The Regulatory Framework for the Eradication of Illicit Crops in Mexico

This report is part of the Noria Opium Project.

Click here to discover the entire project.

Click here to read the other chapters of the project.

Introduction

The regulatory framework related to the eradication of illicit drug crops in Mexico is a complex one. On the one hand, there are the international conventions on the control of substances; on the other, the national legal framework that shapes the prohibitionist drug system. Additionally, there is the by-law that regulates government actors that are participants in the eradication campaigns. The issue becomes more complex if it is considered that the main institution in charge of these tasks is the Department of National Defense (Secretaría de la Defensa Nacional – SEDENA in Spanish), which for a long time has lacked norms that define its participation in activities to combat drug trafficking.

For these reasons, the analysis of the evolution of the regulatory framework on the matter is just a necessary element, but insufficient, to understand the role of civil authorities and the Armed Forces in eradication tasks; its reading must be accompanied by additional documents included in this text.

However, observing the evolution of regulations – that is, what laws have been created, what reforms have undergone, and which institutions have been conferred powers – also offers a clue about government priorities. Indeed, in compliance with the international treaties signed, and under pressure from the US government but also obeying its own internal logic, Mexico has been progressively modifying and adapting its legal framework to reinforce the prohibitionist system of drugs. Also, it has been determining the functions of the public corporations that would participate in the campaigns to eradicate illicit crops, where it is possible to see a clear interest in legalizing the actions of the Armed Forces in this area.

This article, first refers to the international drug control conventions signed by Mexico, as well as the internal laws that gave content to the prohibitive drug system, focusing on poppy cultivation. Second, it exposes the evolution of the regulatory framework of the Mexican authorities participating in the eradication of illicit crops. Third, it presents the two instruments that currently regulate the actions of said authorities: the MEXK54 Project “System for the Monitoring of Illicit Crops in Mexican Territory”, and the National Protocol for the Destruction of Illicit Crops. Finally, some conclusions are presented on the development of the regulations and the role played by the institutions that today are in charge of eradicating poppies in Mexico.

The Prohibitive Drug System and Poppy Cultivation

Evolution of the national framework

From the 19th century to the beginning of the 20th century, certain substances that are currently prohibited and criminalized, such as opium, morphine, cannabis, and heroin, could be used as medication. The first health codes (1891, 1894 and 1902) sought consumer protection, controlling the purity and quality of substances.1 José Domingo Schievenini Stefanoni, “La prohibición de las drogas en México (1912-1929)” , Revista Latinoamericana de Seguridad Ciudadana Departamento de Asuntos Públicos – FLACSO Ecuador ISSN: 1390-3691, June 2013, No. 13. However, in the 1920s the discourse around drug regulation acquired a strong punitive focus, closely linked to foreign policy: “the post-revolutionary government of Mexico wanted to acquire international credibility, particularly vis-à-vis the United States, a country that already advocated for the prohibition beyond its borders”.2 Ernesto Zedillo Ponce de León, Catalina Pérez Correa González, Alejandro Madrazo Lajous y Fernanda Alonso Aranda “La política de drogas en México: causa de una tragedia nacional Una propuesta radical e indispensable para remediarla”, Drug Policy Program, Centro de Investigación y Docencia Económicas (CIDE), 2019. Successive legal instruments were focused, no longer exclusively on the control of the trade and production of drugs, but on their consumption, which would lay the foundations for prohibitionism. 3 José Domingo Schievenini Stefanoni, “La prohibición de las drogas en México (1912-1929)” , Revista Latinoamericana de Seguridad Ciudadana Departamento de Asuntos Públicos – FLACSO Sede Ecuador ISSN: 1390-3691, June 2013, No. 13.

Another reason for the strengthening of prohibitionism was racism. The first sort of prohibitionist law in Mexico was issued in 1920 with the decree entitled “Provisions on the trade of products that can be used to promote vices that degenerate the race and on the cultivation of plants that can be used for the same purpose.” 4 Ricardo Pérez Montfort, Tolerancia y prohibición. Aproximaciones a la historia social y cultural de las drogas en México, 1840-1940, México, Debate, 2016. They prohibited the cultivation and commercialization of cannabis and, by 1926, also of the opium poppy. 5Victor Hugo Carvente Contreras, Reestructuraciones de órganos y funciones de combate al tráfico de drogas. Procuraduría General de la República (1952-2012). Opium, morphine, codeine, and heroin could be imported as drugs if permission was obtained from the Department of Health. 6 José Domingo Schievenini Stefanoni, “La prohibición de las drogas en México (1912-1929)” , Revista Latinoamericana de Seguridad Ciudadana Departamento de Asuntos Públicos – FLACSO Ecuador ISSN: 1390-3691, June 2013, No. 13.

