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Negotiating with organized crime groups: Questions of law, policy and imagination

Published online by Cambridge University Press:  23 September 2022

Mark Freeman  and
Mariana Casij Peña
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Abstract

Negotiations with organized crime groups occur more often than realized, and raise complex questions of ethics, practice and policy. Currently, law provides few incentives for States to choose the path of negotiation, and thus the political costs and moral hazards remain very high and a mano dura (“firm hand”) approach prevails. This paper examines some of the challenges faced by those who in good faith might initiate or participate in negotiations with such groups, offering an assessment of how those challenges can be mitigated and an inquiry, in particular, into how law and policy might be improved or reimagined to make such negotiation more feasible and effective in contexts of armed conflict or other situations of violence.

Keywords

organized crime groupspeace negotiationarmed conflictsinternational humanitarian lawinternational law of peace negotiations
Type
Research Article
Information
International Review of the Red Cross , Volume 105 , Issue 923: Organized Crime , August 2023 , pp. 638 - 651
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC.

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Footnotes

*

The authors are grateful to Paula Salinas and Finlay Jones for their support in research and editing.

The advice, opinions and statements contained in this article are those of the author/s and do not necessarily reflect the views of the ICRC. The ICRC does not necessarily represent or endorse the accuracy or reliability of any advice, opinion, statement or other information provided in this article.

References

1 See, in particular, Mark Freeman and Vanda Felbab-Brown, Negotiating with Violent Criminal Groups: Lessons and Guidelines from Global Practice, IFIT, Barcelona, March 2021, available at: https://ifit-transitions.org/wp-content/uploads/2021/03/001-Negotiating-with-Violent-Criminal-Groups-v4.pdf (all internet references were accessed in August 2022).

2 Ibid., pp. 7–11.

3 Interview with former advisor of Oslo Police Department directly involved in the design of the dialogue method with the motorcycle gangs, virtual, December 2020 (on file with the authors).

4 Interview with diplomat directly involved in Salvadoran negotiations, virtual, September 2019 (on file with the authors).

5 Interview with former pirate, virtual, October 2020 (on file with the authors).

6 Interview with former gang leader of the Latin Kings involved in the negotiations with the government, virtual, September 2020 (on file with the authors).

7 Interview with researcher involved in the negotiations among the gangs in Gonzalez, virtual, October 2020 (on file with the authors).

8 Interview with ex-El Salvador official involved in the negotiations with the maras, virtual, October 2019 (on file with the authors).

9 Gazette, RCMP, “Blood Spilled”, in Veno, Arthur (ed.), The Mammoth Book of Bikers, The Running Press, Philadelphia, PA, 2007Google Scholar, position 7628 (Kindle edition).

10 Geneva Centre for Security Sector Governance, “Belize Country Profile”, Geneva, 2 February 2015, available at: https://issat.dcaf.ch/Learn/Resource-Library2/Country-Profiles/Belize-Country-Profile.

11 Amnesty International, “Jamaica: Poor Communities Held Hostage to Gang Violence and Government Neglect”, 25 March 2008, available at: www.amnesty.org/en/latest/news/2008/03/jamaica-poor-communities-held-hostage-gang-violence-and-government-negle/.

12 Interview with local journalist involved in negotiations between the pirates in the Sundarbans and the Government of Bangladesh, virtual, September 2020 (on file with the authors).

13 Interview with former police official involved in the negotiations among gangs and government authorities in August Town, virtual, September 2020 (on file with the authors).

14 Organized Crime and Corruption Reporting Project, “Italian Trial Looks at Mafia–State Pact”, 14 May 2013, available at: www.occrp.org/en/investigations/1955-italian-trial-looks-at-mafia-state-pact.

15 Amnesty International, above note 11.

16 Kate Lamb and Ali Ahsan, “The Bangladeshi Crab Farmers Battling Climate Crisis – and Pirates”, The Guardian, 18 October 2019, available at: www.theguardian.com/environment/2019/oct/18/the-sundarbans-crab-farmers-battling-climate-crisis-and-pirates-bangladesh.

17 El Universo, “Hasta el 30 de diciembre van 2.464 asesinatos en Ecuador; en 2020 fueron 1.362 casos”, 30 December 2021, available at: www.eluniverso.com/noticias/seguridad/hasta-el-30-de-diciembre-van-2464-asesinatos-en-ecuador-en-2020-fueron-1362-casos-nota/; and BBC, “Ecuador Prison Riot: New Fighting at Guayaquil Jail Kills 68”, 14 November 2021, available at: www.bbc.com/news/world-latin-america-59276428.

18 Juan Diego Posada and Seth Robbins, “Colombia's Cocaine Keeps on Reaching New Heights: UNODC Report”, InSight Crime, 30 July 2021, available at: https://insightcrime.org/noticias/colombia-cocaine-keeps-reaching-new-heights-unodc/.

19 Eduardo Moncada and Gabriel Franco, “COVID-19 and Organized Crime: The Politics of Illicit Markets, States, and the Pandemic”, Georgetown Journal of International Affairs, 19 May 2021, available at: https://gjia.georgetown.edu/2021/05/19/covid-19-and-organized-crime-the-politics-of-illicit-markets-states-and-the-pandemic/.

