International Criminal Law in Mexico: National Legislation, State Practice and Effective Implementation 9462654549, 9789462654549

Citation preview

International Criminal Law in Mexico National Legislation, State Practice and Effective Implementation

Tania Ixchel Atilano

International Criminal Law in Mexico

Tania Ixchel Atilano

International Criminal Law in Mexico National Legislation, State Practice and Effective Implementation

Tania Ixchel Atilano Winterthur, Switzerland

ISBN 978-94-6265-454-9 ISBN 978-94-6265-455-6 (eBook) https://doi.org/10.1007/978-94-6265-455-6 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © t.m.c. asser press and the author 2021 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This t.m.c. asser press imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Dedicated to: Darío Miranda and Diego May wisdom and kindness be a good companion of yours.

Acknowledgements

This book is based on a dissertation that was defended at the Humboldt University in Berlin. I extend my sincerest appreciation to the DAAD–German Academic Exchange Service- for funding this work and for providing all organization necessary to fulfill this achievement. I also thank them for their efforts to encourage the exchange of ideas between doctoral candidates. My deepest thanks to my supervisor Prof. Gerhard Werle for his guidance, support, critical remarks and, patience. His insight and knowledge in the subject have been fundamental to this work. I extend all my gratitude to Prof. Francisco Muñoz Conde for his guidance, enthusiastic supervision and inspiration. Since I was a law student, I have read with great admiration his work on criminal law. His inspiration has not only been academical but without his encouragement I would not have thought about doing a doctoral thesis in Berlin. I am very grateful to the Doctoral committee during the “Rigorosum”—Prof. Werle, Prof. Muñoz Conde and Prof. Heger -, the members of which showed great kindness while I was in the last weeks of my pregnancy. My sincere gratitude to Dr. Aziz Epik for his insightful comments and suggestions. I am also indebted to Dr. Marlen Vesper-Gräske for her treasured advice and help. Special thanks to Anja Schepke from the chair of Prof. Werle, who has always been very warm, supportive and helpful. Many thanks to Dr. Miguel Ontiveros, who has also been instrumental in deciding to start a doctoral research. I would also like to extend my gratitude to Dr. Miguel Cerdio and Dr. Gabriela Rodríguez who were very supportive while I was teaching criminal law at ITAM University. I am indebted to Lic. Maria Elena Ruiz and Lic. Marco Mayorga for their insight, remarks and valuable comments on the first draft of this work. My sincere appreciation also goes to Dr. Jan Boesten and Justin Bachmann for proofreading the final version. I am grateful to my sister Sharim for her ingenious suggestions. I would also like to extend my gratitude to the library of the Ibero-American Institute in Berlin, for facilitating access to the historical Criminal Codes. vii

viii

Acknowledgements

Thank you all my fellow doctoral candidates in Berlin for all the stimulating discussions, the wise counsel, sympathetic ears and most of all for the laughter. All my gratitude to my cherished friends in Mexico, despite the distance and the time passed, their moral support and companionship has been vital to finish this book. I thank my parents for their enduring love. Above all, I thank my beloved husband Dr. Hüseyin Çelik for his never-ending support, encouragement, love and patience. Last but not least I am grateful to my son Ushen Darío who was very patient and cooperative during the “Rigorosum” and the editing stage of this book.

About This Book

Sources Used This work is mainly based on documentary research, encompassing legal texts, laws, databases, as well as numerous journalistic accounts that helped to not only bring the topic up to date, but also added an additional, quasi-sociological, viewpoint to the legal one. The reader will find references to the DOF (Diario Oficial de la Federación), which is Mexico’s Official Gazette, where all laws are published. This source was consulted frequently as it helped in finding and systemizing all treaties, reservations made to treaties, decrees and laws in the matter. As the legal and constitutional framework changes quite frequently in the Mexican legal system, it was necessary to trace the original phrasing of some laws. The reference to the Official Gazette is made as: DOF and the dates follow the American English format, in order for the reader to facilitate the search of documents. For all the procedures related to the student massacre of 1971, the compilation of procedures made by the NGO, Cómite 68 pro libertades democráticas, was very helpful; the reader will find several references made to this compilation. As for Mexican jurisprudence, citations are made using capital letters, as is standard practice in the Mexican jurisdiction. Regarding international humanitarian law and associated customary law, major consultation was made to the ICRC internet database. Furthermore, for the sections related to laws on war, various historical texts and documents, such as the Martinez de Castro Code of 1871 and the various post-1984 military codes were consulted. Secondary literature consulted for this book included studies from the historical and political sciences, which helped to better understand the historical-political processes accompanying the legislative process. Journalistic accounts allowed the importance of pending issues such as impunity and transitional justice to be measured.

ix

x

About This Book

Appendices and Tables This book also contains two appendices, Appendix A and Appendix B, the first being a list of the documents contained in the latter. Appendix B is comprised of 16 documents, among which are extracts from the Penal Code of 1871 and the Military Code of 1894, as well as several decrees related to the ratification and implementation of ICL instruments in Mexico. These documents have been ordered chronologically. Appendix B is intended to serve as a companion and primary source for the conclusions reached in the book. They will also serve the reader as a guide. Similarly, the different tables in this book contain information about IHL treaties signed by Mexico as well as the definitions of genocide, crimes against humanity and war crimes adopted by the Mexican state. For most Mexican legal texts, there is no English translation. For this reason, I provide my own translations of the sources throughout the book.

Contents

1

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Statement of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Current Scientific Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Structure and Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part I

1 1 4 4 6

General Features of the Mexican State and Its Relationship to International Law

2

The Mexican Legal System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Political and Historical Considerations . . . . . . . . . . . . . . . . . . . . . 2.2 Organization of the Mexican State . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Competencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

Peculiarities of the Mexican Legal System that Could Potentially Prevent Prosecution of International Crimes . . . . . . . . . . 3.1 Article 21 (8) of the Mexican Constitution . . . . . . . . . . . . . . . . . . 3.1.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.2 The Rome Statute as a Threat to Sovereignty . . . . . . . . 3.1.3 Is Article 21 (8) a Reservation? . . . . . . . . . . . . . . . . . . . . 3.1.4 Prohibition of Reservations to the Rome Statute . . . . . . 3.1.5 Discrepancies with the Pacta Sunt Servanda Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.6 Incompatibilities with the International and Domestic Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Military Jurisdiction and Its Expansive Character in Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Debate on the Constitutionality of Military Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Military Jurisdiction and Humanitarian Law . . . . . . . . .

9 10 14 15 17 19 20 20 21 22 23 25 27 33 33 36 41 xi

xii

Contents

3.2.4

Military Jurisdiction and the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The Status of International Law in the Mexican Constitution . . . . . . 4.1 Rank of International Treaties–Article 133 . . . . . . . . . . . . . . . . . . 4.1.1 Historical Precedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Main Features of Article 133 . . . . . . . . . . . . . . . . . . . . . . 4.1.3 Interpretations of the Hierarchy of International Law in the Mexican Legal Order . . . . . . . . . . . . . . . . . . . 4.2 Rank of Human Rights Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 International Law and Territorial Rights: Articles 27 and 42 of the CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Constitutional Restrictions on International Treaties: Contradicción de Tesis 293/2011 . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II 5

44 45 49 50 50 50 53 58 61 62 65 67

Incorporation of Major Sources of International Criminal Law: The Rome Statute and the Laws of War

Mexico and the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Ratification of the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 Mexico before the International Bodies of Justice . . . . 5.2 Political Context of the Signing of the Rome Statute . . . . . . . . . . 5.3 Subscription, Signing and Ratification of the Rome Statute . . . . 5.4 Proposals of Statutory Law Incorporating the Rome Statute . . . 5.4.1 Preliminary Considerations . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Law of Cooperation with the International Criminal Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.3 Reform Bills of Article 21(8) CPEUM . . . . . . . . . . . . . . 5.5 Incorporation of Crimes under the Rome Statute . . . . . . . . . . . . . 5.5.1 Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Crimes Against Humanity . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

73 74 74 75 77 78 85 85 85 87 89 89 91 97

Part III Interpretation and Application of International Criminal Law in Mexico’s State Practice 6

Incorporation of the Laws of War in the Mexican Legal Order . . . . 6.1 General Considerations on War Crimes . . . . . . . . . . . . . . . . . . . . . 6.1.1 International Humanitarian Law and War Crimes . . . . . 6.1.2 History of the Criminalization of Grave Breaches . . . . 6.1.3 Definition of War Crimes . . . . . . . . . . . . . . . . . . . . . . . . .

103 104 104 106 108

Contents

xiii

6.1.4

Non-international Armed Conflict and Violations Against International Humanitarian Law . . . . . . . . . . . . 6.1.5 Obligations to Criminalize Grave Breaches and Violations of International Humanitarian Law . . . . 6.1.6 Convenience of Criminalizing the Prohibitions of International Humanitarian Law . . . . . . . . . . . . . . . . . 6.2 War Crimes in Mexican Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 Federal Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.3 Military Discipline as a Protected Legal Interest . . . . . . 6.2.4 Military Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Legacy of Nineteenth Century Codification . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

8

Interpretation of International Criminal Law Principles by the Mexican Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 The Halconazo Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 Preliminary Considerations . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Contextual Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Legal Chronicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.4 Appeal No. 1/2004-PS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.5 Investigative Powers of the SCJN . . . . . . . . . . . . . . . . . . 7.4 Constitutional Controversy 33/2002 Over the Interpretative Declaration to the Inter-American Convention on Forced Disappearance of Persons . . . . . . . . . . . . . 7.5 The Rosendo Radilla Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.1 Prior Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.2 Outcomes of the Judgment . . . . . . . . . . . . . . . . . . . . . . . . 7.5.3 Interim Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Cavallo Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.2 Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.3 Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Implementation of Humanitarian Law During the Armed Conflict in Chiapas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 The “Lacandona” Declaration and Humanitarian Law . . . . . . . . 8.3 Hostilities and Amnesty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 The Role of the International Committee of the Red Cross in the Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 Judicial Enforcement—Prosecution of War Crimes . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

112 114 116 118 118 121 124 131 143 147 151 152 153 154 154 157 157 159 180

185 187 187 188 191 193 193 194 196 199 205 205 206 207 209 211 215

xiv

9

Contents

Application of Provisions of the Rome Statute in Resolutions of Domestic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Right to Freedom of Information . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.2 The Radilla Pacheco Case . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.3 The “Clandestine Graves of San Fernando” Case . . . . . 9.3 Prosecution of Crimes Committed during the Dirty War: The Case of Martha Alicia Camacho . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

217 217 218 218 219 221 222 224

Part IV Towards an Adequate Incorporation of International Criminal Law 10 Proposed Legal Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Constitutional Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.2 Article 21 Para 8 CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.3 Article 13 CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.4 Article 29 CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.5 Article 37 CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.6 Article 108 CPEUM—Sanction of High-Ranking Officials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.7 Article 76(I)—Faculties of the Senate . . . . . . . . . . . . . . . 10.3 Federal Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.1 General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.2 Considerations of the General Principles of International Criminal Law . . . . . . . . . . . . . . . . . . . . . 10.4 Other Legislative Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.1 General Dispositions on International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.2 Items Related to the Military Code of Justice . . . . . . . . 10.4.3 General Law to Prevent and Punish Torture . . . . . . . . . . 10.4.4 Law of International Cooperation . . . . . . . . . . . . . . . . . . 10.4.5 Law of National Security . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.6 Extrajudicial Executions . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.7 Law of the Official Gazette of the Federation . . . . . . . . 10.5 Urgency of Domestic Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . 10.6 Universal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.7 Extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.8 Non-application of Statutory Limitations and Exceptions to the Nullum Crimen Sine Lege Principle . . . . . . . . . . . . . . . . . . . 10.9 Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.10 Transitional Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

227 228 230 230 232 233 234 234 235 236 237 237 239 252 252 253 255 256 257 257 258 258 259 261 261 263 264 268

Contents

11 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1 Preliminary Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 General Features of the Mexican State and Its Relation to International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3 Incorporation of International Crimes . . . . . . . . . . . . . . . . . . . . . . 11.4 Application of International Criminal Law Principles . . . . . . . . . 11.5 Suggested Legal Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.6 Future Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7 Final Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

xv

273 273 273 275 277 278 280 281 283

List of International Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 Appendix A: List of Documents and Sources . . . . . . . . . . . . . . . . . . . . . . . . . 287 Appendix B: Legal Documents (Documents and Sources) . . . . . . . . . . . . . 291 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323

Abbreviations

ACHR

Additional Protocol I (AP I)

Additional Protocol II (AP II)

ASP BGH

BRD BverfG CJM CMPP CNDH

COCOPA

American Convention on Human Rights of 22 November 1969, OAS Treaty Series, No. 36 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, 1125 UNTS (1977), 3 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, 1125 UNTS (1977), 609 Assembly of State Parties German Federal Supreme Court in Criminal Matters Bundesgerichtshof Federal Republic of Germany Bundesrepublik Deutschland German Constitutional Court Bundesverfassungsgericht Mexican Military Code Código de Justicia Militar Mexican Procedural Military Code Código Militar de Procedimientos Penales Mexican National Commission of Human Rights Comisión Nacional de Derechos Humanos Commission for Peace and Reconciliation Comisión para la Concordia y Pacificación

xvii

xviii

Convention on Statutory Limitations

CPDF

CPEUM

CPF CPP DDR DF DOF ECHR ECtHR EZLN FEMOSPP

Geneva Convention I

Geneva Convention II

Geneva Convention III

Geneva Convention IV

Abbreviations

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Criminal Code for the Federal District of Mexico Código Penal para el Distrito Federal Mexican Constitution Constitución Política de los Estados Unidos Mexicanos Mexican Federal Criminal Code Código Penal Federal Mexican Procedural Criminal Code Código Procesal Penal German Democratic Republic Deutsche Demokratische Republik Federal District of Mexico Distrito Federal Mexican Federal Law Gazette Diario Oficial de la Federación European Convention on Human Rights European Court on Human Rights Zapatista Liberation Army Ejército Zapatista de Liberación Nacional Special Prosecutor’s Office for the Investigation of Crimes Committed in the Past against Social and Political Movements Fiscalía Especial para Movimientos Sociales y Políticos del Pasado Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the field of 12 August 1949, 75 UNTS (1949), 31 Convention for the Amelioration of the Condition of the Wounded and Sick and Shipwrecked members of in Armed Forces at Sea of 12 August 1949, 75 UNTS (1949), 85 Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS (1949), 135 Convention Relative to the Protection of Civilian Persons in Time of War 12 August 1949, 75 UNTS (1949), 287

Abbreviations

Genocide Convention

GG HRW IACHR ICC ICCPR

ICJ ICL ICRC IFAI

IHL IL ILO IMT INAI

LFTAIPG

NAFTA NGO Nuremberg Principles

OAS PAN

xix

Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948, 78 UNTS (1949), 277 German Constitution of 13 May 1949 Grundgesetz Human Rights Watch Inter-American Court of Human Rights International Criminal Court International Covenant on Civil and Political Rights of 23 March 1976, UNTS Vol. 999, 171 International Court of Justice International Criminal Law International Committee of the Red Cross Mexican Federal Institute on Information Access Instituto Federal de Acceso a Información International Humanitarian Law International Law International Labour Organization International Military Tribunal Nuremberg Mexican National Institute on Transparency, Access and Protection of Personal Information Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales Federal Law on Transparency and Public Governmental Information Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental North American Free Trade Agreement of 1 January 1994 Non-Governmental Organization Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, Report of the International Law Commission Covering the Work of its Second Session (5 June–29 July 1950), UN Doc. A/1316, in Yearbook of the International Law Commission 1950 II, 374 Organization of American States National Action Party Partido Acción Nacional

xx

PGR PRD PRI Rome Statute Rwanda Tribunal SCJN SEDENA SEGOB SEMAR SIL SNSP SRE StGB StPO Torture Convention

UN Definition of Aggression UN UNAM UNTS UPR USA Vienna Convention VCT

Abbreviations

General Prosecutor´s Office of the Republic Procuraduría General de la República Party of the Democratic Revolution Partido de la Revolución Democrática Party of the Institutionalized Revolution Partido Revolucionario Institucional Rome Statute of the International Criminal Court of 17 July 1998, 37 ILM (1998), 999 International Criminal Tribunal of Rwanda Mexican Supreme Court Suprema Corte de Justicia de la Nación Secretariat of National Defense Secretaría de la Defensa Nacional Secretariat of Internal Affairs Secretaría de Gobernación Secretariat of Marine Secretaría de Marina Mexican System of Legislative Investigation Sistema de Investigación Legislativa National System of Public Security Sistema Nacional de Seguridad Pública Secretariat of Foreign Affairs Secretaría de Relaciones Exteriores German Criminal Code of 11 February 2005 Strafgesetzbuch German Criminal Procedural Code Strafprozessordnung United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, 1465 UNTS (1987), 112 UN General Assembly Resolution 3314 (XXIX) of 14 December 1974 United Nations National Autonomous University of Mexico Universidad Nacional Autónoma de México United Nations Treaty Series Universal Periodic Review United States of America Vienna Convention on the Law of Treaties of 23 May 1969, 1155 UNTS (1969), 331

Abbreviations

vs. VStGB

Yugoslavia Tribunal

xxi

Versus German Code of Crimes Against International Law of 26 June 2002 Völkerstrafgesetzbuch International Criminal Tribunal of Yugoslavia

Chapter 1

Introduction

Contents 1.1 Statement of the Problem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Current Scientific Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3 Structure and Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1 4 4 6

Abstract This chapter outlines the general importance of writing a study about how international criminal law has so far been incorporated and implemented in the Mexican legal order. It provides general background information on the urgency of enabling domestic prosecution in Mexico, evidenced by the rising violence since 2006. Major aspects that intersect with international criminal law in the case study of Mexico are presented. The former is followed by defining the obstacles that domestic prosecution faces as well as a general description of the contents of each chapter. The major findings and sequence of the questions posed in this book are presented and organized in four parts: (I) General features of the Mexican state and its relationship to international law; (II) Incorporation of major sources of ICL: The Rome Statute and the laws of war; (III) Interpretation and application of ICL; and (IV) Towards an adequate incorporation of international criminal law. Keywords International criminal law · International Criminal Court · Rome Statute · Complementarity principle · Mexican legal system · Incorporation of international criminal law · Domestic prosecution · Core crimes · War on Drugs

1.1 Statement of the Problem The main objectives of international criminal law (ICL) are the prosecution and punishment of the most serious crimes.1 The International Criminal Court (ICC), was created in 1998 to fulfill this purpose in case states are unwilling or unable to 1 Namely: Genocide, crimes against humanity and war crimes. The term “international crimes” will

be avoided as it can be confused with the broader treaty based crimes conception such as: piracy, torture, terrorism, among others. In this work, the concept of “core crimes” will also be used. On the overlapping of concepts between: international crimes, most serious crimes and core crimes, see Schabas 2012, pp. 28–46. © t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_1

1

2

1 Introduction

do so.2 In this sense, not only the complementary character of the ICC, but also the challenges that it has faced, makes it clear that prosecution and punishment should primarily originate at the domestic level.3 To enable domestic prosecution of the most serious crimes, these have to be incorporated in national legal systems. Mexico has ratified major ICL treaties. However, no thorough consideration has been made regarding how the Mexican State has incorporated and applied principles of ICL and, most importantly, if the prosecution of alleged core crimes has been enabled. A thorough study on these matters is of relevance, firstly because the whole ICL system relies on domestic prosecution. Secondly, Mexico is a country which was ruled for 70 years by one party, during which time alleged core crimes were committed and these remain unresolved. Thirdly and especially interesting for those who study democracies in transition, violence arose in Mexico exactly in the midst of political alternation. The rising levels of violence4 brought the militarization of public security, which also has resulted in numerous claims of human rights violations;5 NGOs have also claimed these would amount to crimes against humanity.6 The way in which violence has unfolded makes it difficult to determine whether these claims would amount to human rights violations or the commission of core crimes.7 Furthermore, many of these violations are claimed to have gone unpunished. As the reader might notice, there are multiple aspects of interest for ICL in the case study of Mexico. Of particular importance is the fight against impunity for the most serious crimes. However, it is, of course, beyond the scope of this book to discuss all of them. Most of all, I am convinced that, in order to provide an in-depth analysis of all the major intersections between Mexican law and ICL, it is first necessary to address basic considerations such as incorporation; or to put it another way, to consider which laws Mexico has and which laws should it have in order to comply with the duty to prosecute and punish core crimes. By incorporating and efficiently implementing all legal measures necessary, a pathway towards accountability is guaranteed and the complementarity principle can be efficiently triggered.8 This is especially important, 2 See

Rome Statute of the International Criminal Court, opened for signature 17 July 1998, United Nations Treaty Series (UNTS), num. 38544, vol. 2187, (entered into force 1 July 2002) (Rome Statute), preamble, (5), (9) (10) and Articles 5 and 17. 3 Specially due to the legal and political constraints the ICC faces. On this topic, see Holá et al. 2019. 4 On the rising levels of violence, see Perea 2019, pp. 254–267. 5 Müller 2018, pp. 171–191. 6 NGOs like the Comisión Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH) have sustained in the communications sent to the ICC, that Crimes against humanity have been committed during the so-called war on drugs. Also, the report commissioned by the same NGO to the Leiden University, concludes that in Mexico there has been an internal armed conflict from 2006 onwards caused by the war on drugs. For the communications to the ICC see Comisión Mexicana de Defensa y Promoción de los Derechos Humanos 2019. On the report about armed conflict related to the war on drugs see Leiden University 2018. 7 Some might agree the violence resembles that of a Non-International Armed Conflict. See Nill Sánchez 2013; Comber and Mburu 2015. 8 Also, on the considerations on implementing an international mechanism to combat impunity see Open Society Foundations 2018, pp. 51–56.

1.1 Statement of the Problem

3

since there is a high interest in the ICC taking over human rights violations that have emerged in the context of the war on drugs.9 However, even if the ICC would start an investigation in one of these cases, the number of victims is so high10 that it could not be sufficient to satisfy their need for justice. As a consequence, fighting impunity relies on domestic prosecution. One of the aims of this book is to look for the best ways to enable domestic prosecutions. The key question of how to prosecute alleged core crimes faces the following problems: (a) Article 21(8) of the Mexican Constitution which conditions the jurisdiction of the ICC to a case by case basis; (b) the only international core crime that has been incorporated is the crime of genocide; (c) when alleged core crimes have been disputed before the judiciary they have been dismissed. In this book, these three questions will be analyzed thoroughly and solutions provided. In addition, the context in which the current Mexican legal system has evolved is, in my opinion, a key question, the consideration of which, unfortunately, has been overlooked by Mexican jurists. In this sense, when reflecting on international criminal law in Mexico, we should give some thought to the 70-year rule of the Partido Revolucionario Institucional (PRI). As will be revealed in this work, the latter has shaped the way international criminal law has been implemented and so far incorporated. To support this hypothesis, state practice such as legislative measures, official pronouncements, judicial decisions and military manuals will be examined. In addition, in the case of Mexico, identifying rules that relate to ICL is by no means a simple matter, especially since constitutional and legal reforms have become an artifice by which each president draws his political agenda.11 As a consequence, the legal order becomes, at times, incoherent and for the legal scholar or practitioner, it becomes very easy to get lost in the sea of new dispositions, laws or constitutional articles. Domestic criminal law has not been spared from these reforms. In addition, criminal military law converges with civil criminal law, which also makes it difficult to identify norms that are related to ICL and core crimes.

9 In

favor of this view, see Bosdriesz and Wirken 2017. On triggering the ICC’s jurisdiction, see International Federation for Human Rights 2014. 10 According to the register launched in 2020: Registro Nacional de Personas Desaparecidas y No Localizadas, the total number of disappearances from 2006 to August 2020 was 60,627 people. See Registro Nacional de Personas Desaparecidas y No Localizadas (2020) Total de personas desaparecidas y no localizadas. https://versionpublicarnpdno.segob.gob.mx/Dashboard/ContextoG eneral. Accessed 2 August 2020. 11 During the presidency of Calderon (2006–2012) the number of constitutional articles that were reformed was 110. While under president Enrique Peña Nieto (2012–2018) 155 articles were reformed. Albeit constitutional reforms, institutions such as the Federal Police have suffered several changes due to the various laws on national security that have been enacted from 2000 onwards. See Cámara de Diputados. H. Congreso de la Unión, https://www.diputados.gob.mx/LeyesBiblio/ ref/cpeum_per.htm. Accessed 14 July 2020.

4

1 Introduction

1.2 Current Scientific Situation While doing the research for this book, it was possible to verify that Mexican scholars have concentrated on the work of the ICC in general or on the principle of complementarity, but not on the problem of the lack of criminalization, the absence of prosecution and implications of the constitutional clause, which are analyzed in this work. Several articles were found on the ICC and Mexico, however, no full study like a monograph, surveying all major gaps between domestic law and ICL was found. As the reader will also notice in this work, situations such as the fight against guerrilla groups in the 1970’s (the “Dirty War”) or the Chiapas armed conflict have remained insufficiently researched by legal scholars in relation to ICL.

1.3 Structure and Methodology In order to identify the major findings and sequence of the questions posed, the book is divided in the following four parts: (I) General features of the Mexican state and its relationship to International Law; (II) Incorporation of major sources of ICL: The Rome Statute and the Laws of War; (III) Interpretation and application of ICL; and (IV) Towards an adequate incorporation of International Criminal Law. To gain a general overview of the Mexican legal system, a brief chapter comprising the general features of the Mexican state and its stance towards International Law has been included. This general overview also features peculiarities of the Mexican legal system that could contravene the prosecution of international crimes. After drawing this brief historical and political framework, Chap. 3 identifies two features within the Mexican legal system that could potentially prevent prosecution of international crimes, namely: (a) Article 21 (8) of the Mexican Constitution; and (b) the expansive notion of military jurisdiction. These two peculiarities must also be borne in mind to ensure accountability. For this reason, their implications will be analyzed at the domestic and international level. In order to crystallize the mechanism for implementing international rules, Chap. 4 reviews the rank of international law in the Mexican Constitution. This review will help us identify the enabling legislation that is needed in order to incorporate ICL norms. The Mexican judiciary’s interpretations of this mechanism will also be provided along with the state’s practice regarding treaty and customary international law. In Chap. 5, the role of the Rome Statute (RS) within the Mexican legislative will be reviewed as well as the legislative’s conclusions and solutions in order to achieve ratification. In addition, an analysis of the national suppression of the core crimes: Genocide and Crimes against humanity will be made. This analysis will allow an assessment to be made as to whether the Mexican legal system is in accordance with the standards of ICL. In this chapter, the definition of core crimes is defined and proposals are made for the process going forward.

1.3 Structure and methodology

5

Chapter 6 deals exclusively with the incorporation of the law of war. This distinction was made since, in the Mexican legal order, crimes related to the laws of war predate the contemporary definition of war crimes. Readers might find the historical antecedents to the definition of “crimes against the duties of humanity” useful, since they might confuse it with crimes against humanity. The nature of crimes against military discipline is also explored as under criminal military law, military discipline is the highest legal interest to be protected and, therefore, its violations have punishments that supersede those of international crimes. Domestic crimes that are related to war crimes will be surveyed in order to identify the gaps between national law and ICL. After having discussed the “state of the art” of domestic incorporation, Chap. 7 embarks on the interpretation and application of norms and principles of ICL by the judiciary. Three seminal cases were chosen: the Halconazo case, the Rosendo Radilla case and the Cavallo extradition. The former two cases concern the commission of crimes alleged to have taken place as part of a widespread attack in which the state was complicit. Therefore, the victims argued the application of ICL principles, such as the non-application of statutory limitations. The claims were, however, dismissed and, until now, these crimes have remained unpunished. By way of contrast, in the Cavallo case the judiciary as well as state officials argued for the extradition of Cavallo based on principles of ICL. The asymmetries of these arguments will be evidenced as well as the state’s practice when it comes to the implementation of ICL in domestic cases. Lastly, the Rosendo Radilla case proved to be an example in which a decision by an international human rights tribunal evidences the absence of prosecution for alleged core crimes. In Chap. 8, the armed conflict in Chiapas in 1994 is invoked as an example of the challenges that are faced in the adequate incorporation of ICL. Even though international humanitarian law was applied by a third party (the ICRC), the state never acknowledged the inner armed conflict. Of relevance for ICL, however, is the fact that, in the context of the conflict, attacks on the civilian population occurred. It will also be discussed whether the case has been investigated and prosecuted. Further examples of the state’s practice towards ICL will be identified in Chap. 9. Specifically, the application of provisions of the RS in resolutions of domestic law. In this regard, two cases will be discussed in which the judiciary as well as the Federal Institute for Access to Information has interpreted the scope of “crimes against humanity” in light of the RS. Finally, a brief reference will be made to a case in which the prosecution of crimes committed during the dirty war was framed with direct reference to Article 7 of the Rome Statute. After having identified the main political and historical implications of the Mexican legal order and how these are reflected in the way International Law is implemented and applied, the last chapter suggests various proposals at both the constitutional and statutory level. Special focus is placed on crimes against humanity, examining in detail the relations between the definitions set forth in Article 7 RS and the acts punished by the Federal Penal Code (CPF). Finally, Chap. 10 emphasizes the need to implement and harmonize the set of laws related to universal jurisdiction,

6

1 Introduction

extradition, proportionality of penalties, non-application of statutory limitations and retroactive application of law in the context of transitional justice. In law, different frameworks are connected at the national and international level, but in order to be executed according to their purpose they need to be “harmonized”. The proposals made in this book pursue this aim. Otherwise, in the absence of such changes being implemented, just like in an orchestra, the Mexican legal order will continue to play “off key”.

References Comer C, Mburu M (2015) Humanitarian Law at Wits’ End: Does the Violence Arising from the “War on Drugs” in Mexico Meet the International Criminal Court’s Non-International Armed Conflict Threshold? In: Gill T et al (eds) Yearbook of International Humanitarian Law, volume 18. T.M.C. Asser Press, The Hague, pp. 67–89 Comisión Mexicana de Defensa y Promoción de los Derechos Humanos (2019) De la estrategia de seguridad a los crímenes de lesa humanidad en México (Informes presentados a la Corte Penal Internacional). htp://www.cmdpdh.org/publicaciones-pdf/cmdpdh_estrategia_de_s eguridad_a_los_crimenes_de_lesa_humanidad_en_mexico.pdf. Accessed 3 August 2020 Holá B et al. (2019) Introduction: National Prosecutions of International Crimes: Sentencing Practices and (Negotiated) Punishments. International Criminal Law Review, 19(1), pp. 1–14. DOI:https://doi.org/10.1163/15718123-01901001 International Federation for Human Rights FIDH (2014) México, Informe sobre presunta, comisión de crímenes de lesa humanidad en Baja California entre 2006 y 2012. https://www.fidh.org/IMG/ pdf/rapport_mexique-ld2-1-2.pdf. Accessed 3 August 2020 Leiden University (2018) The Situation of Drug-Related Violence in Mexico from 2006–2017: A Non-International Armed Conflict? Leiden IHL Clinic Report-Series No. 28 Müller M (2018) Governing crime and violence in Latin America, Global Crime, pp. 171–191, DOI: https://doi.org/10.1080/17440572.2018.1543916 Nill A (2013) Mexico’s drug “war”: drawing a line between rhetoric and reality. The Yale Journal of International Law 38: 467–501 Open Society Foundations (2018) Corruption that Kills: Why Mexico needs an international mechanism to combat impunity. https://www.justiceinitiative.org/uploads/5071ab37-003f-46b1-9e1f700bbdae34a3/corruption-that-kills-en-20180502.pdf. Accessed 3 August 2020 Perea C (2019) Extreme violence without war and its social reproduction implications for building peace in Latin America. Peacebuilding, 7:3, 254–267, DOI:https://doi.org/10.1080/21647259. 2019.1633105 Schabas W (2012) Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals. Oxford University Press, Oxford Wirken S, Bosdriesz H (2017) Privatisation and increasing complexity of mass violence in Mexico and Central America: exploring appropriate international responses. In: van der Wilt H, Paulussen C (eds) Legal responses to transnational and international crimes. Towards an integrative approach. Cheltenham, Edward Elgar Publishing, pp. 245–271

Part I

General Features of the Mexican State and Its Relationship to International Law

Chapter 2

The Mexican Legal System

Contents 2.1 Political and Historical Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Organization of the Mexican State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Competencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

10 14 15 17

Abstract This chapter aims to describe the historical and political context of the Mexican legal system, while also presenting the organization of the Mexican state and the competencies of the three powers of government. The first result from the historical contextualization suggests that the defense of sovereignty relies on its colonial past and on the struggle to be as independent as possible from the US. The second result shows how the building of the corporate state under the PRI rule permeated into the Constitution and its numerous reforms. Both results reveal how the historical developments intertwine with the reception of international law. The political stability achieved from the one-party rule also led to a civil-military pact, which crystallized in the prerogatives that the military enjoyed—such as autonomy—while fighting back the armed opposition during the 1970s. In terms of the organization of the Mexican state, federalism and presidentialism also play a role in the issuance of laws and the managing of foreign policy. Lastly, dividing the different competencies between the federal, local and municipal levels raises important elements that must be considered when designing the legal framework to efficiently prosecute and punish core crimes. Keywords Armed forces · Competencies · Constitución Política de los Estados Unidos Mexicanos · Foreign policy · Partido Revolucionario Institucional · Sovereignty · Presidentialism · Federalism

© t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_2

9

10

2 The Mexican Legal System

2.1 Political and Historical Considerations The State of Mexico was established in 1821 after a 10-year war of independence with Spain.1 After independence, the rest of the century was dominated by efforts from foreign powers to retake control or invade Mexican territory, first by European powers (including Spain and France), and then by the United States which annexed wide arrays of territory in the Mexican-American war (1846–1848).2 It is important to note that the Mexican legal system belongs to the civil law tradition. This is partly a result of the Spanish colonial rule and Mexico’s participation in the codification movement of the nineteenth century, which was inspired by Napoleon’s civil code.3 The experience of colonial rule and foreign invasion was a crucial element of the nationalist sentiment that first fueled the Mexican Revolution (1910–1920) and was then consolidated into a national identity. Politically, the Mexican Revolution led to the construction of a corporatist organizational structure,4 in which the hegemonic Party, the PRI, integrated workers, peasants and the military sectors into the nation state. The party itself served as the coordination veneer between the different sectors of society, functioning as a kind of central arbiter. The consequence is an ambivalence, which the name of the party, “Institutionalized Revolution”, fully embraces. On the one hand, post-revolutionary Mexico celebrated revolutionary ideals and victories, while political power and its distribution served to maintain and preserve political hegemony within a strong institutional structure.5 The way events developed after independence and the revolution could explain the nationalist features adopted in the twentieth century, and goes hand in hand with the defense of sovereignty. As we will see in further chapters, the defense of sovereignty as well as the strict positivist approach of the judges and legislators has had an impact in the incorporation and implementation of ICL, especially customary international law. The effort to defend national sovereignty must also be seen in the context of foreign interests colluding with domestic interests. For example, when the Political Constitution of the United Mexican States –Constitución Política de los Estados Unidos Mexicanos (CPEUM)—was discussed in the Constituent Congress of 1916, the United States of America (US), conditioned the withdrawal of its military forces on the recognition of foreigners’ property rights.6 Also, international investors and actors objected Article 27 (ownership of oil) and Article 123 (labor rights), which gave workers more prerogatives to negotiate wages.7 Furthermore, in the years following the revolution, there was a tangible risk of US intervention, given: (a) Mexican debt 1 The foundation of the Federal Republic that constituted the “United States of Mexico” (Estados Unidos Mexicanos) dates back to 1824, after Congress was installed. 2 See Vázquez 2011, pp. 148–184. 3 On this point, see Santos 2014, pp. 297–313. 4 See González Casanova 1983. Specifically, see Meyer 1989, pp. 21–30. 5 Finally, those who were in charge of building this institutional structure were also involved in the revolution, for instance President Plutarco Elías Calles. 6 See Vázquez and Meyer 2001, pp. 140–141. 7 Ibid., pp. 139–140.

2.1 Political and Historical Considerations

11

to the United States; (b) the “national law on oil” which provided for nationalization of oil companies (Ley petrolera); and (c) the limitations placed on foreign ownership by the “Aliens Act” (Ley de extranjería).8 Despite fears of foreign intervention, Mexico was fairly successful in barring competing powers from its territory since throughout the PRI’s rule, neither of the two superpowers directly intervened in Mexico’s affairs.9 Moreover, Mexico could even entertain official relations with Castro’s Cuba, playing an integral part in its incorporation into the community of Latin American states.10 The apparent political stability that seemed resilient against internal and foreign destabilizing influences could be due, according to scholar Roderic Ai Camp, to the PRI’s hegemony in Mexico and the control of its military.11 As a result, the United States envisaged no threat to its national interests. As Vázquez and Meyer argue: “Mexican, postrevolutionary authoritarianism spanning almost the entire twentieth century, was wholly compatible with American interests precisely because it made Mexico one of the most stable and predictable political societies on the continent and of the world”.12 The PRI’s political and institutional control remained stable and sufficiently rigid13 for the protection of sovereignty, at least until the mid-1980.14 The “pacted”15

8 Ibid.,

pp. 157–160. This was further strengthened in the Cristera War from 1926–1929.