The first health codes (1891, 1894 and 1902) sought consumer protection, controlling the purity and quality of substances. However, in the 1920s the discourse around drug regulation acquired a strong punitive focus, closely linked to foreign policy.

The foregoing was in line with the content of the International Opium Convention, signed on January 23, 1912. 7

https://aplicaciones.sre.gob.mx/tratados/ARCHIVOS/OPIO.pdf

Said Convention wasn’t ratified by the Senate until 1924 and then published in the Official Gazette of the Federation (DOF in Spanish) in 1927. For the first time, Mexico made a commitment to the world to regulate substances. In said instrument, the non-medicinal uses of opium were prohibited and the signatory countries were required to adopt measures to control its export and import, its manufacture, internal trade and use.

In line with the international mandate, in 1926 a new Sanitary Code was promulgated in Mexico, which included a list of substances considered “enervating drugs” —opium, morphine, cocaine, heroin and marijuana (art 198)—. It also established, as a sanction for infractions to its provisions, financial fines which could be replaced by an arrest of up to 15 days. 8José Domingo Schievenini Stefanoni, “La prohibición de las drogas en México (1912-1929)” , Revista Latinoamericana de Seguridad Ciudadana Departamento de Asuntos Públicos – FLACSO Ecuador ISSN: 1390-3691, June 2013, No. 13.

Likewise, the Penal Code of 1871 was the first ordinance that contemplated a category of “crimes against health” and sanctioned the production and sale of “substances harmful to health” without the permission of the health authorities. However, it focused on the non-adulteration of substances. This instrument was repealed when the Penal Code of 1929 was promulgated, which increased the behaviours that could be considered as “crimes against health” including sowing, cultivating and harvesting (Article 507). Later, the 1931 Penal Code also penalized “possession” (article 194). 9Ibid.

On July 13, 1931, Mexico signed the Convention to Limit the Manufacture and Regulate the Distribution of Narcotic Drugs. In it, the Mexican State established a reservation regarding the right to impose stricter measures than those established by the Convention for the Restriction of Cultivation. In compliance with international conventions, the Health Code of 1934 regulated in article 405 everything related to drug trafficking and supply. 10Based on article 21 of the Constitution in force since 1917. Victor Hugo Carvente Contreras, “Reestructuraciones de órganos y funciones de combate al tráfico de drogas. Procuraduría General de la República (1952-2012)”, Instituto Nacional de Administración Pública (INNP), 2014.

On June 26, 1936, the Convention for the Suppression of Illicit Traffic in Harmful Narcotic Drugs, was signed in Geneva, Switzerland, and then published on August 25, 1955. Likewise, in this Convention, the government of Mexico reserved the right to impose more stringent measures for restricting cultivation and other behaviours. This instrument establishes that the countries must enact the legislative provisions necessary to severely punish, through imprisonment or other custodial penalties, all conducts related to narcotics and establishes that those whose national law regulates cultivation, harvesting and production to obtain narcotic drugs, shall consider any infraction of the provisions of said Convention as seriously punishable.

During this period the Federal Drug Addiction Regulation was published on February 17, 1940, which created an unprecedented model for the provision of substances. “According to the Decree, users could be prescribed substances prohibited by the Health Code, including heroin, morphine, cocaine and cannabis. Both registered doctors and government-controlled dispensaries could prescribe substances in a controlled manner and at a price lower than that of the black market”. 11Ernesto Zedillo Ponce de León, Catalina Pérez Correa González, Alejandro Madrazo Lajous y Fernanda Alonso Aranda “La política de drogas en México: causa de una tragedia nacional Una propuesta radical e indispensable para remediarla”, Drug Policy Program, Centro de Investigación y Docencia Económicas (CIDE), 2019. However, in the face of retaliation by the United States consisting of suspending trade in pharmaceutical products between the two countries, the Regulation was only in effect for five months.

In this way, by 1947 the prohibition was reinforced with higher penalties under the argument that Mexico should comply with its international obligations. On November 14, 1947, articles 193, 194 and 197 of Chapter I, called “On the possession and trafficking of drugs” of the Penal Code, were amended. This reform implied imposing a conditional sentence against people who cultivate, manufacture or traffic drugs and the criminal figure of drug “proselytism” was created, which incurred in the general provocation and instigation or induction of drug use. Likewise, the conditional sentence was outlawed for those who cultivate, manufacture or traffic narcotics. 12Victor Hugo Carvente Contreras, “Reestructuraciones de órganos y funciones de combate al tráfico de drogas. Procuraduría General de la República (1952-2012)”, Instituto Nacional de Administración Pública (INNP), 2014.

