Aksenova, M.

Hamilton, T.

English

International Migration, Integration and Social Cohesion online publications

UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Mexico's Civil Litigation Against US Gun Manufacturers and Dealers for CartelViolenceDeveloping a Standard of Corporate Complicity in Gross Human Rights ViolationsHamilton, T.; Aksenova, M.Publication date2023Document VersionFinal published versionLink to publicationCitation for published version (APA):Hamilton, T. (Author), & Aksenova, M. (Author). (2023). Mexico's Civil Litigation Against USGun Manufacturers and Dealers for Cartel Violence: Developing a Standard of CorporateComplicity in Gross Human Rights Violations. Web publication or website, Opinio Juris.http://opiniojuris.org/2023/01/13/mexicos-civil-litigation-against-us-gun-manufacturers-and-dealers-for-cartel-violence-developing-a-standard-of-corporate-complicity-in-gross-human-rights-violations/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:24 Jan 20241/6January 13, 2023Mexico’s Civil Litigation Against US Gun Manufacturersand Dealers for Cartel Violence: Developing a Standard ofCorporate Complicity in Gross Human Rights Violationsopiniojuris.org/2023/01/13/mexicos-civil-litigation-against-us-gun-manufacturers-and-dealers-for-cartel-violence-developing-a-standard-of-corporate-complicity-in-gross-human-rights-violations/[Tomas Hamilton is an Assistant Professor in International Criminal Law at the University ofAmsterdam. Marina Aksenova is an Assistant Professor in International and ComparativeCriminal Law at IE University in Madrid.]In the ongoing civil suits in Mexico v Smith & Wesson & others and Mexico v DiamondbackShooting Sports Inc. et al, the Mexican government has brought claims against US gunmanufacturers in Massachusetts and gun dealers in Arizona for extraterritorial harmssuffered by the Mexican State in the context of cartel violence. The US district court judgerecently dismissed the Smith & Wesson lawsuit and the government of Mexico announced itplans to appeal. The crux of Mexico’s theory of legal liability is that the defendant guncompanies are supplying weapons they know are destined to be immediately trafficked2/6across the border for illicit use in cartel violence. Mexico is thus claiming damages resultingfrom the facilitation of unlawful trafficking of weapons. This litigation is pioneering in that itseeks to clarify legal standards for holding business enterprises responsible for facilitatingsevere harm in a transnational setting.  On a broader view, Mexico v Smith & Wesson & others and Mexico v Diamondback ShootingSports Inc. et al. represent a broader trend of engaging the concept of complicity indeveloping legal standards for corporate accountability. In Mexico’s claims, doctrines ofcomplicity in the form of facilitation are being deployed to show the connection between, onthe one hand, the activities of gun makers and dealers, and on the other, the eventual crimescommitted with those guns in Mexico and resultant harm to the Mexican state. Whilecomplicity is traditionally a criminal law concept, some jurisprudence appears to regard it asproviding standards for holding corporate actors accountable in civil and criminal law casesalike.This blog post examines Mexico’s position in both sets of litigation, focusing specifically onthe standard of complicity. We also briefly touch upon the (jurisdictional) reasons fordismissal in Smith & Wesson. Despite significant hurdles, we argue that Mexico’s innovativeaction contributes to a momentum in developing the standard for corporate accountability foraiding and abetting gross human rights violations. The nature of this momentum is best seenin conjunction with concurrent developments in corporate accountability discussed in the lastsection. In particular, international criminal law, with its rich body of jurisprudence related toaiding and abetting liability, supports the refining of the standard for corporate complicity.Background to the LitigationThere can be no doubt that the social issue underlying Mexico’s claim – the massiveproliferation of small arms amongst the drug cartels – is both a Mexican and an Americanproblem. In Mexico, which has strict gun ownership laws, there is only one gun store thatissues fewer than 50 permits per year. Nonetheless, at least 350,000 people were murderedand more than 72,000 are still missing since the government deployed the military in the ‘waron drugs’ in 2006, the effects of narcotrafficking carrying a huge public health cost. Althoughthe exact proportions of weapons’ origins is debatable, it is clear that the majority of tracedguns on Mexican streets are from the US. Meanwhile, drug cartels flood the US streets withcocaine, heroin, fentanyl, methamphetamine, and other illicit narcotics, the majority of drugsentering the US from Mexico, and which Americans consume to the tune of over $150 millionannually. It is not difficult to see that the proliferation of American guns on Mexico’s streets isalso an American problem, its ‘blow-back’ effect fanning the flames of US illicit drug dealing.But while Washington spends vast sums on partnering with Mexico on security and counter-narcotics, little appears to have been achieved in stemming the flow of US-made weaponsinto Mexico, which could, in-turn, dampen the ‘blow-back’ of the drug trade into