By: Diana Escalante Ilarraza
“I think they should establish a policy — and they can do it —banning weapons of extermination, and a stronger policy on the sale of weapons to the Mexican military, which is the sale of weapons to organized crime, because unfortunately, they have become the same thing. Those who suffer from this are the public, the citizens ourselves.” –Javier Sicilia
On March 28, 2011, Javier Sicilia, a Mexican poet, and activist, woke up to the news that his 24-year-old son was found dead in a vehicle along with six other people in the Mexican state of Morelos. In 2013, he began a campaign to call attention to the detrimental effects of the arms sales from the United States to Mexico. Sicilia, along with many other activists, believes that the National Rifle Association abuses the privilege of the Second Amendment when it promotes the sale of weapons to Mexico.
Sicilia’s theory coincides with the findings of the U.S. Government Accountability Office (GAO), which found that approximately eighty-seven percent of firearms seized by Mexican authorities in reported crimes come from the United States. In exporting weapons to Mexico, the United States is arming Mexican law enforcement officials who collude with organized criminal groups. Thirty-two percent of U.S. arms exports to Mexico are mysteriously unaccounted for by the Mexican government, yet the U.S. Department of State continues to allow direct commercial sales and foreign military sales of weapons to any state or region of Mexico. Given that arms exports to Mexico are unlikely to cease, is there legal recourse to pressure the United States to better control the arms it exports to Mexico?
The United States’ current gun exports to Mexico violate the Arms Trade Treaty (ATT), a multilateral treaty that regulates international trade in firearms because the arms exports are aiding in crimes against humanity in Mexico, and they are being diverted to organized criminal groups. In 2013, President Obama signed the ATT despite strong opposition from U.S. gun lobbyists who maintain that the treaty infringes upon U.S. sovereignty. Article 6 prohibits arms exports to countries that use arms in crimes against humanity, while Article 7 prohibits arms exports to countries where the arms could undermine peace and security. The U.S. violates Article 6 of the ATT because it has constructive knowledge that the arms it exports to Mexico are being used in crimes against humanity. The U.S. is also violating Article 7 of the ATT, because it is undermining peace and stability in Mexico by indiscriminately arming Mexican authorities despite multiple reports of extra-judicial armed violence and the problem of lost weapons in Mexican police units.
The Rome Statute of the International Criminal Court defines crimes against humanity as a widespread or systematic attack directed against any civilian population, which may include murder, extermination, persecution on political grounds, forced disappearance of persons, enforced prostitution, or other inhumane acts that harm mental health or human dignity. Although the mass atrocities in Mexico’s war on drugs are not formally recognized as crimes against humanity, there is a strong movement to recognize the violence perpetrated in Mexico as such, particularly as the violence mirrors the necessary elements of crimes against humanity under international law.
The committed in Mexico are rarely prosecuted, but a few well-documented events shed light on the danger of arming Mexican law enforcement officials who are accused of colluding with organized criminal groups. In one of Mexico’s most egregious public safety violations, forty-three student protestors in the town of Ayotzinapa, were allegedly kidnapped by policemen and turned over the Guerreros Unidos Cartel, who incinerated the students, and disposed of their remains in a nearby river. In another Mexican case, Atenco, President Enrique Peña Nieto, who was governor at the time, instructed local police to put down a farmers’ protest at the local airport. The armed forces wrongfully detained 145 protestors, and thirty-one of the detained women reported that they experienced sexual assault or rape at the hands of the police. Lastly, in Arzate Meléndez, Mexican law enforcement officials drew widespread attention from the international human rights community when an investigation revealed that a Mexican troop wrongfully detained and tortured a civilian into confessing to a massacre; the court found that the soldiers committed egregious human rights abuses, but the troop was not prosecuted. Given that ninety-eight percent of crimes in Mexico do not get prosecuted, the inconclusive result of these cases is common under the Mexican justice system.
If the U.S. continues indiscriminately exporting arms to Mexico despite the on-going violence, Articles 6 and 7 of the ATT are undermined, and so is the safety of civilians on both sides of the border. Now is the time to put pressure on the United States to seriously consider the Arms Trade Treaty, and better protect the interests of innocent civilians south of the border.
 See American Friends Service Committee, Where the Guns Go: U.S. Arms and the Crisis of Violence in Mexico 1, 11 (2016), https://www.afsc.org/sites/afsc.civicactions.net/files/documents/2016%20Where%20the%20Guns%20Go.pdf (discussing the injustices against civilians in the war on drugs in Mexico).