On January 25, 1950, a new Sanitary Code was published, which was later amended on March 20, 1971, to include, for the first time, penalties for the use of hallucinogenic substances and derived alkaloids. 13Ibid. Subsequently, on March 13, 1973 another Health Code was published and, finally, on February 7, 1984, the General Health Law was published, which is still enforced today. 14Victor Hugo Carvente Contreras, “Reestructuraciones de órganos y funciones de combate al tráfico de drogas. Procuraduría General de la República (1952-2012)”, 2014.

The purpose of this law is to regulate the right to health. In its 3rd article it establishes as a matter of general health the prevention of the consumption of narcotic drugs and psychotropics and the program against drug dependence (section XXI). In addition, it contains special chapters where it establishes the regulation of substances, differentiating them between narcotics and psychotropics. Henceforth we will only refer to chapter V of “Narcotic Drugs” (234-243), since poppy appears in article 234 as part of the list of substances that are considered as narcotic drugs.

In this sense, article 235 establishes the absolute prohibition of the sowing, cultivation, harvest, elaboration, possession and, in general, any act related to narcotics, unless their use is for medical and scientific purposes and there is authorization from the Health Secretary. Article 237, for its part, establishes the prohibition of such conduct in relation to other substances, including opium, opium poppy or papaver somniferum and papaver bracteatum.

Influence of the international drug control system

Regarding current international regulations, there are the three conventions that make up the international drug control system. 15The Single Convention on Narcotic Drugs of 1961, as amended by the Protocol of 1972, the Convention on Psychotropic Substances of 1971 and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. The Single Convention on Narcotic Drugs of 1961 was ratified in Mexico on April 20, 1977. This convention formally established the criminal approach to the regulation of substances: in its 36th article it establishes that a series of actions related to the drug production chain —including cultivation— must be punished with custodial sentences. 16Ibid. In addition, said instrument contains a special provision for the case of cultivation (Article 22) that states that the State Party will prohibit the cultivation of the poppy, the coca bush or the cannabis plant, where appropriate, to prevent the substance from being subjected to illicit traffic. The same provision establishes that said State Party must take “appropriate measures to capture any illicitly cultivated plant and destroy it” 17Single Convention of 1961 on Narcotic Drugs, as amended by the 1972 Protocol of Modification of the Single Convention of 1961 on Narcotic Drugs. Online: https://www.incb.org/documents/Narcotic-Drugs/1961-Convention/convention_1961_es.pdf , except for small quantities for scientific or research purposes.

Thus, when Mexico ratified the 1961 Convention on March 17, 1967, reforms to the Penal Code for the Federal District and Federal Territories were approved. 18Victor Hugo Carvente Contreras, “Reestructuraciones de órganos y funciones de combate al tráfico de drogas. Procuraduría General de la República (1952-2012)”, Instituto Nacional de Administración Pública (INNP), 2014. As part of these modifications, published in their entirety until March 8, 1968, Article 195 of the CPF penalizes the transportation and harvesting of narcotic drugs. 19Ibid.

For their part, in the 1971 Convention on Psychotropic Substances, the signatory countries agreed to make the control regime more flexible for a group of pharmaceutical products included in lists II, III and IV. 20Lic. Enrique Gudiño Chong, “De las políticas públicas a las políticas castrenses en la erradicación de cultivos ilícitos en México, 1994–-2015”, Instituto Tecnológico y de Estudios Superiores de Occidente (ITESO), June, 2016. However, no changes were established regarding the international poppy regime. Finally, in the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed by Mexico on February 16, 1989, the countries agreed to take measures to eradicate illicit drug cultivation within their territories, in order to prevent their production and eliminate the illicit demand for these narcotics, as well as the carrying out of confiscations or seizures of drugs and the products derived from their illicit trade.

With this, the implementation of programs for the eradication of illicit crops and cooperation among the countries were agreed. Along these lines, Article 3 of the Convention establishes —contrary to the provisions of the 1961 Convention– that the parties must adopt the necessary measures to classify as criminal offenses, in their domestic law, the cultivation of the opium poppy, the coca bush or the cannabis plant in order to produce narcotic drugs.

In the criminal sphere at the national level, the 1994 reforms to the Federal Criminal Code “largely make up the current legislation in Mexico on drugs.”21José Domingo Schievenini Stefanoni, “La prohibición de las drogas en México (1912-1929)” , Revista Latinoamericana de Seguridad Ciudadana Departamento de Asuntos Públicos – FLACSO Ecuador ISSN: 1390-3691, June 2013, No. 13. With this reform, there is an increase in penalties for production, transportation, trafficking, trade or supply, introduction or extraction of narcotics from the country. However, the penalties for cultivation or sowing decrease. 22Ibid.

