums left by the State and controlled important aspects of the life of inner-city communities, like August Town, involving the collection of “extortion taxes”, allocation of jobs, distribution of food and the punishment of those who transgressed gang rules.Footnote ¹³ In contexts such as Haiti and Cape Town, South Africa, local and international non-governmental organizations are often obliged to negotiate their entry into certain neighbourhoods to deliver humanitarian aid.

Unlike conventional militant armed groups, organized crime groups do not have grand political aims. They do not seek to advance major social or political transformations based on high-minded ideals. Rather, the political component of organized crime groups’ activity typically amounts to manufacturing the right environment for their illicit activity – for example, by co-opting and colluding with institutional and political sectors to gain territorial control or dividends (as in the case of Latin American maras in Honduras and El Salvador) or by trying to shift governmental decisions and public debates in their favour (as in the case of powerful mafia and cartels).

This connection with politics is ripe for exploitation by politicians themselves, who may seek to gain the political dividends of clamping down hard on crime. The result is a vicious cycle that chips away at the perceived legitimacy of any prospect of negotiation – or even interaction – between the two worlds. Efforts are either scorned as vile pacts between self-serving politicians and criminals for mutual gain or offered as evidence that the State has been co-opted by an illicit force.

The seriousness of the threat

Whether organized crime manifests itself as sporadic and opportunistic expressions of violence, or as an entrenched and sophisticated enterprise, the phenomenon poses a substantial threat to peace and security, often in ways that transcend national borders.

Locally, the violence perpetrated by organized crime groups can rip through the fabric of society, destroying national stability and social cohesion in its wake. In the 1990s, the Cosa Nostra targeted State officials and civilians in Italy through bombings and political campaign killings, terrorizing the whole country.Footnote ¹⁴ Meanwhile, in Colombia the brutal and debilitating violence of Pablo Escobar and his “Extraditables” inflicted similar agony. However, smaller and more local groups can also be devastating for communities. In Jamaica, communities have lived in fear of the actions of comparatively small gangs;Footnote ¹⁵ piracy in the Suburban region of Bangladesh had a devastating impact on local communities where kidnappings once were a weekly occurrence;Footnote ¹⁶ and in Pakistan, assassinations, shootouts and grenade attacks between rival gangs in Lyari led to thousands of civilian deaths at its peak.

External shocks, such as COVID-19 lockdowns, can make things worse. Ecuador, located on a strategically important drug trafficking route, saw killings nearly double and experienced the deadliest prison gang riots in its history with the onset of the pandemic.Footnote ¹⁷ Meanwhile, in Colombia, record levels of cocaine production arose, even on reduced acreage, as crime groups developed larger production sites and better extraction techniques.Footnote ¹⁸ In Mexico, regional and local elections saw organized crime make increased forays into public spaces,Footnote ¹⁹ and in places like South Africa, Afghanistan and Syria organized crime tightened its grip over certain territories by providing emergency aid to vulnerable communities and taking control of struggling licit businesses.Footnote ²⁰

The situation tends to be even more dire when organized crime interlinks with formal armed conflicts.Footnote ²¹ Wars provide a golden opportunity to entrench economic, political and social influence through corruption, rent-seeking, predation and criminal governance – ultimately blurring the nature of the conflict itself. On top of this, criminal agendas have a well-known habit of wrecking peace processes, especially at the implementation stage when defections by militants foreseeably arise and security vacuums – at least initially – grow rather than shrink. During efforts to negotiate a truce among the local maras in Honduras in 2013, transnational drug cartels reportedly attempted to prevent a truce because they feared it would be bad for their illegal business operations.Footnote ²²

Organized crime is also sometimes linked with processes of mass deportation and migration, as in the youth gangs from Ecuador and Spain, or the maras in El Salvador, Honduras and the United States.Footnote ²³ More generally, globalization has had the perverse effect of enabling drug trafficking, human smuggling and illegal arms trading to thrive in ever more sophisticated and cooperative global markets. It is estimated that nearly 70% of illicit profits find their way into the global financial system.Footnote ²⁴

The public preference for mano dura

Given the inherently illegal nature of organized crime groups, the public appetite and political bandwidth for constructively engaging or negotiating with them is understandably limited. This is not only because these groups sometimes perpetrate bewildering acts of violence, but also because people suspect that any laxness or compromise will only encourage further crime.