9 For concrete examples of relative autonomy from the United States, see Meyer 2013, pp. 353–357. 10 See

Pellicer de Brody 1968, pp. 360–383. the relationship between the hegemony of the PRI party and the military, see Camp 1992. On this topic also consider Serrano 1995, pp. 423–448. 12 “El autoritarismo pos-revolucionario mexicano, que abarcó el grueso del siglo XX, resultó enteramente compatible con el interés norteamericano precisamente por haber hecho de México una de las sociedades políticamente más estables y predecibles del continente y del mundo”. See Vázquez and Meyer 2011, p. 244. 13 Especially once the “civil-military” pact was formed after the conclusion of the Mexican Revolution, military power was dedicated to protecting the ideals of the Revolution and preserving the political hegemony of the PRI, for which the military received privileges from civilians in political power. Mónica Serrano deals with the subject of the civil military pact in depth, see Serrano 1995, p. 423 et seq. 14 The economic opening in 1986 generated a new concept of sovereignty, in this regard see ibid., p. 445. 15 On the “pacted subjection of the armed forces”, see generally Ai Camp 1992. 11 Regarding

12

2 The Mexican Legal System

subjection of the armed forces to civilian rule further strengthened nationalist protection of sovereignty.16 This “pact”17 essentially consisted of “(...) the Armed Forces respecting civilian authority in political decisions on the condition that civilians respected the autonomy of the Armed Forces”.18 In 1968 and 1971, student protests in Mexico city were crushed by the military, police, and incognito paramilitary units with links to the Armed Forces, resulting in a number of human rights violations.19 The Tlatelolco massacre, just prior to the 1968 Olympic Games, and the Corpus Christi massacre (referred to as the Halconazo attacks against students) in 1971 are the most evident examples of the regime’s “dirty war” against internal opposition, which ensured the stability of the political system and respect for the military’s autonomy. The results of these developments were twofold: the state took a hard stance internally and even suppressed opposition,20 while also trying to defend an external image of embracing multilateralism, signing various international treaties.21 For example, during Luis Echeverría’s six years in power from 1970 until 1976, embracing traditional multilateralism22 meant to diversify contacts with the rest of the world and reduce the political and economic dependence on the United States.23 By the end of his reign, he had signed 160 treaties and agreements.24 The 1990s signaled Mexico’s complete opening to the international community and the shedding of overtly nationalist sentiment. The factors behind this were plentiful, but there certainly was some hubris attributable to the regime (the PRI certain of its power) combined with the effects of the end of the Cold War. Above all, the 1990s 16 Among other things, this explains why Additional Protocol II of the Geneva Convention has not been signed so far, since at the time of entry into force of this protocol, Mexico was fighting an internal guerrilla subversion, as officially confirmed with the “Rosendo Radilla” judgement. Refer to the status of the signatories of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 12 December 1977, United Nations Treaty Series, num. 17512, vol. 1125, p. 3 (entered into force 7 December 1978) (Additional Protocol II). On this matter, see also Cossío Díaz et al. 2012 p. 297. Also, generally, see Serrano 1995. It should be added that, prior to the reform of article 57 of the Code of Military Justice in 2014, the military jurisdiction was applied in all cases involving military personnel, even if they were engaging in civilian activities or if it involved civilian victims. 17 On an up-to-date version of the civil-military pact, see Hachemer 2017. 18 Herrera A (2009) Apuntes en torno a las fuerzas armadas y el sector de la seguridad y la defensa en México: la coyuntura actual y los escenarios futuros, p. 9. http://www.resdal.org/jovenes/apu ntes-ffaa-herrera.pdf. Accessed 5 August 2020. 19 On the paramilitary groups, see Comité 68 Pro Libertades Democráticas A.C. 2008. 20 Confirmed by the Inter-American Court of Human Rights case in, IACtHR, Rosendo Radilla Pacheco v Mexico, Judgment, 23 November 2009, Series C 10 no 209 (Rosendo Radilla), paras. 149–157. For different examples of suppressed opposition during the time 1929–2000, see Aboites 2011, pp. 262–266, 284–288. 21 As is clear from the various treaties signed by the executive but ratified several years later. For an in-depth study, see Saltalamacchia and Covarrubias 2011, pp. 161–210. 22 Ibid., pp. 162–163. 23 Vázquez and Meyer 2001, p. 211. 24 Ibid., p. 214.

2.1 Political and Historical Considerations

13

were the neo-liberal decade and the signing and entry into force of NAFTA in 1994 revealed a clear economic opening.25 Politically, this ushered in what has been termed a “foreign policy of human rights”.26 The new political turn towards international law could be rooted in the aforementioned reasons and the greater pressure international actors exercised on internal affairs. Additionally, various non-governmental organizations took advantage of the acceptance of the contentious jurisdiction of the IACtHR, litigating cases related to the government practices of the PRI regime.27 The subsequent judgments of the Inter-American Court damaged the prestige of the Mexican state by evidencing its deficiencies as a democratic state and guarantor of human rights. To diminish the effects of the judgments, Mexico embraced a new approach towards international law by granting international human rights treaties the same footing as the constitution (constitutional reform of 2011).28 It is also relevant to point out, for the purpose of political contextualization, that the change in power from the year 2000 (in which the PRI lost a presidential election for the first time in 70 years) lasted only 12 years. Some scholars have even referred to this period as a “failed transition”29 since it brought the PRI back to power in 2012.30 Even federal states like the “State of Mexico” (estado de México) have remained under PRI control since the foundation of the party in 1928. For this work, the above mentioned political and historical account are of great help in order to understand the dynamics of incorporation of international criminal law in Mexico. By framing the research with historical and political background, it is easier to find answers to the legislative inactivity when it comes to ICL. Interestingly enough, as we will see in further chapters, the major legislative activity when it comes to humanitarian law, dates to the nineteenth century and stagnates from the twentieth century onwards. Finally, the historical account provides two important points that show a Janusfaced characteristic in Mexico’s stance towards international law. In the domestic sphere, it remained protective of revolutionary and nationalist ideals (often combined with violent suppression of opposition), while, externally, it positioned itself as open

25 This openness is also attributed to conflicts in Central America, which led to the entry of foreign human rights organizations. See Herrera 2009, Apuntes en torno a las fuerzas armadas y el sector de la seguridad y la defensa en México: la coyuntura actual y los escenarios futuros, p. 9. http://www.resdal.org/jovenes/apuntes-ffaa-herrera.pdf. Accessed 5 August 2020. Also see Serrano 1995, p. 436. 26 Saltalamacchia and Covarrubias 2011, pp. 188–192. 27 Regarding the political shift towards international law, see ibid., pp. 161–210; Serrano 1995; Carpizo 2010. 28 Published in the Official Gazette (Diario Oficial de la Federación), DOF, 16 June 2011. 29 See Tuckman 2013. Lorenzo Meyer describes the transition period under the PAN party as a “phase superior to the PRI-ismo”, see Meyer 2013, pp. 265–277. 30 On the return of the PRI to power, see Rodríguez 2015.

14

2 The Mexican Legal System

to international human rights treaties. This concoction becomes clearer by contrasting the signing dates of human rights treaties with their ratification.31

2.2 Organization of the Mexican State The United States of Mexico is located in the southern portion of North America, bordered to the north by the United States of America and to the southeast by Guatemala and Belize. The body of fundamental principles according to which the Mexican state is organized, is the Constitution of 1917. Mexico is organized as a federal republic that is representative, democratic and secular (Article 40 CPEUM).32 Within the federation, division is made between the executive, legislative and judicial branches of government (Article 49 CPEUM).33 A major feature of the Mexican constitution is that it is highly malleable; it has underdone 722 amendments since 1917.34 All amendments along with all newly enacted laws and ratified treaties are published in the Official Gazette—Diario Oficial de la Federación (DOF).35 Mexico is composed of 31 states and “Mexico City”, which is an autonomous entity (Article 122 CPEUM). As a result, the Mexican state is the sum of the federation, the states, Mexico City and the municipalities (municipio).36 All the members of the Mexican federation are 31 It is important to consider the importance of the North American Free Trade Agreement (NAFTA) in this respect. It was signed on 17 December 1992 and published in the Official Gazette on 8 December 1994. NAFTA was an economic treaty, yet forced the adoption of a new human rights philosophy, and the abandonment of the prevailing view that human rights are an internal affair. Intriguingly, when making pronouncements involving other countries, even prior to NAFTA, Mexico was quicker to condemn human rights violations. It did so against General Augusto Pinochet’s violent seizure of power in Chile in 1973 – at a time when Mexico, too, was waging an internal “dirty war”. See Aboites 2011, p. 288. 32 Article 40. It is the will of the Mexican people to organize themselves into a federal democratic, representative and secular republic composed of free and sovereign states plus Mexico City, in all that concerns their internal government but united in a federation established according to the principles of this fundamental law (translated by the author). 33 Article 49. The supreme power of the federation is divided, for its exercise, into legislative, executive, and judicial branches. Two or more of these powers shall never be united in one single person or corporation, nor shall the legislative power be vested in one individual except in the case of extraordinary powers granted to the executive, in accordance with the provisions of Article 29. In no other case, except as provided under the second paragraph of Article 131, extraordinary powers to legislate shall be granted (translated by the author). 34 The total of these amendments is as of 8 May 2020. The register of all these amendments can be found at the Chamber of Deputies website, see Cámara de Diputados (2020), Reformas Constitucionales por Decreto en orden cronológico. Última reforma, en materia de bienestar, publicada en el Diario Oficial de la Federación el 8 de mayo de 2020. https://www.diputados.gob.mx/LeyesB iblio/ref/cpeum_crono.htm. Accessed 5 August 2020. 35 See Article 89 (I) CPEUM and its statutory law: Ley del Diario Oficial de la Federación y Gacetas Gubernamentales, DOF, 24 December 1986. 36 Orozco 2004, pp. 3–51.

2.2 Organization of the Mexican State

15

free and sovereign, with their own congress and constitution (Article 115 CPEUM), while the municipio is the lowest level within the political organization of the state. As a federation, the constitution grants the states legislative powers for certain matters, which are not exclusively reserved for the federation. Each federal state mirrors the separation of powers of the federal order. That is, in each state we find a head of the executive (governor), a parliament (deputy chamber) and a judicial power. Internally, each state is divided into municipalities and these have their own powers, such as maintaining their own police force (Article 115-II CPEUM). There are shared duties between the federation and the states like education (Article 3, 73 XX CPEUM), health (Article 4 CPEUM) and public security (Article 21, 73-XXIII). Some scholars also describe the transfer of duties between the different layers of government as the “subsidiarity principle”.37 Among the legislative powers of the states, each federal state has the faculty to legislate on criminal matters, but there are subjects reserved to the federation, such as organized crime.38 An example of how a crime can be punished at the different levels of government is the crime of enforced disappearance, which is sanctioned in some states, Mexico City and by the federal criminal code. As we will see in subsequent chapters, the crime of genocide and crimes that relate to war crimes are punished by the Federal Criminal Code (CPF)39 and the Code of Military Justice (CJM),40 which also belongs to the Federal order.41 It follows that, in Mexico, there are 32 criminal codes plus one federal code. A legislative reform in 201442 gave birth to a new Código Nacional de Procedimientos Penales, abolishing all 32 local and federal procedural codes.

2.3 Competencies The head of the executive, being the President of the Republic, is head of state as well as head of government. The president is elected through direct vote (Arts. 81 and 84 CPEUM). His mandate lasts six years and he cannot be reelected. The powers of the executive are provided by Article 89 CPEUM. Among the most relevant are: the capacity to enact and execute the laws issued by the Congress of the Union; to protect national security, make use of the permanent armed forces—the army, the navy and the air force for homeland security; to declare war in the name of the 37 Barceló

Rojas 2016, p. 83. 73 CPEUM, fr. XXI b: El Congreso tiene facultad para expedir (…) b) la legislación que establezca los delitos y las faltas contra la Federación y las penas y las sanciones que por ellos deban imponerse; así como legislar en materia de delincuencia organizada. 39 DOF, 14 August 1931. 40 DOF, 31 August 1933. 41 However, it is not clear if criminalizing war crimes would be an exclusive power of congress. There would be no question about it, if only the personal criterion is considered. However, if within an armed conflict only non-state actors were combatting, concurrent powers could emerge. 42 DOF, 3 March 2014. 38 Article

16

2 The Mexican Legal System

United Mexican States—having the previous authorization of the Congress; to lead foreign policy; to make and execute international treaties, as well as to end, condemn, suspend, modify, amend, withdraw reservations and make interpretative declarations to treaties and conventions with approval of the senate. The president also enjoys the power to suspend fundamental rights, under the “state of emergency” clause ruled by Article 29 CPEUM. Given the numerous faculties and wide-ranging powers that the Mexican constitution entitles the president, a presidential regime results, regardless of the separation of powers and federalism.43 Mexican legal scholar Jorge Carpizo adds that Mexican presidentialism is sui generis, because of the de facto powers that the president enjoys.44 The legislative power is vested in the Congress of the Union and a two-chamber legislature: the Senate and the Chamber of Deputies (Article 50 CPEUM). Senators serve a six-year term, whereas deputies serve three years and both are elected according to the principle of majority voting. State governments are also entitled to have their own legislatures (Article 115 CPEUM). As for the enactment of bills and laws, every single bill or decree shall be discussed successively in both chambers, except where one of the chambers has exclusive jurisdiction over the issues (Article 72 CPEUM). Article 73 CPEUM draws up the powers of Congress. Among the most relevant are: (a) to declare war based on the information submitted by the President; (b) to apply maritime legislation during both peacetime and wartime; (c) to regulate organization and service of the armed forces; (d) to issue laws criminalizing organized crime, enforced disappearance, human trafficking, torture and other cruel or dehumanizing treatments; (e) to grant amnesty for federal crimes; and (f) to enact laws in matters of national and public security. Regarding international law and according to Article 76 CPEUM, the senate holds relevant exclusive powers such as the power to: (a) Analyze foreign policy developed by the President, based on the annual reports submitted to the senate by the President and the Secretary of Foreign Affairs. (b) Approve international treaties and conventions subscribed by the President, as well as the President’s decision to end, denounce, suspend, modify, amend or withdraw reservations. (c) Approve interpretative declarations made by the President related to signed treaties and conventions. (d) Authorize for the President the deployment of Mexican troops outside the country; the passing of foreign troops through the country; and the sojourn of foreign troops for more than one month on Mexican waters. As for the federal judicial power, it is exercised by the SCJN, the Council of the Federal Judiciary and collegiate, unitary and district tribunals. Conflicts between powers, constitutional controversies as well as conflicts between treaties and a domestic law can also be solved through judicial review (Article 105 CPEUM).

43 On 44 See

the Mexican strong presidency, see Philip 1992; Weldon 1997, pp. 225–258. Carpizo 2010, pp. 220-229.

References

17

References Aboites L (2011) El último tramo, 1929–2000. In: Escalante P et al (eds) Nueva Historia Mínima de México, Nueva Historia Mínima de México, 1st edn. El Colegio de México, Mexico, pp. 262–302 Barceló D (2016) Teoría del federalismo y del derecho constitucional estatal mexicano. UNAM, Instituto de investigaciones jurídicas, Mexico Camp R (1992) Generals in the Palace: The Military in Modern Mexico. Oxford University Press, Oxford Carpizo J (2010) El presidencialismo mexicano. Siglo XXI Editores, Mexico Comité 68 Pro Libertades Democráticas A.C (2008) FEMOSPP, Informe Histórico presentado a la sociedad mexicana: Fiscalía especial FEMOSPP, Serie: México: Genocidio y delitos de lesa humanidad. Documentos fundamentales 1968–2008, vol. IX Cossío J et al (2012) El caso Radilla. Editorial Porrúa, Mexico González Casanova P (1983) La democracia en México. Editorial Era, Mexico Hachemer P (2017) Mexico: A Civil-Military “Pact” Unravelling? In: Croissant A, Kuehn D (eds) Reforming Civil-Military Relations in New Democracies. Democratic Control and Military Effectiveness in Comparative Perspectives. Springer International Publishing, pp. 83–101 Meyer L (1989) El corporativismo mexicano en los tiempos del neoliberalismo. In: Besúnsan G, García C (eds) Estado y Sindicatos: crisis de una relación. Fundación Friedrich Ebert-UAM Xochimilco, Mexico, pp. 21–30 Meyer L (2013) Nuestra tragedia persistente. Debate, Mexico Meyer L, Vázquez J (2001) México frente a Estados Unidos: un ensayo histórico, 1776–2000. Fondo de Cultura Económica, Mexico Orozco P (2004) El Estado mexicano, su estructura constitucional. Revista Mexicana de Derecho, no. 6, pp. 3–51 Pellicer de Brody O (1968) La revolución cubana en México. Foro Internacional, vol. 8, no. 4, pp. 360–383 Philip G (1992) The Presidency in Mexican Politics. Palgrave Macmillan, London Rodríguez A (2015) El regreso autoritario del PRI. Grijalbo Mondadori, Mexico Saltalamacchia N, Covarrubias A (2011) La trayectoria de los derechos humanos en la política exterior de México (1945–2006). Editorial Porrúa, Mexico Santos J (2014) Napoleon in America? Reflections on the Concept of ‘Legal Reception’ in the Light of the Civil Law Codification in Latin America. In: Duve T (ed) Entanglements in Legal History: Conceptual Approaches. Max Planck Institute for European Legal History, Berlin, pp. 297–313 Serrano M (1995) The armed branch of the State: Civil-Military Relations in Mexico. Journal of Latin American Studies, 02, pp. 423–448 Tuckman J (2013) México, Democracia interrumpida. Editorial Debate, Mexico Vázquez J (2011) De la independencia a la consolidación Republicana. In: Pablo Escalante et al (eds) Nueva Historia Mínima de México, 1st edn. El Colegio de México, pp. 148–184 Weldon J (1997) Political Sources of Presidencialismo in Mexico. In: Mainwaring S, Shugart M (eds) Presidentialism and Democracy in Latin America. Cambridge University Press, Cambridge, pp. 225–258

Chapter 3

Peculiarities of the Mexican Legal System that Could Potentially Prevent Prosecution of International Crimes

Contents 3.1 Article 21 (8) of the Mexican Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.2 The Rome Statute as a Threat to Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.3 Is Article 21 (8) a Reservation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.4 Prohibition of Reservations to the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.5 Discrepancies with the Pacta Sunt Servanda Principle . . . . . . . . . . . . . . . . . . . . . 3.1.6 Incompatibilities with the International and Domestic Order . . . . . . . . . . . . . . . . 3.2 Military Jurisdiction and Its Expansive Character in Mexico . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Debate on the Constitutionality of Military Jurisdiction . . . . . . . . . . . . . . . . . . . . 3.2.3 Military Jurisdiction and Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 Military Jurisdiction and the International Criminal Court . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

20 20 21 22 23 25 27 33 33 36 41 44 45

Abstract This chapter examines potential obstacles to the prosecution of international crimes. The main obstacles identified were: (a) Article 21 (8) of the Mexican constitution (CPEUM) and (b)the expansive character of military jurisdiction in Mexican domestic law. Due to its historical and political background, Mexico opted for an amendment in the constitution in order to ratify the Rome Statute (RS). Due to the content of Article 21 (8) CPEUM, it could be regarded as a disguised reservation. A thorough assessment is made of this provision in light of the Vienna Convention on Treaties as well as the RS in order to define its scope vis-à-vis the ICC jurisdiction. In terms of the expansive character of military jurisdiction, this chapter describes how the close link between the military and the executive has led to the military enjoying privileges. One of these privileges is autonomy, with the military able to hold its own trials whenever a member of the military is involved. Even though the provisions related to the military jurisdiction were domestically challenged and even though international advocates showed concern, it was not until the IACtHR’s ruling in the Radilla case, that the Mexican Supreme Court (SCJN) took the matter seriously and statutory reform followed. Notwithstanding these developments, as this chapter will show, military jurisdiction remains an obstacle to domestic prosecution and could hinder cooperation with the ICC.

© t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_3

19

20

3 Peculiarities of the Mexican Legal System that Could …

Keywords Disguised reservation · International cooperation · Military jurisdiction · Domestic prosecution · International jurisdiction · Impartiality · Pacta sunt servanda principle

3.1 Article 21 (8) of the Mexican Constitution 3.1.1 Preliminary Remarks From a comparative law perspective, international criminal law (ICL) narratives and case studies mostly focus on certain nation states. Regarding Latin America, ICL manuals predominantly refer to countries with an authoritarian past, such as Chile and Argentina, while always referring to their transitional justice processes. Meanwhile, the political continuity of the PRI and its implications for ICL are rarely mentioned. While there might be ample reasons for this, the most prominent is that Mexico, unlike other countries in Latin America, has been characterized by its political “stability” and has not experienced a military dictatorship. While reviewing Mexican legal scholarship, no thorough work was found on the implications of a state governed by a single political party. For ICL, these implications are of utmost relevance, bearing in mind that if a single party controlled most aspects of political life, it could also have the means to evade instruments that could be turned against it. A broad perspective regarding a state’s approach towards ICL is certainly a good starting point in order to find new explanations for the lack of adequate implementation and incorporation of ICL instruments in Mexico. Therefore, when analyzing the implementation of norms that enable prosecution of high-level government officials, it cannot be ignored that officials have mostly been affiliated with the PRI party.1 In addition, Mexico has—both historically and in modern times—experienced high levels of violence, which have been addressed with repression, increasing the incentives to avoid prosecution by international bodies. On this point, the Inter-American Commission on Human Rights (IACoHR) already pointed out in its report of 2015 that the “historically high level” of impunity in Mexico has perpetuated violence.2 I find the aforementioned political background helpful in understanding the constitutional reform that led to Article 21, para 8, of the CPEUM, subjecting the jurisdiction of the International Criminal Court (ICC) to the approval of the President of the Executive and the Senate of the Republic. The national debate claiming that the ICC was a threat to sovereignty3 clashed with the “human rights-friendly” discourse 1 The

bibliography on this topic is extensive, however only few works link the Revolution, the PRI party, and the legal order. See Cossío 2001 and Carpizo 2012. 2 Inter-American Commission on Human Rights 2015, para 66. 3 On the views within the Mexican Senate conceiving the ICC as a foreign power, see Senado de la República [Senate of the Republic] 2002b. In this regard, former Justice of the Supreme Court Juventino Castro y Castro also expressed in 2002 that the ICC was a “threat to sovereignty”. See

3.1 Article 21 (8) of the Mexican Constitution

21

of the Fox administration.4 Although claims that the ICC interfered with national sovereignty were not exclusive to Mexico,5 it is revealing that—in the midst of a “transition to democracy”—old notions of absolute sovereignty6 were recalled in order to limit the jurisdiction of the ICC. The sovereignty discourse against the ICC, also shows that the less friendly international law approach did not disappear during the PAN administrations.7 Following the brief historical accounts of Chap. 2, it can be concluded that the defense to national sovereignty—which ultimately concluded with the passing of Article 21, para 8, of the CPEUM—represents the last vestige of the “sovereign and defensive tradition in foreign policy”.8 It could also be interpreted as the President’s last vestige of dominance in this regard.9

3.1.2 The Rome Statute as a Threat to Sovereignty During the discussions of the ratification of the Rome Statute (RS) in the Senate, there were several arguments against the RS, mainly since it was perceived as a threat to sovereignty.10 The Senate decided that in order to protect sovereignty, the constitution should be amended. The following text was added to Article 21 CPEUM: The Federal Executive may, with the approval of the Senate, recognize in each case, the jurisdiction of the International Criminal Court.11

From the wording of Article 21 (8), the amendment adds powers to the head of the executive as well as the Senate. This power could be referred to as a “specific Periódico La Jornada (2002) La Corte Penal, trampa a la soberanía. https://www.jornada.com.mx/ 2002/04/15/052n1con.php?origen=index.html. Accessed 7 August 2020. 4 Scholar Ernesto Hernández even claims that in terms of migration law, absolute sovereignty was replaced by a “transnational sovereignty”. See Hernández 2006, pp. 203–233. 5 On the interactions between international criminal law and sovereignty, see Cryer 2006, pp. 979– 1000. 6 Notions that Mexico has to defend its sovereignty against foreign powers were mostly fueled by Mexico’s colonial past as well as its proximity to the US. 7 Nevertheless, the connection between economic dependence on the US and an articulation of national sovereignty was somewhat disjointed by the rise of the PAN to power. See Meyer 2013 pp. 353–357. 8 Ibid., p. 162. 9 In this regard, scholar Guadalupe González argues that, the alternation in power from 2000 to 2006 did not necessarily imply a plurality in decision making or that the participation of the legislative power in foreign policy issues increased or was done more efficiently. After all, she concludes that the influence of the President prevailed in the legislative power through the Ministry of Foreign Affairs. See generally González 2007, p. 161 et. seq. 10 See Senado de la República 2001, 2002a, b and 2005. Also see Cámara de Senadores 2002. 11 Article 21 (8): El Ejecutivo Federal podrá, con la aprobación del Senado en cada caso, reconocer la jurisdicción de la Corte Penal Internacional. As amended on 4 May 2005, published in the DOF, 10 June 2005.

22

3 Peculiarities of the Mexican Legal System that Could …

competence” since it is given with the exclusive purpose to recognize the ICC’s jurisdiction in each case.

3.1.3 Is Article 21 (8) a Reservation? In legislative and academic scholarship arguments have circulated that the eighth paragraph is a reservation.12 Whereas the process of constitutional reform is a question of national and domestic law, it is, nevertheless, useful to review the provisions of the Vienna Convention on the Law of Treaties (VCT) with respect to reservations, in order to examine if Article 21 (8) meets the formalities of a reservation. Article 2 (d) VCT defines a reservation as: “(...) a unilateral declaration, whatever its name or designation, made by a State in signing, ratifying, accepting, approving or acceding to a treaty, in order to exclude or modify the legal effects of certain provisions of the treaty in its application to that State”.13 Regarding this definition, we could say that the content of the eighth paragraph of Article 21 CPEUM is a unilateral declaration that has application for the Mexican state and modifies the legal effects of the RS. The modification of these legal effects is revealed by the way in which the ICC was conceived with the purpose of exercising its criminal jurisdiction against those responsible for crimes within its jurisdiction (genocide, crimes against humanity, war crimes, aggression). These crimes have been considered the most serious, for the harm they cause to humanity and for the danger they pose to international peace and security. Articles 4 and 86-102 RS support this purpose. Conditioning the jurisdiction of the ICC in the Mexican territory to case by case approval by the Senate as well as recognition by the executive clearly limits the objectives and modifies the legal effects of the RS. Articles 19–23 of the VCT provide for the formulation and procedure of reservations to treaties. Pursuant to Article 19 a state may formulate reservations at the time of signing, ratifying, accepting, approving or acceding to a treaty, except for three exceptions.14 The reform of Article 21 CPEUM was made prior to ratification of the RS and not at any of the moments suggested in Article 19 VCT. The UN treaties

12 In this regard the Mexican Senate has expressed its concern that Article 21(8) is actually a disguised reservation. See Senado de la República 2013, p. 4. As for scholarship critics on the constitutional article, see Becerra 2006, pp. 951–954. 13 Vienna Convention on the Law of Treaties, opened for signature (23 May 1969), United Nations Treaty Collection, entered into force (27 January 1980). 14 These exceptions are: (a) that the reservation is prohibited by the treaty; (b) that the treaty provides that only specified reservations which do not include the reservation in question, may be made; or (c) that in the cases not falling under sub paragraphs (a) and (b) the reservation is incompatible with the object and purpose of the treaty. As will be seen in the next section, Article 120 RS prohibits reservations.

3.1 Article 21 (8) of the Mexican Constitution

23

database shows that Mexico deposited the instrument of ratification only with a notification based on Article 81 (1) and (2), with this notification referring to requests for cooperation through the Ministry of Foreign Affairs.15 Article 23 VCT also sets out the procedure for reservations. These must: (1) be made in writing; and (2) be communicated to contracting states and other states entitled to become parties to the treaty. None of this happened when Mexico acceded to the RS. Article 23 (2) VCT also states that reservations made at the time of signing the treaty will have to be confirmed in writing when state parties express their consent to be bound by the treaty, which did not occur in the case of Article 21 (8) CPEUM. Thus, it is clearly evident that the constitutional reform does not comply with the characteristics that regulate the formulation of reservations to international treaties. It can also be concluded that according to the VCT, Article 21 (8) CPEUM is not a reservation16 since it was not formulated according to the formalities described above and, most importantly, because the Rome Statute excludes reservations in Article 120.

3.1.4 Prohibition of Reservations to the Rome Statute From the section above, it can be concluded that Article 21 (8) does not formally comply with the requirements of a reservation according to the VCT. It is, however, relevant to review what the RS’ stance is towards reservations. Pursuant to Article 120 of RS,17 the reservations to the Statute are prohibited and, therefore, would be null and void. According to the travaux preparatoires, Article 120 was conceived to guarantee the integrity of the Treaty18 and to avoid assessing impermissible reservations.19 However, state parties may make interpretative and/or declarative notes.20 In this 15 Rome Statute of the International Criminal Court, opened for signature (17 July 1998), United Nations Treaty Collection, entered into force (1 July 2002) (Rome Statute), Mexico, Notifications made under article 87 (1) and (2). https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY& mtdsg_no=XVIII-10&chapter=18&lang=en#EndDec. Accessed 7 August 2020. 16 Arguing the opposite, see Camarillo and Cabrera 2016. 17 Rome Statute, above n. 15. 18 See Hafner 2008, pp. 1737–1750. Also see Mårsäter 2016. https://cilrap-lexsitus.org/clicc/ 120/120. Accessed 7 August 2020. 19 The International Law Commission of the United Nations has also addressed the difficulties of impermissible reservations that the travaux preparatoires was intended to avoid. In a report of 2011, they showed its concern at the number of reservations made by states that were incompatible with the limits imposed by the law of treaties. They also emphasized the difficulty of assessing the validity of reservations. See UN General Assembly, International Law Commission 2011, p. 601. 20 In this regard, it is important to note how the Mexican Senate misused the declarations made to the RS by other states. For example, former senator Jáuregui used, for example, the declaration made by the Australian government when arguing in favor of limiting the jurisdiction of the ICC on a case by case basis. However, the remarks of the senator were inaccurate, since the aims of Australia’s declaration were to cooperate with the ICC and to enable prosecution on the domestic level. On the arguments made by the senator, see Senado de la República 2002c, p. 8. https://perma.cc/9R75-NNKM.

24

3 Peculiarities of the Mexican Legal System that Could …

regard, Mårsäter, stresses that the possibility of making declarations could lead to formulating “disguised reservations” if they have the legal effect to exclude or modify the provisions of the treaty.21 A particularly useful example in this matter is the interpretative declaration made by the Republic of Uruguay22 when ratifying the RS on 28 June 2002, and the response it drew. The argument behind Uruguay’s declaration followed a very similar vein to Mexico’s when its congress debated constitutional reform.23 It can also be added that the political reasons behind the protection of its constitutional order—as a condition for the RS—lie in Uruguay’s political history and past experiences with authoritarianism, extrajudicial killings and amnesty laws.24 The text of the interpretative declaration made by the Eastern Republic of Uruguay upon ratifying the RS was as follows: As a State Party to the Rome Statute, the Eastern Republic of Uruguay shall ensure its application to the full extent of the powers of the State insofar as it is competent in that respect and in strict accordance with the constitutional provisions of the Republic.25

This declaration evidently resembles the points put forward in Mexico’s Senate on the jurisdiction of the ICC, in particular, contentions over the constitutional sovereignty of Mexico. Of interest are the responses by other state parties to Uruguay’s declaration. Germany, Sweden, Finland and the Netherlands challenged the reservation in July 2003. These countries agreed that the interpretative declaration was, in fact, a reservation that sought to limit the purpose of the Statute in a unilateral way.26 Sweden emphasized that the application of the Statute was being subjected to constitutional provisions and that such a general statement did not make clear the level of Uruguay’ s commitment to the RS.27 Ireland, the United Kingdom, Denmark and Norway concurred with these objections and, combined with requests by NGOs, such as Amnesty International (AI),28 led Uruguay to withdraw the interpretative declaration on 26 February 2008.29 It is important to keep these examples in mind, because they serve as a “counterfactual” frame of reference for the Mexican case, and illustrate that the condition of Senate and executive approval could not be accepted by the international community.

Accessed 7 August 2020. On the declaration made by Australia, see Rome Statute, above n. 15, Australia – Declarations and Reservations. 21 Mårsäter 2016, para 857 ; https://cilrap-lexsitus.org/clicc/120/120. Accessed 7 August 2020. 22 For a more detailed overview of this topic, see Dwight 2005, pp. 293–357. 23 See Senado de la República 2001, 2002a, b and 2005. 24 See Dwight 2005, pp. 329–330. 25 Amnesty International 2005, p. 14. 26 See Rome Statute, above n. 15, Germany, Finland, Netherlands, and Sweden—Objections with regard to the declaration made by Uruguay upon ratification. 27 Ibid. 28 Amnesty International 2005, pp. 14–15. 29 Mårsäter 2016; https://cilrap-lexsitus.org/clicc/120/120. Accessed 7 August 2020.

3.1 Article 21 (8) of the Mexican Constitution

25

3.1.5 Discrepancies with the Pacta Sunt Servanda Principle According to the pacta sunt servanda principle of Article 26 of the Vienna Convention on Treaties: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”. The promulgation of the RS and its publication in the DOF meant that the treaty had entered into force and with it, Mexico’s obligations vis-à-vis other state parties (Article 2 (1) VCT). As with any other international treaty, all three branches of government—executive, legislative and judicial—are obliged to comply.30 The fact that all organs of the state are bound is, in turn, consistent with the nature of the ICC as a supranational organ that has direct effects within the state party territory and individuals.31 In addition, all three branches of government are required32 to act in good faith and abstain from any act that prevents or frustrates the execution of a treaty’s object. Taking into account that the constitutional amendment occurred before the ratification of the RS, it could be interpreted that Mexico was binding itself to a treaty with other states, already violating the good faith principle. This reasoning follows, since Mexico ratified the Statute already knowing that it would be violating this principle under certain conditions, as determined by Article 21 para 8 CPEUM. After all, the main reason for the pacta sunt servanda principle is to make it impossible for a state to declare itself unilaterally free from the fulfillment of its obligations, and this in turn allows the “trust between nations (...) on which peace is cemented” to develop.33 As a consequence of this voluntarily acquired obligation, state parties must take all necessary measures to achieve its execution, which may consist in new laws being created or existing ones being modified.34 Thus, the Mexican state acted contrary to this principle with a provision which potentially undermines the ICC’s free exercise of jurisdiction, instead of creating or modifying the legal framework in order to comply with the RS’ aims and objectives.

3.1.5.1

Conflicts between Domestic Law and the Observance of a Treaty (Article 27 VCT)

According to Article 27 of the VCT: “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46”.35 From this provision, it can be inferred that domestic 30 Salmon

2011, p. 670. the legal nature of the ICC as a supranational organization, see Lüder 2002, p. 87. 32 Salmon 2011, p. 672; Schmalenbach 2012a pp. 434–435; Villiger 2009, pp. 366–367. 33 Salmon 2011, p. 677. 34 The international convention against forced disappearance is specific in this area, as it obliges state parties to take the necessary measures to ensure that enforced disappearance be an offence under domestic law. The International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature (6 February 2007), UNTC, entered into force (23 December 2010), Article 4. 35 According to Article 46 of the VCT, a state can be justified for not fulfilling its treaty obligations if the treaty is contrary to human rights or if some of the “transformative procedures” were violated. 31 On

26

3 Peculiarities of the Mexican Legal System that Could …

law has no impact on the international obligations of the state. It also prevents a state from pleading the content of its own domestic laws to evade the obligation of a treaty of which it is a party.36 Furthermore, the content of Article 27 VCT is a direct consequence of the principle of pacta sunt servanda—the parties, bound in good faith, shall not invoke domestic law to avoid obligations of the treaty. As a result, the state voluntarily commits to carry out all possible measures for its fulfillment and implementation. Article 27 VCT does not impose a specific form or procedure to transform a treaty into domestic law but allows each state to choose its own mechanisms according to its own “constitutional philosophy”.37 In the case of Mexico, this mechanism is provided by: Article 89 (X)—direction of foreign policy by the President; Article 76 (I)—analysis of foreign policy by the Senate; and Article 133—rank of treaties. As will be further analyzed in the sections below, Article 133 stipulates that treaties constitute the “law of the land” and with it, no extra mechanism is needed in order to incorporate a treaty in domestic law. With this in mind, it could be said that, in the case of the RS, the Mexican constitution imposes two “transformative procedures”38 for the International Criminal Court to exercise its jurisdiction. The first transformative procedure can be labeled as “generic”, since it is addressed to all treaties, regulating their conclusion and incorporation. The second transformative process imposed by the Mexican constitution results in Article 21, para 8, which has a limited character due to the fact that it addresses only the RS, and its only purpose is the approval of the ICC jurisdiction on a case by case basis. The second transformative procedure would then result in, and can be labeled as, a “special transformative procedure”, since its purpose is the approval of the ICC jurisdiction in each case. In sum, the Mexican legal order duplicates the procedures by which the jurisdiction of the ICC is accepted. The first is given by Article 89 (X) and Article 76 (I) of the CPEUM, resulting in the ratification of the RS with binding force in domestic law. The second attempts to validate the constitutionality of the ICC’s exercise of jurisdiction. Therefore, according to Article 27 VCT; Article 21 (8) CPEUM would be of no relevance to international law, since once a treaty is binding for a state, no provisions of domestic law can be invoked.39 In this sense, it does not concern international law what Mexico’s internal legal mechanisms for incorporation are.40

When none of these conditions are present, the state is obliged to fulfill its obligation. See Schaus 2011, p. 693. 36 See, for example, Court of International Justice, The treatment of Polish Nationals and other persons of Polish origin or speech in the Danzig Territory, advisory opinion, 4 February 1932, no. 44, paras 62 and 63. 37 Tomuschat 2014, p. 107. 38 In terms of transformative processes, see Schmalenbach 2012b, pp. 465–466. 39 Schaus 2011, pp. 695–697. 40 Schmalenbach 2012b, p. 460.

3.1 Article 21 (8) of the Mexican Constitution

27

3.1.6 Incompatibilities with the International and Domestic Order Incompatibilities between ICC competencies, inscribed in the Rome Statute, and Mexico’s own constitutional order can be theoretically described as being of normative and organic nature. The normative incompatibilities arise from conflicts between the internal provisions of the Mexican legal order and those of the ICC, whereas the organic conflicts result from the powers conferred to the organs of the Mexican state that are in conflict with the powers conferred to the ICC, or even between different domestic organs. Incompatibilities also arise between the powers of the Senate and the objectives and aims of the ICC.