Drug dealing Law

Finally, it is necessary to refer to a reform known as the “Narcomenudeo” Law (Drug dealing Law). This reform came into force on August 21, 2009, and modified the General Health Law, the Federal Penal Code and the Federal Code of Criminal Procedures. As a result of this reform, the General Health Law introduced a chapter called “Crimes Against Health in its form of Drug dealing” and in article 479 of said General Health Law a “Table of Orientation of Maximum Doses and Immediate Personal Consumption” (Article 479) –for opium, the maximum dose allowed is 2 grams– was set up. Before 2009, the sanctions were defined according to the “type of substance, quantity, and scoop or recidivism of the crime.” 23Victor Hugo Carvente Contreras, “Reestructuraciones de órganos y funciones de combate al tráfico de drogas. Procuraduría General de la República (1952-2012)”, Instituto Nacional de Administración Pública (INNP), 2014. In this table the maximum doses for personal and immediate consumption were set, allowing the distinction between consumers, drug dealers and large-scale trafficking. Additionally, this table allowed to delimit the competences between the Federation and the federative entities.

The Title that contemplates the “Crimes Against Health” of the Federal Penal Code considers as narcotics the substances provided as narcotics or psychotropic drugs in the General Health Law, as well as in the international agreements and treaties that are mandatory for Mexico. In this sense, article 193 establishes that conducts related to narcotic drugs, psychotropics and other substances provided for in articles 237, 245, sections I, II, and III and 248 of the General Health Law are punishable. Article 237 of the General Health Law establishes the absolute prohibition of conduct related to opium, opium poppy or papaver somniferum and papaver bracteatum.

The same precept also provides that the narcotics used in the commission of the crimes regulated in this instrument, will be made available to the federal health authority, which will proceed to their lawful use or destruction, as appropriate. Additionally, article 193 indicates that the objects and proceeds of such crimes will be subject to the provisions of articles 40 and 41 (which establish the procedure for carrying out confiscations).

The following articles of the Federal Penal Code establish custodial penalties and fines for conducts provided for in article 194, section I-IV; possession for the purpose of trade or supply (article 195); simple possession (article 195 Bis); diversion (article 196 Ter); the supply without medical prescription (article 197), as well as the employment of girls, boys or adolescents to commit crimes against health (article 201).

It is necessary to place special emphasis on Article 198, which prohibits the sowing, cultivation or harvest of poppies –among other substances–. It establishes a prison sentence of 1 to 6 years for the peasant person who “with little education” and due to “extreme economic necessity” carries out such conduct, either on his own account or with financing from third parties. The same penalty is imposed for the person who owns a property and consents to the cultivation or harvesting of the substances already mentioned. If this is not the case, the penalty rises to two-thirds of that provided for in article 194 (10-25 years), provided that it is for the purpose of producing, transporting, trafficking, trading, supplying or exporting the substance. If there is no such purpose, the foreseen penalty is 2 to 8 years in prison. In addition, there is an aggravating factor for the case in which this crime is committed by police or members of the Armed Forces. Finally, Article 198 establishes that the planting, cultivation or harvest of marijuana plants for medical or scientific purposes will not be punishable.

Regulatory Framework of the Authorities Participating in the Eradication of Illicit Crops

Eradication headed by the Attorney General’s Office

In 1917 the Department of Public Health was created, an institution that was in charge of establishing measures against alcoholism, preparation and administration of drugs, among other functions. In 1925, in the administration of President Plutarco Elías Calles, the Decree was published by which the Department of Public Health would be responsible for granting import permits for opium, morphine, cocaine and poppy. With this ordinance, the Anti-Narcotics Sanitary Police was created, which would be entrusted to prevent illicit drug trafficking. It was intended that said police act from a health and non-punitive approach, since the original competence corresponded to the Attorney General’s Office, so the participation of the Anti-narcotics Sanitary Police would be limited to being an auxiliary to the Police Federal Judiciary in investigations related to crimes against health. 24Ibid.

Later, in 1943, the Secretary of Health and Assistance was created. It was until 1947, with President Miguel Alemán, when the PGR was in command of the anti-narcotics campaigns, focused on the eradication of crops, the seizure of drugs and the capture of traffickers and producers. 25 Victor Hugo Carvente Contreras, “Reestructuraciones de órganos y funciones de combate al tráfico de drogas. Procuraduría General de la República (1952-2012)”, 2014. The anti-narcotics expeditions began on March 10, 1947, in Sinaloa, Durango and Sonora and were as follows: the “Canador” Plan in 1966, “Cóndor” Task Force in 1977 and “Marte” Task Force in 1987. Such operations They served for SEDENA to justify an increase in its territorial deployment, resources and responsibilities within the anti-drug scheme.