When the State apparatus is weak and steeped in distrust, public aversion to constructive engagement with criminal groups often increases. As described in the prior section, organized crime groups regularly manipulate political situations to their own advantage.

Under these circumstances, State-led negotiations are immediately assumed to reflect collusion, connivance or partisan pursuits that undermine rather than advance security and good governance. This is especially the case when public institutions, including law enforcement, are demonstrably infiltrated by members of the very same criminal groups with which the government is negotiating.

As a result, negotiations are usually seen as dirty deals, and negotiators accused of conspiracy or criminal association. Members of the Special Operative Forces of the Carabinieri who purportedly negotiated with the Cosa Nostra in a bid to quell mafia violence in Italy have been sentenced for charges of criminal corruption.Footnote ²⁵ Similarly, in El Salvador, despite Organization of American States and Catholic Church participation, negotiators remain under investigation for conspiracy to commit crimes.

An additional and more subtle challenge is in the realm of the imagination. Officials and members of the public find it difficult to conceive of organized crime groups as reliable interlocutors in a negotiation, and are unclear how any talks could create a pathway for them to transform institutionally and legalize operationally into a new form that society can peacefully coexist with.

States have therefore tended to adopt heavily repressive (or mano dura) policies, understanding this as a political imperative as well as a practical necessity. In perhaps the best-known example, iron-fist policies – involving the arrest of tens of thousands throughout the Northern Triangle of Central America – have turned prisons into universities for crime, hardened gang members and resulted in appalling conditions in prisons that are effectively controlled by gangs. Likewise, in cities in the United States struggling with organized crime – such as Los Angeles or Chicago – overly repressive approaches often had the effect of enhancing the identity of the gangs.Footnote ²⁶

A hidden bias in international law

When it comes to conflict prevention and resolution, a critical gap in international law is holding back progress. While there is international law to regulate armed conflicts and war, no clear counterpart exists to encourage, support and sustain peace negotiations.

While peace and security are at the heart of the United Nations (UN) Charter, and conflict prevention and resolution are listed as central ideals for all States and peoples, the provisions encouraging the peaceful settlement of disputes are microscopic. They are limited to conflicts that are likely to endanger the maintenance of international peace and security and short on the kind of details that could make recourse to dialogue a more attractive option for governments.Footnote ²⁷

As things stand, out of the 560-plus multilateral treaties in force today – which cover everything from human rights to disarmament, trade, climate change, and much more – none sets out targeted incentives and benefits to promote the use of negotiation to prevent and resolve non-international armed conflicts or other violent crises.

At first blush, one might think that this gap is deliberate, reflecting a reticence to codify or standardize the format of negotiations to protect much-needed flexibility during peace talks. However, there is no evidence of such intent; only evidence of the omission. The consequence is that confrontation – the less politically risky option for governments in the face of publicly vilified enemies – becomes the default choice.

IHL is a limited exception to this fact because it is the only area of international law that openly recognizes the inherent need of legal concessions and flexibility to end wars. Article 6(5) of Additional Protocol II to the Geneva Conventions (AP II) provides: “At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”Footnote ²⁸

Although the International Committee of the Red Cross (ICRC) has sought to narrow the interpretation of this rule in the age of the International Criminal Court, claiming that the provision was never meant to encompass war crimes, the historical record shows otherwise.Footnote ²⁹ Moreover, the continued use of amnesty by States, together with their categorical reluctance to codify any international prohibition of amnesties, undermines any serious claim that an anti-amnesty norm has become settled law.Footnote ³⁰

But if Article 6(5) is a useful norm for peace-making, it is not nearly enough on its own to incentivize recourse to dialogue by conflict parties. Peace negotiations are notoriously hard to mount, involving large political risks and controversies for governments and a myriad of complex policy and design questions. To meet the challenge, only an upgraded international law could help de-risk the up-front political costs and complications for any government that announces it will be sitting down with an enemy that the population has come to fear or repudiate after years of violence.

However, negotiations are not only hard to start; they are also hard to sustain. They involve constant ups and downs, interruptions and crises, often over a period lasting many years. It is therefore important for any negotiation-incentivizing international law to give as much stability, support, and political and legal embedding as possible so that at every juncture, the process has a higher chance of advancing to the next stage. Currently, international law does no such thing.