3.1.6.1

Potential Clash with the Powers of the International Criminal Court

Article 4 of the Rome Statute delimits the powers of the ICC, as well as the obligation of state parties to allow the ICC to exercise these powers. By signing this multilateral treaty, the ICC was created as a new subject of international law, independent of the UN, thus becoming an international organization.41 Article 4 (1) RS refers to the legal capacity of the ICC: “The Court shall have international legal personality. It shall also have the legal capacity necessary for the performance of its functions and the fulfillment of its purposes.” This provision obliges state parties to allow the ICC to carry out all activities necessary to fulfill its purposes.42 These purposes are delimited by the object of the court, consisting in the prosecution and judging of crimes within its competence (Article 5 RS). As to the “space” in which the Court can exercise its functions and powers, it is delimited by Article 4 (2) RS: “The Court may exercise its functions and powers in accordance with the provisions of this statute in the territory of any state party and, by special agreement, in the territory of any other state”. However, the international justice system within the RS does not provide for the ICC to directly exercise its functions and powers vis-á-vis state parties, but limits it to the system of cooperation and judicial assistance set forth in Articles 86–102.43 The RS also stipulates that, in the event that it is not possible to execute any of its investigative powers, the pre-trial

41 For the definition of an international organization, see the commentaries of the Vienna Convention

on Treaties in Article 27, above nos. 38 and 39. In relation to the ICC, see Lüder 2002. 42 See Rückert 2016, pp. 104–109. 43 “Unlike domestic courts, the ICC has no direct enforcement mechanism in the sense that it lacks a police force. As such, the ICC relies mainly on the state’s cooperation, without which it cannot fulfill its mandate”. See ICC, Prosecutor v Omar Hassan al - Bashir, Decision on the cooperation of the Democratic Republic of the Congo regarding Omar al-Bashir’s arrest and surrender to the court, 9 April 2014, ICC-02/05-01/09, para 33. Also see Kreß and Prost 2008a.

28

3 Peculiarities of the Mexican Legal System that Could …

chamber may authorize the prosecutor to adopt investigative measures in the territory of the non-cooperating state (Article 57, paragraph 3 letter d).44 Clearly, Article 21 (8) signifies a disruptive factor to the ICC’s aims and objectives. More importantly, it creates uncertainty as to the ICC’s jurisdiction within the Mexican legal system, especially since the provision does not specify what kind of jurisdiction is meant. It does not determine in an unequivocal way whether, by jurisdiction, it refers to cases in which the ICC wishes to execute a judgment or to all cases included in Article 4 of the RS, namely, for all necessary activities of the ICC to fulfill its purposes. It leaves room for the interpretation that this entails all appropriate activities such as investigation, prosecution and punishment of a crime. Alternatively, it could be interpreted in a narrower sense according to the debates in the Senate when the RS was ratified. In the commentary to Article 21 (8) CPEUM, Medellín Urquiaga45 points out that the senate’s debate is better understood when read in conjunction with Article 10(I) of the draft law on Cooperation (Ley de Cooperación con la Corte Penal Internacional).46 As a result, Medellín Urquiaga concludes that what was argued in the Senate referred to proceedings of the ICC that are related only to crimes of competence of the Mexican state. This interpretation is consistent with the complementarity principle, which gives priority to domestic jurisdiction and thus safeguarding and respecting national sovereignty. However, this in no way resolves which jurisdictional acts they are referring to, i.e. no clarification is made as to whether requests on surrender of persons or any other assistance covered by Article 93 RS would apply to Article 21 (8) CPEUM. On the other hand, and, most importantly, it leads to the conclusion that since Mexico has only incorporated the crime of genocide and some war crimes in a broad sense, Article 21 (8) CPEUM could only be triggered in relation to these crimes. The rest of the crimes covered by the RS would fall entirely under the jurisdiction of the ICC. In the speculative terrain, the aforementioned arguments entail that executive and Senate approval would be required for the surrender of a person to the ICC for, for example, alleged genocide. Of course, one might think that the suspect could be held in custody until approval is given. This, however, would require a prior inquiry and an arrest warrant being granted by a national judge.47 Additionally, in a ruling by the SCJN in 2011,48 it was argued that constitutional restrictions take precedence over an international treaty when it comes to human rights. This rather complicates the interplay between constitutional and international law, since it could lead to the interpretation that for judicial power, domestic rules do prevail over international law, making direct application of the RS less probable or problematic. In any case, Article 93 (6) RS stipulates that if a request of assistance is denied, the requested state party shall promptly inform the court or the prosecutor of this denial.49 In addition, Article 87 (7) RS asserts that, in the event of a state refusing to comply with a request for cooperation by the ICC, it may refer it to the Assembly of State Parties (ASP). 44 As regards the practical difficulties that this provision may pose, see footnote 80 in: Guariglia 2008. 45 Medellín 2013, pp. 1623–1629. 46 Regarding the Law on Cooperation, see Chap, 5, Sect. 5.4.2 of this work. 47 Article 14 paragraph 2; Article 16 paragraphs 1, 3, 4; Article 21, paragraph 2 of the CPEUM. 48 SCJN, Contradicción de Tesis 293/2011, 3 September 2013, 293/2011, (CT 2011). 49 See Kreß and Prost 2008b, p. 1583.

3.1 Article 21 (8) of the Mexican Constitution

29

In this sense, the ASP is a body supported by Article 112 (2) (f) RS, which can hear cases of “non-cooperation”. The manner in which the ASP would proceed in cases of non-compliance is not resolved in the RS. In the commentary to the RS,50 it is pointed out that in cases of non-compliance, the rule in Article 89 of the Optional Protocol I of the Geneva Conventions could be applied, which provides that, in case of serious violations to the Protocol, state parties may act jointly or individually in response to such a violation. The Security Council (SC) already took a stance in response to the Prosecutor’s referral to the SC due to non-cooperation findings.51 In Resolution 2213 (2015), the SC called upon the Libyan government to cooperate fully and provide all necessary assistance to the ICC and prosecutor.52 Another aspect to consider is whether Articles 110 and 111 CPEUM collide with the normative contents of the RS. According to these provisions, in order to bring criminal charges against the President while in office, the charges have to be presented before the Senate. In the case of the President of the Republic, the Senate not only decides about the removal of immunity but also acts as a criminal court (Article 111 (4) CPEUM). Regarding all other public servants such as deputies, senators, judges of the Supreme Court of Justice, and counselors of the federal judicature, the removal of immunity would be declared by the Chamber of Deputies (absolute majority of the present deputies). According to Article 111 (3) CPEUM, if immunity is removed, the public servant would be tried by a regular criminal court. In the event of an investigation by the ICC against a high official of the Mexican government, it is not clear if procedures to remove immunity would apply. However, they collide with Article 27 RS, which specifically provides that immunities or special procedural rules shall not bar the ICC from exercising its jurisdiction. Furthermore, in the hypothetical case that the ICC investigates a sitting president,53 the Senate receives another veto point to null an investigation. Altogether, these restrictions form the normative conflict between Article 4, 27, 86 RS and Articles 110 and 111 of the CPEUM.

3.1.6.2

Clash within Domestic Competencies

The current constitutional arrangement not only poses problematic barriers from a normative point of view, it also creates undue shifts in the organic structuring of jurisdictions and obligations in Mexico’s separation of powers system. As we saw in the previous section on “competencies”, while the Senate has power to analyze foreign policy and approve international treaties, it also exercises control on the executive, since it “approves” the acts of the executive. However, prior to the enactment of Article 21 (8), these powers only affected the domestic forum. By contrast, the 50 Ibid., pp. 1517–1531. On the other hand, Triffterer points out that the ICC would only use this provision in “severe cases”. See Trifterer 2000, pp. 24–25. 51 See ICC Assembly of State Parties 2016, p. 5. 52 See United Nations Security Council 2015. 53 For some, this case is “very distant and improbable”, see Ramírez and Sánchez 2013, p. 55.

30

3 Peculiarities of the Mexican Legal System that Could …

conditioning of the ICC’s jurisdiction to senate approval gives the Senate an indirect veto right on cases, with ramifications for Mexico’s foreign relations. The Senate, by constitutional mandate, essentially functions as a check on foreign policy, which is directed by the executive (Article 89 (X) CPEUM). According to Cossío and Rodríguez,54 the powers of the federal executive must be interpreted in conjunction with Article 76 (I) CPEUM, which provides the Senate with constitutionally empowered “political control”55 of foreign policy through scrutiny of the annual reports of the federal executive and the requirement for approval of powers, such as the signing of treaties, denouncing treaties, and making and withdrawing reservations (Article 89 X. CPEUM). The reformed Article 21, para 8 would then represent a synthesized version of Articles 89 (X) and 76 (I), since the executive “can” accept the ICC’s jurisdiction “if” approved by the Senate. Overall, it could be said that the Senate’s new powers56 have influence on foreign affairs, which potentially could amount to a breach of an international obligation. The Senate’s refusal could also have an effect on other states if the crimes were committed outside Mexican territory. If we follow the rationale of the legislative power when discussing Article 21 (8) CPEUM, it was their intention that—through the executive and Senate—the supremacy of the constitution be safeguarded. However, the constitutionality control is awarded to the SCJN by Article 105, section II CPEUM.57 It would also be more systematic and coherent if the review faculty would remain within the SCJN, since the ICC is an international judicial body and not an agent with which foreign policy is negotiated.58 Constitutionality review by the SCJN could also avoid politicization of the ICC’s jurisdiction.59 Additionally, as we will see in further detail in the sections below, the legislative idea of inserting the “sovereignty control” in Article 21 CPEUM, was due to the fact that Article 21, deals mainly with prosecutorial powers. However, as already noted, the ICC not only prosecutes but also judges and punishes, which provides an extra argument of why the constitutional amendment was misplaced.

54 Regarding the role of the Senate of the Republic in the field of foreign relations, see Cossío and Rodríguez 2003. 55 Ibid., p. 176. 56 The constitutional amendment to Article 21 CPEUM was not the only one during the PAN transition (2000–2012) that expanded the Senate’s foreign policy powers. On 12 February 2007, Article 76, section I, was amended, granting the Senate powers to approve the decision of the Federal Executive to terminate, denounce, suspend, modify, amend and withdraw reservations and make interpretative declarations on treaties. See DOF, 12 February 2007. 57 Article 105 (II) CPEUM provides: The Supreme Court of Justice of the Nation shall resolve the cases related to the following topics in accordance with the provisions established by the applicable statutory law: (...) II. Unconstitutionality lawsuits directed to raise a contradiction between a general regulation and this constitution (translated by the author). 58 On the nature of the ICC, see Lüder 2002, pp. 79–92. 59 Senators of the PRD warned about the politicization of approving the jurisdiction of the ICC on a case by case basis. See Cámara de Diputados 2002.

3.1 Article 21 (8) of the Mexican Constitution

3.1.6.3

31

Outcome

Article 21 (8) CPEUM poses the potential risk that by way of a political decision or political consent, prosecution of an international crime could be hindered or that a request for cooperation or surrender might not be executed or would, at least, be delayed.60 Interestingly, in the hearings concerning the failure of South Africa to arrest and surrender al-Bashir, Judge Tarfusser pointed out that, under the RS, there is no requirement for the court to seek consent, since consent “(…) to exercise the court’s jurisdiction has already been provided as a state party”.61 In this sense, the consent of the Mexican state was given with the ratification of the RS and therefore Article 21 (8) CPEUM would be irrelevant. Certainly, Article 21 (8) does not prevent per se the prosecution and punishment of crimes under international law, but is rather a potential obstacle for the ICC to exercise its jurisdiction. According to Article 87 (7) RS, findings of non-compliance may be made by the court. In this regard, the decisions and judgments of the ICC show62 how the court evaluates whether non-compliance has occurred and if failure to comply has prevented the ICC from exercising its powers and functions under the RS. The Pre-Trial Chamber held that, in order to determine non-compliance, two pre-requisites must be met: (a) there must be an objective failure on the part of the state to comply; and (b) the state must be given the opportunity to be heard.63 It has also been concluded that, in case of non-compliance, it is at the court’s discretion to refer the case to the ASP and the Security Council,64 as happened in cases concerning Sudan (Darfur), Kenya and Libya.65 In this sense, the case of non-compliance might only be referred to the ASP or Security Council if it is considered that it might be effective to address the lack of cooperation.66

60 Socorro Flores Liera also agrees on this point, stressing that such a scenario would have serious consequences for Mexico under international law. See Flores 2006, p. 201. 61 ICC, Prosecutor v Omar Hassan al-Bashir, Decision on the cooperation of the Democratic Republic of the Congo regarding Omar al-Bashir’s arrest and surrender to the court, 9 April 2014, ICC-02/05-01/09 (Omar al Bashir 2014), p. 70, lines 4–10. 62 See Omar al Bashir 2014, above n 61; ICC, Prosecutor v. Uhuru Muigai Kenyatta, Judgment on the prosecutor’s appeal against trial chamber v(b)’s “decision on prosecution’s application for a finding of non-compliance under Article 87(7) of the statute, 19 August 2015, ICC-01/09-02/11 (Kenyatta 2015 ); ICC, Prosecutor v. Saif al-Islam Gaddafi, Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council, 10 December 2014, ICC-01/11-01/11 (Saif al-Islam Gaddafi 2014), para 24. 63 Ibid. 64 In this sense the ICC considered: “(…) The Appeals Chamber therefore considers that a referral is not an automatic consequence of a finding of a failure to comply with a request for cooperation, but rather this determination falls within the discretion of the Chamber seized in the application of Article 87 (7). See Kenyatta 2015, above n 62, para 53. 65 Consult the “non—cooperation reactions” database at https://asp.icc-cpi.int/en_menus/asp/noncooperation/Pages/default.aspx. Accessed 8 August 2020. 66 Kenyatta 2015, above n 62, para 52.

32

3 Peculiarities of the Mexican Legal System that Could …

Following this rationale, Article 21 (8) does not pose an objective failure, since it has not been applied yet and, if it were applied, it would have to be determined by the pre-trial chamber. On the other hand, states cannot decide unilaterally whether or not to comply with requests of cooperation or surrender as determined by the pre-trial chamber II in the non-cooperation matter concerning South Africa and its failure to arrest Omar al-Bashir.67 Additionally, Article 119 (1) RS provides that any dispute concerning judicial functions of the court shall be settled by the decision of the court. As a result, triggering Article 21 (8) CPEUM in order to avoid cooperation with the ICC could be interpreted as a unilateral decision and, therefore, qualify as non-compliance with the duty to cooperate with the court. Another issue of concern relates to the complementarity principle; by which, if national courts are unwilling or unable to investigate or prosecute, the ICC’s jurisdiction would be triggered. The preamble of the RS stipulates that effective prosecution must be ensured at the national level. In this sense, the RS favors and gives precedence to the national jurisdiction over the ICC. States should then develop a legislative capacity in order to investigate and prosecute crimes under the RS. However, the RS does not oblige explicitly state parties to adopt the definition and prohibitions of the offences listed in the RS. For this reason, states could also prosecute under ordinary domestic criminal provisions without actually being “unwilling”. In the admissibility case against Germain Katanga and Mathieu Ngudjolo Chui, the Court concluded that, when examining if a case is admissible, it must firstly be determined if, under Article 17 (1) (a) and (b), “(...) there are ongoing investigations or prosecutions, or whether there have been investigations in the past, and the state having jurisdiction has decided not to prosecute”.68 If the answers are affirmative, the court would proceed to examine if the state is unable or unwilling. If there are no investigations or prosecutions, under Article 17 (1) (d) RS the case would be admissible when the case is of sufficient gravity to justify further action by the court.69 Also, if no effective prosecution is ensured and the case is of sufficient gravity, the competence of the ICC could be triggered. Regarding the inactivity of a state, the Office of the Prosecutor (OTP)—in its Policy Paper on Preliminary Examinations—pointed out that inactivity may result from numerous factors “(...)including the absence of an adequate legislative framework.”70 As we will see in further chapters, Mexico has failed to incorporate crimes against humanity as well as war crimes. It can then be 67 Omar

al Bashir 2014, above n 61.

68 ICC, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr.

Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, 23 September 2009, ICC-01/04-01/07 OA 8 (Katanga 2009), para 78. 69 Ibid. 70 See ICC-OTP 2013, para 48. This seems to follow the reasoning of the Bagaragaza case, where the request for referral to the Kingdom of Norway was declined by the ICTR, since the Norwegian state had no adequate legal framework, i.e. no adequate criminalization of the gravest conducts under International Law. According to the ICTR, under Norwegian criminal law, the crime of homicide lacked the elements and the gravity of the crime of genocide and, therefore, the alleged criminal acts of the accused could not be given full legal qualification. See ICTR, The Prosecutor V. Michel

3.1 Article 21 (8) of the Mexican Constitution

33

concluded that if, a case is admissible, Article 21 (8) CPEUM could also potentially obstruct the investigation and the competency for the prosecution of crimes of the ICC. However, if a request for cooperation were to be issued, the failure to comply would have to be determined by the ICC under Article 87 (7). Furthermore, Article 93 (3) RS asserts that if execution of a particular measure is prohibited on the basis of a fundamental legal principle, the requested state shall promptly consult with the court. In sum, the ICC would have to determine if Article 21 (8) CPEUM is a fundamental legal principle in the procedure of “findings of non-cooperation”, in which considerations related to the issues analyzed in this chapter might be worth exploring for the Court.

3.2 Military Jurisdiction and Its Expansive Character in Mexico 3.2.1 Preliminary Remarks Customary law on armed conflict71 as well as the RS72 provide that states shall cooperate. Cooperation duties derived from customary law are among states, whereas the duties derived from the RS are vis-à-vis the ICC. In this section, the Mexican criminal military law will be explored in order to demonstrate the potential clash between the military order and the obligation of states to investigate and prosecute core crimes under the RS and the Geneva Conventions.73 The CPEUM, in its Article 13,74 directly addresses military jurisdiction or jurisdiction of war (fuero de guerra). According to Article 13 CPEUM, war jurisdiction (fuero de guerra) applies for crimes and misdemeanors against military discipline. Likewise, military courts shall under no circumstances extend their jurisdiction to

Bagaragaza, Decision on the prosecution motion for referral to the Kingdom of Norway, 19 May 2006, ICTR-2005-86-R11bis, para 16. 71 See ICRC database on customary international law practice relating to rule 161: international cooperation in criminal proceedings. https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_ rule16 1. Accessed 8 August 2020. 72 Rome Statute, above n 15, Arts. 86–102. 73 Regarding complementarity and the obligation to investigate and prosecute, in general, see Kleffner 2008, pp. 235–308. 74 The full article reads as follows: Article 13 CPEUM—No one can be tried under special laws or special courts. No person or corporation can have any privileges, nor enjoy emoluments, other than those given in compensation for public services and which must be established by the law. Military jurisdiction prevails for crimes and faults against military discipline; but in no case and under no circumstances can military courts extend their jurisdiction over persons who are not members of the armed forces. Civilians involved in military crimes or misdemeanors shall be put on trial before the competent civil authority (translation by the author).

34

3 Peculiarities of the Mexican Legal System that Could …

non-military personnel. The same provision is also found in Article 13 of the Constitution of 1857.75 Some authors interpret the term fuero de guerra and the rationale of Article 13 as having its origin in the liberal movement: La Reforma. This movement intended to limit the privileges of the military by achieving, equality of citizens visà-vis the state.76 Traditionally, however, “military jurisdiction” is not only perceived as a jurisdictional power, but also as a privilege. In the opinion of Victoria Unzueta, the liberal content of egalitarianism reflected in Article 13 of the Constitution of 1857, was superseded by different military dispositions issued between from 1882 to 1901.77 The Constitution of 1917 derived from the Mexican Revolution inherited the liberal character of Article 13 of the Constitution of 1857, and added the following phrase, which crystallizes the egalitarian ideal: “Civilians involved in a military crime or fault, shall be put on trial before the competent civil authority”.78 The regulatory law of Article 13 CPEUM issued as the “Code of Military Justice”—Código de Justicia Militar (CJM)—was promulgated in 1934 and reversed the 1857 constitutional ideals, by restoring the privilege of the military class. This is very much in line with historian Jean Meyer’s thesis, which holds that President Calles’ administration (1924–1928) and his dominant presence until 1934 interrupted the substantial reforms aimed at the “constitutionalist-egalitarian” movement.79 It should be noted that it was the executive itself that issued the law, rather than Congress. This extraordinary power was derived from a decree that dates to 9 January 1933, empowering the federal executive to issue laws and regulations related to the organization of the national army, navy and military justice system.80 As a result, the CJM was not issued by the legislative, but by the executive (which explains why there is no explanatory memorandum of the CJM). The definition of military crimes under Article 57 section II CJM is based on the perpetrator belonging to the army. As a result, “crimes against the military discipline” include all crimes performed by members of the military”. Since Article 13 CPEUM grants military jurisdiction to “crimes against military discipline”, the definition of Article 57 CJM expands it to all crimes and not just those committed during wartime (fuero de guerra). Furthermore, military courts are competent to prosecute common crimes committed by members of the military—whether federal or local (Article 58 75 The original text of the Mexican Constitution of 1857 is available at: https://www.diputados.gob. mx/biblioteca/bibdig/const_mex/const_1857.pdf. Accessed 8 August 2020. 76 Unzueta 2009, p.9. 77 Ibid., pp. 11–18. In this subject, Unzueta explains very clearly that the military regulations lagged behind the liberal ideology of the La Reforma movement, given the political reality of the time. 78 Cuando en un delito o falta del orden militar estuviese complicado un paisano, conocerá del caso la autoridad civil que corresponda. 79 Historian Jean Meyer explains that Calles interrupted the project laid out by the leader of the constitutionalist movement, Venustiano Carranza. Jean Meyer adds that there are indications that by 1930 (three years before the enactment of the Military Code), Plutarco Elias Calles was influenced by fascism, specifically by Mussolini. See Meyer 2003, pp. 25–36. 80 The CJM was issued by decree and signed by President Abelardo Rodríguez, see DOF, 13 January 1933. Available at https://dof.gob.mx/nota_to_imagen_fs.php?codnota=4444149&fecha= 13/01/1933&cod_diario=187636. Accessed 8 August 2020.

3.2 Military Jurisdiction and Its Expansive Character in Mexico

35

CJM)—and their resolutions can be appealed through an Amparo suit (Article 107 CPEUM). As a result of this expansive definition, the reformist aspirations of the Constitution of 1917 were certainly hindered. However, it might also be speculated that, given the use and collaboration of the armed forces in affairs and purposes of the one-party government, the fuero de guerra served as an instrument to protect the armed forces. The matters in which the military were involved were “not strictly warlike”, but did involve civilians. The involvement of the military could be divided into three periods, namely, the post-revolutionary period, the anti-guerrilla war and the fight against drug trafficking since the 1990s. The purposes of the deployment of the military could also be divided into: (a) political purposes; and (b) fighting crime. Examples of the use of the armed forces in the post-revolutionary period are the Cristero War from 1924 until 1929, the National Sinarquist Movement in the 1930s and 1940s, the railroad strike in 1958 and the coup d’état of Saturnino Cedillo (1938). As a consequence of the developments during the post-revolutionary years and the institutionalization of the PRI as the hegemonic party in Mexico, the armed forces became what some called the “armed wing of the PRI” and an “(...) important source for the stability of the political system.”81 The collaboration between the military and the PRI became evident in 1968 with the actions taken against students in the Tlatelolco massacre (1968) and during the “anti-guerrilla” war. Regarding “fighting crime”, scholars, have traced an increase in the deployment of the military against drug trafficking during the Carlos Salinas de Gortaris’ presidency (1988–1994).82 Nevertheless, involvement of the military can already be identified during the presidency of Luis Echeverría, with his issuing of a new “Law of the Navy”.83 Under Article 2 the navy was given the authority to repress illegal drug trafficking.84 Undoubtedly, the close link between the armed forces, the hegemonic party and the Mexican government for more than seven decades adds to the perception that the military jurisdiction benefits the armed forces.85 Therefore, the skepticism regarding military justice is understandable, not least since the infringements to military discipline could be regarded as causing less harm than those infringements to the protected legal interests of the Penal Code.86 That is to say, if a civilian is injured or deprived of his life, why should a military court prosecute that act? If the answer is for the sake of military discipline, the result is that the latter supersedes the legal interests protected by the Penal Code. In this sense, Article 13 CPEUM is clear and is intended to limit 81 Comité

68 Pro Libertades Democráticas 2008, p. 212. of the increase of the armed forces during the Salinas administration can be found in Sandoval 2000 pp. 664–665; Camp 1992, pp. 33–35. 83 DOF, 12 January 1972. 84 Article 2—Son funciones de la Armada de México: ( … ) VIII – Coadyuvar en la vigencia de los recursos pesqueros marítimos, y en general de los fluviales y lacustres nacionales y en la represión del contrabando y el tráfico ilegal de estupefacientes, en los términos de las disposiciones legales aplicables. 85 On military subordination to civilian control, see Camp 1992, p. 66. 86 Regarding the “protected legal interest” and “harm” theories in international criminal law, see Ambos 2014 pp. 60–67. 82 Accounts

36

3 Peculiarities of the Mexican Legal System that Could …

military jurisdiction. Does this also mean that military jurisdiction was conceived only to be applied during the war? If so, even if the military were active in violent events, the jurisdiction would fall under civil authorities. However, if this was the constitutionalists objective, it was frustrated by the issuance of the Code of Military Justice. Additionally, regarding the linguistic interpretation, the Spanish term fuero de guerra undoubtedly refers only to war. However, it has been applied and understood as “military jurisdiction” in broader terms. For this reason, the term “military jurisdiction”—which Article 13 of the Constitution refers to as jurisdiction of war (fuero de guerra)—will be used in the following sections. In scholarly texts as well as in jurisprudence, “fuero de guerra” and “military jurisdiction” are used interchangeably. At this point, it is worth noting that under the CJM, military justice or military jurisdiction comprises a sub-system of justice, which is subordinated to the army and navy. This body of justice consists of tribunals, judges, military police, forensics teams87 and prosecutors.88

3.2.2 Debate on the Constitutionality of Military Jurisdiction The discrepancies between Article 13 CEPUM and Article 57 CJM have been discussed in the Supreme Court. However, there has been no uniform finding on this matter.89 On the one hand, the Supreme Court has interpreted the normative framework more literally, while on the other, case decisions can be found that recognize the anti-militarist character of the Constituent Assembly of 1917.90 From the analysis of the criteria of the SCJN regarding military jurisdiction, it can be concluded that the deliberations about the nature of military jurisdiction in Mexico are concentrated between the years 1917–1968.91 The first SCJN’s decisions defined the cases in which the military would be subject to its jurisdiction, i.e. whether 87 Código de Justicia Militar: Artículo 1o.- La administración de la justicia militar corresponde a: I.El Supremo Tribunal Militar; II.- (Se deroga). II Bis.- Los Tribunales Militares de Juicio Oral; III. (Se deroga); III Bis. Los Jueces Militares de Control, y IV. (Se deroga); V.- Los Jueces de Ejecución de Sentencia. Artículo 2.- Son auxiliares de la administración de justicia: I. Los Jueces de Control del orden común o federal; II.- La policía ministerial militar, policía militar y la policía civil; III.- (Se deroga); III Bis.- La Coordinación de Servicios Periciales y Ciencias Forenses; IV.- El jefe del archivo judicial y biblioteca, y V.- Los demás a quienes las leyes les atribuyan ese carácter. 88 Artículo 36.- El Ministerio Público es el único capacitado para ejercitar la acción penal, y no podrá retirarla o desistirse de ella, sino cuando lo estime procedente o por orden firmada por el Secretario de Guerra y Marina o por quien en su ausencia lo substituya; orden que podrá darse cuando así lo demande el interés social, oyendo, previamente, el parecer del Procurador General de Justicia Militar. 89 Cossío 2010, p. 337. 90 On this matter, the research findings of Unzueta Reyes concur with Cossío, see Ibid., pp. 329–336 and Unzueta 2009. 91 See Cossío 2010.

3.2 Military Jurisdiction and Its Expansive Character in Mexico

37

this jurisdiction also covers the military when it is not on active duty. The court resolved this question in 2005 in a jurisprudential case decision, which held that the applicability of military jurisdiction was constrained to crimes against military discipline. This also meant that military personnel had to be on active duty (en activo) for the crime to be considered against military discipline.92 The expansive notion of military jurisdiction was also confirmed and sustained by the Senate when formulating a reservation to the Inter-American Convention against the Forced Disappearance of Persons.93 This reservation94 stated that for the purposes of the Convention, the military jurisdiction would apply for cases of enforced disappearance. The reservation further stated that, since military tribunals in Mexico are not exceptional courts with no ad hoc jurisdiction, they are compliant with the American Convention on Human Rights.95 Therefore, military courts would be competent for crimes of enforced disappearance if military personnel were involved. This reservation was disputed before the SCJN by the former head of government of the Federal District, Andrés Manuel López Obrador, through a constitutional controversy.96 Of relevance are the arguments concerning the effectiveness and impartiality of the military courts, as well as the unconstitutionality of Article 57 of the CJM. To back up the position against an expansive military jurisdiction and illustrate the ineffectiveness of military authorities to clarify facts in cases of forced disappearances, the plaintiff supported its claims with diverse reports from NGOs, international organizations and from the national commission on human rights.97 The plaintiff also argued that the Senate misinterpreted Article 13 of the Constitution when it formulated the reservation. The object and purpose of the “Convention on the Forced Disappearance of Persons” was to protect the victims of this crime and not the preservation of military discipline. As a result, such a reservation would be incompatible with the object and purpose of the treaty. Furthermore, in Article IX, second paragraph, the Convention states that the crime of forced disappearance cannot be considered as committed in the exercise of military functions. In the constitutional controversy, the former head of government interpreted Article 13 as a limitation to military jurisdiction formulated in terms of ratione materiae. 92 SCJN, Delitos contra la disciplina militar, Tesis de jurisprudencia, 26 October 2005, 148/2005 (Delitos contra la disciplina militar), p. 248. 93 Inter-American Convention on Forced Disappearance of Persons, opened for signature (9 June 1994), OAS: multilateral treaties, entered into force (28 March 1996) (IAC forced disappearance). 94 DOF, 18 January 2002. See Appendix B. 95 It should be noted that upon ratifying the Inter-American Convention on the Forced Disappearance of Persons, Mexico made an interpretative declaration in the sense that the provisions of the Convention shall apply to acts ordered, executed or committed after the entry into force of the Convention. Interestingly, this interpretative declaration was published in the official gazette (DOF) as an erratum. Also, upon ratification of the Convention on Statutory Limitations, an interpretative declaration was made in the same terms and published in the same manner. Both were formulated in February 2002. See both documents in Appendix B. 96 SCJN, Desaparición forzada, Controversia Constitucional, 29 June 2004, 33/2002 (Controversia constitucional 33/2002), pp. 11–15. https://sjf.scjn.gob.mx/sjfsist/Paginas/DetalleGeneralS croll.aspx?id=18282&Clase=DetalleTesisEjecutorias. Accessed 8 August 2020. 97 See Human Rights Watch 1999 and OAS 1998.

38

3 Peculiarities of the Mexican Legal System that Could …

Additionally, it was claimed that a constitutional criterion could not be resolved by invoking the CJM, since it is a secondary law.98 The President of the Republic, the Secretary of the Interior and the Senate argued in defense that Article IX of the InterAmerican Convention against Forced Disappearance was unconstitutional, making it necessary to articulate a reservation for the Convention to conform to the CPEUM.99 According to this interpretation, the Constitution provided that military personnel would have to be tried before a military court even if they committed the crime of forced disappearance. The controversy—based on the reservation made to Article IX of the Inter-American Convention on the Forced Disappearance of Persons— was dismissed with the argument that it is not for the Federal District’s judiciary to judge military personnel since the military belongs to the federal order and, therefore, such a reservation does not affect the Federal District.100 The court did not consider, however, that citizens from the Federal District could well be affected by this reservation, namely, as victims.101 In 2006, the SCJN issued a dictum, which limited Article 57 (I) of the CJM only to cases when the military personnel are on active duty.102 In 2009, an Amparo law suit103 gave the SCJN the possibility to analyze the constitutionality of Article 57 of the CJM. The complainant claimed her rights were violated since members of the Mexican army had killed her husband. The plenary chamber of the court, however, dismissed the matter, considering that the complainant, as next of kin, was no “victim” in terms of the Amparo law.104 Justice Cossío, in his dissenting opinion, defined “crimes against the military discipline” as: “(...) behaviors that constitute crimes or faults that only make sense within the dynamics of the armed forces”.105 It would have been, nonetheless, more consistent to frame his definition with the protected legal interest theory. That way, all grave crimes committed by the military would have been discarded from military jurisdiction. In any case, the judge emphasized that Article 13 of the Constitution provides a material and not a personal criterion for the application of military jurisdiction. On this point, the arguments of the Constitutional Controversy 33/2002, filed by Andrés Manuel López Obrador, were of similar nature,106 as well as those referring to the rights of the victims and their right to a fair trial specified in Article, 20 B, CPEUM. 98 Controversia

constitucional 33/2002, above n. 95, p. 21. pp. 58, 73, 76. 100 SCJN, Tesis de jurisprudencia derivada de la Controversia Constitucional 33/2002, Jurisprudencia, September 2004, 86/2004, p. 1121. 101 The court disregarded the arguments on the reservation and instead took a stance on the nature of the crime of forced disappearance and determined it was of a continuous nature. See SCJN, Tesis de jurisprudencia 48/2004 derivada de la Controversia Constitucional 33/2002, Jurisprudence, July 2004, p. 968. 102 SCJN, Tesis de jurisprudencia 148/2005, 2 February 2006, p. 248. 103 SCJN, Amparo en revisión 989/2009, 10 August 2009. 104 Ibid., “considerando noveno”. 105 SCJN, Amparo en revisión 989/2009, Dissenting Opinion Justice Cossío, 10 August 2009, p.19. 106 SCJN, Controversia Constitucional 33/2002, Judgment, 29 June 2004. 99 Ibid.,

3.2 Military Jurisdiction and Its Expansive Character in Mexico

39

In 2009, the Inter-American Court of Human Rights (IACtHR) issued the Rosendo Radilla judgment, in which it specifically stated that Article 57 (II) (a) of the Code of Military Justice: “(…) is a broad and imprecise provision that prevents the determination of the strict connection of the crime of the ordinary jurisdiction with the military jurisdiction objectively assessed.”107 Thus, in its judgment, it considered that, for an interpretation in accordance with the American Convention as well as the jurisprudence of the Inter-American Court, a reform to Article 13 of the Constitution was not necessary, but given the incompatibility of Article 57 of the CJM with the American Convention, Article 57 CJM had to be reformed by the Mexican legislator.108 Of the deliberations contained in the “varios 912/2010” file that replied to the judgment of the Inter-American Court, the plenary of the SCJN unanimously decided in favor of the restriction to the military jurisdiction.109 They also concluded that Article 57 (II) CJM was incompatible with Article 13 of the Constitution and Articles 2 and 8 (1) of the American Convention on Human Rights.110 Similarly, paragraph 55 of the SCJN decision on the Radilla judgment contained an order for all federal courts and tribunals of the country to apply military jurisdiction restrictively, while stating that procedural questions regarding military jurisdiction could be referred to the SCJN.111 Altogether, the court resolved several Amparos112 and several jurisprudential cases in which military jurisdiction was contested.113 It should be noted that, the review 107 IACtHR, Rosendo Radilla v. Mexico, Preliminary Objections, Merits, Reparations and Costs, 23 November 2009, (ser. C) No. 209 (Rosendo Radilla), para 286. 108 See Rosendo Radilla, above n. 107, operative paragraph 10. 109 SCJN, Expediente varios 912/2010, 14 July 2011 (Expediente varios), paras 37–45. https://www. dplf.org/sites/default/files/scjn_-_expediente_varios_912-2010_0.pdf. Accessed 7 August 2020. 110 SCJN, Restricción interpretativa del fuero militar. Incompatibilidad de la actual redacción del artículo 57, fracción II, del Código de Justicia Militar, con lo dispuesto en el Artículo 13 constitucional, a la luz de los artículos 2 y 8.1 de la Convención Americana sobre Derechos Humanos, Tesis, March 2013, P. LXXI/2011, p. 554. 111 Expediente varios, above n 109, para 55. 112 SCJN, Amparos en revisión 770/2011, 134/2012, 60/2012, 61/2012, 63/2012, 217/2012, 252/2012, 224/2012, 15/2012,133/2012; Conflicto Competencial: 38/2012, 60/2012; Amparo Directo: 15/2012. 113 The following cases were resolved in 2013SCJN 1) Amparo directo en materia penal. al fallarlo procede suplir la queja deficiente cuando se analice la competencia del órgano que debe resolver y se encuentren involucrados militares y civiles. Tesis: P. XV/2013, Semanario Judicial de la Federación y su Gaceta, Décima Época, Libro XVIII, Marzo de 2013, p. 357; 2) Fuero militar. el artículo 57, fracción ii, inciso a), del código de justicia militar contraviene la convención americana sobre derechos humanos. Tesis: P. VI/2013, Semanario Judicial de la Federación y su Gaceta, Décima Época, Libro XVIII, Marzo de 2013, p. 364; 3) Fuero militar. el artículo 57, fracción ii, inciso a), del código de justicia militar viola el artículo 13 constitucional. Tesis: P. II/2013, Semanario Judicial de la Federación y su Gaceta, Décima Época, Libro XVIII, Marzo de 2013, p. 366; 4) Competencia para conocer y sancionar los delitos cometidos por militares, en ejercicio de sus funciones o con motivo de ellas, que afecten los derechos humanos de civiles. se surte a favor de los jueces de distrito de procesos penales federales. Tesis: P. VII/2013, Semanario Judicial de la Federación y su Gaceta, Décima Época, Libro XVIII, Marzo de 2013, p. 361; 5) Restricción interpretativa de fuero militar. incompatibilidad de la actual redacción del artículo 57, fracción ii, del código de justicia militar, con lo dispuesto en el artículo 13 constitucional, a la luz de los artículos 2o. y 8.1 de la convención

40

3 Peculiarities of the Mexican Legal System that Could …

of case law,114 shows that the criteria in each decision (tesis aisladas) vary from one subject to another. For example, there is no homogenous definition of civilian victim, participation in the commission of a crime, military discipline, or a definition demarcating the boundary between military jurisdiction and military privilege (fuero de guerra). Furthermore, the decisions concentrate on the duty of military tribunals to punish, without thoroughly analyzing the investigative and prosecutorial duties within military jurisdiction, and its implications on impartiality. It was not until 2011 that, in a separate decision (tesis aislada), the incompatibility of Article 57 (II) CJM with regard to Article 13 of the Constitution and the American Convention on Human Rights was declared, even though, as shown in previous sections, the opportunity to detect this incompatibility was already present in Constitutional Controversy 33/2002. Overall, the contention lies in the fact that it was the executive itself that defined the category of military discipline. As a consequence, military jurisdiction in Mexico is a case in which the functions of the three powers of government converge into the figure of the executive power. The legislature converges with the executive, when legislating on military jurisdiction and the judicial branch equally converges with the executive when it comes to punishing crimes included in Article 57 CJM (military tribunals belong to the executive branch). Furthermore, and equally problematic, the accused during a military trial, as a member of the military, belongs to the executive branch of government. The result then is that under these conditions, the separation of powers is essentially dissolved and, with it, all the constitutional guarantees that are intended to safeguard individuals from encroachment of their rights and guarantee the impartiality and effectiveness of the judicial process. It can be concluded that, essentially, all functions of the state are conglomerated under the executive when it comes to military jurisdiction. Framing this conglomeration of power in a historical context, it would be fair to recall the time at which the executive decree gave birth to the CJM. The CJM was issued during the so-called maximato period, when Plutarco Elías Calles exercised factual power between 1928 and 1934 without holding presidential office.115 americana sobre derechos humanos. Tesis: P. LXXI/2011, Semanario Judicial de la Federación y su Gaceta, Décima Época, Libro XVIII, Marzo de 2013, p. 554; 6) Competencia para conocer de la causa penal seguida a un militar por delitos contra la administración y procuración de justicia, cometidos en ejercicio de sus funciones o con motivo de ellas. se surte a favor de la jurisdicción ordinaria penal. Tesis: P. XI/2013, Semanario Judicial de la Federación y su Gaceta, Décima Época, Libro XVIII, Marzo de 2013, p. 359; 7) Ofendidos del delito. los familiares de un civil, víctima de un ilícito cometido por un militar, tienen legitimación para impugnar, a través del juicio de amparo, la declaratoria de competencia para conocer de una causa penal emitida por un juez de la jurisdicción militar. Tesis: P. I/2013, Semanario Judicial de la Federación y su Gaceta, Décima Época, Libro XVIII, Marzo de 2013, p. 368. 114 Ibid. 115 The actual presidents in office were: Emilio Portes Gil (1928–1930), Pascual Ortiz Rubio (1930– 1932) and Abelardo Rodríguez (1932–1934). See Escalante et al 2011, p. 265.