In observance of the commitments signed at the international level, President Carlos Salinas de Gortari created the first National Program to Combat Drugs (PNCD in Spanish) in 1992. Subsequent governments would continue through the National Programs for the Eradication of Illicit Crops (Ernesto Zedillo, 1995) and the National Drug Control Plan (PNCD in Spanish) (Vicente Fox, 2002). 26Lic. Enrique Gudiño Chong, “De las políticas públicas a las políticas castrenses en la erradicación de cultivos ilícitos en México, 1994–-2015”, Instituto Tecnológico y de Estudios Superiores de Occidente (ITESO), June de 2016.

In this same line, on June 16, 1993, the government of Carlos Salinas de Gortari published the decree in the Official Gazette of the Federation creating the National Institute for the Combat of Drugs, as a decentralized body dependent on the Attorney General’s Office (PGR in Spanish), and which is in charge of the General Directorate for the Eradication of Illicit Crops (DGECI in Spanish). The latter, according to the regulations of the Organic Law, in charge of “carrying out actions to eradicate illicit crops and reduce, through the General Directorate of Interception, drug trafficking in a frontal way.” 27DECREE creating the National Institute to Combat Drugs as a decentralized technical body, dependent on the Attorney General’s Office, June 16, 1993. Later, in the Vicente Fox administration, the Federal Judicial Police disappeared with the creation of the Federal Investigation Agency (AFI in Spanish), as a result of this restructuring, the latter absorbed the General Directorate for the Eradication of Illicit Crops.

On October 25, 1988, the amendment to the Regulation of the Organic Law of the Attorney General’s Office (RLOPGR in Spanish) was published in the Official Gazette of the Federation, creating the Office of the Assistant Attorney for Investigation and Fight Against Drug Trafficking. In 1991, and based on this latest reform, the General Directorate of Planning for Crimes against Health was established. Later, by presidential decree of June 26, 1992, said directorate was replaced by the Drug Control Planning Center (CENDRO in Spanish), a decentralized administrative body of the Attorney General’s Office with the aim of being the inter-ministerial body in charge of concentrating and processing all information for attention to the drug phenomenon.

With agreement A/068/03, published in the Official Gazette of the Federation on July 24, 2003, when the Drug Control Planning Center changed its name to the National Center for Planning, Analysis and Information to Combat Crime (CENAPI in Spanish), attached to the Attorney General’s Office. The purpose of CENAPI is “to orient the policy to combat crime towards the dismantling of organizations and criminal networks dedicated mainly to drug trafficking.” 28 Centro Nacional de Planeación, Análisis e Información para el Combate a la Delincuencia Investigar y Perseguir los Delitos Relativos a la Delincuencia Organizada, Performance Audit: 13-0-17A00-07-0049 GB-114. Online: 

https://www.asf.gob.mx/Trans/Informes/IR2013i/Documentos/Auditorias/2013_0049_a.pdf

Later, in the government of Felipe Calderón, on July 23, 2012, the Regulation of the Organic Law of the Attorney General’s Office was reformed, creating the Federal Ministerial Police (PFM in Spanish) to replace the Federal Investigation Agency.

The current Federal Attorney General’s Office 29On February 10, 2014, the constitutional reform that modified Article 102, section A, of the Constitution was published. On December 14, 2018, the Organic Law of the Attorney General’s Office was published. and the Public Ministry find their legal basis in the prosecution of crimes against health in articles 21 and 102 section A of the Mexican Constitution. The attribution of the Public Ministry to prevent, investigate, and prosecute crimes against health is also based on the Federal Criminal Code, the National Code of Criminal Procedures, the Organic Law of the Office of the Attorney General of the Republic and its regulations, as well as the Federal Law Against Organized Crime. Likewise, in order to define the procedure to be followed for activities related to the insurance of drugs and goods related to crimes against health, there is the Federal Law on Administration of Insured, Forfeited and Abandoned Assets, promulgated by decree in 1999 by the Congress of the Union. The application and operation of said precautionary law is in charge of the Ministry of Finance and Public Credit and the Federal Attorney General’s Office.

From the Attorney General’s Office to the Armed Forces

The Constituent Congress of 1917 established in Article 129 of the Mexican Constitution limits the role of the Armed Forces to activities that have an exact connection with military discipline. Despite this, in Mexico, the participation of the Armed Forces in activities against illegal drug trafficking dates back, at least, since 1938, when there were already documentary records on the support of the Army in tasks of destruction of illicit crops. 30Alma Paloma Mendoza Cortés, “Operaciones del Ejército Mexicano contra el tráfico de  drogas: revisión y Actualidad”, Política y Estrategia, No. 128, 2016, pp.17-53 ISSN 0719-8027 (Online), Academia Nacional de Estudios Políticos y Estratégicos. The foregoing, despite the Armed Forces not having a legal framework that would allow their intervention in tasks other than those indicated by the constitutional text.