the US.Nonetheless, the claims in Mexico v Smith & Wesson & others and Mexico v Diamondback3/6Shooting Sports Inc. et al do not seek to address the US problem – they are rooted solely inharms caused on Mexican soil. Indeed, Mexico is at pains to point out that it is not attemptingto challenge gun ownership laws in the US and that it recognises American sovereignty todetermine US social policy reflecting a balance between ‘the financial interests of the gunindustry and the rights of victims within its jurisdiction’ (para. 20  of the Smith & Wessoncomplaint).Overview of Mexico’s ActionMexico filed its first civil action in Mexico v Smith & Wesson & others on 4 August 2021beforea Massachusetts District Court. The action targeted arms producers: (1) Smith &Wesson Brands, Inc., (2) Barrett Firearms Manufacturing, Inc., (3) Beretta U.S.A. Corp., (4)Beretta Holdings P.A., (5) Century International Arms, Inc., (6) Colt’s ManufacturingCompany LLC, (7) Glock, Inc., (8) Glock GES. M.B.H., and (9) Sturm, Ruger & Co., Inc.Mexico argued, inter alia, that the defendant gun manufacturers have been ‘causing massivedamage by actively facilitating the unlawful trafficking of their guns to drug cartels and othercriminals in Mexico’. Mexico is therefore submitting that the defendants aid and abetcrimescommitted by the cartels with trafficked weapons. The claim regarded this in terms of asubstantial contribution to the cartel crimes, since ‘[a]lmost all guns recovered at crimescenes in Mexico—70% to 90% of them—were trafficked from the US’ (para. 1 of thecomplaint). According to Mexico, the defendants knowingly aid and abet these crimes, sinceit is abundantly clear to them that their business practices involve fuelling the illicit traffic ofweapons. In the words of Mexico’s claim, the ‘Defendants’ willfully blind and standardlessdistribution practices aid and abet the killing and maiming of children, judges, journalists,police, and ordinary citizens throughout Mexico’ (para. 15 of the complaint). Interestingly,Mexico’s first claim was filed under tort law, but it invoked standards also common to criminallaw, such as aiding and abetting.It is peculiar that the joint response of the Defendant manufacturers asserts that they couldnot be held responsible in circumstances where it is not abundantly clear how theirmerchandise is used by the end consumer. The argument is that, for instance, Budweiser – abeer company – cannot be held responsible even if it knows that some of its products will besold unlawfully to minors (p. 20 joint response). This consideration underpins the generalreasoning of business owners that they cannot be held responsible for contributing tocriminality when their products may be utilized for both lawful and unlawful activities. TheInternational Criminal Tribunal for the Former Yugoslavia (ICTY) examined the problem ofthese so-called neutral contributions in Šainović et al when it ultimately held that it is notnecessary for securing convictions that the aid is specifically directed towards a criminalpurpose (para. 1649).4/6Judge Saylor dismissed Mexico’s first claim in Mexico v Smith & Wesson & others on 30September 2022 on the grounds that it is precluded by the US Protection of LawfulCommerce in Arms Act (PLCAA) (see p. 3 of the dismissal order). This law grants federallylicensed firearms manufacturers and dealers broad immunity against lawsuits claimingharms resulting from the ‘criminal or unlawful’ misuse of guns by a third party. Judge Saylorfurther held that exceptions under PLCAA do not apply to Mexico’s first claim. For instance,an exception for negligence only applies to dealers and not gun manufacturers (see p. 29 ofthe dismissal order). The judge did not rule, however, on whether the term ‘criminal orunlawful’ refers only to the US state and federal law or also to foreign law. Mexico argued itscase under both sets of laws and insisted that PLCAA does not apply in an extraterritorialfashion when the claims are made under foreign law. The first claim failed on thisjurisdictional basis and is subject to Mexico’s impending appeal.Mexico’s second claim – filed beforetheDistrict Court of Arizona on 10 October 2022 inandMexico v Diamondback Shooting Sports Inc. et al. – targets dealers, allegingresponsibility of five Arizona gun shops for selling military-style weapons and ammunition todrug cartels in Mexico through reckless and unlawful business practices (para. 1 of theclaim). The allegation is that the defendants choose to sell guns in a reckless manner,despite the existence of virtual certainty that these weapons help in causing cartel violenceacross the border. Just like the first claim, Mexico’s second claim is civil in nature but is filedunder the Racketeer Influenced and Corrupt Organizations Act (‘RICO’) (paras. 