3.2 Military Jurisdiction and Its Expansive Character in Mexico

41

In the Amparo cases (Amparo 989/2009 and 133/2012), the unconstitutionality of the CJM was argued, since it is the legislative power—and not the executive—which is entitled to determine the offenses referred to in Article 13 CPEUM.116 It was also argued that this extraordinary power was justified by the dissolution of the Congress, but that upon reinstatement of the Congress of the Union, the Code should have been rendered ineffective.117 However, the unconstitutionality claim of the Code of Military Justice was disregarded by the SCJN.118

3.2.3 Military Jurisdiction and Humanitarian Law Regarding military jurisdiction, there is no provision in humanitarian law that prohibits prosecutions for war crimes within a military court. In the case of the protection of civilians in an international armed conflict, GC IV provides that the occupying power must submit the accused to properly constituted, “non-political military courts” (Article 66 GC IV),119 whereas Article 75 (4) of AP I stipulates that sentences may be passed by impartial and regularly constituted courts, recognizing principles of regular judicial procedure, without specifying that they must be of civilian nature. In the case of internal armed conflicts, Common Article 3 to the Conventions also provides for a legitimately constituted tribunal with judicial guarantees without specifying the prohibition of civilians being tried by military courts. In contrast, the Inter-American Convention on Forced Disappearance of Persons provides that trials shall be held in the competent jurisdictions of ordinary law, excluding military jurisdictions.120 As we have seen in the previous section, Mexican law adopts a personal criterion of the military jurisdiction in this matter, which is why the military jurisdiction is applicable whenever a member of the armed forces is involved, irrespective whether the crime is of military or ordinary nature.121 In the Mexican case, the question of jurisdiction in times of war is particularly complicated due to its expansive approach. Regarding IHL, this approach could bring 116 SCJN,

Amparo en Revisión 133/2012, Judgment, 21 August 2012, 133/2012, pp. 2, 40–91, 62.

117 SCJN, Juicio de Amparo 448/2010, Detalle Tesis Ejecutoria - Amparo en Revisión, 13 July 2011. 118 The SCJN concluded that the issuance of the CJM, by Executive decree was not an infringement

of Article 49 (division of powers), since the latter grants legislative powers to the executive in case of emergency (Article 29 CPEUM). According to Article 29 CPEUM, the Congress of the Union may grant the executive any powers necessary in order to face an e.g. emergency or public disorder situation. However, it was left unchallenged if the conditions to grant such powers were met. See Executive Decree of 28 December 1932 issued on the DOF, 13 January 1933. See also SCJN, Amparo directo en revisión 3048/2015, judgment, 24 February 2016, 3048/2015, paras 39–63. Judgment available at https://perma.cc/XKL6-5PDT. 119 ICRC 2013, pp. 55–57. 120 IAC forced disappearance, above n 92, Article IX. 121 On the nature of military offenses, see Gibson 2008, p 36; United Nations General Assembly 2013.

42

3 Peculiarities of the Mexican Legal System that Could …

further complications, especially when it comes to non-international armed conflict, since it would result in two jurisdictions: one military and one civil. Even more so, it is important to take into consideration the contradictions that might exist between the military jurisdiction and that of the International Criminal Court. Might it come to a collision of competencies? What is the position of military authorities? The former Secretary of National Defense (SEDENA), Salvador Cienfuegos, made it clear, and reaffirmed several times to the media, that the only authority the military recognizes is the Mexican Public Prosecutor.122 Likewise, Article 36 of the CJM provides that the Mexican Public Prosecutor is the only one qualified to initiate criminal proceedings.123 It is, therefore, necessary to delimit military jurisdiction in times of peace and war within the CJM and even explicitly acknowledge the jurisdiction of the ICC to avoid the type of resistance expressed above by military authorities. Given the current state of Mexican law, it can be interpreted that military jurisdiction is applicable either in the presence of armed conflict (war) or in times of peace. Additionally, since the prohibitions established by humanitarian law have not yet been fully criminalized (absence of lex specialis), military courts would be applying military law as well as common criminal law for actions such as extrajudicial executions, inhumane treatment towards civilians, torture, rape, etc. Followed by the IACtHR’s judgment in the Rosendo Radilla case, the Mexican legislator decided to reform the CJM in 2014.124 The reforms consisted of excluding military jurisdiction when a civilian is involved as a victim. However, the reform included an exception, in which a new category of “civilian” was created. This new category is that of a civilian who also takes part in the commission of a crime. More specifically, it does not set out that such a person participates with a member of the military in the commission of a crime, but rather that both engage in different forms of punishable conducts. The specific cases that could fit this exception are the numerous types of “combat” that occur between members of organized crime and the military. 122 As he stated in an interview on the television news program primero noticias, on 6 October 2015. In response to the question of whether he would be willing to have his soldiers testify before the independent commission in the Ayotzinapa case, he replied: “(...)Well, I am convinced that the soldiers do not have to make any statement. First, because there is no clear indication of any involvement. We only respond to Mexican ministerial authorities” (translated by the author). See Televisa News, Salvador Cienfuegos habla del caso Ayotzinapa, 6 October 2015. https://noticieros.televisa.com/ programas-primero-noticias/1510/salvador-cienfuegos-habla-caso-ayotzinapa. Accessed 8 August 2020. 123 Article 36 CJM: El Ministerio Público es el único capacitado para ejercitar la acción penal, y no podrá retirarla o desistirse de ella, sino cuando lo estime procedente o por orden firmada por el Secretario de Guerra y Marina o por quien en su ausencia lo substituya; orden que podrá darse cuando así lo demande el interés social, oyendo, previamente, el parecer del Procurador General de Justicia Militar. 124 DOF, 13 June 2014.

3.2 Military Jurisdiction and Its Expansive Character in Mexico

43

The wording of Article 57 para 4 is as follows: Article 57.- Crimes against military discipline are: (...) (4) In every case, when military personnel and civilians act as active subjects, only the former will be tried by military justice.125

As we can see from the provision above, notwithstanding the reform in 2014 to Article 57 CJM, the civilian perpetrator (sujeto activo del delito) results in a different category, as that of “passive civilian” or “belligerent”. This new category could fall under: “alleged members of organized crime”. The procedural effects of such a categorization is that two criminal causes would derive: a military cause against the military perpetrator and a civilian one against the civilian perpetrator. Going back to the Mexican constitutional framework, Articles 13 and 129 of the Constitution suggest that, in times of peace, civil jurisdiction should be applied. However, de facto a new category of “combatants”, has been created for peacetime, who falls somewhere between armed personnel and civilians. The implications of these nuanced categories are not further developed in this research. However, it is worth pointing out that the Mexican legislator has insisted of preserving military jurisdiction for cases in which military personnel and civilians were both perpetrators of a crime. The law shall also further clarify why individuals who would fall under this new category do not enjoy the privilege of having the crime, of which they are victims, being investigated and tried before a civilian authority. With respect to the right of a fair trial, a condition necessary to combating impunity and guaranteeing the right to truth, the following two questions arise: Do military courts guarantee independence and impartiality?126 And how transparent are they? In this context, many NGOs expressed the urgency of abolishing this jurisdiction (HRW, among others), mainly because of their lack of transparency.127 The International Committee of the Red Cross, in its report—“The use of force in armed conflicts. Interplay between the conduct of hostilities and law enforcement paradigms”128 discusses whether military tribunals are suitable to investigate and judge cases that are characterized by abuse of the use of force. In this report, however, a consensus 125 Artículo

57.- Son delitos contra la disciplina militar: (…) En todos los casos, cuando concurran militares y civiles como sujetos activos, solo los primeros podrán ser juzgados por la justicia militar. 126 On this subject and regarding the opinions for and against military jurisdiction, see the findings of Díaz 1988, pp. 72–79. On the impartiality of military tribunals, the Inter-American Commission on Human Rights considered in the Salinas v. Peru Case: “(...) Secondly, the Commission considers that in the present case, as established in Article 10 of the Universal Declaration and Article 8, paragraph 1, of the American Convention, the Special Military Court is not “ a competent, independent, and impartial tribunal” since, under Peru’s Laws of Military Justice [Decree Law No. 23201], it comes under the Ministry of Defense, making it a special court subordinated to an organ of the Executive Branch. Consequently, since it is a court subordinated to the Ministry of Defense, there can be no “inadmissible interference on the part of the Executive Branch in the affairs of the Judiciary”, as claimed in the note from the Minister of External Relations to the Chairman of the IACHR.” See Inter-Am C.H.R., Salinas v Peru, Report, 30 November 1994, 27/94, Section 3. 127 HRW 2009, pp. 19–21. 128 ICRC 2013.

44

3 Peculiarities of the Mexican Legal System that Could …

is not reached whether military tribunals are per se partial.129 In the Mexican case, the figures of impunity give an indication of bias, since between 2012 and 2015 there were 4,525 soldiers submitted to military justice and only 238 sentenced.130 Furthermore, impartiality must not only be reflected in the independence of the organs—a hierarchical separation is not a sufficient condition—but they must also be operationally independent, as stated by the European Court of Human Rights in Al-Skeini and others v. United Kingdom.131 It can be concluded that, the fringe between human rights abuses and serious violations to IHL depends mainly on the context in which they occur.132 However, the main objective of both bodies of law is the protection of human beings.133 To guarantee this protection, impartial and independent judicial enforcement is required.134

3.2.4 Military Jurisdiction and the International Criminal Court Given the expansive wording of Article 57 CJM and that the crimes of the military order are defined ratione personae, I will explore its implications for the jurisdiction of the International Criminal Court. Under Mexican law, if civilians are involved, civilian authorities, military authorities or the ICC as a last resort, could prosecute war crimes. Additionally, the head of the executive holds broad powers. As has been described previously, Article 21 (8) CPEUM conditions the ICC jurisdiction to the approval of the executive; at the same time, the head of the executive is commander in chief and, therefore, head of the military justice system.135 As a result, the head of the executive, effectively, can decide between military justice and the justice of the ICC (forum shopping). In this regard, Article 17 (2)(c) RS is relevant; when addressing issues of admissibility, it stipulates that “unwillingness” qualifies if proceedings are not being conducted “independently or impartially”. In the case of military jurisdiction, the absence of independence crystallizes in the institutional subordination between the head of the executive and the military justice system, whereas partiality could be a consequence of the lack of independence. Impartiality could be compromised if military tribunals act in ways that promote the objectives 129 Ibid.

p. 56. Economista 2015, Solo 238 sentencias de 4,525 militares juzgados. 131 European Court of Human Rights, Al-\Skeini and others v. United Kingdom, Judgment, 7 July 2011, Application no. 55721/07, para 167. 132 Sivakumaran 2012, pp. 372–373. 133 See Preamble of AP II. 134 On this matter, the UN Special Rapporteur on the Independence of Judges and Lawyers, suggests that military jurisdiction should be exercised only for offenses that exclusively relate to legal protected interests of the military; see UN 2017, paras 100–105. 135 Article 26; Article 29 (X), Ley Orgánica de la Administración Pública Federal (Organic Law of the Federal Public Administration). 130 El

3.2 Military Jurisdiction and Its Expansive Character in Mexico

45

of the head of the executive.136 Impartiality and independence are also compromised if they serve to shield a suspect or if they are used to accomplish the purposes of the dominant political party or the head of the executive as commander in chief.137 The context in which the activities of the military have been intensified should also be considered, especially in the so-called “war on drugs” and its substantial impact on the civilian population. In any given case, the actions of the military and navy could amount to crimes under the jurisdiction of the ICC, and, in this sense, competing jurisdictions could arise, also affecting cooperation between the ICC and the Mexican state. The expansive character of military jurisdiction could affect not only the prosecution of war crimes but also crimes against humanity, since the activities of the military are not only restricted to war. In this sense, to facilitate prosecution of international crimes,138 military jurisdiction should be excluded. Moreover, in the hypothetical case that military jurisdiction hinders cooperation with the ICC, the procedures of part 9 of the RS would then be triggered. According to Article 93 (6) the state party has to inform the court of the reasons for the denial of the request, with the court to assess the validity of the denial.139

References Ambos K (2014) Treatise on International Criminal Law: Volume 1: Foundations and General Part. Oxford University Press, Oxford Amnesty International (2005) International Criminal Court: Declarations amounting to prohibited reservations to the Rome Statute. https://www.refworld.org/pdfid/45be009d2.pdf. Accessed 12 September 2020 Anaya A (2014) Communicative Interaction Between Mexico and Its International Critics Around the Issue of Military Jurisdiction: “Rhetorical Action” or “Truth Seeking Arguing”? Journal of Human Rights DOI: https://doi.org/10.1080/14754835.2014.886947 Becerra M (2006) México ratifica el Estatuto de Roma que crea la Corte Penal Internacional, después de reformar la constitución. Anuario Mexicano de Derecho Internacional 6: 951–954 Cámara de Diputados (2002) Dictamen de las Comisiones Unidas de Puntos Constitucionales y de Justicia y Derechos Humanos con proyecto de decreto que adiciona un párrafo quinto al artículo 21 de la Constitución Política de los Estados Unidos Mexicanos https://www.diputados.gob.mx/ LeyesBiblio/proceso/cpeum/CPEUM_161_DOF_20jun05.pdf. Accessed 8 August 2020 Cámara de Senadores (2002) Proyecto de Decreto que reforma el artículo 21 de la CPEUM, referente a la Corte Penal Internacional, Sesión celebrada el 14 de diciembre de 2002. https://perma.cc/ 9R75-NNKM. Accessed 11 August 2020

136 As

an example of how the reform to military jurisdiction was instrumentalized during the Calderón presidency, see Anaya 2014. 137 In this regard, see the list of indicia of unwillingness or inability to carry out proceedings in: ICC-OTP 2003, pp. 28–30. 138 In the US, for example, military and civilian jurisdiction also coexist. According to Cassel, US military courts already have nearly universal jurisdiction over war crimes, and he suggests that, transferring such jurisdiction to civilian federal courts would be “(...) internationally perceived as fair and just”. See Cassel 2001, pp. 442–443. 139 See Kreß and Prost 2008b, other forms of cooperation, para 47.

46

3 Peculiarities of the Mexican Legal System that Could …

Camarillo L, Cabrera S (2016) La reserva del estado mexicano al Estatuto de Roma de la corte penal internacional. Revista electrónica iberoamericana 10: 1–19 Camp R (1992) Generals in the Palacio, the Military in Modern Mexico. Oxford University Press, New York Carpizo J (2012) La Constitución mexicana y el derecho internacional de los derechos humanos. Anuario Mexicano de Derecho Internacional 12: 801–858 Cassel D (2001) Empowering United States Courts to Hear War crimes within the jurisdiction of the International Criminal Court. New England Law Review 421: 421–445 Cossío J (2001) Cambio social y cambio jurídico. Porrúa-ITAM, Mexico Cossío J (2010) Fuero Militar: sus alcances y limitaciones. Cuestiones Constitucionales 22: 321–361 Cossío J, Rodríguez G (2003) El Senado de la República y las relaciones exteriores. ITAM-Miguel Ángel Porrúa, Mexico Cryer R (2006) International Criminal Law vs State Sovereignty: another round? The European Journal of International Law 16: 979–1000 Denuncia y criterios del Comité 68 (2008) Ejército y sociedad: la reforma constitucional del ejército. Comité 68 Pro Libertades Democráticas, Mexico Díaz F (1988) Fuerzas Armadas, militarismo y Constitución Nacional en América Latina. Instituto de Investigaciones Jurídicas, UNAM, Mexico DOF (2007) Decreto por el que se reforma el artículo 76 fracción I, y el artículo 89 fracción X, de la Constitución Política de los Estados Unidos Mexicanos issued on 12 February 2007 Dwight N (2005) The Rome Statute, Some Reservations Concerning Amnesties, and a Distributive Problem. American University International Law Review 2: 293–357 Escalante P et al (2011) Nueva Historia Mínima de México. El Colegio de México, Mexico Flores S (2005) México. In: Kreß et al (eds) The Rome Statute and Domestic Legal Orders, Vol II, Nomos, Baden-Baden, pp. 187–201 Gibson M (2008) International human rights law and the administration of justice through military tribunals: preserving utility while precluding impunity. Journal of International Law and International Relations 4: 1–48 González G (2007) Democratización y política exterior: ¿el fin del predominio presidencial? CideDocumentos de trabajo, división de estudios internacionales, Mexico Guariglia F et al (2008) Article 57. Functions and powers of the Pre-Trial Chamber. In: Triffterer O (ed) Commentary on the Rome Statute, pp. 1117–1131 Hafner G (2008) Article 120, Reservations. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court. Observer´s notes—article by article, 2nd edn. C.H. Beck, Munich, pp. 1737–1750 Hernández E (2006) International Migration and Sovereignty reinterpretation in Mexico. California Western Law Review 43: 203–233 Human Rights Watch (1999) Report Abuse and Abandonment: Torture, Forced Disappearance and Extrajudicial Execution in Mexico. https://www.hrw.org/report/1999/01/01/systemic-injustice/ torture-disappearance-and-extrajudicial-execution-mexico. Accessed 11 August 2020 ICC Assembly of State Parties (2016) Report of the Bureau on non-cooperation, ICC-ASP/15/31. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP15/ICC-ASP-15-31-ENG.pdf. Accessed 11 August 2020 ICC-OTP (2003) Informal expert paper: The principle of complementarity in practice. https://www. icc-cpi.int/RelatedRecords/CR2009_02250.PDF. Accessed 8 August 2020 ICC-OTP (2013) Policy Paper on Preliminary Examinations. https://www.icc-cpi.int/iccdocs/otp/ otp-policy_paper_preliminary_examinations_2013-eng.pdf. Accessed 8 August 2020 ICRC (2013) Expert meeting. The use of force in armed conflicts. Interplay between the conduct of hostilities and law enforcement paradigms. https://www.icrc.org/eng/assets/files/publications/ icrc-002-4171.pdf. Accessed 9 August 2020 Kleffner J (2008) Complementarity in the Rome Statute and National Criminal Jurisdictions. Oxford University Press, Oxford

References

47

Kreß C, Prost K (2008a) Article 87. Requests for cooperation: general provisions. In: Triffterer O (ed) Commentary on the Rome Statute, 2nd edn. C.H. Beck/Hart/Nomos, pp. 1517–1531 Kreß C, Prost K (2008b) Article 93 - Other forms of cooperation. In: Triffterer O (ed) Commentary on the Rome Statute, 2nd edn. C.H. Beck/Hart/Nomos, pp. 2003–2171 Lüder S (2002) The legal nature of the International Criminal Court and the emergence of supranational elements in international criminal justice. International Review of the Red Cross. DOI: https://doi.org/10.1017/S1560775500105127 Mårsäter O (2016) Article 120. In: Klamberg M, Nilsson J (eds) Commentary on the Law of the International Criminal Court—The Rome Statute. Accessed 7 August 2020 Medellín X (2013) La incorporación de la Corte Penal Internacional al orden constitucional mexicano: artículos 21 y 13 constitucionales. In: Mcgregor F et al (eds) Derechos Humanos en la Constitución, SCJN-UNAM- Konrad Adenauer Stiftung, Mexico Meyer J (2003) El sinarquismo, el cardenismo y la iglesia. Tusquets Editores, Mexico Meyer L (2013) Nuestra tragedia persistente. Debate, Mexico OAS (1998) Report on Forced Disappearances. OEA/Ser.L/V/II.100 Ramírez G, Sánchez M (2013) La reforma constitucional sobre derechos humanos (2009–2011). Porrúa, Mexico Rückert W (2016) Article 4, legal status and powers of the Court. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court, 3rd edn. C.H. Beck/Hart/Nomos, pp. 103– 109 Salmon J (2011) Article 26, Pacta sunt servanda. In: Corten O, Klein P (eds) The Vienna Conventions on the Law of Treaties. Oxford University Press, Oxford Sandoval J (2000) Seguridad Nacional. In: Baca Olamendi et al (ed) Léxico de la política. Editions FLACSO, Fondo de Cultura Económica, Mexico, pp. 659–667 Schaus A (2011) Article 27, Internal Law and observance of treaties. In: Corten O, Klein P (eds) The Vienna Conventions on the Law of Treaties. Oxford University Press, Oxford Schmalenbach K (2012a) Article 26, Pacta sunt servanda. In: Dörr O, Schmalenbach K (eds) Vienna Convention on the Law of Treaties. Springer Verlag, Berlin/Heidelberg/New York Schmalenbach K (2012b) Article 27. Internal law and observance of treaties. In: Dörr O, Schmalenbach K (eds) Vienna Convention on the Law of Treaties. Springer Verlag, Berlin/Heidelberg/New York Senado de la República (2001) Diario de los debates primer período ordinario sesión 33. https:// www.senado.gob.mx/64/diario_de_los_debates/documento/1276. Accessed 6 August 2020 Senado de la República (2002a) Diario de los debates primero período ordinario sesión 34. https:// www.senado.gob.mx/64/diario_de_los_debates/documento/1337. Accessed 6 August 2020 Senado de la República (2002b) Diario de los Debates primero período ordinario sesión 35. https:// www.senado.gob.mx/64/diario_de_los_debates/documento/1404. Accessed 6 August 2020 Senado de la República (2002c) Dictamen de las Comisiones Unidas de Puntos Constitucionales; de Relaciones Exteriores, Organismos Internacionales; de Justicia; de Derechos Humanos, y de Estudios Legislativos, con proyecto de decreto que reforma el artículo 21 de la Constitución Política de los Estados Unidos Mexicanos, referente a la Corte Penal Internacional Senado de la República (2005) Diario de los debates primer periodo extraordinario sesión 1. https:// www.senado.gob.mx/64/diario_de_los_debates/documento/1601. Accessed 6 August 2020 Senado de la República (2013) Reforma al Artículo 21 constitucional sobre las reformas al Estatuto de Roma de la Corte Penal Internacional. https://infosen.senado.gob.mx/sgsp/gaceta/62/2/201310-08-1/assets/documentos/CORTE_PENAL.pdf. Accessed 7 August 2020 Sivakumaran S (2012) The Law of Non-International Armed Conflict. Oxford University Press, Oxford Tomuschat C (2014) Human rights, Between idealism and realism. Oxford University Press, Oxford Triffterer O (2000) Legal and political implications of domestic ratifications and implementation processes. In: Kreß C, Lattanzi F (eds) The Rome Statute and domestic legal orders. Nomos Verlagsgesellschaft, Munich, pp. 1–28

48

3 Peculiarities of the Mexican Legal System that Could …

UN (2017) Report of the Special Rapporteur on the independence of judges and lawyers, A/HRC/35/31 UN General Assembly (2011) Report of the International Law Commission, A/66/10/Add.1. https:// legal.un.org/ilc/reports/2011/english/addendum.pdf. Accessed 6 August 2020 UN General Assembly (2013) Sixty-eighth session, Report of the special rapporteur on the independence of judges and lawyers, A/68/285 UN Security Council (2015) Resolution 2213 adopted by the Security Council at its 7420th meeting, S/Res/2213 (2015). Accessed 8 August 2020 UN Treaty Collection (1998) Mexico-Notifications made under article 87 (1) and (2), Rome Statute of the International Criminal Court, No. 38544. https://treaties.un.org/Pages/ViewDetails.aspx? src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#EndDec. Accessed 7 August 2020 Unzueta V (2009) Amicus Curiae presentado ante la Corte Interamericana de Derechos Humanos en el caso Rosendo Radilla Pacheco contra los Estados Unidos Mexicanos. https://www.senado. gob.mx/comisiones/justicia/docs/Justicia_Militar/Acad_MesaIII_VUR.pdf. Accessed 8 August 2020 Villiger M (2009) Commentary on the 1969 Vienna Convention on the Law of Treaties. Martinus Nijhoff Publishers, Boston

Chapter 4

The Status of International Law in the Mexican Constitution

Contents 4.1 Rank of International Treaties–Article 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 Historical Precedents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Main Features of Article 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.3 Interpretations of the Hierarchy of International Law in the Mexican Legal Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Rank of Human Rights Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 International Law and Territorial Rights: Articles 27 and 42 of the CPEUM . . . . . . . . . 4.4 Constitutional Restrictions on International Treaties: Contradicción de Tesis 293/2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

50 50 50 53 58 61 62 65 67

Abstract This chapter explores the incorporation and implementation mechanisms of ICL in Mexico as well as the rank of international law within the Mexican constitution. A review will be made of the different rulings of the Supreme Court, which have evolved into the present interpretation of the footing of international treaties within the domestic legal order as part of the “supreme law of the land”. The review suggests that the different stages of interpretation went par in par with the political developments. Special constitutional clauses related to international law are also examined. The constitutional and interpretative background will provide an interesting insight into the high value given to written law and the bare recognition given to international customary law. The result of this analysis will support the view that the Mexican state has a tendency towards a “statist” approach, rather than an “internationalist” one, bearing in mind the above identified features can lead to the most adequate legal measures for the prosecution of international crimes in the domestic legal order. Additionally, the description of Mexico’s stance on international law can lead to a better understanding of the internal review of the RS and the objections it faced as a threat to sovereignty. Keywords Hierarchy of laws · Rank of international treaties · Constitutional supremacy · Monism · Supreme Law of the Union · International customary law · State practice · Mexican constitutional law · Implementation of the Rome Statute · Mexican Supreme Court

© t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_4

49

50

4 The Status of International Law in the Mexican Constitution

4.1 Rank of International Treaties–Article 133 4.1.1 Historical Precedents The origins of Article 133 CPEUM can be found in the American Constitution.1 Liberal groups in post-independence Mexico, inspired by their American predecessors, took the American Constitution as a model for the first Constitution of the United Mexican States in 1824. After all, the American independence was a pioneering project when it came to establishing a new order and nation state on the remnants of a monarchist order.2 The provision in the Mexican Constitution of 1824 regarding the hierarchy of laws and treaties (Article 161-III),3 was re-instituted in the Constitution of 1857 (Article 126)4 and later in the 1917 Constitution (Article 133). It was in 1934 that, in order to avoid conflicts of interpretation between the Constitution and international treaties, this article was reformed, stipulating that international treaties should be in accordance with the Constitution. In addition, the approval of treaties by the entire Congress, was substituted by the approval of the Senate, once the treaties were subscribed by the president.

4.1.2 Main Features of Article 133 The full text of Article 133 CPEUM reads as follows: Article 133—This Constitution, the Laws derived from and enacted by the Congress of the Union and all the treaties in accordance therewith, concluded and executed by the President of the Republic, with the approval of the Senate, shall be the supreme law of the land. The judges in every state (entidad federativa) shall be bound to thereby observe the Constitution,

1 See

Carpizo 1969, p. 7; Villarroel 2004, pp. 228–230; Sepúlveda 2009, p. 76. Note that Carpizo specifically points to Article 126 of the Constitution of 1857. Also see generally Vázquez 2011, pp. 137–191. 2 On the formation of federal States in Latin America, see Herman 1922, pp. 318–334. A good example of the progressive ideals of the independence movement was presented by Jose María Morelós y Pavón (1765–1815), who in 1813 called the National Constituent Congress, declaring independence, establishment of division of powers and the abolition of slavery and torture, among other things. 3 The text of the Mexican constitution of 1824 can be found at: http://www.diputados.gob.mx/bib lioteca/bibdig/const_mex/const_1824.pdf. Accessed 12 August 2020. 4 The wording is the most similar to the present one: “This Constitution, the laws that emanate from it, and all treaties concluded by the President of the Republic, and approved by Congress, shall be the supreme law of the whole Union”-translated by the author. It is important to emphasize that although in 1874 the Senate was granted various powers such as the approval of treaties, the Constitution of 1917 did not incorporate this reform, maintaining the text of the Constitution of 1857. See Carpizo 1969, p. 130; Sepúlveda 2009, p. 76.

4.1 Rank of International Treaties–Article 133

51

the laws derived from it and the treaties, despite any contradictory provision that may appear in the constitutions or laws of the states (entidades federativas).5

Article 133 of the Mexican Constitution enshrines the rank of international treaties within the domestic legal order,6 giving a treaty the same footing as a domestic law.7 The treaty must be signed (concluded) by the executive and approved by the Senate.8 On this matter, the Constitution provides in Article 89 express faculty to the President to sign treaties and in Article 76 gives faculty to the Senate to approve a treaty. In these two provisions as in Article 133, the interplay between the legislative and executive branch crystallizes. Additionally, Article 133 requires that a treaty has to be in accordance with the Constitution in order to be part of national law. This requirement is even more specific in Article 15: No treaty shall be authorized for the extradition of political offenders or of offenders of the common order who have been slaves in the country where the offense was committed. Nor shall any agreement or treaty be concluded which restricts or modifies the guarantees and human rights established by this Constitution and by international treaties signed by the Mexican state.9 (Emphasis added)

According to Article 15, a treaty must not infringe constitutional provisions in order to be incorporated and it should also not restrict or modify rights (garantías individuales) already recognized in the Constitution. Article 15 is almost a verbatim transfer from the Constitution of 1857.10 It only suffered an addendum as an effect of the constitutional reform of 2011 and “international treaties” were inserted. The mention of slavery was inherited from the independence movement from 1810 which followed strongly anti-slavery principles and ideals.11 5 Article

133—Esta Constitución, las leyes del Congreso de la Unión que emanen de ella y todos los tratados que estén de acuerdo con la misma, celebrados y que se celebren por el Presidente de la República, con aprobación del Senado, serán la Ley Suprema de toda la Unión. Los jueces de cada entidad federativa se arreglarán a dicha Constitución, leyes y tratados, a pesar de las disposiciones en contrario que pueda haber en las Constituciones o leyes de las entidades federativas. 6 Jorge Carpizo provides a historical account of this precept in the various Mexican constitutions; a principle that was inserted already in the Constitution of Apatzingán of 1814. See Carpizo 2010, p. 7. 7 Ibid., p. 133. 8 On the different conceptions and mechanisms of incorporating international law, see Cassese 2005, pp. 213–237. 9 Article 15—No se autoriza la celebración de tratados para la extradición de reos políticos, ni para la de aquello delincuentes del orden común que hayan tenido en el país donde cometieron el delito, la condición de esclavos; ni de convenios o tratados en virtud de los que se alteren los derechos humanos reconocidos por esta Constitución y en los tratados internacionales de los que el Estado Mexicano sea parte. 10 Article 15 of the Mexican Constitution of 1857 reads as follows: “Nunca se celebrarán tratados para la estradicion (sic) de reos políticos, ni para la de aquellos delincuentes del orden común que hayan tenido en el país en donde cometieron el delito la condición de esclavos, ni convenios ó tratados en virtud de los que se alteren las garantías y derechos que esta constitución otorga al hombre y al ciudadano”. 11 Regarding the origins of the anti-slavery provisions in the Mexican Constitution, see Jiménez 2006, pp. 335 358.

52

4 The Status of International Law in the Mexican Constitution

By following the international principle of “non-refoulement” the Mexican state grants asylum to political prisoners as well as those who were slaves. The commentary of this article points out that the condition of slavery must be interpreted with a dynamic approach12 due to the evolution of law and new demands of protection. A dynamic interpretation of Article 15 CPEUM would also be consistent with Article 1º analyzed in the previous section. It follows that “enslavement” should also be considered under the modern forms of slavery.13 Regarding the incorporation in domestic law, a treaty must meet certain formal and substantive requirements established by the CPEUM itself. The treaty must be signed by the executive,14 approved by the Senate15 and finally (to abide by the principle of publicity as with all other laws) must be published in the Official Gazette of the Federation (DOF).16 The fulfillment of this mechanism provides for the incorporation of an international treaty into national law. Only under the conditions outlined in Article 133 can a treaty become part of Mexican domestic law. However, as we will see later, given the particular nature of the Rome Statute (RS), direct implementation is not possible since the Mexican Constitution upholds the principle of legality in criminal law (Article 14 CPEUM).17 Hence, the incorporation of the RS would require ad hoc legislative steering.18 The particularities of the RS reside in the fact that it is a treaty that gives jurisdiction to an international court (ICC), which adjudicates criminal accountability over persons and not states.

12 Regarding

the dynamic interpretation of human rights standards, see IACtHR 1999, para 115. considering modern slavery in Article 15 CPEUM, see Rodríguez 2013, p. 225. 14 Article 89, fr. X. CPEUM: The powers and duties of the President are the following: (…) X. To lead the foreign policy; to make and execute international treaties; as well as to end, denounce, suspend, modify, amend, withdraw reservations and make interpretative declarations relating to such treaties and conventions, requiring the authorization of the Senate to lead diplomatic negotiations and make treaties with foreign powers, submitting them to the ratification of the federal Congress (translated by the author). 15 Article 76, fr. I. CPEUM: The exclusive powers of the Senate are: I. To approve the treaties and diplomatic conventions made by the President of the Republic with foreign powers (translated by the author). 16 Article 4 of the Law of the conclusion of treaties (Ley sobre la celebración de tratados). 17 Article 14: No law will have retroactive effect in detriment of any person. No one can be deprived of his freedom, properties or rights without a trial before previously established courts, complying with the essential formalities of the proceedings and according to those laws issued beforehand. With regard to criminal trials, it is forbidden to impose any penalty which has not been expressly decreed by a law applicable to the crime in question, arguing mere analogy or majority of reason. In civil trials, the final sentence must agree with the written law or the legal interpretation thereof. In the case of lack of the appropriate law, the sentence must be based on the general principles of law (translated by the author). 18 On the same point, Corcuera Cabezut also suggests the following examples: Inter-American Convention to Prevent and Punish Torture, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Inter-American Convention on Forced Disappearance of Persons; see Corcuera 2006, p. 157. With regard to the Rome Statute, the principle of complementarity and Mexican legislative history, see Medellín 2014, pp. 199–250. 13 On

4.1 Rank of International Treaties–Article 133

53

4.1.3 Interpretations of the Hierarchy of International Law in the Mexican Legal Order 4.1.3.1

First Phase of Interpretation and Economic Liberalization (1994)

The 1990s brought social-political changes to Mexico that also restructured conceptions of how international law affected the domestic order. It was not until the economic liberalization of Mexico to the international market and, above all, the implementation of the North American Free Trade Agreement (NAFTA), that practical problems arose with respect to Article 133. The treaty’s effect on trade and on the Mexican economy evoked a debate on the specifics of the constitutional provision, especially since it provides for arbitral awards.19 It is telling that a frank discussion about Article 133 has arisen from a free trade treaty.20 This is in sharp contrast to the aftermath of the “Pact of San José” signed in 1968, since it was not until 1998 that the Mexican state recognized the jurisdiction of the IACtHR. Additionally, the establishment of the Inter-American Court did not generate any discussion about Article 133, even though some of the aims of the IACtHR are to apply and interpret provisions of the Convention that could have effects domestically and even transform the Constitution,21 as well as defining the responsibility of a State party in case of non-compliance.22 By way of contrast, even though NAFTA questioned constitutional supremacy by adopting arbitration panels, its incorporation and implementation was rather efficient. This confirms the duality of the Mexican state in the face of commercial and human rights treaties.23 However, the positive response to 19 For

further reading, see Serna de la Garza 2012. Another example is the European Union, which was originally formed as an economic union. Similarly, Mexico’s opening with respect to the international order arose from purely commercial interests. Regarding the economic motivations behind the creation of the European Union, see Celik 2016 pp. 17, 84, 313 et seq. 20 Authors in the 1990s already argued this point. Perez Nieto explained that the optimism for free international trade evolved around the idea that boosting economic development through free trade treaties would lead to progress. As scholar Perez Nieto stated: “Traditionally, the Mexican state had independently developed a series of functions that now must be shared as its economy and its commerce have become globalized. The purpose is to promote economic development in Mexico as a way for Mexicans to have a better standard of living.” (Translated by the author). See Perez Nieto 1995, p. 289. The logic was that, through the economic impulse, Mexicans could have better access to education and a “dignified life”. That is to say, the obligation to protect human rights was, therefore, not seen as a priority of international treaties, but rather as a requirement to be an attractive country for investment; see, for example, Article 1 of the “Economic Partnership, Political Coordination and Cooperation Agreement between Mexico and the European Union” (better known as the democracy clause). This set of “neo-liberal” ideas, characterized by seeing the economy as a master key, undoubtedly forced greater interaction between Mexico and the international community. 21 The Chilean case is an example of how a ruling of the IACtHR led to an amendment of its constitution. See Estay Martínez 2013, pp. 63–79. 22 Regarding the functions and competence of the Court, see Martin 2004, pp. 209–277. 23 Ricardo Sepúlveda Iguíniz writes: “Mexico has always assumed a proactive attitude in the matter and has become, at times, a prototype of a state taking on responsibility for human rights; however,

54

4 The Status of International Law in the Mexican Constitution

NAFTA can also be explained as a strategy of the political powers at the time, who “(…) sought to use international law to maintain the strength of domestic forces in favor of liberalization”.24 Following this rationale, the Mexican government was striving for compliance in order to ensure and strengthen the liberalization process. Since the last reform of article 133 CPEUM was in 1934, debates around the constitutional provision arose one year after the ratification of NAFTA in 1995. The same year, Mexican scholars, such as Leonel Perez Nieto, started pointing out that treaties incorporated in the national legal system enjoy the same hierarchy as the Constitution.25 Nieto also argued that an international treaty also translates into an addition to the Constitution.26 Finally, he proposed reforming Article 133 in order to create a new system of incorporating treaties and suggested a constitutional review prior to ratification. This last suggestion would have indeed, prevented the intricate debate upon the ratification of the RS, as we will see in the sections below.