In 1953, a consultation was created on the interpretation of articles 2, 35 and 40 of the then Organic Law of the Federal Public Ministry, regarding the powers of the commanders who participated in the “Anti-narcotics Campaign” to file proceedings before the commission of federal crimes.31Victor Hugo Carvente Contreras, “Reestructuraciones de órganos y funciones de combate al tráfico de drogas. Procuraduría General de la República (1952-2012)”, Instituto Nacional de Administración Pública (INNP), 2014. Despite the fact that the Attorney General’s Office has the monopoly for the prosecution of federal crimes, it was determined that the Armed Forces act as “helpers” of the Federal Judicial Police, for which they are empowered to draw up acts related to the commission of crimes against health. 32Ibid.

In 2007, the National Defense Secretariat (SEDENA in Spanish) justified its action in the fight against drug trafficking under section VI of article 89 of the Constitution; Articles 1, 2, 5, sections I and V and 16 of the National Security Law; articles 1, 2, 3, 11 and 17 of the Organic Law of the Army and Air Force, article 1 of the Planning Law and, finally, the jurisprudential theses that derived from the unconstitutionality action 1/96, resolved on 5 March 1996 by the Supreme Court of Justice of the Nation (SCJN in Spanish).

In this action, the Supreme Court of Justice of the Nation ruled that the incorporation of the heads of the Secretariat of National Defense and the Secretariat of the Navy to the National Public Security Council was constitutional. This decision required the Supreme Court to interpret article 129 of the Constitution, thus allowing the use of the Mexican Army and Navy to aid the civilian public security forces, even in times of peace, at the express request of the civil authorities. Likewise, the Supreme Court reiterated that, in accordance with article 89 of the Constitution, section VI, the President of the Republic has the power to dispose of the Armed Forces for the internal security and external defense of the Federation, when, without reaching situations that require the suspension of guarantees, there is a well-founded risk that, if not dealt with immediately, it would be imminent to fall into serious conditions that would make it necessary to decree it.

For its part, the Navy has participated in tasks of eradication of crops and interception of drugs by sea, at least since 1938 during the six-year term of Miguel de la Madrid, and, in the same way, its intervention in the fight against drug trafficking It has been justified with the regulations that establish that powers to collaborate in the defense of national security (Organic Law of the Mexican Navy) and internal security (Internal Regulations). 33Victor Hugo Carvente Contreras, “Reestructuraciones de órganos y funciones de combate al tráfico de drogas. Procuraduría General de la República (1952-2012)”, 2014.

In this way, the fact that the Supreme Court hasn’t tried to define the concepts of “national security”, “internal security”, “public security” and “in times of peace” caused the Armed Forces to acquire a preponderant role in public security tasks and put them in the forefront of the fight against criminal phenomena under the argument that they are threats to internal security.

An attempt to define such concepts as “national security” and “internal security” occurred with the publication of the decree creating the National Security Law (LSN in Spanish) on January 31, 2005, as a result of the constitutional reform of April 2004, which empowered the president to preserve national security and Congress to issue laws on the matter. 34Lisa María Sánchez Ortega, “La militarización de la seguridad pública en méxico y sus fundamentos legales”, November 2020, Friedrich Ebert Stiftung and México Unido Contra la Delincuencia (MUCD). This law established as threats to national security those acts, among others, that prevent the authorities from acting against organized crime and that may hinder military or naval operations against them. With this and under the justification that crimes against health can represent organized crime, it was authorized that the Armed Forces could participate in their persecution. 35Ibid.

Based on the National Security Law and the jurisprudential theses already mentioned, in 2006 President Felipe Calderón launched the strategy to combat drug trafficking that was established in the National Development Plan 2007-2017. 36Lisa María Sánchez Ortega, “La militarización de la seguridad pública en méxico y sus fundamentos legales”, November 2020. A year later, on February 28, 2007, the Attorney General’s Office and National Defense Secretariat signed an agreement 37Available in the Accountability Report Stage 1 of the same Secretariat. that formalizes the transfer to the armed institution of the technical and financial resources that the Attorney General’s Office used to eradicate crops and combat drug trafficking. With this, the General Directorate for the Eradication of Illicit Crops disappeared. Likewise, by means of a decree of May 9, 2007, a Special Army and Air Force Corps was created called the “Special Corps of Federal Support Forces”, which in turn would be reformed on September 17 of the same year, but could not be implemented due to lack of budget. 38Alma Paloma Mendoza Cortés, “Operaciones del Ejército Mexicano contra el tráfico de  drogas: revisión y Actualidad”, Revista Política y Estrategia, No. 128, 2016, pp.17-53 ISSN 0719-8027 (Onine), Academia Nacional de Estudios Políticos y Estratégicos. Additionally, during this government the Directive for the Comprehensive Combat of Drug Trafficking 2007-2012 was established, focused on the tasks of eradication, air and land interception of drugs. 39Ibid.