12, 179 ofthe claim).Civil RICO claims in the US are an alternative to criminal prosecutions under the samestatute. Naturally, civil RICO includes some elements and standards from the field of criminallaw as it seeks compensation for the harm arising out of organized crime and related criminalpatterns. For instance, civil claims under RICO require plaintiffs to prove the existence of a‘proximate cause’ – or a direct causal relationship between the plaintiff’s injury and thedefendant’s RICO violations. This standard of causation is typical for criminal law cases,which require a direct connection between actus reus – or conduct – and the resulting harmwhen it comes to perpetration of a crime. It is important to note, however, that complicity incriminal law – as a distinct form of engaging in a crime – is often regarded as lying outside ofthe standard of causation where it involves assisting the actions or omissions by anotherperson, who is presumed to have autonomy. It is thus problematic to say that one person‘causes’ another one to act.Mexico’s second claim may raise dealers’ objections relating to Mexico’s failure to showproximate cause because the injury can be considered too indirect, remote, and derivative. Ifone relies on international criminal law standards, however, there is clarification when itcomes to the effect of assistance on the crime. Aiding and abetting under customaryinternational law does not require a direct causal link between the action of an accompliceand the ultimate harm. The Furundžija Trial Chamber at the ICTY elaborated on the effect ofassistance, holding that the acts of the accomplice need not ‘bear a causal relationship to, or5/6be a conditio sine qua non for, those of the principal’ (para. 223). This pronouncement isaligned with the philosophical underpinning of complicity mentioned in the previousparagraph.Momentum in Strategic LitigationThe Mexico claim should be seen in the broader context of several recent developments inthe area of corporate accountability for international and transnational crimes. On 7September 2021, the French Cour de Cassation held in the Lafarge case that a lower courtwrongly cancelled the indictment alleging Lafarge’s complicity in crimes committed by anumber of armed groups in Syria, including the Islamic State (para. 6). The Cour deCassation held that knowingly transferring millions of dollars to an organization whose solepurpose is criminal is sufficient to meet the requirements for corporate complicity (para.59(2)). This pronouncement is widely seen as promoting corporate accountability since itconfirmed ‘knowledge’ (and not ‘intent’) as a threshold for mens rea – or culpability – when itcomes to criminal complicity. This finding is in line with customary international law on aidingand abetting and probably the Rome Statute. It also makes sense with respect to corporateentities that often contribute knowingly (but much less frequently, intentionally) to criminalitybecause of the nature of their raison d’être.Other recent developments can be seen in the momentous Shell litigation in the Netherlands,and a recent attempt to hold heads of arms corporations accountable in their individualcapacities for complicity in war crimes. The European Centre for Constitutional and HumanRights (ECCHR) together with a group of other NGOs submitted a communication to theOffice of the Prosecutor of the International Criminal Court (ICC) urging for the opening of apreliminary examination into the conduct of several European companies, based in the UK,Spain, Italy, Germany, and France, that supply weapons to the Saudi/UAE-led coalition. Thishas spawned satellite litigation in some of those national jurisdictions. The ICC determinationis still pending.Finally, Sweden is currently pursuing a case concerning the activity of an oil corporation –Lundin Energy – charged with aiding and abetting international war crimes in Sudan between1997- 2003. In 1997, when Sudan was at the height of a brutal civil war, the company signeda contract with the government to explore oil in the southern regions; and it is alleged thatthis led to the forced displacement of nearly 200,000 people, as well as uncountable cases ofrape, torture and abduction. On 11 November 2021, the Swedish Prosecutor announcedcriminal charges against the company’s chairman and director alleging complicity in warcrimes under the principle of universal jurisdiction as provided for in Chapter 2, Section 3(6)of the Swedish Penal Code.These recent developments in the area of corporate accountability have focused on complicitassistance, namely aiding and abetting human rights and humanitarian law violations, ratherthan the (less common) situation where a company engages in the direct perpetration of6/6such violations. It is in relation to such complicit assistance that the standards that areapplied by US courts to the transboundary harm in Mexico’s claims will provide insights forthe ongoing discussion relating to the desirable standard for corporate complicity.Thus, the lawsuits, brought under national US laws, emerge from, and contribute to, broaderinternational trends in the judicial enforcement of corporate accountability for human rightsviolations. These trends include the recognition  – under international criminal law – thatindividual business persons may be held directly responsible under international law for theirroles in the rare circumstances in which they contribute to atrocity crimes.

Mexico's Civil Litigation Against US Gun Manufacturers and Dealers for Cartel Violence:Developing a Standard of Corporate Complicity in Gross Human Rights Violations

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Mexico's Civil Litigation Against US Gun Manufacturers and Dealers for Cartel Violence:Developing a Standard of Corporate Complicity in Gross Human Rights Violations

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