 See Timeline of the Sicilia Case; The Crime That Sensitized the Country, Eʟ Uɴɪᴠᴇʀsᴀʟ (Jan. 15, 2014, 4:32 PM), http://archivo.eluniversal.com.mx/estados/2014/cronologia-sicilia-979830.html (identifying Morelos as one of the Mexican states that receives the most U.S. arms despite numerous reports of government and police corruption).
 See id. (mentioning Sicilia’s plea to President Obama for stronger gun control laws to help lessen the arms flow from the United States to Mexico).
 See id. (stressing that he advocates for a stronger policy on the sale of weapons to Mexico and not for an end to Second Amendment privileges).
 See U.S. Gov’t Accountability Off., Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking to Mexico Face Planning and Coordination Challenges 1, 19 (2009), http://www.gao.gov/assets/300/291223.pdf (characterizing the GAO as a non-partisan agency, working under Congress, to insure the efficacy and responsibility of federal government spending).
 See Secretaría de la Defensa Nacional, Page Response to Information Requests 1 (August 21, 2015), https://www.afsc.org/sites/ afsc.civicactions.net/files/documents/ifai-sig-sauer.pdf (listing Michoacán, Querétaro, and Mexico State as primary importers).
 See Letter from Julia Frifield, Assistant Sec’y Legis. Affairs, U.S. Dep’t of State, to Patrick Leahy, U.S. Senator 1 (Jan. 18, 2017)(https://www.afsc.org/sites/afsc.civicactions.net/files/documents/State%20Dept%20End%20Use%20Controls%20Mexico%2018%20Jan%202017.pdf)(relaying that arms sales to Mexico are unrestricted).
 See Arms Trade Treaty Art. 6, opened for signature June 3, 2013, 52373 U.N.T.S. 20, 22 https://treaties.un.org/doc/Treaties/2013/04/20130410%2012-01%20PM/Ch_XXVI_08.pdf (detailing how the US signed onto the treaty despite serious domestic opposition).
 See U.S. Gov’t Accountability Off. at 19(enumerating the challenges to the implementation of the ATT in the U.S.).
 See id. (adding that Article 2 refers to another section of the ATT requiring States to publish an annual arms report to increase transparency of weapon use and monitor end-use of the arms that are imported).
 Arms Trade Treaty Art. 6 at 6 (maintaining that states need to be conscious of the repercussions of exporting weapons to places that are undergoing periods of violence or that have a history of corruption).
 See Arms Trade Treaty, Article 13(3) at 11 (displaying the availability of the figures from the ATT Annual Report and its role in creating a process of accountability for gun exporters); see also Deborah Bonello, Insight Crime: Mexico’s Public Security Lost 13,000 Weapons in Ten Years 1 (June 7, 2016) http://www.insightcrime.org/news-briefs/mexico-public-security-lost-13-000-weapons-in-10-years (reporting that 13,000guns were lost or stolen from Mexico City, Mexico State, Chihuahua, Guerrero, and Jalisco in merely 10 years).
 See Rome Statute of the International Criminal Court, Article 7 International Law commission’s draft code of crimes against the peace and security of mankind, Article 18 (1996) 1(acknowledging that crimes against humanity are peremptory norms so they are not formally defined by international law).
 See e.g. Rome Statute of the International Criminal Court, Article 7 International Law commission’s draft code of crimes against the peace and security of mankind, Article 18 (1996) (detailing the wide variety of crimes that can be considered crimes against humanity); See Open Society Justice Initiative, Undeniable Atrocities: Confronting Crimes Against Humanity in Mexico, 3, 69 (2016)(drafting a compilation of extra-judicial violence to present a case for CAH before the ICC).
 See Part One of the Ayotzinapa Case, Office of the Attorney General of Mexico 1 (Oct. 10, 2015) https://pgrarchivos.blob.core.windows.net/ayotzinapa/Tomo%201.pdf (suggesting that policemen acted upon instructions from the Guerreros Unidos Cartel).
 See Supreme Court Justice Opinion that Evaluates the Investigation of Case 3/2006 1, 3, https://sjf.scjn.gob.mx/sjf sist/Paginas/DetalleGeneralScroll.aspx?id=21782&Clase=DetalleTesisEjecutorias (finding that human rights abuses were committed by soldiers during the protest, but arguing that enforcement officers also need to be protected).
 See id. at 4 (demanding further investigation into the reports of sexual assault).
 See Supreme Court Justice Order for the Immediate Release of Israel Arzate 216/2013 1, 5 (Nov. 2013) http://www.poderjudicial chiapas.gob.mx/forms/archivos/f1bcrevoca-primera-sala-de-la-scjn-amparo-otorgado-a-caro-quintero.pdf (calling attention to an overarching flaw in the law enforcement sector).
 See Open Society Justice Initiative, at 69 (identifying a problem of impunity in Mexico and its relationship to crimes against humanity).