From 1992 to 2006, the Attorney General’s Office was in charge of eradicating crops declared illegal, with the collaboration of the National Defense Secretariat. However, this last institution took the main role in the matter from 2007, although it was already in charge of more than half of these actions since the beginning of the administration of José López Portillo, in 1987. 40Attorney General’s Office – Report of January 10, 2008 to the Chamber of Deputies.  The above goes against what established in article 66 of the Regulation of the Organic Law of the Attorney General’s Office that established the General Directorate for the Eradication of Illicit Crops as responsible in the matter. 41Lic. Enrique Gudiño Chong, “De las políticas públicas a las políticas castrenses en la erradicación de cultivos ilícitos en México, 1994–-2015”, Instituto Tecnológico y de Estudios Superiores de Occidente (ITESO), June 2016.

During the government of Enrique Peña Nieto (2012–2018), crop eradication activities continued to be carried out by the National Defense Secretariat. Thus, as part of the national goal “Mexico in Peace” established in the National Development Plan 2013-2018, the National Action Protocol for the Destruction of Illegal Plants was issued, the content of which is set forth below. Efforts to provide the Armed Forces with a legal framework in their efforts to combat drug trafficking occurred with the promotion of the Internal Security Law which, later, would be declared unconstitutional by the Supreme Court of Justice of the Nation for attempting to normalize their actions in the functions of public security. 42Vicente Ismael Hernández Hernández, “Crónica de la Acción de Inconstitucionalidad 6/2018 y sus acumuladas 8/2018, 9/2018, 10/2018 Y 11/2018”, SCJN. Online: https://www.scjn.gob.mx/sites/default/ les/cronicas_pleno_salas/documento/2020-02/cr-JMPR-0006-18.pdf

Finally, in the current government of Andrés Manuel López Obrador (AMLO), on March 26, 2018, the constitutional reform by which the National Guard was created was published in the Official Gazette of the Federation. The institution is made up of members from the Armed Forces and elements of the Federal Police. With the reform, the president is authorized to dispose of the Armed Forces in public security tasks for five years (Fifth Transitory). Additionally, as a result of this reform, the agreement establishing the Armed Forces for public security tasks (Militarist Agreement) 43AGREEMENT by which the permanent Armed Forces are available to carry out public security tasks in an extraordinary, regulated, prosecuted, subordinate and complementary manner. Online: https://www.dof.gob.mx/nota_detalle.php?codigo=5593105&fecha=11/05/2020#:~:text=ACUERDO%20por%20el%20que%20se,%2C%20 scalizada%2C%20 subordinada%20y%20complementaria. was published, by which the Armed Forces are expressly granted police powers, such as prevention crime, arrests, property security, preservation of the crime scene, surveillance tasks, among other functions. 44Attributions provided for in sections I, 1 II, 2 IX, 3 X, 4 XIII, 5 XIV, 6 XV, 7 XVI, 8 XXV, 9 XXVII, 10 XXVIII11 and XXXIV12 of article 9 of the National Guard Law. With this, the militarization of public security is institutionalized and the actions for eradication in the hands of the Armed Forces remain untouchable, even though the 2019-2024 National Development Plan called for the end of the “war on drugs” and reformulate their combat by recognizing prohibitionism as an unsustainable policy.

“Monitoring Systems” and National Protocols for Eradication

A special mention should be made of the “System for the Monitoring of Illicit Crops in Mexican Territory” and the National Protocol for the Destruction of Illicit Plantations – hereinafter, Protocol -, as they are the instruments that currently guide the actions of the institutions that participate in eradication tasks.

Since 2012, the “Illicit Crops Monitoring System in Mexican Territory” has been implemented. Known as Project MEXK54 it is part of the Global Illicit Crops Monitoring Program (ICMP in English). In compliance with international drug control conventions (1961, 1971 and 1988), the project seeks to determine methodologies for the collection and analysis of data on illicit crops in order to increase the capacity of governments to monitor their extension and evolution.