4.1.3.2

Second Phase of Interpretation (1999)

The first case clarifying the jurisprudential hierarchy of treaties with respect to federal laws27 dates to 1999. It evolved around a conflict between a provision of the International Labor Organization (ILO) and the Federal Law on Workers Serving the State.28 The case29 ended the debate about which laws constituted the “supreme law of the union”, holding that this rank is exclusively occupied by the Constitution itself. As a consequence, federal laws and treaties were hierarchically below it and it was concluded that treaties superseded federal laws. However, no distinction was made between the federal laws and the laws that stem directly from the Constitution

this position in the international arena has had no effect on the human rights situation in Mexico.” (Translated by the author). See the original citation in Sepúlveda 2012, p. 162. 24 Trachtman 2010, pp. 132–133. 25 Perez Nieto 1995, p. 280. 26 Ibid. 27 The SCJN argued that international treaties had a hierarchical level equal to that of federal laws. See SCJN, Tesis P.C/92, registro 205596, December 1992, p. 27. 28 This jurisprudential criterion derived from a judgment issued by the SCJN on 11 May 1999, on an amparo (1475/98) promoted by the National Union of Air Traffic Controllers that sought to clarify the relation between the ILO Convention and the Federal Law on Workers Serving the State (Ley Federal de los Trabajadores al Servicio del Estado). The judgment states: “(…) the laws issued by the legislatures of the states that regulate working relations with their employees will be governed by article 123 of the Constitution and its regulatory provisions, among which is the International Labor Organization Convention 87” (translated by the author). The original quotation can be found in SCJN, Sindicato nacional de controladores de tránsito aéreo, Sentencia ejecutoria, Amparo en revisión, March 2000, 1475/98, p. 442. 29 The judgment can be found under the title: Tratados internacionales. se ubican jerárquicamente por encima de las leyes federales y en un segundo plano respecto de la constitución federal, registro No. 192867, Novena Época, Instancia: Pleno, Fuente: Semanario Judicial de la Federación y su Gaceta, Tomo: X, Noviembre de 1999, Tesis: P. LXXVII/99, p. 46.

4.1 Rank of International Treaties–Article 133

55

(these are so-called “general laws”). In the end, this case decision somewhat clarified the ambiguous character of Article 133, but firmly maintained the defense of sovereignty, denying that any legal order is above or on par with the Constitution, dismissing views that hold supranational human rights protection as supreme.30 This jurisprudence, which defended sovereignty and the supremacy of the Constitution holds the idea that treaties might violate the guarantees enshrined in the Constitution.31 The defense of constitutional supremacy could, however, be of political nature, since the “constitutional guarantees” (garantías individuales) could also be interpreted as the hallmark and legitimation of the ruling party (PRI).32 The 1917 Constitution consecrated new rights such as “group rights or social rights,”33 and functioned as a protective bulwark against “latifundistas”, the Catholic Church, banks and businesses.34 At the same time, these rights adopted the characteristics of “protectionist measures”,35 giving rise to political clientelism between unprotected social groups and political class.36 To this interpretation, it could be added that, as the constitution encapsulates all values derived from the Mexican Revolution, it excludes, as logical impossibilities, anything that contradicts revolutionary ideals.37 It can be assumed then that under PRI rule, domestic law had priority and that the conclusion

30 Díaz

Müller 2006, pp. 7–15.

31 In this sense, it is worthwhile to remember what Carpizo has already pointed out on how the Consti-

tution already ensured protection and respect for human rights, yet their implementation remained problematic. However, the author somewhat contradicts himself as he stresses the decline in respect for human rights and other aspects “(…) in the last eighteen years”. The scholar even expresses surprise that the Mexican state was, at that time, internationally condemned by the Inter-American Court of Human Rights, highlighting that it was something that has not happened previously, since according to his view, Mexico has been a country that respects international obligations. By pointing this out in 2012, his remark implicitly validated the PRI regime. See Carpizo 2012, pp. 818–819, 850. 32 Carbonell makes this interpretation of the garantías individuales. See Carbonell 2012, pp. 126– 128. 33 Under the Mexican Constitution, all these rights have a universal character. For example, the German Constitution makes the distinction between fundamental rights (Grundrechte), which are limited to Germans, and Human Rights (Menschenrechte), which are universal. Some of the rights only granted to German citizens are: freedom of association (Article 8), freedom of transit (Article 11), and freedom to exercise any profession (Article 12). 34 Carbonell 2012, p. 128. 35 Ibid., p. 131. It is interesting to note how the author takes a critical stance against the PRI regime in a retrospective way, calling it a “paper democracy”, without considering or reflecting that, at the time of his writing, the PRI was still in power. 36 See Burgoa 2002, pp. 704, 706, cited in Carbonell 2012, p. 132. 37 As an example of the revolutionary ideals crystallized in the Constitution of 1917 the following quotation from Cravioto, a member of the constituent assembly, is illustrative: “… France, after the revolution, had the high honor of consecrating in the first magnum carta the inalienable rights of men. Similarly, the Mexican Revolution will also have the legitimate pride and honor of showing the world that it is the first to consign in a constitution the sacred rights of the workers” (translated by the author). See the original quotation in Carbonell 2013a, p. 80.

56

4 The Status of International Law in the Mexican Constitution

of treaties was a form of foreign policy without effect on domestic affairs.38 This, of course, always connected to Mexico’s political regime that relied on hermetical protection of revolutionary ideals through one-party hegemony. This insight helps explain the defense of constitutional supremacy vis a vis international law, which in a way, by defending constitutional supremacy, served to further legitimate the PRI regime.

4.1.3.3

Third Phase of Interpretation (2007)

The third interpretive phase of Article 133 CPEUM begins in 2007, almost ten years after the phase described above and during the power transition from the PRI to the PAN party.39 In the “McCain case” (2007, P. IX/2007),40 the SCJN made it clear that there is a superior normative order different to that of the Mexican constitution,41 enshrined in the Vienna Convention on the Law of Treaties (VCT).42 This decision pushed Mexico a great step towards incorporating the VCT in its domestic order. The core elements of the decision from this case are: (a) The CPEUM maintains supremacy throughout the normative system 38 González

2007 pp. 4–5; Carpizo 2010, pp. 129–134; Saltalamacchia and Covarrubias 2011, pp. 166–169. 39 It is important to note that in 2007 Felipe Calderón was in his first year in office. In that year, 2007, the so-called “War against Drugs” also began. 40 It should be noted that these jurisprudential theses were derived from a dispute arising from NAFTA. This shows how, in the case of commercial issues, the cases manage to reach the highest courts in a prompter way by having the SCJN interpret the Constitution in relation to international treaties. The cases which argued ICL principles bore quite different results, as will be discussed in later sections. For the SCJN’s reluctance to invoke human rights treaties, see Becerra 2008 pp. 861–866. 41 The origin of this thesis is a conflict between a decree issued by the President of Mexico and NAFTA. The purpose of the decree was to establish a tariff rate higher than that established in NAFTA. The decree is of lesser rank, since it is a decision of the executive, while an international treaty is an obligation of the Mexican State vis-à-vis the international community. 42 The jurisprudential thesis from 2007 (P.ix/2007) is transcribed below: “International treaties are an integral part of the supreme law of the union and are located above the general, federal and local laws. The systematic interpretation of Article 133 of the Political Constitution of the United Mexican States allows the identification of the existence of a superior legal order; of national character, integrated by the Federal Constitution, international treaties and general laws. Furthermore, on the basis of this interpretation, harmonized with the principles of international law scattered in the constitutional text, as well as with the fundamental norms and precedents of this branch of law, it is concluded that international treaties are hierarchically below the Federal Constitution and above general, federal and local laws. Insofar as the Mexican State subscribes to them, this is in accordance with the provisions of the Vienna Convention on the Law of Treaties between States and International Organizations and, in addition, in accordance with the fundamental principle of international law pacta sunt servanda. States freely enter into obligations vis-à-vis the international community, which cannot be ignored by invoking norms of domestic law and whose non-compliance is otherwise an international responsibility” (translated by the author). The original quotation can be found in SCJN, Tesis aislada: P. IX–2007, April 2007, p. 6.

4.1 Rank of International Treaties–Article 133

57

(b) The general laws and the international treaties that agree with the Constitution are the supreme law of the land.43 (c) International treaties are hierarchically inferior to the Federal Constitution (d) When a treaty collides with the Constitution, the Constitution prevails (e) When a treaty collides with a law, the treaty prevails over the law (whether general or not). It should be noted that, in the dissenting opinion of Justice José Ramón Cossío in the “McCain” case, he pointed out that the hierarchy of treaties with respect to the domestic order must derive from the Constitution itself (thus confirming constitutional supremacy) and not from an international treaty.44 This gives us a hint that the conception of constitutional supremacy remained in the judiciary. International treaties continued to be seen as an external order, alien to the Constitution, and validated only by the Constitution itself. The dissenting opinion also neglects the fact that a constitution45 does not per se protect and respect fundamental rights.46 Justice Cossío also pointed out that just because a state obliged to adhere by a treaty, it does not imply per se that it will. The Justice omitted to add that according to Article 26 of the VCT: “(…)a party to a treaty shall refrain from any acts calculated to prevent the due execution of the treaty or otherwise to frustrate its objects”.47 The SCJN’S decision and the dissenting opinion do not consider the approach of ranking treaties higher than the national constitution. However, it must be said that the constitution does not take this stance either. As will be analyzed in further sections, Articles 27 and 42 of the CPEUM prove, nevertheless, to adopt a different standing regarding the hierarchy of international law. Both provisions concern territorial rights,48 and in contrast to Article 133, refer not only to treaties but to international 43 In this case, it is determined that the general laws are those that together with the Constitution affect the various partial legal orders that integrate the Mexican State. See SCJN, McCain México, sociedad anónima de capital variable, Amparo en revisión, 13 February 2007, 120/2002 p. 164. The ruling can be consulted at https://perma.cc/9KZ7-HXLD. Accessed 12 August 2020. 44 In this case, the justice omitted to point out the case of a state breaching a treaty. According to Article 27 of the VCT the binding character of treaties is determined by international law and finally, whatever hierarchy the national order adopts, international law prevails over the internal law of the states. See Schaus 2011, pp. 700–701. 45 However, when determining that the hierarchy of laws can only be given by the constitution and that therefore nothing can be above the constitution can be problematic due to the fact that a constitution might not always guarantee protection to human rights. In those cases, it is plausible that a superior rank is given to international law. A good example of this, within the Mexican legal order, is the case of humanitarian law. As we will see in further chapters, national military law does not guarantee all rights to civilians and belligerents as established by the Geneva Conventions. 46 An example of a constitution that did not protect human rights per se, could be the South African Constitution of 1983. This Constitution established on a segregated and discriminatory basis a tricameral parliament as well as distinctions between “coloured”, “Indian” and “white persons” (Sections 100 and 93). See the Republic of South Africa Constitution Act, 1983, available at https://en.wikisource.org/wiki/Republic_of_South_Africa_Constitution_Act,_1983/198407-06. Accessed 12 August 2020. 47 Salmon 2011, p. 671. 48 With regard to territorial rights in Mexico, see Sepúlveda 2009 pp. 173–238.

58

4 The Status of International Law in the Mexican Constitution

law as a whole, namely, customary law and ius cogens. Corzo Aceves adds to this point: Articles 27 and 42 show that in this general framework, the Constitution recognizes the supremacy of international law in terms of territorial extension, and in this respect restricts the validity of expression of the international norm (such as treaties) to a second term. It can be affirmed that the Mexican legal system implies a monistic perspective, which recognizes the application of international law in Mexico, provided it does not fall under the exception established by Article 133 of the Constitution regulating treaties.49

Another case worth mentioning in which the primacy of international law over domestic law was recognized was in 1939, when the neutrality of Mexico was declared by former president, Lázaro Cárdenas. In his declaration, he directly invoked “International Law and the precepts contained in existing treaties”, admitting obligations under international law imposed on Mexico as well on the belligerent states.50

4.2 Rank of Human Rights Treaties In June 2011, Mexico amended Article 1 of its Constitution51 to incorporate international human rights treaties. This led to a new interpretation of the concept of constitutional supremacy since it granted human rights treaties the same rank as the Constitution. The text of Article 1 is as follows: In the United Mexican States, all individuals shall be entitled to the human rights granted by this Constitution and the international treaties signed by the Mexican State, as well as to the guarantees for the protection of these rights. Such human rights shall not be restricted or suspended, except for the cases and under the conditions established by this Constitution itself. The provisions relating to human rights shall be interpreted according to this Constitution and the international treaties on the subject, always granting the broader protection for individuals at all times. All authorities, in their areas of competence, are obliged to promote, respect, protect and guarantee Human Rights; in accordance with the principles of universality, interdependence, indivisibility and progressiveness. As a consequence, the State must prevent, investigate, criminalize and rectify violations to Human Rights, according to the law.52 49 Corzo

and Corzo 2012 pp. 232–233. el estado de guerra existente, y a fin de fijar y dar a conocer la actitud de nuestro país en el actual conflicto, el gobierno que presido declara su resolución de permanecer neutral en la contienda, sujetando su conducta a las normas establecidas por el Derecho Internacional y a los preceptos contenidos en los tratados vigentes, que determinan al respecto tanto las obligaciones de México como la de los Estados beligerantes”. See El Informador—Diario Independiente, La neutralidad de México ha sido declarada oficialmente, 5 September 1939. 51 DOF, 10 June 2011. 52 Article 1—En los Estados Unidos Mexicanos todas las personas gozarán de los derechos humanos reconocidos en esta Constitución y en los tratados internacionales de los que el Estado Mexicano sea parte, así como de las garantías para su protección, cuyo ejercicio no podrá restringirse ni suspenderse, salvo en los casos y bajo las condiciones que esta Constitución establece. Las normas 50 “Ante

4.2 Rank of Human Rights Treaties

59

The aim of this reform was to grant human rights treaties a higher status and, by doing so, judicial interpretations should be made in adherence to them. Article 1º also provides that the most favorable law shall apply regardless of its source: national or international (pro personae principle).53 By granting international human rights treaties the same rank as the Constitution, the classical conception of constitutional supremacy was modified as well as the positivist view of denying legitimation to any source of law outside the Constitution.54 In fact, as we have seen from Article 133 CPEUM, human rights treaties already had the possibility of being applied directly without the need for a constitutional reform or a statutory ad hoc incorporation.55 So in terms of incorporation, Article 133 already provided for the legal standing of international treaties within the domestic legal order. Nevertheless, what Article 1º does provide is a new status to human rights treaties, overriding domestic legislation and assuming the rank of a constitutional norm. By means of the automatic incorporation provided by Article 1, international rules could then crystallize in state law, federal law or in interpretations made by the courts. In this sense, international human rights have become a source of law with constitutional significance. Regarding decisions of international organizations, there is no provision on their automatic or ad hoc incorporation. The SCJN decided on this point that decisions of the IACtHR in which the Mexican state was a party were binding whereas all other decisions had the character of “guiding principles” for the Mexican courts.56 According to this interpretation, judges must apply the criteria that gives the broader protection to an individual amongst: international treaties, constitutional rules, interpretations by IACtHR and national courts.57 Additionally, the new wording of Article 1º has to be interpreted in conjunction with Articles 133 and 15 of the CPEUM. As a result of this interpretation, it is relativas a los derechos humanos se interpretarán de conformidad con esta Constitución y con los tratados internacionales de la materia favoreciendo en todo tiempo a las personas la protección más amplia. Todas las autoridades, en el ámbito de sus competencias, tienen la obligación de promover, respetar, proteger y garantizar los derechos humanos de conformidad con los principios de universalidad, interdependencia, indivisibilidad y progresividad. En consecuencia, el Estado deberá prevenir, investigar, sancionar y reparar las violaciones a los derechos humanos, en los términos que establezca la ley. 53 Corcuera Cabezut already warned in 2006 that the pro homine principle could be deduced from Article 1 of the Constitution. See Corcuera Cabezut 2006, p. 167. 54 This position is not exclusive to Mexico. Other countries also face the dilemma of the hierarchy of treaties in their constitutional order. An example is the Switzerland, see Celik 2013. https:// www.juwiss.de/das-volkerrecht-geht-dem-widersprechenden-verfassungsrecht-vor/. Accessed 13 August 2020. 55 Cassese 2005, pp. 226–227. 56 SCJN, Tesis P. LXVI/2011, December 2011, p. 550. On this matter also see Carbonell 2013b. 57 “Decisions issued by the Inter-American Court of Human Rights when the Mexican state was not a party are guiding for Mexican judges as long as they are more favorable to the individual in terms of Article 1 of the Federal Constitution”. (translated by the author). The original can be found in: SCJN, above n 56, p. 550.

60

4 The Status of International Law in the Mexican Constitution

constitutionally banned to conclude treaties that alter human rights recognized by the Constitution or other international instruments. In terms of implementation, with the new rule of Article 1 CPEUM, if a federal or state law is contrary to a human rights treaty, national courts can automatically “unapply” the rule and apply the international rule directly.58 This ensures consistency of national legislation with international standards and most importantly, ensures respect for the fundamental rights of individuals at the national level on a case-bycase basis. Moreover, in case of conflict between national legislation and the Constitution or a treaty and the Constitution, judicial review is provided through Article 105(II) CPEUM.59 It follows that, under Article 1º, the Supreme Court should always prefer the rule which gives more protection to human rights. Authorities empowered to trigger the constitutional review of a treaty are: the Senate, the National Commission on Human Rights (CNDH) and the National Institute for Transparency, Access to Information and Protection of Personal Data (INAI-before IFAI).60 In summary, the CPEUM provides two practical filters of “constitutional control”, regarding international treaties. The first, exercised by the Senate, in discussing the approval of the treaty (Article 76(I) CPEUM) and the second, after ratification of the treaty, by means of judicial review. Related to this point, the second chamber of the SCJN issued a jurisprudence in which it stipulated that: “(…) international treaties should be presumed to be attached to the constitutional text until proven unconstitutional”.61

58 See,

generally, Caballero 2013. 105(II): The Supreme Court of Justice of the Nation shall resolve the cases related to the following topics in accordance with the provisions established by the applicable statutory law: II. Unconstitutionality lawsuits directed to raise a contradiction between a general regulation and this constitution. (…) Unconstitutionality lawsuits shall be initiated within the 30 days after publication of the regulation, they shall be initiated by: (…) b. Thirty-three percent of the members of the Senate against federal laws or laws enacted by the Congress and applicable to Federal District, or against international treaties signed by the Mexican State. (…) g. The National Human Rights Commission, against federal or state laws or laws enacted by the Federal District Government; as well as laws against international treaties signed by the President of the Republic and approved by the Senate, which hamper the human rights system established in this Constitution and in the international treaties that Mexico has ratified. Likewise, the human right protection organs, equivalent to the National Commission for Human Rights in the federal entities against local legislation issued by the Local Congress and the Federal District Commission for Human Rights against the laws issued by the Federal District Legislative Assembly (translated by the author). 60 Article 105(II) (h) CPEUM: The National Transparency Agency established in the 6th Article of this Constitution against federal, local laws and laws of the Federal District, as well as international treaties signed by the federal executive and approved by the Senate when these diminish the right of access to information and the protection of personal data. Likewise, the local transparency agencies (órganos garantes locales) may file an unconstitutional inquiry against the local laws enacted by the state legislatures or the Federal District Transparency Agency can do so against the laws enacted by the Federal District Assembly (translated by the author). 61 TRATADOS INTERNACIONALES DEBEN PRESUMIRSE APEGADOS AL TEXTO CONSTITUTCIONAL HASTA EN TANTO SE DEMUESTRE SU INCONSTITUCIONALIDAD EN LA VÍA PROCEDENTE. SCJN, Tesis: 2a. LXXXIV/2007, July 2007, Tomo XXVI, p. 384. 59 Article

4.3 International Law and Territorial Rights: Articles 27 and 42 of the CPEUM

61

4.3 International Law and Territorial Rights: Articles 27 and 42 of the CPEUM Articles 2762 and 4263 rule state property as well as territorial rights. Article 27 crystallizes some of the ideals of the revolution such as the end of large estates (latifundios) and the establishment of “community property” (ejido). Regarding international law, the relevance of these two articles relies on the fact that both recognize international law as such and as a whole. These articles do not limit acceptance only to treaties as in Article 133 and, therefore, it can be concluded that in terms of territorial rights, the Mexican legal order recognizes all sources of international law. Both articles were reformed in 1960 after ratifying the “Geneva conventions of the law of the sea”, and as a response to the evolution of international law on territorial limits.64 The mechanism of these two articles follows the rationale that the territorial limits are given by the international community and to the extent that the Mexican state exercises property rights. Some Scholars like Corzo Aceves and Dondé Matute65 argue that the recognition of international law as a source of law in these two articles is sufficient to prove the higher status of international law over the constitution. They also agree that such recognition proves that the Mexican approach to international law is “monist”. Dondé Matute adds to this interpretation the ruling of the SCJN66 in which customary law was incorporated as a source of domestic regulation of time zones and meridians. This decision, however, would amount to a particular case of application of customary international law and not full recognition of it. Additionally, as established in the previous sections, there is no constitutional clause on express recognition of customary law, such as contained within the 1996

62 Article 27. Ownership of the lands and waters within the boundaries of the national territory is vested originally in the Nation, which has had, and has, the right to transmit title thereof to private persons, thereby constituting private property. (…) The following elements are the property of the Nation: (…) the space located over national territory, according to the extension and terms established by International Law. (…) The following elements are the property of the Nation, according to the extension and terms established by International Law: waters of the territorial sea; internal sea waters; waters of lagoons and estuaries permanently or intermittently connected with the sea (translated by the author). 63 Article 42. The national territory is constituted by: (…) V. The waters of the territorial seas to the extent and under the terms fixed by international law and domestic maritime law. (translated by the author). 64 For example, the concept of the “continental shelf” defined in Convention on the Continental Shelf, adopted in Mexico, 27 December 1965. Convention on the Continental Shelf, opened for signature [29 April 1958], UNTC, entered into force [10 June 1964], Article 1. https://treaties.un. org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=XXI-4&chapter=21&clang=_en. Accessed 13 August 2020. 65 Dondé 2009, pp. 191–217. 66 SCJN, Controversia constitucional 5/2001, 4 September 2001, p. 146.

62

4 The Status of International Law in the Mexican Constitution

South African Constitution, which in its Section 232 establishes: “Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament”.67

4.4 Constitutional Restrictions on International Treaties: Contradicción de Tesis 293/2011 The constitutional reform concerning human rights raised the question of how to apply Article 1 of the CPEUM. Above all, there was doubt whether international treaties on human rights could derogate constitutional rules restricting these rights. As a result, the criteria of applicability68 and validity juxtaposed one another. In terms of applicability, the Court referred to the norms originating from the constitution and, for validity, to the human rights content. The debate that arose among the Collegiate Circuit Courts69 was resolved by the plenary chamber of the SCJN with the contradicción de tesis 293/2011. In this decision, resolved with 10 votes in favor and one against, the Court argued for a link between Article 1 of the Constitution and Article 133 (this could be considered redundant, since Article 1 expressly provides that human rights treaties are on the same hierarchical level as the Constitution). However, the SCJN sought to clarify that there are norms located in human rights treaties that, because of their content, would fall under the assumption of Article 133, which delegates them to an inferior position vis-a-vis the CPEUM.70 Similarly, the SCJN interpreted that the Constituent Assembly referred to all human rights norms contained in international instruments,71 (however, not the treaty as such) and, therefore, argued that human rights norms are incorporated into the Mexican legal system through Article 1 of the Constitution. In any case, the SCJN expressly linked both provisions, determining that the human rights norms in international treaties to which Mexico is a party, were inserted into the CPEUM according to Article 1. This resulted in what was called a “parameter of constitutionality control” consisting of: (a) constitutional rules and (b) human rights standards derived from international treaties. Likewise, this parameter should also consider the jurisprudence issued by the Inter-American Court even when the 67 Constitution of the Republic of South Africa, 1996. Another example of express recognition of generally recognized principles of international law is Article 15(4) of the Constitution of the Russian Federation. Article 15(4) stipulates: The universally-recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied. 68 In Spanish: vigencia y válidez. 69 Tribunal Colegiado de Circuito. 70 In this sense, what the SCJN meant is that not all norms in human rights treaties refer to core principles and, therefore, do not qualify to have the same rank as the Constitution. 71 SCJN, Contradicción de tesis 293/2011, Ejecutoria, 3 September 2013, p. 29.

4.4 Constitutional Restrictions on International Treaties …

63

Mexican State is not a party to the case.72 In this regard, ICL and Human Rights law converge as the IACtHR has played a role in monitoring prosecutions of international crimes.73 In this sense, the prosecution of core crimes under international law could indirectly be triggered by the IACtHR. Furthermore, if treaty based human rights are then ranked equally with the constitution, a way to protect and enforce them is through international crimes.74 Thus, under Mexican law, Article 1 CPEUM obliges the incorporation of core crimes in order to protect the underlying legal interests. In the same decision, somewhat contradictory to the arguments above, SCJN reaffirmed constitutional supremacy, by determining that the application of human rights treaty obligations was subject to explicit constitutional restrictions. According to the SCJN, this was in compliance with Article 1 CPEUM, which states that the execution of these obligations “cannot be restricted or suspended, except in the cases and under the conditions established by this Constitution”.75 The cases and conditions foreseen by the CPEUM are established in Article 29 (declaration of state of emergency), which refer to inter alia foreign invasion, and any “other” situation that could endanger the population or put it in conflict.76 However, Article 29 para 2 does not derogate all human rights, pointing as exceptions inter alia: political rights, the prohibition of slavery, torture, enforced disappearance, personal integrity and procedural rights.77 These exceptions follow Article 4 of the International Covenant on Civil and Political Rights, although not fully, since there is no mention of the “prohibition of imprisonment because of inability to fulfill a contractual obligation”.78 It is also 72 Ibid.,

pp. 65–66. Clapham 2016, p. 26. 74 For a look at the implementation of IHL by the IACtHR, see Buis 2008. 75 Artículo 1o. En los Estados Unidos Mexicanos todas las personas gozarán de los derechos humanos reconocidos en esta Constitución y en los tratados internacionales de los que el Estado Mexicano sea parte, así como de las garantías para su protección, cuyo ejercicio no podrá restringirse ni suspenderse, salvo en los casos y bajo las condiciones que esta Constitución establece. 76 Artículo 29. En los casos de invasión, perturbación grave de la paz pública, o de cualquier otro que ponga a la sociedad en grave peligro o conflicto, solamente el Presidente de los Estados Unidos Mexicanos, con la aprobación del Congreso de la Unión o de la Comisión Permanente cuando aquel no estuviere reunido, podrá restringir o suspender en todo el país o en lugar determinado el ejercicio de los derechos y las garantías que fuesen obstáculo para hacer frente, rápida y fácilmente a la situación; pero deberá hacerlo por un tiempo limitado, por medio de prevenciones generales y sin que la restricción o suspensión se contraiga a determinada persona. Si la restricción o suspensión tuviese lugar hallándose el Congreso reunido, éste concederá las autorizaciones que estime necesarias para que el Ejecutivo haga frente a la situación; pero si se verificase en tiempo de receso, se convocará de inmediato al Congreso para que las acuerde. 77 Article 29 para 2. En los decretos que se expidan, no podrá restringirse ni suspenderse el ejercicio de los derechos a la no discriminación, al reconocimiento de la personalidad jurídica, a la vida, a la integridad personal, a la protección a la familia, al nombre, a la nacionalidad; los derechos de la niñez; los derechos políticos; las libertades de pensamiento, conciencia y de profesar creencia religiosa alguna; el principio de legalidad y retroactividad; la prohibición de la pena de muerte; la prohibición de la esclavitud y la servidumbre; la prohibición de la desaparición forzada y la tortura; ni las garantías judiciales indispensables para la protección de tales derechos. 78 International Covenant on Civil and Political Rights, opened for signature [19 December 1966], UNTC, entered into force [23 March 1976], (ICCPR), Article 11. 73 See

64

4 The Status of International Law in the Mexican Constitution

important to note that the prohibition of genocide is not in the list of non-derogable rights of Article 29 CPEUM. Several scholars opposed this argument of the SCJN,79 arguing that the application of restrictions established in the Constitution left the pro personae (pro homine) principle ineffective as well as the hierarchy of human rights treaties.80 The SCJN standard is undoubtedly debatable, since it gives full recognition to the constitutional legislator, abandoning judicial control. In addition, the SCJN only addresses the restriction’s clause on human rights treaties without reflecting on its validity. Putting it simply, the Court’s argument is that: it is constitutional to derogate some human rights, because the Constitution says so. In other words, the core of the SCJN’s arguments is that restrictions are constitutional because they meet the formal criteria, without clarifying the contents and parameters that could justify the restriction of a human right. Scholar Christian Tomuschat points out that there are only a few absolute rights which are not subject to restrictions or limitations. The most well-known cases are the prohibition of torture, cruel, inhuman or degrading treatment and slavery.81 The prohibition of genocide (ius cogens rule) could be added to this. The criterion on constitutional restrictions was also drawn by the Inter-American Court of Human Rights in its ruling on Castañeda Gutman v. United Mexican States.82 This judgment elaborates upon the conditions and requirements when regulating or restricting rights or freedoms,83 all topics not being addressed in the decision of the SCJN. There was also no mention made of non-derogable provisions which apply to armed conflicts as well as to “public emergency”, doubt as to whether human rights law would apply in the case of armed conflict. We find here once again, a case where the SCJN drifts 79 See,

particularly, Ortega 2015, pp. 265–291; Silva 2014, pp. 251–272. were also those who spoke in favor, such as the former attorney and chief public prosecutor of the Fox administration. Rafael Macedo de la Concha applauded that the SCJN recognized Constitutional Supremacy, and called the internationalists who argued against the SCJN’s decision “unpatriotic”. Likewise, the former attorney warned that: “(…)we must take care of (…)the notion of national sovereignty that is leaving us economic globalization, along with social, religious, cultural and now legal globalization. We understand that we cannot draw back technological, commercial, social and even legal advances, but from the constitutional perspective, we must always preserve the sovereign freedom of the people of Mexico.” Finally, the former attorney expressed his approval of the constitutional restrictions in favor of the Arraigo and seizure in cases of organized crime, calling the SCJN decision “patriotic”. It appears that in some sectors, former officials, who did not necessarily have a function in PRI governments, were in favor of sovereign values against international treaties. Periódico el universal, La Suprema Corte y la soberanía nacional, October 2013. 81 Tomuschat 2014, p. 105. 82 IACtHR, Caso Castañeda Gutman v. Estados Unidos Mexicanos, Excepciones preliminares, fondo, reparaciones y costas, 6 August 2008, Case no. 12.535, p. 50. 83 The requirements to which the Court refers are: (1) legality of the restrictive measure; (2) purpose of the restrictive measure; (3) necessity in a democratic society and proportionality of the restrictive measure. These requirements are also found in the International Covenant on Civil and Political Rights, Articles 6(1), 9(1), 12(3) and 17(1), as well as in the following judgments of the European Court of Human Rights: Sunday Times v UK, no. 6538/74, 26 April 1979; Animal Defenders International v UK, 48876/08, 22 April 2013. See also UN Human Rights Committee 2011, paras 21–36. See also Tomuschat 2014, pp. 104–111. 80 There

4.4 Constitutional Restrictions on International Treaties …

65

from international law and doctrine, where it is well established that human rights law applies also in armed conflicts.84 That is, non-derogable rights such as the right to life must be protected in a state of emergency or during hostilities.85 Regarding the duration and geographical coverage of the state of emergency and derogations derived from it, there were no considerations made on this point.86 If, for example, the state of emergency is limited to a geographical point, should derogation of rights apply to the whole nation? Finally, what are the implications of constitutional restrictions in Mexican Law for international criminal law? Article 21, para 8, of the Constitution—which enables the jurisdiction of the ICC on a case-by-case basis—would be validated within the SCJN’s case of constitutional restriction. Having in mind the interpretations of the SCJN, the Senate’s power to approve or decline the jurisdiction of the ICC would be constitutional despite obligations derived from the signing and ratification of the Rome Statute, especially since the restriction of Article 21(8) CPEUM is jurisdictional and not a limitation or derogation of a human right.

4.5 Outcome For a better understanding of the tasks pending around the incorporation and implementation of ICL in Mexico, an analysis of the rank of international law in the Mexican constitution, as well as the interpretations related to it are necessary. The constitutional and interpretative background provide us with an interesting insight on the high value given to written law, sovereignty, constitutional supremacy and bare recognition of international customary law. In addition, the marginal historical remarks provide a framework by which the defense to sovereignty and constitutional supremacy can be better understood. This is helpful in order to trace the roots of the arguments made by the SCJN when applying statutory limitations to presumed international crimes or those made by the Senate when ratifying the RS. However, it should also be kept in mind that these arguments could have been highly instrumentalized for political purposes. Historical examples of the 20th century also remind that the protection of the revolutionary values was more ideological than constitutional.87 84 See International Court of Justice (ICJ), Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, para 106. https:// www.refworld.org/cases,ICJ,414ad9a719.html. Accessed 12 August 2020. Also see Sivakumaran 2012, pp. 83–100. 85 See ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, para 25, p. 226. http://www.refworld.org/cases,ICJ,4b2913d62.html. Accessed 12 August 2020. 86 These matters are discussed in UN Human Rights Committee 2001. 87 Early examples in which the “protection of the revolution” at the domestic sphere also took the form of oppression date to 1938, when Cardenas personally led operations against the insurrection of Cedillo. For the original quotation, see Carpizo 2010, pp. 122–123. It is important to note that Cedillo was an extreme right militant who acted against the expropriation of oil. Olga Pellícer also points to the repression of striking unions in 1958; see Pellicer de Brody 1968, pp. 361–362. The

66

4 The Status of International Law in the Mexican Constitution

The evolution of interpretations of Article 133 described above relate to the political dynamics and Mexican state practice during the twentieth and twenty first century. Article 133 of the Constitution is of particular relevance, since it represents the link between international and domestic law. It is important to remember that the PRI exercised a firm grip of control over all three branches of government, and this could have influenced the relationship between the executive and legislative and, consequently, shape the mechanisms for incorporating and implementing international law.88 If we add to this assumption that, Article 89, fraction X, cedes the control of foreign policy in the hands of the head of the executive, the interplay between internal political control and foreign policy becomes readily apparent. Thus, the explanations for a hierarchy of treaties in the domestic order is an expression of how states practice their own sovereignty when incorporating international law. Despite the various interpretations of Article 133, this provision did not create major conflicts within the domestic order since it identifies treaties as the “Supreme Law of the Union”, without being clear on what is understood by that.89 It was not until 1992 that the SCJN ruled that federal laws and international treaties have the same normative hierarchy.90 Moreover, the Court argued that even when a law and a treaty had the same hierarchy, the international treaty could not be a criterion for determining the constitutionality of a law and, at the same time, a constitutional norm could not repeal an international rule. According to the SCJN criteria,91 the Supreme Law of the Union would then be the Constitution and general laws, confirming constitutional supremacy. It can be concluded that the protection of Mexican sovereignty and the principle of constitutional supremacy have not only been anchored in the CPEUM but also safeguarded within the judicial interpretation of its precepts. The interpretations of Article 133 also reveal that the judiciary as well as the legislature seem unwilling to surrender sovereignty or subject sovereignty to international control. The interpretations of Article 133 CPEUM also hint at the values underlying state practice. In this sense, customary international law plays no relevance at the constitutional level; likewise, no reference was made to it in the different interpretations analyzed above. This confirms the view of Corzo Acéves, who highlights the lack of recognition of international customary law within the Mexican legal order.92

most well-known case of repression is the 1968 student protests in the Federal District, in which the army intervened at the order of President Gustavo Diaz Ordaz. 88 See Carpizo 2010. Related to this point, it is interesting to dissect the composition of the Senate from 1982–2006. From 1982 to 1988, the PRI had 100% of seats in the Senate. Its lowest representation was in the 60th legislature from 2006 until 2009 with 25.8% seats. In the early years of party alternation, the PRI had 46% of Senate seats and PAN 35.7%. See generally González 2007. 89 On these uncertainties, see Gómez 2003, pp. 48–49. 90 SCJN, Tesis aislada P.C/92, December 1992, p. 27. 91 SCJN, Tesis aislada: P. VIII/2007, registro 172667, tomo XXV, April 2007, p. 6. 92 See Corzo and Corzo 2012, pp. 220–234.

4.5 Outcome

67

Whereas other states recognize all norms of international law,93 only Articles 27 and 42 mention international law when it comes to territorial rights. The lack of recognition of customary international law by the judiciary and the legislative might be rooted in the idea that, for both powers, treaties entail some sort of legitimation that customary rules lack. The lack of recognition at the constitutional level might also be due to the uncertainty of customary international law given its unwritten character. However, this is not something particular to Mexico, since according to Cassese: “(…) most members of the international community tend to prefer treaties than custom.”94 Laying out the grounds of the positivistic approach of the Mexican legal system, it is desirable that incorporation through a legislative act be made in order to accomplish prosecution and punishment over core crimes of international law, especially when it comes to the definition of crimes. The new priority given to human rights norms and treaties within the Constitution is relevant to the main topic of this dissertation since ICL is an instrument to protect human rights.95 Therefore, given the new footing of human rights treaties, implementation of ICL should be consequent to it, especially if we follow the rationale that the criminalization of acts that contravenes a human right is the “(…)highest level of protection that a human right can achieve”.96 Additionally, as described above, Article 1 para 3 of the CPEUM provides for the criminalization of human rights violations: “(…) the State must prevent, investigate, criminalize and rectify violations to Human Rights, according to the law.” This provision supports the incorporation of the definition of crimes given by the RS within Mexico’s domestic law and with it, the complementarity principle. As we will see in the chapter related to the incorporation of war crimes, the preference of the Mexican legislator to codify over applying customary law can already be historically acknowledged, since as early as 1871 breaches to the customs of war were already criminalized.