Finally, if ultimately a peace agreement is reached – a rare but often transcendental moment – the agreement's legality and legitimacy under international law cannot be left vague and uncertain. A UN Security Council (UNSC) resolution, though difficult to obtain, may be helpful in this regard.Footnote ³¹ However, the larger point is that the current lack of a streamlined certification process creates legal uncertainty and disincentivizes the recourse to peaceful conflict resolution mechanisms.Footnote ³²

The good news is that all of this is fixable and already the object of a global initiative to incentivize conflict prevention and resolution through a purpose-built treaty.Footnote ³³ Where existing law is unclear, the new international law treaty aims to provide greater clarity (for example, around recurrent questions such as the use of conditional amnesties). Where existing law lacks an institutional framework to ensure structured progress efforts to negotiate the prevention or resolution of non-international armed conflicts, the new treaty seeks to provide one (for example, by creating technical support mechanisms and State obligations of preparedness, education and training). Also, where existing law is absent, the new treaty aims to create modern definitions, norms and procedures that match the changed realities of conflict and the needs of peace-making in the twenty-first century.

International law and organized crime

According to research by the Global Initiative Against Transnational Organized Crime, out of the 1113 UNSC resolutions passed between 2000 and 2017, 387 of them (34.8%) either referenced or discussed organized crime in relation to armed conflict settings.Footnote ³⁴ By 2021, this climbed to 49% of all resolutions. Yet, this reality is only weakly reflected in international law.

Of the multitude of global and regional legal norms vis-à-vis the phenomenon of organized crime, the most significant is the UN Convention Against Transnational Organized Crime (UNOTC).Footnote ³⁵ States that ratify the UNOTC commit to several measures to fight transnational organized crime, including the criminalization of participation, money laundering, corruption and obstruction of justice by such groups; the adoption of new frameworks for extradition, mutual legal assistance and law enforcement cooperation; and the promotion of training and technical assistance and cooperation.Footnote ³⁶ The additional protocols to the UNOTC cover obligations such as the prevention and combat of trafficking in persons;Footnote ³⁷ and the prevention, combat and eradication of the illicit manufacturing and trafficking of firearms, their parts and components and ammunition.Footnote ³⁸

Yet, from the vantage point of violence prevention, the UNOTC and its protocols appear one-dimensional. They provide States with a single, often counterproductive option: confrontation and punishment. This leaves very little room for policymakers to think creatively, making the already bedevilling challenge of overcoming organized crime even worse.

By contrast, IHL is more nuanced (as already noted above). According to Article 1(1) of AP II, IHL applies in all situations of armed conflict where a group must demonstrate structural similarities to that of conventional armed forces. In particular, there must be a reasonable degree of coordination, operational coherence and ability “to carry out sustained and concerted military operations”.Footnote ³⁹

Importantly, through jurisprudence there are more flexible definitions of what armed conflict is. The broadest is found in Prosecutor v. Tadić, which states that armed conflicts occur “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.Footnote ⁴⁰ Later decisions (i.e. Prosecutor v. Haradinaj et al. and Prosecutor v. Limaj et al.)Footnote ⁴¹ outlined a more detailed definition of armed conflict. Together, these developed a set of factors related to the intensity of violence and the organizational complexity of the armed groups required to establish the existence of an armed conflict.

The implication of all this is that organized crime groups fall under the scope of IHL when they produce violence that reaches a level of intensity and organizational complexity that creates a situation of armed conflict. While any such match is likely to be the exception rather than the rule, the laws of war – like all other bodies of law – must be dynamic and adaptable to new realities.

It is also noteworthy that the ICRC has been widening its field of action to account for atypical situations of violence which would otherwise fall below the threshold of armed conflict (including those generated by organized crime and terrorism). These “other situations of violence” are characterized by acts of a “definite degree of violence”, “perpetrated collectively” and involving “significant humanitarian consequences”.Footnote ⁴² The ICRC justifies this departure from the traditional scope of situations governed by IHL on the basis of Article 5(3) of the Statutes of the International Red Cross and Red Crescent Movement. It is now considered a component of customary IHL.Footnote ⁴³