The United Nations Office on Drugs and Crime (UNODC in English) collaborates in this project with the Secretariat of the Navy (SEMAR in Spanish), the Attorney General’s Office and National Defense Secretariat, with the accompaniment of the Secretariat of Foreign Relations (SRE in Spanish). 45Independent evaluation of the project MEXK54, “Sistema de Monitoreo de Cultivos Ilícitos en el Territorio Mexicano” MEXK54, Mexico, 15 November 2019. Online: https://www.unodc.org/documents/evaluation/Independent_Project_Evaluations/2019/MEXK54_Final_Independent_Project_Evaluation_final_report.pdf According to UNODC itself, the Secretariat of the Navy is the institution in charge of the Illicit Crops Detection System and of generating the information that National Center for Planning, Analysis and Information to Combat Crime manages and systematizes –within the Attorney General’s Office– 46Ibid. ; while National Defense Secretariat is in charge of field operations and plays “the preponderant role in the task of destroying illicit crops.” The Attorney General’s Office, through National Center for Planning, Analysis and Information to Combat Crime, acts as the administrative entity responsible for the project and is in charge of providing the specialized systems and databases for the analysis and diagnosis of organized and transnational crime. 47Ibid. For its part, the Secretariat of Foreign Relations implements foreign policy and, finally, UNODC is in charge of coordinating the project and developing the methodology; It is also responsible for quality control and transparency in the presentation of results. 48Independent evaluation of the project MEXK54, “Sistema de Monitoreo de Cultivos Ilícitos en el Territorio Mexicano” MEXK54, Mexico, 15 November 2019. 

The document that established the operating criteria of the authorities that participate in the activities of destruction of crops declared illegal is the National Protocol for the Destruction of Illicit Plantations 49National Protocol of Action for the Destruction of Illicit Plantations. Online: https://transparencia.info.jalisco.gob.mx/sites/default/files/u528/Prot_Nal_Act_Destruccion_Plantios_Ilicitos.pdf —hereinafter, Protocol—. It was signed on June 11, 2018, during the government of Enrique Peña Nieto, with the aim of “standardizing the techniques used and providing legal certainty to citizens.” 50Ibid.In addition, it sought to comply with the provisions of the National Code of Criminal Procedures regarding the obligation to have protocols for action.

As we had anticipated, the Armed Forces have a preponderant participation in the tasks of detection and eradication of illicit crops. The Protocol establishes as main actors the Federal Ministerial Police 51Investigative Police in charge of the Coordination of Investigation Methods, which assists the Office of the Attorney General of the Republic. Vide: https://dof.gob.mx/nota_detalle.php?codigo=5552123&fecha=07/03/2019. , the Public Ministry and, finally, what it calls “Destruction Support Authorities” (AAD in Spanish), which are: The Federal Police —now extinct and replaced by the National Guard—, the National Defense Secretariat, the Secretariat of the Navy and public security institutions determined by the Federal Public Ministry (MPF in Spanish). In accordance with the Protocol, the latter authorities carry out activities of recognition, surveillance in the place of intervention, destruction of plantations, verification of the total destruction, documentation and making available to the Federal Public Ministry.

There are two ways in which the location of illicit crops is triggered: one is through a complaint and the other is as a result of eradication operations and recognition activities carried out permanently by the Armed Forces.

Regarding the first case, it is the Public Ministry and the Federal Ministerial Police who direct the operation. The latter determines whether the participation of the authorities to support the destruction is necessary; If they consider that it is necessary, the Army and Navy can participate by generating the action plan, monitoring the site and carrying out supporting activities to destroy illegal crops. In the second case, the Armed Forces are the authorities that participate in the entire process, in accordance with the process established in the Monitoring System for Illicit Crops in Mexican Territory – Project MEXK54 (see above). In this case, the Protocol indicates that the Armed Forces are in charge of generating the action plan, participating in reconnaissance activities, documenting the place through photographs and/or video recording, initiating the preparation of the records, verify the total destruction of the illegal planting, fill out the destruction certificate and, finally, make the documentation generated available to the Federal Public Ministry.

Conclusion

After this analysis of the legal system that governs the eradication of illicit crops in Mexico, it is possible to conclude that, on the one hand, the punitive and prohibitionist system of drugs in Mexico was reinforced —abandoning the sanitary approach— and, on the other hand, the way in which the Attorney General’s Office was losing the framework of action in the operations of detection and eradication of illicit crops in favor of the Secretariat of National Defense.

For the latter institution, not having a legal framework to regulate its actions did not prevent its participation in anti-narcotics campaigns, but rather it became naturalized, being expressly recognized in crop eradication programs, national development plans and other government documents. Likewise, and even without the powers to do so, both the “Monitoring System for Illicit Crops in Mexican Territory” and the National Protocol for the Destruction of Illicit Farms, already recognize the Armed Forces as primary actors in eradication tasks and seek to outline their actions. in each of the stages.

However, we can observe that there have been multiple attempts to expand to the maximum the interpretation of the precepts that grant powers to the Armed Forces —almost always under the justification that they provide “support” or “aid” to the civil authorities. Similarly, there have been efforts to promote the creation of legal frameworks that, additionally, sought to expand their scope of action through the definition of diffuse concepts such as “internal security” or “national security”; expansion that would not be achieved until this present six-year Presidential term.


This report is part of the Noria Opium Project.

Click here to discover the entire project.

Click here to read the other chapters of the project.

Click here to discover the Noria Program for Mexico & Central America.