References Becerra M (2008) Comentarios sobre las tesis P. ix/2007 y P. viii/2007 de la Suprema Corte de Justicia de la Nación, respecto de la jerarquía de los tratados en el orden jurídico mexicano. Mexican Yearbook of International Law 8: 861–866. 93 For example, Article 15(4) of the Russian Federation states: The universally-recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied. Likewise, in Article 17(1), a similar recognition to all norms of international law can be found: In the Russian Federation recognition and guarantees shall be provided for the rights and freedoms of man and citizen according to the universally recognized principles and norms of international law and according to the present Constitution. 94 Cassese 2008, p. 167. 95 Werle and Jessberger 2014, pp. 50–53. Also generally see Clapham 2016. 96 Werle and Jessberger 2014, para 144.

68

4 The Status of International Law in the Mexican Constitution

Buis E (2008) The Implementation of International Humanitarian Law by Human Rights Courts: The Example of the Inter-American Human Rights System. In: Arnold R, Quenivet N (eds) International Humanitarian Law and Human Rights Law. Towards a new merger in International Law. Martinus Nijhoff, Leiden/Boston, pp. 269–293 Burgoa I (2002) Las garantías individuales. Porrúa 35ed Mexico Caballero J (2013) Comentario sobre el Artículo 1º, segundo párrafo de la Constitución. In: Ferrero McGregor E et al (eds) Derechos Humanos en la Constitución Mexicana - Comentarios de Jurisprudencia Constitucional e Interamericana. Konrad Adenauer Stiftung, Mexico, pp. 47–84 Carbonell M (2012) Los derechos humanos en México durante el siglo XX: notas para su estudio. Revista Mexicana de Historia del Derecho XXVI: 121–145 Carbonell M (2013a) El Control de convencionalidad: un gran desafío para los juristas mexicanos. UNAM- Instituto de Investigaciones Jurídicas, Mexico Carbonell M (2013b) Teoría de los derechos humanos y del control de convencionalidad. IIJ-UNAM, Mexico Carpizo J (1969) La interpretación del artículo 133 Constitucional. Boletín Mexicano de Derecho Mexicano 4: 3–32 Carpizo J (2010) El Presidencialismo mexicano. Siglo XXI editores, Mexico Carpizo J (2012) La Constitución mexicana y el derecho internacional de los derechos humanos. Anuario Mexicano de Derecho Internacional XII: 801–858 Cassese A (2005) International Law. Oxford University Press, Oxford Cassese A (2008) International Criminal Law. Oxford University Press, Oxford Celik H (2013) Das Völkerrecht geht dem wiedersprechenden Verfassungsrecht vor. Völkerrechtsblog. https://www.juwiss.de/das-volkerrecht-geht-dem-widersprechenden-verfassungsr echt-vor/. Accessed 12 August 2020 Celik H (2016) Europäisches Mehrebenen-Legislativsystem. Beteiligung nationaler Parlamente und Auswirkungen auf die repräsentative Demokratie. Schulthess, Zürich Clapham A (2016) Human Rights and International Criminal Law. In: Schabas W (ed) The Cambridge Companion to International Criminal Law, pp. 11–33 Corcuera S (2006) La incorporación y aplicación de los Tratados Internacionales sobre Derechos Humanos en el sistema jurídico mexicano. Fontamara, Mexico Corcuera Cabezut S (2006) La incorporación y aplicación de los tratados internacionales sobre derechos humanos en el sistema jurídico mexicano. in: Guevara Bermudez JA et al (eds) Derecho Internacional de los derechos humanos. Fontamara, Mexico Corzo V, Corzo E (2012) La aplicación del derecho internacional en México. Instituto Nacional de Ciencis Penales-INACIPE-, Mexico Díaz Müller L T (2006) Derecho internacional de los derechos humanos. Porrúa, Mexico Dondé J (2009) El derecho internacional y su relevancia en el sistema jurídico mexicano. Una perspectiva jurisprudencial. Anuario Mexicano de Derecho Internacional 9:191–217 Estay-Martínez J (2013) The Impact of the Jurisprudence Inter-American Court of Human Rights on the Chilean Constitutional System. In: Reiner A (ed) The Universalism of Human Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol.16, Springer, Dordrecht/New York pp. 63–79 Gómez M (2003) La protección internacional de los derechos humanos y la soberanía nacional. Porrúa, Mexico González G (2007) Democratización y política exterior: ¿el fin del predominio presidencial? CideDocumentos de trabajo, división de estudios internacionales, Mexico Herman J (1922) Federalism in Latin-America. The Southwestern Political Science Quarterly 2: 318–334 IACtHR (1999) The right to information on consular assistance in the framework of the guarantees of the due process of law, Advisory Opinion, OC-16/99. https://www.corteidh.or.cr/docs/opinio nes/seriea_16_ing.pdf. Accessed 12 August 2020 Jiménez G (2006) Que la esclavitud se proscriba para siempre. In: Moreno (ed) La génesis de los derechos humanos en México. UNAM-Instituto de Investigaciones, Mexico

References

69

Martin C (2004) La Corte Interamericana de Derechos Humanos: funciones y competencia. In: Martin C et al (eds) Derecho Internacional de los Derechos Humanos. Fontamara, Mexico, pp. 209–277 Medellín X (2014) El principio de complementariedad de la CPI: una mirada normativa desde la realidad mexicana. In: Dondé J, Guevara J (eds) México y la Corte Penal Internacional. Tirant lo Blanch, Mexico, pp. 199–250 Ortega R (2015) El enfoque restrictivo de los derechos humanos: comentarios a la contradicción de tesis 293/2011. Cuestiones Constitucionales 32: 265–291 Pellicer O (1968) La revolución cubana en México. Foro Internacional - El Colegio de México VIII: 360–383 Perez L (1995) El artículo 133 constitucional: una relectura. Jurídica, Anuario del departamento de la Universidad Iberoamericana 25: 265–292 Rodríguez G (2013) El Artículo 15 Constitucional y los Tratados Internacionales. In: Ferrero McGregor E et al (eds) Derechos Humanos en la Constitución Mexicana- Comentarios de Jurisprudencia Constitucional e Interamericana. Konrad Adenauer Stiftung, Mexico, pp. 223–227 Salmon J (2011) Article 26 Pacta sunt servanda. In: Corten O, Klein P (eds) The Vienna Conventions on the Law of Treaties. Oxford University Press, Oxford Saltalamacchia N, Covarrubias A (2011) La trayectoria de los derechos humanos en la política exterior de México. Pórrua, Mexico Schaus A (2011) Article 27, Internal Law. In: Corten O, Klein P (eds) The Vienna Conventions on the Law of Treaties. Oxford University Press, Oxford Sepúlveda C (2009) Derecho Internacional. Editorial Porrúa, Mexico Sepúlveda R (2012) Cumplimiento o compromiso con los derechos humanos. In: Gutierrez J et al (eds) El caso Rosendo Radilla Pacheco. Ubijus, Mexico Serna de la Garza J (2012) Impacto e implicaciones constitucionales de la globalización en el sistema jurídico mexicano. UNAM, Mexico Silva F (2014) Derechos humanos y restricciones constitucionales: ¿reforma constitucional del futuro vs. interpretación constitucional del pasado? (comentario a la C.T. 293/2011 del Pleno de la SCJN). Cuestiones Constitucionales 30: 251–272 Sivakumaran S (2012) The Law of Non-International Armed Conflict. Oxford University Press, Oxford Tomuschat C (2014) Human rights, Between idealism and realism. Oxford University Press, Oxford Trachtman J (2010) International Law and Domestic Political Coalitions: The Grand Theory of Compliance with International Law. Chicago Journal of International Law 11: 127–158 UN Human Rights Committee (2001) CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, CCPR/C/21/Rev.1/Add.11. http://www.refworld.org/docid/453883 fd1f.html. Accessed 15 August 2020 UN Human Rights Committee (2011) International Covenant on Civil and Political Rights General Commentary No. 34, CCPR/C/GC/34. http://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf. Accessed 15 August 2020 Vázquez Z (2011) De la Independencia a la consolidación republicana. In: Escalante P et al (eds) Nueva Historia Mínima de México. El Colegio de México, Mexico Villarroel D (2004) Derecho de los tratados en las Constituciones de América. Editorial Porrúa, Mexico Werle G, Jessberger F (2014) Principles of International Criminal Law. Oxford University Press, Oxford

Part II

Incorporation of Major Sources of International Criminal Law: The Rome Statute and the Laws of War

Chapter 5

Mexico and the Rome Statute

Contents 5.1 Ratification of the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1.2 Mexico before the International Bodies of Justice . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Political Context of the Signing of the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Subscription, Signing and Ratification of the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . 5.4 Proposals of Statutory Law Incorporating the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 Preliminary Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Law of Cooperation with the International Criminal Court . . . . . . . . . . . . . . . . . . 5.4.3 Reform Bills of Article 21(8) CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Incorporation of Crimes under the Rome Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.1 Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Crimes Against Humanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

74 74 75 77 78 85 85 85 87 89 89 91 97

Abstract In this chapter, the discussion of the Rome Statute within the legislative power will be reviewed. The discussions and arguments made were not entirely new compared to the concerns raised vis à vis the International Court of Justice or the Inter-American Court of Human Rights. In this regard, a preference to argue in favor of national sovereignty could be identified. The deficiencies in how Mexico addressed the different concerns and implications of the Rome Statute can be also translated as a failure to see complementarity as a bridge between international obligations and domestic law. This approach, added to the defense of national sovereignty, led to Article 21(8) CPEUM. Additionally, if we take into account that Mexico was going through a “democratic transition”, the amendment of the Constitution was rather unfortunate. The political momentum was lost and, as a consequence, there are numerous tasks pending in order to comply fully with the RS. Some of these tasks relate to the obligation to cooperate and to prevent and punish core crimes. Finally, this chapter takes a close look at the definition of genocide under Mexican law in order to assess the way in which it deviates from the crime as defined in international law. As crimes against humanity do not constitute offences as such under Mexican criminal law, a review of offenses that could qualify as crimes against humanity will be made. Criminalization of all individual acts under Article 7 RS would not only follow the “fair labeling principle” but would also give the national legal system coherency, which could ultimately contribute to fighting impunity. © t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_5

73

74

5 Mexico and the Rome Statute

Keywords International obligations · Duty to prevent and punish · Cooperation · Fair label principle · Genocide · Crimes against humanity · Complementarity principle · Definition of crimes

5.1 Ratification of the Rome Statute 5.1.1 Introduction The description of the incorporation of international law in Chap. 2 showed that Mexico’s stance towards international treaties can be best described as nationalist monism or, in the words of Schmalenbach, as moderate monism.1 This entails that the existence of international treaties is admitted, but always on the condition that their validity is grounded in the Mexican Constitution. Once the formal and material requirements have been met, international treaties are integrated into the national legal order and are hierarchically situated below the Constitution (except in the case of human rights treaties). Therefore, to ensure a harmonic or holistic application of the content of the treaty, it is desirable to proceed with legislative incorporation to avoid conflicts with other domestic laws. Mexico’s stance towards international treaties raises some issues when it comes to implementing the Rome Statute. It is not a human rights treaty, but a treaty detailing the jurisdiction of the ICC.2 As a consequence, it is not governed by Article 1 of the Constitution and, therefore, is subject to constitutional restrictions.3 In practical terms, this means that the SCJN would decide on cases that raise contradictions between the RS and the CPEUM.4 An illustrative example of constitutional and treaty interpretation is provided by the Rosendo Radilla case, which will be further analyzed. In the next section, the debate prior to the ratification of the RS will be discussed with special emphasis on the contradictions argued by the Senate concerning the RS5 and the Mexican legal system. The narrative behind the discussions of the Senate will help us understand the rationale of Article 21(8) CPEUM. The amendment was thought as a constitutional mechanism to enable the ratification of the RS and, at the same time, would anchor the RS in the Constitution. However, strictly speaking, the fulfillment of material and formal conditions already transforms the treaty into 1 Schmalenbach

2012, p. 467. differentiation between International Human Rights Law and the Rome Statute is also formulated, although very briefly, by García Ramírez. See García and Morales 2013, p. 55. 3 See SCJN, Contradicción de Tesis 293/2011, contradicción de tesis, 3 September 2013, 293/2011, (CT 2011). For a critical view on this ruling, see Ortega 2015. 4 A possible scenario is that, at the time of approval of the ICC’s jurisdiction in a specific case, the Senate could argue one of the constitutional objections such as the principle of legality. In this case, the SCJN would decide through an Amparo if the exercise of jurisdiction by the ICC is constitutional. 5 For an account of the debate within the Senate, also see Flores 2005. 2 This

5.1 Ratification of the Rome Statute

75

“Supreme Law of the Union” (Article 133 CPEUM) and, therefore, there would be no need to specifically anchor it in the Constitution. The constitutional reform of Article 21 essentially increases the Senate’s and Executive’s power by granting both powers another say in the “case-by-case approval” of the ICC’s jurisdiction. After analyzing the constitutional framework as well as the State’s stance towards international law, I suggest that instead of introducing a new paragraph into the CPEUM, the most appropriate path would have been to introduce the crimes of the RS into the Federal Criminal Code (CPF), after ratification of the RS. Additionally, the nature of the Mexican penal system does not allow a court or public prosecutor to directly apply the RS;6 Article 14, para 3, of the Constitution prohibits the application of penalties that are not decreed by law and applicable to the offence in question. Furthermore, the RS regulates the jurisdiction of the ICC and formulates its procedure, but it is not criminal law strictu sensu, because it does not create substantive law.7 Altogether, these points suggest deficiencies in how Mexico addressed the different concerns and implications of the Rome Statute.

5.1.2 Mexico before the International Bodies of Justice When it comes to international bodies of justice and specifically to the establishment of the International Court of Justice (ICJ), a certain pattern of the Mexican state towards international courts can be observed, not only politically but also on the legal arena, with a high value always given to the notion of sovereignty. The best example of this pattern and tendency is the principle of non-intervention in the Mexican Constitution.8 This is readily apparent in the official statement made regarding the recognition of the jurisdiction of the ICJ in 1947. In exercise of the optional clause of the Charter of the United Nations (Article 36 [1]), Mexico clarified its position vis-à-vis the protection of human rights.9 It argued that the protection of human rights is considered such a delicate matter that it is only the Mexican state’s responsibility to safeguard it.10 6 Positions

against these arguments: Dondé and Montoya 2006, pp. 63–64. For these authors, once the constitutional requirements are fulfilled, it becomes “(...)part of Mexican Penal Law (...)”. In a later work, Dondé Matute departs from this position and notes that although the treaties are part of the Mexican legal system, the Chamber of Deputies does not intervene in the process of incorporation, casting doubt on the validity of the crimes contained in international treaties. The author concludes that it would be more appropriate to include these crimes in the Federal Criminal Code. Compare Dondé 2010, p. 121. 7 Triffterer 2008, p. 36. 8 The following scholars relate the central argument in favor of the protection of sovereignty with the colonial past, as well as with the war of independence and the interventionist wars: Perez Nieto 1995 pp. 284–285; García Ramírez 2003a, pp. 59–60; García Ramírez 2003b, p. 115. 9 See Appendix B. 10 The decree recognizing the jurisdiction of the ICJ as compulsory (DOF, 23 October 1947) holds that: “This declaration, which is not applicable to disputes arising from matters which, in the opinion

76

5 Mexico and the Rome Statute

Subsequently, in 1969, when the draft of the American Convention on Human Rights, or “Pact of San José”, was drawn up, Mexico was cautious regarding the establishment of an Inter-American Court, especially since the purpose of this court included punishing states if they failed to comply with their obligation to protect human rights. Mexico’s main observations regarding the draft of the Court were:11 • The confrontation between the Court and the accused state, “could injure the dignity of a state”. • The Court could not issue a judgment declaring a state guilty. • The establishment of a court would be premature. • Mexico would not support “any provision that was incompatible with the CPEUM”. The objections regarding the Convention12 and, above all, the jurisdictional powers of the Court, were relevant to Mexico, as far as it did not accede to the Convention until 1981, maintaining that constitutional principles prevailed over the provisions of the American Convention on Human Rights.13 It is also interesting and noteworthy that these were very similar arguments to those put forward in the debate on the Rome Statute in 2002 that defended the principle of non-intervention on grounds of absolute sovereignty. Nonetheless, Mexico’s interpretation of sovereignty was rather inconsistent. As described in the sections above, when it came to signing the NAFTA,14 it showed no reservations regarding the faculties of the arbitrary panels. In contrast, when admitting the contentious jurisdiction of the Inter-American Court in 1998,15 Mexico made a reservation upon signing arguing inter alia that the Court of the government of Mexico, are within the domestic jurisdiction of the United Mexican States” (translated by the author). 11 Organización de los Estados Americanos (OEA) 1969, pp. 99–103. 12 Note the expression cited above: “dignity of a state”. 13 This was pointed out by the Mexican delegate at the 1969 Inter-American Conference on Human Rights: “(...) the text of Article 133 of our Constitution gives the character of a constitutional norm, with all its validity and obligation to the treaties concluded in accordance with the Constitution, so that we cannot, at any time, support the parts of the project that are contradictory or incompatible with Mexican constitutional norms.” See the original quotation in: OEA 1969, p. 152. 14 In order to implement NAFTA, the “Law on the conclusion of treaties” (Ley sobre la celebración de tratados) was published in the DOF on 2 January 1992. Cossío and Rodríguez consider that the law should have provided the procedural rules, regarding the constitutional provisions on concluding treaties. Instead, in opinion of these two scholars, the main objective and focus of that law is to recognize the competence of the dispute settlement mechanisms in trade agreements that Mexico was negotiating at the time. See Cossío and Rodríguez 2003, p. 223. 15 Garcia Ramírez, argues that the objection to the compulsory jurisdiction of the IACtHR based on notions of sovereignty was not admissible, since the trend showed that the signing of treaties actually constitutes a form of exercising sovereignty; see García Ramírez 2003b, p. 64. García Ramírez further adds that “(...) in order to keep a symmetry with the United States of America, the jurisdiction of the Inter-American Court had not been admitted until then”. This symmetry is understood in that the US has signed but not ratified the American Convention on Human Rights. Consult the list of signatories and ratifications in: American Convention on Human Rights “Pact of San José, Costa Rica”, opened for signature (22 November 1969), OAS Multilateral Treaties, entered into

5.1 Ratification of the Rome Statute

77

could not apply its jurisdiction retroactively and that matters related to Article 33 of the Constitution could only be addressed by the Mexican state,16 therefore denying aliens the right to be heard before a court if they were expelled from the country by an executive decision.17

5.2 Political Context of the Signing of the Rome Statute The signing of the Rome Statute occurred just before the first president of the opposition (Vicente Fox), came to power. Much of the political agenda of President Vicente Fox was to boost Mexico’s position in the international arena and to show a distinct and multilateral approach to foreign policy.18 The idea was to display that the Mexican regime was now a different one, more engaged in democracy and human rights.19 For example, the then Chancellor Jorge G. Castañeda stated before the 57th General Assembly of the United Nations in 2002 that democratic change had occurred in Mexico, and with it, the willingness and ability to “(...)contribute to the goals of the international community”.20 As seen in the previous sections, prior to the PRI-PAN transition, the protection of sovereignty had been the core objective of Mexican diplomacy.21 For the new party in power, promoting itself in the international arena as a state that was willing to comply with international obligations was a form of legitimation and a way of showing internal political change.22 It is therefore not a coincidence that many human rights treaties were ratified in December 2001, in the first year of the Fox administration. The ratification of the RS was part of the foreign policy of the Fox administration and used to display Mexico’s democratization.23 Thus, the political situation was never better and more conducive to ratifying the RS without much delay and force (17 July 1979). https://www.oas.org/dil/treaties_B-32_American_Convention_on_Human_R ights_sign.htm. Accessed 13 August 2020. 16 However, on 30 May 2014, this reservation was withdrawn. Compare Nota de del gobierno de los Estados Unidos Mexicanos, Misión permanente de México, 14 July 2014. https://www.oas. org/es/sla/ddi/docs/tratados_multilaterales_interamericanos_B-32_mexico_reserva.pdf. Accessed 24 August 2020. 17 Article 22(6) of the American Convention on Human Rights stipulates the obligation on state parties to expel aliens only pursuant to a decision reached in accordance with the law. In contrast, before the reform of 2011, Article 33 of the CPEUM gave the executive the power to have an alien expelled without the need for a judicial decision. 18 For more details, see Sotomayor 2008, pp. 238–267. 19 Ibid., p. 241. 20 ICC-now 2002. 21 Sotomayor 2008, p. 250. 22 Ibid. 23 On the instrumentalization of paying tribute to international commitments, see Smith-Cannoy 2012.

78

5 Mexico and the Rome Statute

implementing the Statute in domestic legislation.24 However, this momentum for change and openness had to confront the notion of “protecting sovereignty” which had dominated politics for over seven decades and was, therefore, deeply ingrained in the national political identity. This is not entirely surprising, given that out of 128 Senators, 59 belonged to the PRI.25 The following section will describe the process of subscribing, signing and ratifying the RS by the Mexican state. It is worth noting that the Senate’s debate emphasized the protection of sovereignty, the protection of constitutional values and the principle of non-intervention. These conflicts and debates within the legislature support the claim that democratic transition in Mexico was, at best, incomplete.

5.3 Subscription, Signing and Ratification of the Rome Statute Mexico took an active part in the RS negotiations26 and attended the Plenipotentiary Conference in Rome. At the plenary session of the Diplomatic Conference of Plenipotentiaries of the United Nations,27 Mexico abstained from voting in favor of the RS.28 On 24 June 1998 the Secretary of Foreign Affairs (SRE) published a press release, outlining the following concerns:29 • The potential dependence of the ICC on the Security Council and the veto rights in that institution. • Poor definition of minimum procedural guarantees, which are in fact established in the CPEUM. 24 This view is also prominent amongst scholars like Ricardo Méndez Silva, who argued that a new regime was ideal to incorporate the Rome Statute. He was also aware that consensus between Congress and the legislatures of the states was needed. See Méndez Silva 2005, p. 248. 25 See Gonzáles 2007, pp. 6–7. 26 Flores 2003, p. 69. It should be noted that Socorro Flores Liera participated in the preparatory work for the RS and at the conference in Rome on 17 July 1998. 27 Sergio González Gálvez notes that in the process of negotiation and informal consultations, Mexico was always present, except in the last stage. See González 1999, p. 53. 28 Even Sergio Gonzalez Galvéz, who was then president of the Mexican delegation (accredited to the Plenipotentiary Conference in Rome in 1998), points out that Mexico suggested postponing the closure of the conference to enable the negotiation of remaining issues. Thus, when confronted with a text that did not solve issues of concern for the Mexican State, it had to abstain from voting. See González 1999, p. 53. This was also expressed by the author at the closing ceremony on 17 July 1998. See UN, Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 1998, p. 361. https://legal.un.org/icc/rome/proceedings/E/Rome% 20Proceedings_v2_e.pdf. Accessed 19 August 2020. 29 It is interesting to retrospectively look at the impressions that Mexican officials had with respect to the RS. In this sense, Sergio González Gálvez pointed out how some countries wanted the Statute to be signed at all costs with non-governmental organizations holding the same position. See González 2001, p. 15.

5.3 Subscription, Signing and Ratification of the Rome Statute

79

• The crime of aggression should be disassociated from the Security Council, since a permanent member of the Council could never be prosecuted for that crime. It is important to note that one of the paramount concerns of the Mexican state30 vis-à-vis the RS was that the ICC could be subordinated to an international body such as the UN Security Council and that in turn, the five permanent members of the Security Council could make use of their veto capacity.31 Above all, the main concern was that the accused would be deprived of the right to an impartial tribunal. González Gálvez himself pointed out that the Mexican delegation has made it clear that the UN General Assembly, exercising its powers established in the UN Charter, should have similar competence as the Security Council regarding the functions of the ICC (such as referring a case to the ICC).32 Another noteworthy observation of Gonzalez Galvez is his concern about the ICC being politicized as well as the danger that only members of developing countries would be trialed.33 He, furthermore, questioned the entitlement of the Security Council to define the crime of aggression.34 Similarly, Mexico was concerned that weapons of mass destruction (chemical, biological and nuclear weapons) were not included in the wording of the Statute.35 The possible incorporation of illegal drug trafficking and terrorism as international crimes was also considered problematic. On the constitutional level, substantial discrepancies emerged, such as the prohibition of ad hoc tribunals (Article 13 CPEUM), the exclusive powers of the public prosecutor36 (Article 21 CPEUM), and

30 On a thorough analysis on the incompatibilities between the Mexican Constitution and the Rome Statute, see Flores 2005, pp. 189–195. 31 This concern was also noted by Jorge G. Castañeda, former Minister for Foreign Affairs, in his address to the 57th General Assembly of the United Nations in 2002 and on the occasion of Security Council Resolution 1422. By means of this resolution, the staff of non-party states enjoy immunity if they are involved in missions established or authorized by the United Nations. This immunity was renewable for a period of 12 months. This resolution was also invoked by Deputy Tarcisio Navarrete Montes de Oca, in a letter addressed to President Vicente Fox, pleading for voting against resolution 1422. The letter can be consulted in PG Action 2003. https://www.pgaction.org/pdf/pre/ navarrete.pdf. Accessed 13 August 2020. 32 González 1999, pp. 56–57. 33 Ibid., p. 67. This statement could not have been less premonitory, as the ICC has mainly dealt with cases whose nationals are from African countries such as Uganda, Democratic Republic of Congo, Kenya, Libya and Mali. On the matter, see Dersso 2016, pp. 61–77. See, generally, Tosa 2018, pp. 45–70. 34 González Gálvez 1999, p. 13. 35 Mexico made this point again in the 8th Review Conference, in which it submitted a draft amendment to Article 8 (2) (b) of the Statute, which included the use of nuclear weapons as a war crime. The amendment was relegated by lack of consensus. For more on this subject, see Alamuddin and Webb 2010, pp. 1219–1243. 36 Monopolio de la acción penal.

80

5 Mexico and the Rome Statute

the prohibitions of trials in absentia.37 Yet, in the end, and in spite of these objections,38 former President of the Republic, Ernesto Zedillo Ponce de León, subscribed ad referendum the Rome Statute on 7 September 2000. This further required interpretation of constitutional law in order to accomplish conformity with the RS as well as to avoid constitutional conflicts. The first step to harmonize the incompatibilities of the RS with the CPEUM, was to form an “inter-secretarial working group”,39 which concluded that the best way to comply with an absolute sovereignty notion was through a constitutional reform.40 However, the “inter-secretarial working group” failed to envisage the principle of complementarity as a solution to sovereignty concerns and as a bridge between domestic orders and the ICC’s duty to prosecute core crimes.41 The “inter-secretarial working group” presented a draft to Congress on 6 December 2001.42 Once the session began in September 2002, the Ministry of the Interior sent the RS to the Permanent Commission of the Senate for discussion and approval.43 As Ricardo Mendez Silva points out, the original idea of sending the constitutional reform first, so that the Statute could be implemented without contradictions would have been the most appropriate course of action.44 However, Congress delayed considering the constitutional reform. The draft sent to Congress on 4 December 2001 reads as follows: Article 21.- The jurisdiction of the international tribunals established in treaties to which the United States of Mexico is a party shall be recognized in the terms and in accordance with the procedures established in those treaties. In criminal cases, the procedures carried out by such courts, as well as compliance with their decisions and judgments, shall be recognized and enforced by the Mexican state in accordance with the provisions of the respective international treaty. Resolutions, as well as irrevocable judgments issued by such courts, shall enjoy binding force; the administrative and judicial authorities of the federal, common and military courts shall guarantee their compliance with the laws.45

In its preamble, the draft highlights the foreign policy principles inscribed in Article 89 of the Mexican Constitution.46 Following the reasoning of Article 89 CPEUM, the executive considered ratifying the Rome Statute upon amendment of 37 From the account of González Gálvez, it follows that Mexico’s position was to continue striving to solve some of the problems that prevented it from voting in favor of its adoption. See González Gálvez 1999, pp. 66–67. 38 The then head of the Ministry of Foreign Affairs (SRE), Rosario Green, also expressed these incompatibilities, see Periódico Reforma-Editorial, 13 September 1998. 39 Flores 2003, p. 74. 40 Ibid. 41 See Kleffner 2008, p. 96. 42 Flores Liera 2003, p. 74. 43 Méndez Silva 2005, p. 229. 44 Ibid., pp. 247–248. 45 Senado de la República 2001a, 2001b. 46 Among the principles inscribed through constitutional reform in 1988 are: self-determination, non-intervention and the pursuit of international peace and security. See DOF, 11 May 1988.

5.3 Subscription, Signing and Ratification of the Rome Statute

81

the Constitution. In addition, this draft incorporates one of the objectives of the “National Development Plan for 2001–2006” regarding full compliance of Human Rights obligations.47 Likewise, the executive’s draft reckoned that the amendment had to be inserted in Article 21 of the Constitution, since Article 21 confers the power to investigate crimes.48 Finally, it is also noteworthy that the decree stated the need to “implement and (...) harmonize domestic legislation with international obligations”,49 and thus break with previous patterns of not incorporating principles of international law in domestic law by the judiciary. The draft was discussed in the Senate a year later, in December 2002, causing extensive debate. The discussions of this draft in the Senate reveal that the major concern regarding the ICC was its power to exercise jurisdiction over persons for the most serious crimes.50 The Senate also deliberated on the risk of granting a “supranational” body the power to prosecute and judge Mexican nationals through a treaty that was too vague on the procedural guarantees for Mexican citizens and that, therefore, could not guarantee the impartiality of the Court.51 In contrast, undisputed in the Senate, were issues concerning foreign nationals with a link to the Mexican state (ratione loci) and universal jurisdiction.52 Senators also failed to notice that domestic criminalization of crimes against humanity and war crimes were required to fully comply with the RS. Despite the shortcomings in the debate, it is fair to say that the executive’s initiative complied with the efforts to fight impunity for core crimes, as it admitted the court had jurisdiction over all cases and also obliged administrative and judicial authorities to comply with the resolutions, not only of the ICC, but international tribunals as a whole.53 The amendment proposed by the executive also complied with the acceptance of the contentious jurisdiction of the IACtHR,54 and could have avoided the

https://www.diputados.gob.mx/LeyesBiblio/ref/dof/CPEUM_ref_117_11may88_ima.pdf. Accessed 20 August. 2020. 47 See Senado de la República 2001a, b, p. 2. 48 Against this position, scholars García Ramírez and Mendez Silva point out that it would have been better to insert this provision in Article 13 CPEUM (equality before the law). See García Ramírez 2003, p. 142; Méndez Silva 2005, p. 246. In this sense, even if Article 21 CPEUM delegates the investigative powers to the Public Prosecutor (Ministerio Público) and this could justify the insertion of the proposed provision, the ICC has not only investigative but also jurisdictional functions. 49 Senado de la República 2001a, b, p. 2. 50 See the legislative debate on the incorporation of the Rome Statute: Senado de la República 2001a, b, 2002a, b, 2005. 51 Former Senator Manuel Bartlett Díaz argued in the debate of 14 December 2002, that the ICC was a tribunal subjected to the world powers: “(…) Estamos frente a un tribunal, una corte algarete y, o digo yo, sometida a la violencia y a la fuerza de las potencias y al re-juego de la política, el poder”. See Senado de la República 2002b, p. 13. 52 See the legislative debate on the incorporation of the Rome Statute: Senado de la República 2001a, b, 2002a, b. 53 Regarding the suitability of this initiative, see also García and Morales 2013, p. 55. 54 For the need to harmonize the CPEUM with other international jurisdictions, in light of potential future conflicts, see ibid., pp. 54–56; García Ramírez 2003, p. 131.

82

5 Mexico and the Rome Statute

numerous debates and complicated arguments of the SCJN regarding the judgment of the IACtHR in the Radilla case.55 By reading the deliberations, it can be concluded that, the parliamentary sessions crystallized the cleavage between the PRI, PAN and PRD. The PRI took the most conservative position,56 with Senator Bartlett (PRI) advocating that the RS should not be signed, because it violated constitutional sovereignty and due process. Senator David Jiménez Gonzalez, from the same party, argued that: “(...)we are facing a flagrant violation of our charter and our status as a free, sovereign, independent and democratic state.”57 The PRD maintained a position more in line with the nature of the RS, proposing the following text: The Mexican state fully recognizes the complementary jurisdiction of the International Criminal Court, in the terms and conditions established in the Rome Statute and in its regulatory law.58

The proposal of the PRD accepted the jurisdiction of the ICC in all cases. The way the PRD’s Senators formulated their speeches reflects how they had a better understanding of the content and scope of the RS.59 PRD Senator, Raymundo Cárdenas Hernández, for example, not only pointed out the importance of the RS for the democratic transition of the country, but also stressed the importance of conceding legitimacy to supranational institutions, such as the ICC.60 In contrast, the PRI casted serious doubts about the impartiality of the ICC since it depended on the Security Council, which, in turn, provided states, such as the United States of America, practical immunity. As evidence of their concerns they cited Security Council Resolution 1422, which granted immunity from the ICC, to personnel from non-party states and those involved in missions established by the United Nations.61 The parliamentary faction of the PRD, for its part, questioned the decision to accept the jurisdiction of the ICC on a case-by-case basis only, arguing that prior approval by the Senate subjected the process to politicization. The PRD also argued that the judicial branch should resolve a jurisdictional matter such as the ICC, in this way, the influence of the executive and legislative would be excluded.62 55 As

for the arguments of the SCJN on the binding effect of this judgment, see Cossío 2014, pp. 803–834. Further discussion on the Radilla case will follow in Chap. 7. 56 The arguments of the PRI party should also be pondered, i.e. bearing in mind their 70-year rule. They were perhaps also concerned that their policies would be scrutinized by an international court. 57 Translated by the author. See Senado de la República 2002b, p. 7. 58 Translated by the author. See the proposal of Senator Jesús Ortega Martínez, Ibid., p. 4. 59 See Sect. 5.2 in this chapter. 60 Senado de la República 2002b, pp. 19–20. 61 The Senate was concerned that Mexico would support this resolution as a non-permanent member of the Security Council. PRI, PRD and PVEM senators described Mexico’s position as a subordinate behavior and in contradiction to the International Criminal Court. The senators’ criticism of this resolution can be found in: Periódico El Universal (2002) Critican entreguismo de México en la ONU. https://archivo.eluniversal.com.mx/nacion/87101.html. Accessed 13 August 2020. 62 In contrast, scholars Dondé Matute and Montoya Ramos hold the opinion that the competent authority to recognize the jurisdiction of the court would be the public prosecutor (executive branch).

5.3 Subscription, Signing and Ratification of the Rome Statute

83

In sum, the two positions at the debate were the PRD arguing for internationalization of the Mexican state, while the PRI expressed a fear of “the invasion of Mexican sovereignty”.63 Altogether, the Senate also concluded that the RS was contrary to various constitutional provisions, but necessary in order to display the redemocratization of the country, as well as to make evident that the new government was committed to respecting human rights. From the Senator’s debate, it is also clear that what they wanted to ensure was the supremacy and exclusiveness of domestic jurisdiction over the jurisdiction of the ICC. As expected, the PRI showed the most interest in maintaining the status quo.64 The resulting remedy of the discussions was adding paragraph five (now eight) to Article 21 of the Constitution. The goal was to preserve the Mexican Constitution and “(...)safeguard Mexican citizens’ rights (...)”.65 The discrepancies between the factions in the Mexican Senate also exemplify the lack of cohesion and inability to deliver reforms in line with the democratic transition once a leader of an opposition party was elected.66 Strangely, even though the first constitutional bill—which was also the most progressive one—was introduced by president Fox, the draft that was finally approved, came from a senator of the PAN party.67 The difference between the text of the bill proposed by the executive and that of the PAN senators proves that the foreign policy criteria was not uniform within the party. Additionally, the wording of the approved constitutional bill conditions the jurisdiction of the ICC to executive and Senate approval, colliding with the complementarity principle of the RS. Lastly, the difference between the bill from the executive (Ministry of Foreign Affairs) and the Senate confirms what scholar, Ricardo Méndez Silva, called a “disturbed relationship” between the Ministry of Foreign Affairs and the Congress of the Union.68 Surely, these disagreements prevented then chancellor, Jorge G. Castañeda, to participate in the so-called “group of democracies that defended human rights”.69 The text of the amendment proposed by PAN Senators,70 which was eventually approved by the Chamber of Deputies and state legislatures reads as follows:

They also consider that the current eighth paragraph of Article 21 CPEUM invades the competences of the judicial branch and the executive branch. See Dondé Matute and Montoya Ramos 2006, pp. 63–64. 63 See Senado de la República 2002b. 64 See the PRI’s position in Senado de la República 2002b. 65 Cámara de Diputados 2005, p. 7. 66 The phenomenon of a divided government during the alternation and its repercussions for foreign policy is addressed in González 2007, pp. 1-38. 67 See the proposal of Senator César Jáuregui Robles in: Senado de la República 2002b, pp. 5–7. 68 Méndez Silva 2005, p. 228. 69 Ruiz 2008, p. 67. 70 Dissenting the PAN main position, Senator Javier Corral stated that voting for the reform would openly contradict with the ratification of the International Criminal Court.