20 United Nations Office on Drugs and Crime (UNODC), The Impact of COVID-19 on Organized Crime, July 2020, available at: www.unodc.org/documents/data-and-analysis/covid/RB_COVID_organized_crime_july13_web.pdf.

21 The 2004 report of the High-Level Panel on Threats, Challenges and Change highlighted the role of organized crime in fuelling violence and financing terrorists and militias. See the Report of the High-Level Panel on Threats, Challenges and Change on a More Secure World: Our Shared Responsibility, UN Doc. A/59/565, 2 December 2004, available at: www.un.org/ruleoflaw/files/gaA.59.565_En.pdf.

22 Interview with diplomat directly involved in Honduran negotiations, virtual, September 2019 (on file with the authors).

23 Interview with scholar and lead mediator between the gangs and the Ayuntamiento, virtual, August 2021 (on file with the authors); Interview with scholar directly involved in the gang's legalization process, virtual, September 2020 (on file with the authors); Laila Abu Shihab, Melissa Velásquez Loaiza, Luis Alejandro Amaya and Juan Marra, “Guerra de Trump a las maras en EE.UU. pone en jaque a Centroamérica [Trump's War on US Gangs Puts Central America in Check (IFIT translation)]”, CNN en español, 28 April 2017, available at: https://cnnespanol.cnn.com/2017/04/28/guerra-de-trump-a-las-maras-en-ee-uu-pone-en-jaque-a-centroamerica/.

24 UNODC, Estimating Illicit Financial Flows Resulting from Drug Trafficking and Other Transnational Organized Crimes, October 2011, p. 5, available at: www.unodc.org/documents/data-and-analysis/Studies/Illicit_financial_flows_2011_web.pdf.

25 M. Freeman and V. Felbab-Brown, above note 1, p. 9.

26 Interview with ex-government official of Los Angeles and a key actor during the Watts Truce, virtual, October 2019 (on file with the authors).

27 Charter of the United Nations of 26 June 1945 (entered into force 24 October 1945), 1 UNTS XVI, Chapter VI: Pacific Settlement of Disputes.

28 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 6(5).

29 Mark Freeman and Louise Mallinder, “Negotiating Amnesties, Peace and Justice: A New Path”, IFIT, 28 February 2022, available at: https://ifit-transitions.org/commentaries/negotiating-amnesties-peace-and-justice-a-new-path/.

30 Ibid.

31 Article 39, in accordance with Article 25 of the UN Charter, confers upon the UNSC the power to make recommendations and adopt binding measures to particular situations or disputes for the maintenance of international peace and security. See, for example, UNSC Resolution 2307, 13 September 2016, through which the UNSC endorsed the Colombian peace agreement. Although this resolution was not binding for all UN Member States, the endorsement lent legitimacy to the Colombian peace process at the international level.

32 By way of example, the transitional justice system included in the 2016 peace agreement between the government of Colombia and the FARC (Fuerzas Armadas Revolucionarias de Colombia; “Revolutionary Armed Forces of Colombia”) is being reviewed by the Inter-American Court of Human Rights. Any decision affecting the substance of the agreement might have difficult implications for the peace agreement in the country.

33 See IFIT, The Peace Treaty Initiative, available at: https://ifit-transitions.org/peace-treaty-initiative/.

34 Global Initiative Against Transnational Organized Crime, “From Resolutions to Responses: Organized Crime and the UN Security Council”, 18 June 2019, available at: https://globalinitiative.net/analysis/toc-unsc/.

35 United Nations Convention Against Transnational Organized Crime of 15 November 2000, UN General Assembly (UNGA) Resolution 55/25 (entered into force 29 September 2003).

36 Ibid., Arts 5, 6, 8, 14, 16, 18, 23, 27 and 29.

37 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of 15 November 2000, Supplementing the United Nations Convention Against Transnational Organized Crime, UNGA Resolution 55/25 (entered into force 25 December 2003).

38 Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition of 31 May 2001, UNGA Resolution 55/255 (entered into force 3 July 2005).

39 AP II, above note 28, Art. 1(1).

40 International Criminal Tribunal for the former Yugoslavia (ICTY), The Prosecutor v. Duško Tadić a/k/a “DULE”, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Appeals Chamber), 2 October 1995, para. 70.

41 ICTY, The Prosecutor v. Ramush Haradinaj, Idriz Balaj and Lahi Brahimaj, Case No. IT-04-84; ICTY, The Prosecutor v. Fatmir Limaj, Isak Musliu and Haradin Bala, Case No. IT-03-66.

42 ICRC, “The International Committee of the Red Cross's (ICRC's) Role in Situations of Violence Below the Threshold of Armed Conflict”, International Review of the Red Cross, Vol. 96, No. 893, 2014Google Scholar, available at: https://international-review.icrc.org/sites/default/files/irrc-893-policy.pdf.

43 Bugnion, François, The International Committee of the Red Cross and the Protection of War Victims, Macmillan, Oxford, 2003, p. 355Google Scholar, in Bradley, Miriam, “From Armed Conflict to Urban Violence: Transformations in the International Committee of the Red Cross, International Humanitarianism, and the Laws of War”, European Journal of International Relations, Vol. 26, No. 4, 2020, p. 1066CrossRefGoogle Scholar, available at: https://journals.sagepub.com/doi/10.1177/1354066120908637.

44 M. Freeman and V. Felbab-Brown, above note 1, p. 11.

45 Ibid., p. 18.