Can organized crime be treated as a non-state party to an armed conflict?

It is widely accepted that, when determining the applicability of International Humanitarian Law, armed groups’ motivations are irrelevant. As long as organized violence has sufficient intensity, and the armed groups involved have the capacity to organize and carry out military operations, there is an armed conflict for legal purposes.

It follows from this agnosticism about motivations that large-scale criminal organizations can be treated legally on a par with political insurgencies. Drug cartels in particular, if sufficiently armed and well organized, can be armed groups before the law.

This paper examines and problematizes this legal state of affairs. It analyzes the distinction between criminal, political, and principled motivations, and it highlights important contrasts in the nature and practice of violence undertaken by criminal organizations versus political insurgencies. It concludes that organized criminality should not be treated as a non-state party to armed conflict.