84

5 Mexico and the Rome Statute The Federal Executive may, with the approval of the Senate, recognize in each case, the jurisdiction of the International Criminal Court.71

PRD Senators argued against this proposition by highlighting: (a) the use of the Senate for political purposes; (b) politicization of acceptance of ICC jurisdiction; (c) partial acceptance of the jurisdiction of the ICC; and (d) collision with Article 104 of the Constitution, i.e. jurisdiction of the Federal Courts regarding crimes of the federal order.72 It is true that the RS presented solid and objective contradictions with the Mexican constitutional order. However, it is also clear that there was no consensus in the political field regarding the ratification of the RS and the reforms that this required.73 As can be noted from the previous account, Mexico took two years to sign the RS and then three years to ratify it, with it entering into force on 1 January 2006. The latter prevented Mexico from participating in the selection process of judges.74 It is also remarkable that, despite the inclusion of war crimes in the RS, the Senate made no references to military jurisdiction, the definition of war crimes in domestic law, nor did they address the definition of internal conflict since Mexico is not part of Additional Protocol II to the Geneva Conventions. This entire deliberative process ended with the approval from both chambers of the federal legislature and state legislatures. The approval of the constitutional bill was published in the Official Gazette of the Federation (DOF) on 20 June 2005,75 and the fifth subparagraph (today eighth) was officially inserted into Article 21 of the Constitution. Ratification of the RS followed on 7 September 2005.76

71 See

Chap. 3. Chap. 6. 73 Scholar Arturo Sotomayor draws criticism on the positions taken by the parliamentary factions of the PRI and PAN, emphasizing that these were characterized by being much more conservative with respect to recognizing the jurisdiction of a “foreign” court (emphasis added). See Sotomayor 2008, pp. 238–267. Likewise, Ricardo Mendez Silva emphasizes “the exacerbated interpretation of the principle of non-intervention”, by the Mexican authorities, see Méndez 2005, p. 228. But not only the parliamentary factions were reluctant to accept the jurisdiction of the Court, jurists themselves, even those in the highest Court, in the SCJN, voiced critique. Then Justice of the Court, Juventino Castro y Castro, was convinced that the ICC was “a trap to sovereignty”. Among the drawbacks he expressed are: the overreach of international sovereignty, the problems that would bring to the Amparo suit, and the lack of procedural guarantees for accused Mexicans. See Periódico La Jornada (2002) La Corte Penal, trampa a la soberanía. https://www.jornada.com.mx/2002/04/15/052n1con. php?origen=index.html. Accessed 7 August 2020. 74 Sotomayor 2008, p. 259. 75 DOF, 20 June 2005. https://www.dof.gob.mx/nota_detalle.php?codigo=2051466&fecha=20/06/ 2005. Accessed 19 August 2020. 76 DOF, 9 July 2005. 72 See

5.4 Proposals of Statutory Law Incorporating the Rome Statute

85

5.4 Proposals of Statutory Law Incorporating the Rome Statute 5.4.1 Preliminary Considerations Article 21, paragraph eight, of the Mexican Constitution has given rise to both the drafting of a “regulatory law” and initiatives to reform the constitutional article itself. The most relevant are briefly stated and analyzed below.77 The failure to enact the law on cooperation as well as the amendments to Article 21(8) CPEUM prove that there are numerous pending tasks that have to be performed in order to ensure that the Mexican state complies fully with its obligations. In this regard, the contradictions between Mexico’s discourse in the international arena and the reality within the domestic legal order could not be more disparate. These contradictions are evidenced with Mexico’s interventions at the ICC’s Assembly of States Parties.78

5.4.2 Law of Cooperation with the International Criminal Court This bill was approved on 15 December 2009 by the Senate and turned over to the Justice Commission of the Chamber of Deputies, where it was rejected on 3 February 2016, as they considered the initiatives presented before September 2012 outdated from the current legal framework.79 As a result, Article 21(8), has no secondary law that could ensure cooperation with the ICC. In this regard, Article 88 RS stipulates that state parties shall ensure procedures under domestic law for all forms of cooperation. The question arises whether the Statute obliges state parties for a specific piece of legislation or legislation in more general terms. Due to the different constitutional approaches of state parties, the RS is not entailed to impose a specific form of cooperation.80 This reasoning leads to the thinking that state parties should anticipate and 77 See also the recommendations for implementation of the Rome Statute made by the Mexican NGO: Comisión mexicana de defensa y promoción de los derechos humanos. (CMDPDH). See CMDPDH 2006. https://cmdpdh.org/publicaciones-pdf/cmdpdh-manual-para-la-implementaciondel-estatuto-de-roma-en-la-legislacion-mexicana.pdf. Accessed 15 August 2020. 78 As samples of this contradictory discourse, see the interventions of the Mexican delegation during the ICC-Assembly of States Parties in 2014 and 2018. In the intervention of 2014, the delegate somehow misinterpreted the complementarity principle by comparing it to the cooperation agreement between the Inter-American Commission on Human Rights and Mexico in the Ayotzinapa case. With it, the delegate wanted to prove Mexico’s engagement with international justice, whereas in the intervention of 2018 the Mexican delegate stressed the training of 500 judges with regards to the incorporation of the RS in the domestic legal system as well as on the jurisprudence of the ICC. These two points are arguable since there have been no legal measures to incorporate the RS. See ICC Assembly of State Parties 2014, p. 2; ICC Assembly of State Parties 2018, p. 2. 79 See Diputados 2012, p. 3. 80 Hiéramente 2019, Article 88.

86

5 Mexico and the Rome Statute

make proper legislative arrangements in order to avoid obstacles to cooperation. This last point was indeed confirmed by the ICC in the Kenyatta case, in which it asserted that when assessing a failure to cooperate under 87(7) RS, the Trial Chamber would consider if “(…) bona fide arrangements were made in order to overcome difficulties encountered”.81 Additionally, if a requested state does not comply immediately with a request, it may not amount to non-compliance, since the ICC can further consult and negotiate with the required state and, after a reasonable time, compliance by the state would be required.82 Article 88 RS also poses the question if the mere inaction of a state merits a finding of non-compliance. However, non-compliance would only qualify in a particular case, namely, if within the case the state fails to comply with a request for cooperation.83 We should also remember that the Pre-Trial Chamber has already decided that practical or administrative difficulties do not prevent the execution of a request;84 therefore, they are not obstacles for compliance. Overall, it can be said that Article 88 RS has as objective: the elimination of barriers and domestic procedural obstacles to the jurisdiction and state cooperation with the ICC. In this way if, states make procedures available, prompt implementation would occur and the “(…) ICC would avoid interpreting national legislation”.85 Related to this matter, in case a state cannot comply with a request by the court on a basis of “an existing fundamental legal principle of general application”, the state must inform the Court in order to create a remedy for such deficiencies (Article 93, para 3). The rationale behind this provision is that the obligation to cooperate cannot be limited by domestic law.86 Regarding the Mexican case, since the initiative was rejected, its main characteristics will be described. The model of the law initiative follows the model of Article 21(8) and the notification made by the Mexican state to the RS, in the sense that all requests for cooperation will be transmitted through diplomatic channels to the Secretary of Foreign Affairs (SRE).87 The cooperation mode envisaged in the initiative involves the three branches of government and differentiates between the cases that will be subject to the approval of the Senate and other cases of cooperation. The first being: “(...) the procedures in which the Court investigates and prosecutes

81 ICC,

The Prosecutor v. Uhuru Muigai Kenyatta, Decision on Prosecution’s Application for a finding of non-compliance under Article 87 (7) of the Statute, 3 December 2014, ICC-01/09-02/11982, para 41. 82 Ibid., para 40. 83 Hiéramente 2019. 84 ICC, The Prosecutor v. Uhuru Muigai Kenyatta, Public Decision on the Prosecution’s revised cooperation request, ICC-01/09-02/11-937, para 34. 85 Hiéramente 2019. 86 See Kreß and Prost 2008, paras 35–38. 87 Regarding the Secretary of Foreign Affairs as channel between the Mexican state and the ICC see Mexico’s notification in: Rome Statute of the International Criminal Court, opened for signature (17 July 1998), United Nations Treaty Collection, entered into force (1 July 2002) (Rome Statute). https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&cha pter=18&lang=en#EndDec. Accessed 7 August 2020.

5.4 Proposals of Statutory Law Incorporating the Rome Statute

87

crimes that are competence of the Mexican state according to the applicable legislation” (Article 6). Following the wording of this article and the analysis made in Chap. 3, the only cases subject to the approval of the Senate would then be those of genocide, since Mexico has not yet incorporated crimes against humanity and most war crimes, leaving only genocide as a crime that falls under the competence of the Mexican state. However, the legislative initiative implies that, in cases in which the Mexican state is not competent, the Secretary of Foreign Affairs would receive the requests for cooperation and turn them over to the district judge, who would then have the competence to hear the requests for cooperation. The federal prosecutor (Procurador Federal de la República) is also included in this cooperation model, for cases such as surrender to the Court, interrogations, searches, assurances, notification of summonses, among others. Given the reform of the criminal justice system of 200888 and the issuance of the National Code of Criminal Procedure in 2014,89 it is plausible why the “Law of Cooperation with the ICC” was dismissed. Future legislation has to address this matter in order to achieve timely collaboration with the ICC. Given that there are no guidelines to follow requests of cooperation, general rules of criminal procedure would apply and, specifically, the International Act on Extradition.90 Above all, it is advisable to exclude the executive power and leave matters of cooperation to the judicial branch.

5.4.3 Reform Bills of Article 21(8) CPEUM Several reform bills have been proposed by the legislative, regarding Article 21 (8) CPEUM. Those reviewed91 agree on how the actual constitutional provision obstructs the jurisdiction and cooperation with the ICC, some naming it a “covert reservation”.92 Further arguments were made with regard to the preemptive character 88 Published

in the DOF, 18 June 2008. second transitional article of the Code states that the entry into force of the Code will be no later than 18 June 2016. See DOF, 5 March 2014. 90 Ley de Extradición Internacional, DOF, 29 December 1975. On the application of the International Act on Extradition see Dondé and Montoya 2006, p. 64. 91 The initiatives consulted were: (a) Iniciativa que reforma el Artículo 21 de la Constitución Política de los Estados Unidos Mexicanos, presented by the PRD parliamentary group in February 2016; (b) Iniciativa Reforma Artículo 21 Constitucional párrafo octavo, presented by deputy Ricardo Monreal on 12 February 2013; and (c) Reforma al Artículo 21 constitucional sobre las reservas al Estatuto de Roma de la Corte Penal Internacional, presented by Senator Layla Sansores on 8 October 2013. 92 See the initiative presented by Senator Layla Sansores 2018. This initiative also criticized the contradictions between all branches of power; while the head of the executive and the foreign office promoted the creation of the Court, the signing of the RS as well as the recognition of an international order, the Legislature openly rejected the ICC’s jurisdiction. However, this could also be interpreted as a normal exercise of the division of powers. Such contradictions can also be found 89 The

88

5 Mexico and the Rome Statute

of the RS,93 which would be reduced or void by the current Article 21(8). In a nutshell, the proposals suggest either to derogate94 the provision or to simply accept the jurisdiction of the ICC in broader terms, for example, with the following proposed amendment: The Mexican state fully recognizes the jurisdiction of the ICC in the terms set forth in the 1999 Rome Statute. Transitory Articles: First. This decree will enter into force the day after its publication in the Official Gazette of the Federation. Second. The Congress of the Union, within a maximum period of six months, counted from the entry into force of this decree, shall issue the regulatory law of Article 21, paragraph eight, of the Constitution.95

Note how the second transitory feature’s compliance with Article 88 RS by stipulating the issuance of a law that would ensure that procedures are available for all forms of cooperation with the ICC. A more elaborate proposal was presented on 3 February 2016,96 which seeks to facilitate the complementary jurisdiction of the Court and to combat impunity for the most serious crimes. Furthermore, the proposal also points out that by virtue of Article 1 of the Constitution, human rights treaties are at the same hierarchical level as the Constitution. The legislators refer to recent jurisprudential criteria of the SCJN, which address the obligatory character of decisions issued by international tribunals.97 The draft also highlights Mexico’s context of high levels of violence, as well as references to the UN, which report Mexico having the second highest impunity rate in the world. The draft, therefore, also claims the need for a legal framework of cooperation. In order to eliminate the discretionary powers of the Senate regarding the ICC jurisdiction (which could lead to a breach of an international obligations), the draft proposes the following text to replace the present eighth paragraph of Article 21 CPEUM: The Mexican state recognizes the jurisdiction of the International Criminal Court in terms of the provisions of the Rome Statute of the International Criminal Court.

in the US stance towards the ICC. Compare Schaeffer and Cox 2008, pp. 983–1068; Oler 2017, pp. 1002–1017. 93 On the positive effect on general deterrence due to the ICC, see the contribution of Sadat 2003, pp. 216–217. 94 Sansores 2013. 95 See Monreal Ávila 2013. 96 See PRD 2016. 97 It should be noted that the Supreme Court’s decision CXLIV / 2014 (10a), to which the initiative refers to, only mentions judgments “(...) against the Mexican state”. As we know, the ICC points to the criminal responsibility of individuals and not of states, so that this case is not final regarding the ICC. A different question would have been if the SCJN had explicitly pointed out to the ICC judgments.

5.4 Proposals of Statutory Law Incorporating the Rome Statute

89

The draft also suggests the issuance of a regulatory law within a period no longer than six months, as well as modifications of secondary legislation that affect: criminal matters, the organic structure of the judiciary of the federation, the Attorney General of the Republic, as well as the National Human Rights Commission. They also argue that as long as the crimes within the jurisdiction of the ICC are not criminalized within Mexico’s legal order, the competent authorities shall apply the provisions of the RS directly, in order to comply with the principle of complementarity. This working draft certainly represents a plausible alternative in light of the substantial transformations the Mexican legal order has had in terms of the new hierarchy of Human Rights treaties and the adversarial criminal justice system.

5.5 Incorporation of Crimes under the Rome Statute As a result of ratifying the RS, state parties are obliged to investigate and prosecute genocide, crimes against humanity, war crimes and crimes of aggression. Under the RS, states are not obliged to criminalize ad hoc (create separate offences), as long as they punish acts that amount to the said crimes. However, states which have also signed the Genocide Convention, face an exception since the Convention obliges them to take legislative measures to provide effective penalties (Article V).98 In this section, an overview of the Mexican legal order will be presented in terms of the criminalization of genocide and punishing acts that amount to crimes against humanity. Further analysis of war crimes will be made in Chap. 6.

5.5.1 Genocide The crime of Genocide adopted by the RS was transferred verbatim from the Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the Genocide Convention) of 1948. According to the Genocide Convention all contracting parties are obliged to enact all necessary legislation in order to provide effective penalties for persons guilty of genocide (Article V). Mexico signed the Genocide Convention on 14 December 194899 and ratified it on 22 July 1952,100 as a state party. A bill was enacted in 1967101 to incorporate the crime of Genocide in the Federal Penal Code, taking the form of Article 149 bis CPF. The acts criminalized in the Mexican code differ slightly from the Genocide Convention. As an example, while the Genocide Convention criminalizes in broad 98 Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature (9 December 1948), UNTC, entered into force (12 January 1951) (Genocide Convention), Article V. 99 See the Status of Signatories, Genocide Convention, above n 97. 100 Published in the DOF on 25 June 1952. See Annex to view the decree. 101 Published in the DOF on 20 January 1967.

90

5 Mexico and the Rome Statute

terms the act of “imposing measures intended to prevent birth within the group”, Article 149 bis CPF punishes only “massive sterilization with the purpose of preventing the reproduction of the group”. During the debates of the drafts,102 a discussion was held on the kinds of measures intended to prevent births within the group that were to be included. The deputies who were in favor of the broader approach of the Convention argued that “measures to prevent birth” could also include abortion and not only measures that prevented conception, such as sterilization. However, the narrower definition was favored. Regarding the gravity of the punishments, the theory of the protected legal interest addressed in Article 22 CPEUM is followed.103 This provision stipulates that all punishments shall be proportional to the crime and any harm to the protected legal interest. In this sense, life is considered the highest interest, followed by physical integrity, freedom and property.104 Therefore, the acts of “killing members of the group” or “imposing forced sterilization to prevent births in the group” are punished with 20–40 years’ imprisonment. All other acts like, causing harm to the body or to health, or the transfer of children from a group to another group are punished with 5–20 years’ imprisonment. However, no suspension of public service is comprised as a punishment. Within the Mexican penal code, crimes committed by public servants have a secondary penalty, which is the suspension of public service.105 Normally, the time of suspension equals the time of imprisonment. For the crime of genocide, the last paragraph of Article 149 bis only makes a referral to the Federal Law of Responsibilities of Public Servants. The lack of specifying the exact time of suspension was discussed by the legislators as an infraction of the principle of nulla pena sine lege. However, they decided to leave it unspecified. It is worth noting that the Federal Law of Responsibilities of Public Servants was replaced by a similar law in 1980106 which was then derogated in 2016.107 In this vein, it will be necessary to reform Article 149 bis CPF, in order to update the provision to the newest legislative reforms. Finally, another divergence between the Genocide Convention and Article 149 bis is the exclusion from private individuals from the responsibility of committing genocide; the Mexican provision only punishes government officials, functionaries and public servants. In Table 5.1, deviations between the Convention on the Prevention and Punishment of the Crime of Genocide and Article 149 bis CPF can be identified.

102 See

Cámara de Diputados 1966.

103 Article 22—Penalties of death, mutilation, infamy, marks, physical punishments, torture, exces-

sive fines, confiscation of assets, and other cruel punishments are prohibited. Every penalty shall be proportional to the crime committed and to the protected legal interest (translated by the author). 104 On the hierarchy of protected legal interests, see Nino 1989, pp. 55–84. 105 Article 24(13) of the Federal Criminal Code (CPF) enlists the types of penalties such as destitution or suspension. 106 DOF, 4 January 1980. 107 DOF, 18 July 2016.

5.5 Incorporation of Crimes under the Rome Statute

91

Table 5.1 Convention on the Prevention and Punishment of the Crime of Genocide—Article 149 Bis CPF Convention on the Prevention and Punishment of the Crime of Genocide

Article 149 Bis CPF

Article II In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. (…) Article IV Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

A person commits the crime of genocide when, with the purpose to destroy, in whole or in part, a national, ethnical, racial or religious group, perpetrates by any means offences against the life of the members of the group or imposes mass sterilization with the purpose of preventing the reproduction of the group. The punishment for such act will be 20 to 40 years’ imprisonment and a fine of 15,000 pesos to 20,000 pesos. If, with identical purpose attacks against the physical integrity or against the health of the members of such communities; or if forcibly transferring minors of 18 years; employing physical or moral violence, the punishment will be of 5 to 20 years’ imprisonment and a fine of 2,000 to 7,000 pesos. The same punishments above will be imposed upon anyone who, with the same purpose, deliberately inflicts on the group conditions of life calculated to bring about its physical destruction in whole or in part. In case that the person responsible of these acts were the head of an office, a functionary or public servant, and the acts were committed while exercising public service, additionally to the punishments above mentioned, Article 15 of the Law on Responsibilities of Functionaries and Public Servants of the Federation will apply.

Source Tania Ixchel Atilano

5.5.2 Crimes Against Humanity The need to define crimes against humanity at the national level has been made clear in the past, as in the “Report of the UN International Law Commission”.108 The report stresses that ratification of the RS is not enough to comply with the objectives of the ICC, which was created to combat impunity of the most heinous crimes. In order to fulfill this objective, it is necessary to prosecute and bring perpetrators to justice at the domestic level.109 Mexican criminal law criminalizes certain acts that could amount to crimes against humanity if they were committed systematically 108 UN

International Law Commission 2015. Regarding the Draft articles on Prevention and Punishment of Crimes against Humanity, see UN International Law Commission 2019. 109 UN International Law Commission 2015, p. 21.

92

5 Mexico and the Rome Statute

and widespread. However, not all individual acts of Article 7 RS constitute offences under the Federal Criminal Code and the contextual elements of the crime have not yet been domestically implemented. Table 5.2 compares the offenses described in the Federal Criminal Code and Article 7 RS, taking into account the model of Carrillo and Nelson110 used to examine in detail the criminalization of crimes against humanity in different countries. From Table 5.2, it can be concluded that the Mexican legal system does not criminalize all individual acts included in Article 7 RS, nor the “widespread” or “systematic” character of the crimes. Not only does Mexican domestic law fail to capture the nature of international crimes, but most importantly, Mexican criminal law does not criminalize all acts contained in “crimes against humanity” and they do not reflect the gravity of the offence.111 Punishing someone for ordinary crimes instead of international crimes might violate what is called the “fair labeling principle”. According to the fair labeling principle, offenses should be labeled so as to represent the nature and magnitude of the law breaking.112 As for the description of “inhuman acts”, these could feature some of the cruelty displayed by organized crime. Some of the widespread atrocities in Mexico that should be considered to be added as “inhuman acts” are the exhibition of corpses, the mutilation of corpses, the disintegration of corpses, the use of mass graves without giving notice to the relatives of the person affected, as well as the uses of corpses as a message or to intimidate.113 The description of the crime may also contain a clause clarifying that crimes against humanity is not only an attack on the person who has directly suffered physical, mental or emotional harm, but also against humanity as a whole, since the protected legal interest contains the quality of humanitas.114 In this sense, the broad definition of “victim” given by Article 4 of the Mexican General Victims’ Law may be applicable, since it is defined as "(...) any person who has been attacked in his or her collective rights”.115 Following the rationale that crimes against humanity is an attack on humanity as whole, any person who alleges that said crimes have been or are being committed would have the right to complain to competent authorities.116

110 Carrillo

and Nelson 2014, p. 529. this regard, see the information submitted by Mexico in 2017 to the UN International Law Commission related to crimes against humanity; https://legal.un.org/docs/?path=../ilc/sessions/69/ pdfs/spanish/cah_mexico.pdf&lang=S. Accessed 15 August 2020. Also see UN International Law Commission 2019, pp. 66, 79–80. 112 Nersessian 2007, p. 221; Clapham and Gaeta 2018, pp. 287–295. 113 See Koster 2012. 114 See Zaffaroni 2009. 115 Ley General de Víctimas, DOF, 9 January 2013. 116 See UN International Law Commission 2015, p. 13. In this regard, the commentary to the Draft articles on the Prevention and Punishment of Crimes against Humanity extends the right to “any person”, also including legal persons, such as religious groups or NGOs. See UN International Law Commission 2019, Article 12 1(a). 111 In

5.5 Incorporation of Crimes under the Rome Statute

93

Table 5.2 Definitions of Crimes against Humanity in Mexican Legislation Definition

Corresponding legislation

Title: Crimes against humanity

Third Title: Crimes against humanity Chapter I: Violations against the duties to humanity (Article 149) Chapter II: Genocide (Article 149 bis) NOTE: As shown, the wording of the “third title” does not correspond to the objectives and elements of crimes against humanity in Article 7 of the Rome Statute, since the name of this title is a result of a reform made in 1967. This reform had the purpose of incorporating the crime of genocide in the domestic code. The legislator considered genocide a crime against humanity, hence the name of this title. In short: the name of this title is not related to crimes against humanity under article 7 of the RS

Adoption of title after RS ratification

No

Complete implementation of Article 7 paras (1) and (2) RS

No

Heading (introductory part) of Article 7 (1)

No

Elements of the systematic and/or generalized No typology Attacks against the civilian population

No

Prohibited Conducts/Individual Acts Murder

Article 302 CPF Murder with advantage: when the offender is superior in physical force and the victim is not armed when the offender is superior by the weapons that he/she employs when using some means that weakens the victim’s defense when the victim is helpless or has fallen. Murder with treachery: intentionally surprising someone Murder by treason (article 319): violating the faith or security that the offender had expressly promised to his victim NOTE: In terms of crimes against humanity, the severity of the offense contained in Articles 316-319 are intrinsic to the nature of crimes against humanity Punishment (Article 320): The individual responsible for murder will be punished with 30 to 60 years’ imprisonment

(continued)

94

5 Mexico and the Rome Statute

Table 5.2 (continued) Definition

Corresponding legislation

Extermination—Article 7(1). (b) RS “Extermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population

Nonexistent in Mexican legislation

Slavery—Article 7(1). (c) RS Article 11—General Law to prevent, punish “Enslavement” means the exercise of any or and eradicate human trafficking (...)a Penalty: 15–30 years all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children Deportation or forced transfer—Article 7(1) (d) “Deportation or forcible transfer of population” means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law

Nonexistent in Mexican legislation NOTE: In the Special Report on Internal Forced Displacement in Mexico (2016), the CNDH recounts the phenomenon in Mexico and points out in para 382: (...) It is necessary to create a general rule that determines in a clear and precise way, what are the attributions and obligations of each entity of authority, be it federal, state or municipal, since to reduce forced transfer it is required the joint action of the three levels of governmentb

Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law—Article 7(1) (e)

Articles 364–366 CPF Illegal deprivation of liberty Article 366(II)(b) That the perpetrator is or has been a member of a public security institution Penalty: 15–40 years’ imprisonment

Torture—Article (1) (f) “Torture” means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; with the exception that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions

Article 24—General Law to Prevent and Punish Torturec The offense of torture is committed when a public servant who, with the purpose of getting information or with aims related to a criminal investigation, or with the aims to intimidate, to punish, to inflict coercion, as a preventive measure or based on discrimination, inflicts pain or psychical suffering (...) NOTE: The crime of torture in Mexico has a wider threshold than that of the RS, since it requires: (a) that the perpetrator is a public servant; and (b) that the torture must have the purpose of obtaining information, or getting a confession within a criminal investigation Penalty: 10–20 years’ imprisonment If the perpetrator is not a public servant the penalty is: 6–12 years’ imprisonment

(continued)

5.5 Incorporation of Crimes under the Rome Statute

95

Table 5.2 (continued) Definition

Corresponding legislation

Rape, sexual slavery, enforced prostitution,d forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity—Article 7(1)(g) NOTE: sexual slavery responds to commercial purposes and is a form of slavery that makes use of force to engage the victim in various sexual behaviors and is a continuing offense. As an example: comfort stations established by the Japanese forces during World War IIe

Violation: Article 265 CPF Sexual slavery: not covered by Mexican legislationf Forced Prostitution: Article 13 General Law to prevent, punish and eradicate human trafficking (...) Penalty: 15–30 years’ imprisonment Forced Pregnancy: not covered by Mexican legislationg Induced Sterilization: 199 Quintus CPF Penalty: 4–7 years’ imprisonment

Persecution against any identifiable group Not covered by Mexican legislation or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in para 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court—Article 7(1)(h) Enforced disappearance of persons—Article 7(1)(I) “Enforced disappearance of persons” means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a state or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time

Forced disappearance of persons: Article 27 General Law on Enforced Disappearance enacted on 17 November 2017.h The new law comprises the elements set forth in the RS such as: commission of the crime committed by private individuals and not just public servantsi

Crime of Apartheid—Article 7(1)(j)

Not covered by Mexican legislation

Other inhumane acts of a similar character Not covered by Mexican legislation intentionally causing great suffering, or serious injury to body or to mental or physical health—Article 7(1)(k)

(continued)

96

5 Mexico and the Rome Statute

Table 5.2 (continued) Definition

Corresponding legislation

(…) pursuant to or in furtherance of a state The contextual element of: “politics of a state or organizational policy to commit such or an organization” is not covered by the attack—Article 7(2)(a) Mexican legislation Source Tania Ixchel Atilano a Ley

general para prevenir, sancionar y erradicar los delitos en materia de trata de personas y para la protección y asistencia a las víctimas de estos delitos. DOF, 14 June 2012. b Comisión Nacional de Derechos Humanos (CNDH) 2016, p. 131. c Ley general para prevenir, investigar y sancionar la tortura y otros tratos o penas crueles, inhumanos o degradantes. DOF, 26 June 2017. d Also prohibited by IHL by the GC IV and AP I. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, opened for signature (12 August 1949), entered into force 21 October 1950 (GC IV), Article 27, para 2. Additional Protocol to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, entered into force 7 December 1978 (AP I GC). Article 75 para 2 (b) and Article 76 para 1. e VStGB Kommentar, p. 604. f Sexual slavery is dispersed between different criminal offenses, such as slavery (Article 11 General Law to Prevent Human Trafficking) and aggravated rape (266 bis CPF). g The crime described in Article 199c under “crimes against reproductive rights” complies with the characteristics of the crime drafted at the Rome Conference. h See DOF, 17 November 2017. i Former Article 215 A CPF did not comprise the acquiescence of the State but only acts committed under the public servant’s own initiative. Commission by private individuals was also excluded. Regarding the former disparity between the wording of the crime of forced disappearance under Mexican law and the Inter-American Convention on Forced Disappearance, see Schulz 2015.

The criminalization of “crimes against humanity” would be very useful for the Mexican legal order, not only in terms of investigation and prosecution. It would also give greater coherence to the legal order, most of all because is referred to, as such, in the laws of access and reservation of public information. As will be analyzed in Chap. 9, both the Federal Law on Transparency and Access to Public Information (Article 14)117 and the General Law on Transparency and Access to Public Information118 provide that crimes against humanity are an exception to the reservation or classification of information. Related to Article 14 of the Federal Law on Transparency and Access to Public Information, the SCJN issued a ruling (tesis aislada) in 2012,119 in which it stated that, for purposes of the right of access to public information of a previous inquiry, the interpreter of said rule should frame the facts

117 Ley

Federal de Transparencia y Acceso a la Información Pública, DOF, 9 May 2016. General de Transparencia y Acceso a la Información Pública, DOF, 4 May 2015. 119 See SCJN, Delitos o crímenes de lesa humanidad. su concepto para efectos del derecho de acceso a la información de la averiguación previa que los investiga, Tesis aislada, febrero 2012, 1aXI/2012, p. 650. 118 Ley

5.5 Incorporation of Crimes under the Rome Statute

97

in terms of Article 7 of the RS.120 Consequently, the SCJN considers the provisions of the RS as a source of valid law for the Mexican legal system. In the case of the General Law on Access to Public Information, Article 74(II e) provides that official human rights protection authorities must disclose information related to crimes against humanity once it has been certified as such by competent authorities. Due to the principle of legality anchored in Article 14, para 3 CPEUM, this provision is impossible to apply. As there are no “crimes against humanity” under Mexican law, any other authority that wishes to trigger the exceptions to classified information cannot invoke a domestic criminal law provision. On the other hand, the term “serious violations” to which the law on access to information refers, has no authoritative definition and there is no agreed understanding as to what “serious violations” are.121 These considerations were verified in the Tlatlaya case, as a Collegiate Court stated, that the CNDH could not issue an advisory opinion qualifying acts as “crimes against humanity”, since they do not constitute offenses as such under domestic law.122 Moreover, since “serious violations” are not described as crimes under Mexican criminal law, they can only be conceived as an “estimate” or “valuation”. However, if crimes against humanity were to be criminalized under domestic law, the mere “valuation” of facts would shift to criminal prosecution. As a result, other authorities that might consider disclosing information—such as the CNDH— would then have the Criminal Code as a reference and support when applying Article 74 of the General Law on Access to Public Information.123

References Alamuddin A, Webb P (2010) Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute. Journal of International Criminal Justice 8: 1219–1243. Cámara de Diputados (1966) Diario de los debates de la cámara de diputados del congreso de los Estados Unidos Mexicanos, Legislatura XLVI - Año III - Período Ordinario, Número 15, 18 de Octubre de 1966. https://cronica.diputados.gob.mx/. Accessed 14 August 2020

120 In this case, the internal discrepancies of the Mexican legal order are very clear, since, on the one

hand, the SCJN determined that, in terms of the right to information, Article 7 of the RS could be invoked to trigger the exception to the classification of information. On the other hand, due to the principle of legality, Article 7 RS cannot be directly invoked in order to file a preliminary inquiry for crimes against humanity. In conclusion, a preliminary investigation for the crime of murder could be at the same time a crime against humanity under the right to information law—LFTIAP. 121 For an in-depth analysis of this term, see the following report: Geneva Academy 2014. 122 See Aristegui Noticias (2016) Tlatlaya: cierran en definitiva acceso a expediente. https://aristegui noticias.com/2706/mexico/tlatlaya-cierran-en-definitiva-acceso-a-expediente/. Accessed 4 October 2020. 123 On a similar vein, see the statement made by Sales Heredía: Aristegui Noticias (2016) No hay en México el tipo penal de ejecución extrajudicial, señala Sales Heredia. https://aristeguinoticias.com/1908/mexico/no-hay-en-mexico-el-tipo-penal-de-ejecucionextrajudicial-senala-sales-heredia/. Accessed 4 October 2020.

98

5 Mexico and the Rome Statute

Cámara de Diputados (2005) Análisis de la minuta de la Cámara de Senadores y del dictamen de la Cámara de Diputados, con proyecto de decreto que reforma el artículo 21 de la Constitución Política de los Estados Unidos Mexicanos, referente a la Corte Penal Internacional, Servicio de Investigación y análisis. https://www.diputados.gob.mx/sia/coord/pdf/coord-iss-0405.pdf. Accessed 14 August 2020 Cámara de Diputados (2016) Acuerdos de la mesa directiva, relativo a las minutas pendientes de dictamen, recibidas antes del 1 de septiembre de 2012. Gaceta Parlamentaria, Anexo XII. https:// gaceta.diputados.gob.mx/PDF/63/2016/feb/20160203-XII.pdf. Accessed 14 August 2020 Carrillo A, Nelson A (2014) Comparative Law Study and Analysis of National Legislation Relating to Crimes Against Humanity and Extraterritorial Jurisdiction. The George Washington International Law Review 46: 481–530 Clapham A, Gaeta P (2018) Torture by Private Actors and ‘Gold-Plating’ the Offence in National Law: An Exchange of Emails in Honour of William Schabas. In: de Guzman M, Amman D (eds) Arcs of Global Justice: Essays in Honour of William Schabas. Oxford University Press, New York, pp 287–295 Comisión Nacional de Derechos Humanos (CNDH) (2016) Informe especial sobre desplazamiento forzado interno en México, Comisión Nacional de los Derechos Humanos. https://www.cndh. org.mx/sites/all/doc//Informes/Especiales/2016_IE_Desplazados.pdf. Accessed 14 August 2020 Cossío J (2014) Algunas notas sobre el caso Radilla Pacheco. Anuario Mexicano de Derecho Internacional XIV: pp. 803–834 Cossío J, Rodríguez G (2003) El Senado de la República y las relaciones exteriores. Porrúa-ITAM, Mexico Dersso S (2016) The ICC’s Africa problem: a spotlight on the politics and limits of International Criminal Justice. In: Kamari C et al (eds) Africa and the ICC: Perceptions of Justice. Cambridge University Press, Cambridge, pp. 61–77 Diputados (2012) Acuerdos de la mesa directiva, relativo a las minutas pendientes de dictamen, recibidas antes del 1 de septiembre de 2012. http://gaceta.diputados.gob.mx/PDF/63/2016/feb/ 20160203-XII.pdf. Accessed 6 August 2020 Dondé J (2010) Principio de legalidad penal perspectivas del derecho nacional e internacional. Porrúa, Mexico Dondé J, Montoya I (2006) La Constitución y la Corte Penal Internacional. Iter Criminis 6: 47- 66 Flores S (2003) México y la Corte Penal Internacional. In: Müller L (ed) Globalización y derechos humanos. UNAM-IIJ, Mexico Flores S (2005) México. In: Kreß C et al (eds) The Rome Statute and Domestic Legal Orders, Vol II. Nomos, Baden-Baden, pp. 187–201 García S (2003a) La jurisdicción internacional. Porrúa, Mexico García S (2003b) México ante el Estatuto de Roma. Anuario Mexicano de Derecho Internacional 3:133–173 García S, Morales J (2013) La reforma constitucional sobre derechos humanos 2009–2011. Editorial Porrúa, Mexico Geneva Academy on International Humanitarian Law (2014) What amounts to a serious violation of international human rights law? An analysis of practice and expert opinion for the purpose of the 2013 Arms Trade Treaty. Academy Briefing No. 6. https://repository.graduateinstitute.ch/rec ord/295203. Accessed 19 August 2020 González G (2007) Democratización y política exterior: ¿el fin del predominio presidencial? CideDocumentos de trabajo, división de estudios internacionales, Mexico González S (1999) México y la Corte Penal Internacional. Revista Mexicana de Política Exterior. 50 aniversario de la Declaración de Derechos Humanos 55: 44-67 González S (2001) La Corte Penal Internacional. In: Corcuera Cabezut S, Guevara Bermúdez J (eds) Justicia Penal Internacional. Universidad Iberoamericana, Mexico Hiéramente M (2019) Article 88. In: Klamberg M, Nilsson J (eds) Commentary on the Law of the International Criminal Court – The Rome Statute. https://cilrap-lexsitus.org/clicc/88/88. Accessed 7 August 2020

References

99

ICC Assembly of State Parties (2014) Thirteenth session of the Assembly of State Parties. Statement on behalf of Mexico. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP13/GenDeba/ICC-ASP13-Gen Deba-Mexico-SPA.PDF. Accessed 14 August 2020 ICC Assembly of State Parties (2018) Seventeenth session of the Assembly of State Parties. Statement on behalf of Mexico. https://asp.icc-cpi.int/iccdocs/asp_docs/ASP17/GD%20MEX%201712-2018.pdf. Accessed 14 August 2020 ICC-now (2002) Palabras del Doctor Jorge G. Castañeda, Secretario de Relaciones Exteriores de México, durante su intervención en la 57ª Asamblea General de la Organización de las Naciones Unidas, 13 September 2002. https://www.iccnow.org/documents/MexicoCastanedaSta tement2002_sp.pdf. Accessed 14 August 2020 Kleffner J (2008) Complementarity in the Rome Statute and National Criminal Jurisdictions. Oxford University Press, New York Koster A (2012) On the Instrumental Role of Excessive violence in los Zetas’ Emergence as a Drug Cartel, Bachelor thesis. University Utrecht. https://dspace.library.uu.nl/handle/1874/ 295139. Accessed 14 August 2020 Kreß C, Prost K (2008) Article 93- Other forms of cooperation. In: Triffterer O (ed) Commentary on the Rome Statute, C.H. Beck, Munich Méndez R (2005) Consideraciones sobre la ratificación por México del Estatuto de la Corte Penal Internacional. Revista Latinoamericana de Derecho vol. 4 Monreal Ávila R (2013) Iniciativa Reforma Artículo Constitucional párrafo octavo. Gaceta Parlamentaria, Número 3706-VII. http://gaceta.diputados.gob.mx/Black/Gaceta/Anteriores/62/2013/ feb/20130212-VII/Iniciativa-2.html. Accessed 6 August 2020 Nersessian D (2007) Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes Against Humanity. Stanford Journal of International Law 43: 221–264 Nino CS (1989) Consideraciones sobre la dogmática jurídica. UNAM, Mexico Oler A (2017) The looming demise of the ICC’s complementarity principle: Israel, U.S. interests, and the Court’s futures. Emory International Law Review 31:1002–1017 Organización de los Estados Americanos (1969) Conferencia Especializada Interamericana sobre Derechos Humanos, Anteproyecto de observaciones del gobierno de México al proyecto de Convención Interamericana sobre protección de Derechos Humanos, OEA/Ser.K/XVI/1.2. https://www.oas.org/es/cidh/docs/enlaces/Conferencia%20Inte ramericana.pdf. Accessed 13 August 2020 Ortega R (2015) El enfoque restrictivo de los derechos humanos: comentarios a la contradicción de tesis 293/2011. Cuestiones constitucionales 32: 265–291 Perez L (1995) El artículo 133 constitucional: una relectura. Jurídica, Anuario del departamento de la Universidad Iberoamericana 25: 265-292 PG Action (2003) Carta dirigida a Presidente Vicente Fox, Diputado Tarciso Navarrete Montes de Oca. https://www.pgaction.org/pdf/pre/navarrete.pdf. Accessed 16 August 2020 PRD (2016) Iniciativa que reforma el Artículo 21 de la Constitución Política de los Estados Unidos Mexicanos. Gaceta Parlamentaria, número 4458-IV, (747). https://gaceta.diputados.gob. mx/Black/Gaceta/Anteriores/63/2016/feb/20160201-IV/Iniciativa-3.html. Accessed 16 August 2020 Ruiz E (2008) La política exterior de México durante el sexenio de Vicente Fox: mucho discurso y pocas nueces. Foro Internacional-El Colegio de México, Mexico Sadat L (2003) Discussion. In: Zimmermann A (ed) International Criminal Law and the current development of public international law. Duncker & Humblot, Berlin, pp. 195–253 Safferling C (2016) Münchener Kommentar zum Strafgesetzbuch-Völkerstrafgesetzbuch. C.H. Beck, Munich Sansores L (2013) Reforma al Artículo 21 constitucional sobre las reservas al Estatuto de Roma de la Corte Penal Internacional. https://www.impactolegislativo.org.mx/monitor/documentos/inicia tivas/18107.pdf. (link no longer available). Last accessed 24 April 2018 Santiago N (1989) Consideraciones sobre la dogmática jurídica. UNAM, Mexico

100

5 Mexico and the Rome Statute

Schaeffer D, Cox A (2008) The constitutionality of the Rome Statute of the International Criminal Court. The Journal of Law and Criminology 98: 983-1068 Schmalenbach K (2012) Article 27. Internal law and observance of treaties. In: Dörr O, Schmalenbach K (eds) Vienna Convention on the Law of Treaties. Springer Verlag, Berlin/Heidelberg/New York Schulz C (2015) Ayotzinapa/Mexiko: Dokumentation und Analyse eines Menschenrechtsverbrechens. México vía Berlín, Mexico Senado de la República (2001a) Oficio de la Secretaría de Gobernación, con el que remite iniciativa de reformas al artículo 21 de la Constitución Política de los Estados Unidos Mexicanos, referente a la Corte Penal Internacional. https://perma.cc/PEX9-NJ3G. Accessed 13 August 2020 Senado de la República (2001b) Diario de los debates primer período ordinario sesión 33. https:// www.senado.gob.mx/64/diario_de_los_debates/documento/1276. Accessed 6 August 2020 Senado de la República (2002a) Diario de los debates primero período ordinario sesión 34. https:// www.senado.gob.mx/64/diario_de_los_debates/documento/1337. Accessed 6 August 2020 Senado de la República (2002b) Diario de los Debates primero período ordinario sesión 35. https:// www.senado.gob.mx/64/diario_de_los_debates/documento/1404. Accessed 6 August 2020 Senado de la República (2002c) Dictamen de las Comisiones Unidas de Puntos Constitucionales; de Relaciones Exteriores, Organismos Internacionales; de Justicia; de Derechos Humanos, y de Estudios Legislativos, con proyecto de decreto que reforma el artículo 21 de la Constitución Política de los Estados Unidos Mexicanos, referente a la Corte Penal Internacional Senado de la República (2005) Diario de los debates primer periodo extraordinario sesión 1. https:// www.senado.gob.mx/64/diario_de_los_debates/documento/1601. Accessed 6 August 2020 Smith-Cannoy H (2012) Insincere Commitments: Human Rights Treaties, Abusive States, and Citizen Activism. Georgetown University Press Sotomayor A (2008) México y la ONU en tiempos de transición: entre activismo externo, parálisis interna y crisis internacional. Foro Internacional-El Colegio de México 48: 238–267 Tosa H (2018) Global constitutional order and the deviant other: reflections on the dualistic nature of the ICC process. International Relations of the Asia-Pacific 18: 45–70 Trejo M (2005) Análisis de la minuta de la Cámara de Senadores y del dictamen de la Cámara de Diputados, con proyecto de decreto que reforma el artículo 21 de la Constitución Política de los Estados Unidos Mexicanos, referente a la Corte Penal Internacional. Servicio de Investigación y análisis, Cámara de Diputados, Mexico Triffterer O (2008) Commentary on the Rome Statute of the International Criminal Court, Preliminary Remarks, C.H. Beck, Munich UN (2002) Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June-17 July 1998, A/Conf.183/13(Vol II). https://legal.un.org/icc/ rome/proceedings/E/Rome%20Proceedings_v2_e.pdf. Accessed 16 August 2020 UN International Law Commission (2015) First report on crimes against humanity by Sean D. Murphy, Special Rapporteur, A/CN.4/680. https://www.un.org/ga/search/view_doc.asp?symbol= A/CN.4/680&Lang=E. Accessed 15 August 2020 UN International Law Commission (2019) Draft articles on Prevention and Punishment of Crimes against Humanity, A/74/10. https://legal.un.org/docs/?path=../ilc/texts/instruments/eng lish/draft_articles/7_7_2019.pdf&lang=EF. Accessed 15 August 2020 UN Treaty Collection (1998) Mexico-Notifications made under article 87 (1) and (2), Rome Statute of the International Criminal Court, No. 38544. https://treaties.un.org/Pages/ViewDetails.aspx? src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en#EndDec. Accessed 7 August 2020 Zaffaroni E (2009) El humanismo en el derecho penal. Ubijus, Mexico

Part III

Interpretation and Application of International Criminal Law in Mexico’s State Practice

Chapter 6

Incorporation of the Laws of War in the Mexican Legal Order

Contents 6.1 General Considerations on War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.1 International Humanitarian Law and War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.2 History of the Criminalization of Grave Breaches . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.3 Definition of War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.4 Non-international Armed Conflict and Violations Against International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.5 Obligations to Criminalize Grave Breaches and Violations of International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1.6 Convenience of Criminalizing the Prohibitions of International Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 War Crimes in Mexican Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 Federal Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.3 Military Discipline as a Protected Legal Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.4 Military Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Legacy of Nineteenth Century Codification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

104 104 106 108 112 114 116 118 118 121 124 131 143 147

Abstract This chapter will briefly summarize the origin of the category of war crimes, as well as the branch of law from which they derive: International Humanitarian Law (IHL). A review will be made of the legal instruments that characterize IHL and the categories that derive from them, such as international armed conflict, non-international armed conflict or grave breaches. This chapter will also examine the IHL treaties to which Mexico is party and what the actual legal framework is. In order to conduct a thorough review of the legal framework, various codes of the 19th century were examined, as they relate directly to current criminal and military criminal codes. An achievement of this review was the realization that the 1871 Mexican Criminal Code already criminalized the violations during the conduction of war. Additionally, the review of the various military codes reveals how military discipline is the highest legal interest to be protected within the military order, superseding other legal interests like life or freedom. Lastly, the 1871 Mexican Criminal Code already granted combatant immunity and excluded superior orders as an exclusion of responsibility. This chapter will conclude, for example, that the provisions on “superior orders” and “violations against the duties of humanity” are not a result of the implementation of contemporary International Law or IHL. Rather, Mexico’s © t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_6

103

104

6 Incorporation of the Laws of War in the Mexican Legal Order

provisions are a product of its own legislative history and evolved concurrently with Mexican Law in the 19th century. Keywords History of international humanitarian law · War crimes · Criminalization · Military discipline · Protected legal interest · Codification · Violations against the duties of humanity · Combatant immunity · Superior orders · Internal armed conflict

6.1 General Considerations on War Crimes 6.1.1 International Humanitarian Law and War Crimes The aim of IHL is to avoid all unnecessary suffering during war. International humanitarian law sets out the conduct that is prohibited during an armed conflict.1 The major sources of IHL are customary law (general practices accepted as law) and various international treaties.2 Contemporary IHL3 originated from the need to establish rules when war emerged between nations, and then eventually developed into a set of rules concerning international and non-international armed conflict. The major corpus of rules of IHL can be found in the so-called “Hague Conventions” and “Geneva Conventions”. The Hague Conventions, 1899–1907, contain provisions concerning the prohibition of certain means and methods during the conduct of war. The Geneva Conventions, meanwhile, originated with the 1906 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies at Sea, which were updated with Convention I through III. The atrocities committed during World War II led to a new wording of the Conventions, resulting in a total of four Geneva Conventions. The Geneva Conventions of 1949 are aimed at the protection of persons and property4 and are made up of the following treaties: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; and Convention (IV) relative to the Protection of Civilian Persons in Time of War.5 Subsequently, Additional Protocols I (AP I) and II (AP II) were drafted, which regulate in detail

1 Werle

and Jessberger 2014, pp. 392–393. pp. 55–60; Bassiouni 2008, p. 280. 3 The codification of the conduct of hostilities had already been considered at an earlier stage, e.g. the Lieber Code was issued following the American Civil War in 1863. 4 Werle and Jessberger 2014, p. 409. 5 All four conventions adopted on 12 August 1949 and entered into force on 20 October 1950. See ICRC treaty database. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/vwTreaties1949.xsp. Accessed 27 September 2020. 2 Ibid.,

6.1 General Considerations on War Crimes

105

the purpose of the Geneva Conventions I–IV. AP I came into force in 19786 regulating international armed conflict, while AP II regulates internal armed conflict.7 Both of these are more precise and extensive than the Geneva Conventions. AP II Article 1 defines internal armed conflict as: “(…) any armed conflict that takes place in the territory of a High Contracting Party between its armed forces and dissident armed forces or organized armed groups that, under the direction of a responsible command, exercise on a part of said territory, such control that allows them to carry out sustained and concerted military operations”. Excluded from this definition are internal tensions and internal disturbances, such as riots, sporadic and isolated acts of violence and others similar acts. Generally speaking, IHL is a set of obligations and prohibitions (Bassiouni identifies 71 relevant instruments in the field of war crimes)8 addressed primarily to the state and to the armed forces as the main actors (the state is considered an entity9 and the armed forces the executors). According to customary law and the set of IHL instruments, not all prohibitions are subject to criminal prosecution. Only the most serious fall into this category. The individual legal interests protected by IHL are life, liberty and property, while “supra individual” legal interests include world peace, the security of mankind and the environment. Individual criminal responsibility has not always been implicit to IHL, but the result of the development of Humanitarian Law itself. The Hague Conventions (1899–1907), for example, only held states responsible for violations of the rules of war.10 The First World War crystallized the need and demand of punishing acts that caused unnecessary and great suffering. The Geneva Conventions categorized these acts as “grave breaches”, which later developed into what the RS categorizes as “war crimes”.

6 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of

Victims of International Armed Conflicts, opened for signature (8 June 1977), International Humanitarian Law Databases. Treaties, State Parties and commentaries, entered into force (7 December 1978) (AP I). 7 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature (8 June 1977), ICRC, entered into force (7 December 1978). 8 Bassiouni 2008a, p. 143. 9 In terms of Article 29 GC IV, the state, as well as all those who work for it, are responsible for the protection of civilians; this article covers both state and individual responsibility. The article reads as follows: The Party to the conflict in whose hands protected persons may be, is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred. 10 Sandoz 2008, pp. 295–297.

106

6 Incorporation of the Laws of War in the Mexican Legal Order

6.1.2 History of the Criminalization of Grave Breaches From the original and first Geneva Convention (1864), there is no criminal punishment for the prohibited acts.11 The Hague Peace Conventions of 1859 and 1907 did not extend to penal measures either and only compensation against another state was enforceable.12 As early as 1880, the Institute of International Law had recommended penalties for war crimes,13 and that they be punished by the criminal law of the corresponding belligerent State.14 The 1899 Hague Convention had already been implemented by Russia and Japan during the Russo-Japanese war in 1904.15 However, before 1949, what we refer today as war crimes, were considered as “acts of state” and, therefore, not punishable at the individual level.16 At the conclusion of the First World War, the debate on individual responsibility emerged amidst the attempt to prosecute Kaiser William II for having “imposed” the war on the allied powers.17 The debate included the establishment of a “high court” to try those who had committed crimes against the citizens of the allied forces.18 In 1934, considerations were made in order to enable third parties to verify compliance with the Geneva Conventions of 1929 and punish all breaches effectively.19 The application of criminal punishment for breaches of IHL was materialized with the establishment of the International Military Tribunal of 1945. The charter of the International Military Tribunal at Nuremberg (IMT) stated that crimes against peace, 11 Though there were some attempts at criminalization, such as the Brussels Conference of 1874. For a detailed review of historical references, see Sandoz 2008, pp. 293–322. 12 In an article of the year 1916, Bellot points out that holding States accountable only for the payment of compensation was ineffective in preventing members of the militia from committing war crimes. This observation was already made in the year 1874 by the French delegation at the Brussels Conference of the same year. See Bellot 1916. 13 That is, actions contrary to the customs of war, which were already specified in more detail in the Lieber Code of 1863. 14 It is practically the same system that today governs international humanitarian law. This leaves the contracting state the task of establishing individual responsibility—and, therefore, the penalty—for any of the acts prohibited in the corpus iuris of humanitarian law. The causes and consequences of the implications of this system can also be read in: Bassiouni 1998, pp. 199–204. 15 Bellot 1916, pp. 40–41. 16 See Kelsen 2008, pp. 91–104. 17 Article 227 Treaty of Versailles: The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties. A special tribunal will be constituted to try the accused, thereby assuring him the guarantees essential to the right of defence. It will be composed of five judges, one appointed by each of the following Powers: namely, the United States of America, Great Britain, France, Italy and Japan. In its decision the tribunal will be guided by the highest motives of international policy, with a view to vindicating the solemn obligations of international undertakings and the validity of international morality. It will be its duty to fix the punishment which it considers should be imposed. The Allied and Associated Powers will address a request to the Government of the Netherlands for the surrender to them of the ex-Emperor in order that he may be put on trial. 18 Sandoz 2008, p. 298. 19 Ibid., p. 300.

6.1 General Considerations on War Crimes

107

war crimes and crimes against humanity entailed individual responsibility under international law. Based on the London agreements,20 the IMT issued judgments with the particularity that the acts described in the IMT charter had no specific penalty. The IMT charter, not only provided the blueprint for the prosecution of the main war criminals before the International Military Tribunal, but it also outlined the three criminal offenses: crimes against peace, war crimes and crimes against humanity.21 Furthermore, it also provided the scaffolding for the latest version of the Geneva Conventions in 1949, which, for the first time, aimed at protecting civilians during war. As mentioned above, each convention identifies the subjects of protection: Convention I protects the wounded and sick of the armed forces in the field; Convention II protects the wounded, sick and shipwrecked of armed forces at sea; Convention II protects prisoners of war; and Convention IV civilians in times of war. The Conventions outline categories of relevance for the implementation of ICL in Mexico, such as belligerents, civilians, armed conflict, internal armed conflict and “grave breaches”. All those who take part in hostilities, either as a member of an armed force, or as partisans/guerrillas (for example, groups that resisted Nazism) or civilians who take up arms spontaneously (levée en masse) are considered belligerents or combatants.22 The Rome Statute contains the most developed version of individual criminal responsibility for war crimes. The ICL system,23 established through the RS, materializes Hans Kelsen’s notion that peace is secured by means of law.24 In this sense, the RS is not in itself a Penal Code in the classical continental European sense, but rather an instrument that creates a permanent jurisdiction: a Court in charge of punishing individuals, who are guilty of committing the offences prohibited by international law and inscribed in the Statute. The application of the penalty is in the hands of the judge (Articles 77 and 78 RS) since the penalty is not inscribed in the description of the crime. This, one might argue, places the judge in the sphere of the legislative, by having the ability to “legislate” in criminal matters and convert actions contrary to international law into specific criminal offenses.25 Nonetheless, unlike ad-hoc tribunals (ICTR, ICTY), the International Criminal Court did not arise from a specific need, but rather the foreseen importance of being able to impose sanctions in the future.26 In this sense the ICC, is a neutral third party with punitive 20 See London Agreement of 8 August 1945. The text is available at https://avalon.law.yale.edu/imt/

imtchart.asp. Accessed 25 April 2018. Article 6 of the Charter of the International Military Tribunal. The text is available at https:// avalon.law.yale.edu/imt/imtconst.asp. Accessed 27 August 2020. 22 Werle and Jessberger 2014, p. 428. 23 In this vein, the International Criminal Tribunal for Rwanda constituted the first tribunal to have “Common Article 3” of the Geneva Conventions as common ground for its jurisdiction. 24 Kelsen 2008, p. 91 et. seq. 25 For the case of Mexico, see Article 73 fr. XXI, CPEUM. In practice, the development towards more detailed specification of norms and penalties is developed through the jurisprudence of the international tribunals like ICTY and ICTR. 26 For scholar Yves Sandoz, the ICC as a permanent court is the best solution regarding accountability for war crimes. In his view, the creation (ad hoc) of international tribunals after each conflict has not 21 See

108

6 Incorporation of the Laws of War in the Mexican Legal Order

powers—which is neither the loser nor the victor27 —and attempts to ascertain both the victor’s and loser’s accountability.28

6.1.3 Definition of War Crimes The term “war crimes” does not have a single source,29 since it is the result of a merger of clauses that stem from the law of war and humanitarian law.30 There are differences between what should or should not be considered a war crime, but the purpose of all instruments is the same: protecting victims and avoiding unnecessary suffering. Moreover, the term “war crimes” does not correspond to all the prohibitions contained in the normative set of humanitarian law, but only those that cause “more serious” harm. In short, not every breach of IHL constitutes an international crime. The author, Hugh Ballot, in his 1916 text, War Crimes: Their prevention and Punishment, already raised the necessity of criminal punishment for conduct contrary to the customs of war. The text does not contain a generic definition of war crimes that resembles the now established relationship between serious offences and war crimes. However, the author does explain that war crimes are understood as “(…) those acts of the armed forces of a belligerent against a person or property of the enemy, combatant or noncombatant, which acts are contrary to the established usages of war”.31 This serves to illustrate that the concept of war crimes was already circulating at the beginning of the twentieth century, defined according to events occurring at the time32 and reflecting a consensus within the international community.33 This consensus resulted ultimately in the Geneva Conventions of 1949, which developed a more detailed definition of the concept of war crimes, as defined in Articles 11 and 85 of AP (I) to the Geneva Conventions. Since the Conventions describe a number of prohibited behaviors (not proved to be the most efficient, as violations have been repeated over and over again. See Sandoz 2008, p. 303. 27 As was the case with the IMT that gained the label of “Sieger Justiz”—Victor’s Justice—in Germany. On the political legitimacy and the accusation of victor’s justice, see Weinke 2006, pp. 56–59; Werle and Jessberger 2014, paras 25, 396. 28 For this point, see also Kelsen 2008, p. 26. 29 Rather, it could be said that there is no single reference to what could be considered “war crimes”. On the one hand, there are the Geneva Conventions and the Hague Conventions on the uses of war. On the other, there is customary law and the different criteria of the international tribunals. This is important to consider because not every breach of humanitarian law constitutes a crime. See Cassese 2008, pp. 84–86. 30 Werle and Jessberger 2014, p. 392. 31 Bellot 1916, p. 31 et. seq. 32 A historical example of how the context defines the rules of war is the “Lieber Code”, prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863. The text can be found at https://avalon.law.yale.edu/19th_century/lieber.asp. Accessed 27 August 2020. 33 It can be traced back to the “Lieber Code”; however, efforts to limit warfare seem a constant in human history. See, in this regard, Bassiouni 2008b, pp. 269–275.

6.1 General Considerations on War Crimes

109

labelled as grave breaches), it is not fully clear what should be criminalized. In para 94 of the decision issued by the ICTY in the Tadíc case, the conditions under which a prohibition should be considered a war crime in the case of non-international conflicts are stated. According to this ruling of the Appeals Chamber, the source of this prohibition must be in customary law or a treaty, but above all, a grave breach must cause serious harm to the victim and must be a violation of a rule that protects important values.34 Finally, in terms of the Geneva Conventions, war crimes during international armed conflict are categorized as grave breaches,35 while in the case of noninternational conflicts, war crimes are offences that violate prohibitions set out in common Article 3 to the Conventions as well as the conduct listed in AP (II), categorized as violations.36 In this regard, the Rome Statute makes a nominal difference between “grave breaches” (Article 8(2)(a)) for international armed conflicts and “serious violations” for non-international armed conflicts (Article 8(2) (C)). In order to gain a perspective of the conducts prohibited by IHL and, therefore, the obligation for states to criminalize these behaviors, Table 6.1 lists them according to their classification as international or non-international: Even a brief review of Table 6.1 shows that the conduct related to international conflicts is precisely defined. Additionally, the number of norms and provisions is much higher for international armed conflict than for non-international armed conflict defined in Common Article 3 GC.

34 ICTY, Prosecutor v Dusko Tadic, Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995, IT-94-1-T, para 94. 35 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature (12 August 1949), International Humanitarian Law Databases. Treaties, State Parties and commentaries, entered into force (21 October 1950) (GC I), Article 50. 36 Common Article 3 of the Geneva Conventions: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘hors de combat’ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

110

6 Incorporation of the Laws of War in the Mexican Legal Order

Table 6.1 Prohibited Acts and Grave Breaches of IHL International Armed Conflict

Non-International Conflict Common Article 3 of the Geneva Convention

Intentional homicide

Attacks on the life, health and physical or mental integrity of persons (AP II), especially homicide in all its forms, mutilation, cruel treatment, torture and torture

Torture

Hostage taking

Inhumane treatment

Attacks against personal dignity, especially humiliating and degrading treatment

Biological experiments

Sentences and executions without prior trial before a legitimately constituted court, with judicial guarantees recognized as indispensable by civilized peoples

Deliberately causing great suffering or seriously impairing physical integrity or health Destruction and appropriation of property not justified by military necessity and carried out on a large scale, unlawfully and arbitrarily Forcing a prisoner of war to serve the armed forces of the enemy power To deprive a prisoner of war or a protected person of their right to be legitimately and impartially judged in accordance with the provisions of this Convention Deportation Illegal transfer Illegal detention Forcing a protected person to serve the armed forces of the enemy power Hostage taking Additional Protocol I to the Geneva Convention

Additional Protocol II

Physical mutilation

Terrorist acts

Medical and scientific experiments

Rape, forced prostitution and any form of indecent assault

Extractions of tissue or organs for transplantation

Slavery and the slave trade in all its forms

Attack on civilians

Pillage

(continued)

6.1 General Considerations on War Crimes

111

Table 6.1 (continued) International Armed Conflict

Non-International Conflict Common Article 3 of the Geneva Convention

To launch an indiscriminate attacka that affects Threats to perform the mentioned acts the civilian population or civilian objects, knowing that such an attack will cause death or injury among the civilian population or damage to civilian objects that are excessive according to Article 57b To launch an attack against works or installations containing dangerous forces knowing that attack will cause death or injury among the civilian population or damage to civilian objects that are excessive according to Article 57 Attack of non-defended localities and demilitarized zones Attack of a person knowing that he is out of combat Make perfidious use, in violation of Article 37, of the distinctive sign of the red cross or other protective signs recognized by the Conventions or of this Protocol Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effectsc Protocol on non-discoverable fragments (Protocol I prohibited the use of any weapon whose main effect is to injure by fragments that cannot be located by "X" rays in the human body Protocol on Prohibitions or Restrictions on the Use of Mines, Weapons and Other Devices (Protocol II). Prohibition or restrictions on the use of incendiary weapons (Protocol III) Source Tania Ixchel Atilano a According

to Article 51 of AP I, indiscriminate attack also includes those that employ methods or means of combat that cannot be directed against a particular military objective, means of combat whose effects cannot be limited as required by the protocol, bombing attacks, as well as the use of human shields. b Article 57 of AP I does not in itself outline what it refers to as an “excessive” attack, but it does point out that, damages to civilian populations and property must not be “excessive” with respect to the military advantage envisaged. c Signed by Mexico on 11 February 1982. To date, this Convention has 121 State Parties. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, opened for signature (10 October 1980), ICRC Treaty Database, entered into force (2 December 1983) (CCW).

112

6 Incorporation of the Laws of War in the Mexican Legal Order

6.1.4 Non-international Armed Conflict and Violations Against International Humanitarian Law We can quickly recap the findings so far: the basis for what we today call “war crimes” is found in the Geneva Conventions, Common Article 3 to the Geneva Conventions, Additional Protocol I and Additional Protocol II. All these rules outline the obligations and duties of state parties during an armed conflict and classify International Armed Conflict and Non-International Armed Conflict. Regulations on the conduct of war as well as the protection of belligerents during an armed conflict evolved in the context of international armed conflict,37 which explains why, the set of rules is more detailed for international conflicts. Moreover, the punishable actions are linked to the term grave breaches,38 defined in the 1949 Geneva Convention and the AP I to the Conventions. The list of grave breaches39 provides us a with catalog of conduct that ought to be persecuted and punished at the individual level.40 The obligation to prosecute and punish is enshrined in Article 49 of the GC, which also stipulates the obligation to: “seek persons accused of having committed or ordered to commit any serious offenses, and to take measures that cease acts contrary to the provisions of this Convention”.41 Under the category of non-international conflicts, there is no provision that specifically addresses the term “grave breaches”.42 However, in Common Article 3 of the GC, we can find a source for specific prohibitions. These prohibitions refer to: (1) attacks on life or bodily integrity; (2) hostage-taking; (3) attacks on personal dignity; and (4) executions without a fair trial. These prohibitions are addressed to each of the

37 This is understandable, given that it was, in fact, in the primary interest of states to comply with these rules. That is to say, these regulations are born from the interest of the states to protect their belligerents and to have a possibility of proceeding against those who do not abide by those norms. Although it was originally not so clear which specific conduct had to be prohibited, it can, nevertheless, be implied from the Martens Clause that these prohibitions were intended to be further developed: “(…) Until a more complete code of war laws is issued, the high contracting parties deem it appropriate to declare that, in cases not covered by the regulations adopted by them, populations and belligerents are under the protection and rules of the principles of international law, as they result from the established uses among civilized nations of the laws of humanity and the demands of the public conscience.” See Preamble of the Hague Conventions respecting the laws and customs of war, 1907. Text available at https://www.loc.gov/law/help/us-treaties/bevans/m-ust 000001-0631.pdf. Accessed 29 August 2020. 38 Commonly the term used in Spanish is graves infracciones, while in terms of human rights law violaciones graves is used. 39 The distinction made by Article 85 of the Additional Protocol I between “breach” and “grave breaches” is also noteworthy, with the latter being considered war crimes. 40 A list of grave breaches that are intended to be repressed is found in paragraph (3) of Article 85 AP I GC. 41 Article 49 GC, paras II and III. 42 See Bassiouni 2008a, pp. 284–292.

6.1 General Considerations on War Crimes

113

parties to the conflict, without making any distinction as to the type of belligerents.43 This is not surprising since, AP II was drafted in 1977 with the intention to modify and complement Common Article 3 of the Conventions, as the first international treaty devoted exclusively to the protection of persons affected by non-international armed conflict or civil war.44 Article 1 of AP II defines the scope of application and applies to all armed conflicts that are carried out in the territory of a high contracting party between: (a) their armed forces and dissident armed forces; or (b) their armed forces and organized armed groups that, under the direction of a responsible commander, exercise control over territory allowing them to carry out sustained military operations. AP (II) leaves out conflicts between dissident groups within a contracting state, where there is no territorial control,45 such as the conflict between Hamas and Fatah in occupied Palestinian territory.46 This is an important distinction between common Article 3 GC and the RS, given that Article 8(2) (f) applies for non-international conflicts between non-state armed groups.47 It is also well known that the AP (II) leaves out categories of “belligerent” or “party”48 as contained in the laws of international conflicts,49 since contracting parties wanted to avoid bestowing political recognition on potential insurgents.50 Thus by leaving aside the predominant categories in the GC as belligerents and combatants, the AP (II) constituted an equitable regime between the parties, in which the actors of the armed conflict (armed forces of the state and dissident armed forces/organized armed groups) and victims (civilians) have the same level of protection. This means that both the contracting state and the “non-state” armed forces are bound by the same terms. This brings with it the problem that state parties rarely resort to AP II, 43 This is explained by the fact that, at the time of the drafting of the Geneva Conventions, the variety and complexity of armed conflicts that took place throughout the 20th and 21st centuries were not yet known. 44 See the “Introduction to AP II”, available at the ICRC’s website, https://www.icrc.org/spa/resour ces/documents/misc/additional-protocols-1977.htm. Accessed 25 April 2018. 45 See, generally, Sandoz et al. 1987, p. 1319 et seq. The commentary to AP II also points to this exclusion, saying that, since the subject of the protocol was, on the one hand, to safeguard the security of the state (para 4436), as well as to guarantee humanitarian protection to the recipients of the rules, it became complicated during negotiations to reach a definition of “non-international armed conflict”, with definition proposals being either too broad or too narrow (para 4450). The selection of criteria to elaborate upon this definition took several sessions, with the result that not all cases of non-international armed conflict were covered (para 4453). 46 For the applicability of IHL to conflicts involving multiple non-state armed groups, see ICRC 2019, pp. 49–55 47 Another possible example could be that of conflicts between armed groups such as “drug cartels”. In this sense, the study made by the Leiden University, concludes that seven out of the nine major drug cartels that operate within the Mexican state, fulfill the criterion of “organization”. See Leiden University 2018, paras 85, 94, 104, 126 and 135. 48 For this topic, see Hobe 2011, pp. 69–86. It is also important to note that Common Article 3 includes the term “party”. This illustrates or highlights the much broader approach of common article 3 GC versus AP II. 49 An example is Article 14 GC (I and II). 50 Commentary to Additional Protocol II, para 4439; Bassiouni 2008a, p. 287.

114

6 Incorporation of the Laws of War in the Mexican Legal Order

since it gives status to armed groups and can be interpreted as raising the legitimacy of those groups. In addition, insurgents would have to accept and know their IHL obligations. In any case, it should be noted that unlike “International Armed Conflicts”, violation of any of the prohibitions of Common Article 3 of the GC, i.e. war crimes, could only be investigated and prosecuted by a state party, namely, by one of the parties to the conflict,51 because the state has the legitimate power to prosecute and punish, and with it the power to establish a regularly constituted court. As a result, impartiality could be compromised and the member of the non-state armed group could be in a disadvantageous position when it comes to the principle of equality of belligerents.52 A solution to this problem could be the judicial enforcement by courts of non-state armed groups53 however,54 In this sense, the ICC—as an international court and a third party to the conflict—offers a viable solution when exercising jurisdiction over alleged war crimes.

6.1.5 Obligations to Criminalize Grave Breaches and Violations of International Humanitarian Law The GCs and their respective protocols establish a series of prohibitions applicable to conflicts of an international or non-international character. Most of these prohibitions are aimed primarily at safeguarding humanitarian treatment of those involved in an armed conflict as well as the victims (civilians) of the armed conflict. The seriousness of these prohibitions varies. The Geneva Conventions and the AP (I) point to “serious breaches”, while in the field of non-international armed conflict only a number of prohibitions are inscribed, which by their nature can be interpreted as being sufficiently serious and, therefore, worthy of penal sanctions above administrative 51 Although this statement may seem obvious, since the sovereign state has the power to investigate crimes and impose penalties, it clarifies the disadvantageous position between the parties to a noninternational conflict. Finally, the armed forces of dissidents, insurgents or organized armed groups would then be prosecuted by their counterparts in the conflict, or a contrario the state’s armed forces, would never be judged by the enemy. It should also be noted that, regarding prosecution and punishment, the parties in an armed conflict would have the guarantees established in Article 6 of AP II and/or Article 49 para IV (GC I). The question remains whether the latter would apply to noninternational conflicts. However, a proper trial and defense are human rights. For the obligations of states parties to an international conflict regarding repression of abuses and infractions, see Article 49(GC I) and Article 50(GC II). 52 The principle of equality of belligerents is given by common Article 3(1), by which all parties to the conflict are granted the protections of said article, such as judicial guarantees. On the equality of belligerents, see Somer 2007, pp. 655–690; Heffes 2016 pp. 181–201. 53 Examples of courts established by non-state armed groups are offered by Sivakumaran 2012, pp. 550–555. 54 On the “people’s court” in the Philippines, see UN Human Rights Council 2008, para 32. On the courts of the Frente Farabundo Martí de Liberación Nacional in El Salvador, see UN General Assembly Security Council 1992, paras 112–114.

6.1 General Considerations on War Crimes

115

or disciplinary sanctions. Nevertheless, treaty law contains no specific obligation to punish such violations. As has been pointed out, in order to punish the prohibitions outlined in Table 6.1 of this chapter, it is necessary to incorporate them in the criminal code, since without it, one could only speak of state responsibility. In keeping with this logic, the Geneva Conventions in Article 49, impose obligations to prevent the abuses and violations committed by state parties. Under this article, the state parties are held “(…) to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article”.55 According to the commentary to the Conventions, this article properly designs a system for the prosecution of serious offences consisting of three obligations borne by state parties: (1) to legislate on the matter; (2) to seek persons who have committed or ordered any of the serious offenses; and (3) to prosecute the crimes before the courts.56 The commentary to the Conventions states, furthermore, that it is necessary to criminalize serious breaches since the application of the sentence must be proportionate to the severity of the conduct.57 Legislative measures are necessary since the Conventions do not have any provision on modes of liability and participation with respect to the superior who gives the order and the individual who executes it.58 It is also interesting how the drafters of the commentary show their dissatisfaction with the fact that judges have to impose the penalties, which suggests their disagreement with the AngloSaxon system, as well as with the notion that all war crimes, regardless of their gravity, deserve the death penalty.59 In the case of non-international conflict and in contrast to international conflicts, there is no explicit obligation to legislate on the matter. However, this can be deduced and interpreted from the wording of Common Article 3 of the Conventions. In this case, Article 49 of the GC (I) would not be applicable, since Common Article 3 does not relate to all the Conventions as a whole.60 However, if the parties prefer, they may convert Article 49 CG and make it applicable to internal conflicts, activating the third paragraph of Article 49, which provides for the possibility of the parties to “put into force by means of special agreements, all or part of the other provisions of this Convention”. In summary, it can be concluded that, according to IHL, the obligations of states regarding the criminalization of serious violations focus on: (a) punishment, (b) prosecution, and (c) judicial enforcement.

55 GC

I, Article 49 para 1. 1952, p. 362. 57 Ibid., p. 364. 58 Ibid. 59 Ibid. 60 Ibid., p. 59. 56 Pictet

116

6 Incorporation of the Laws of War in the Mexican Legal Order

6.1.6 Convenience of Criminalizing the Prohibitions of International Humanitarian Law International Humanitarian Law, as part of International Law, is binding for contracting states but not for individuals. If any state party to the Conventions fails to comply with any provision, it is not the responsibility of the individual who carries out the prohibited conduct but the responsibility of the State.61 This is the classical position of international law. On the other hand, the importance of criminalizing the prohibitions contained in the GCs gives the belligerents a normative framework.62 As a result, non-state armed groups acquire obligations to treat civilians humanely, prohibiting all acts of violence against life and persons; Article 27 GC IV; Article 8(b) (i) RS. Belligerents must also protect civilian hospitals; Article 18 GC IV; Article 8(b) (ii) (iii) RS. In order to achieve individual responsibility, it is necessary to incorporate criminal sanctions to each of the prohibitions. If no criminalization is made at the domestic level, apart from the creation of international tribunals, there is no other way to hold individuals responsible for grave breaches of IHL.63 As for acts related to the methods used in the conduct of war or the use of weapons that produce unnecessary suffering,64 criminalization becomes less probable since the activities are commanded by the state. That is to say, the use of certain weapons is an institutional strategic decision, rather than a personal or political decision, and, therefore, imposes an obligation on the power behind that institution, namely, the state, and not the individual carrying it out. Most fundamental, however, are the incentives implied in the imposition of a penalty. It could be a very useful and effective tool to ensure compliance with the Conventions. The incorporation of criminal sanctions in domestic legal systems contributes to the neutrality of humanitarian law (without being subject to negotiations) as well as to neutrality in the event of an internal armed conflict, since the application of the law is general and abstract. The fact that Mexico has failed to enact legislation that prohibits and represses “grave breaches” as well as the definition of internal armed conflict and its recognition might contribute to the reign of impunity, which in the end fuels the ongoing spiral of violence. 61 Kelsen

2008, pp. 98–117, highlights these features.

62 For an extensive review of the combatant status and prisoner of war protections, see Sivakumaran

2012, pp. 255–335 and Crawford 2010, pp. 48–117. Also, in broader terms: Kelsen 2008 pp. 108–109. 63 Even at the level of states, failure to comply with these provisions is rarely noted at the international level. In the review of the Mexican case, as we will see in further detail in Chap. 7, during the socalled “dirty war” violations of Common Article 3 of the Geneva Conventions are likely to have been committed; however, these violations have never been denounced as war crimes by the international community. 64 For example, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, seeks to avoid unnecessary suffering. Also Article 8, 2(b) (XX) of the Rome Statute.

6.1 General Considerations on War Crimes

117

Related to the adoption of legislative measures, the Radilla case (even though evolving around the scope of International Human Rights Law) provides a good example for the convenience of repressing acts contrary to the laws of war.65 In the Radilla case, the interplay between international law, human rights law and criminal law is clearly evident. In its judgment, the IACtHR found the Mexican state guilty of the forced disappearance of Rosendo Radilla and ordered an investigation and further criminal proceedings to determine individual criminal responsibility.66 The incompatibility of the domestic definition of the crime of forced disappearance with international standards was seen by the IACtHR as an obstacle to carry out effective investigations, prosecution and punishment.67 The lack of an adequate definition of enforced disappearance, led to decades of impunity in this case, and even though the IACtHR was keen to find those responsible and trigger prosecutions of the crime, the preliminary inquiry is still ongoing.68 This confirms the assumption that regardless of the IACtHR commitment, if the state is unwilling or unable, impunity persists.69 Additionally, in the case of Mexico, the lack of legislation in this realm could be explained if, in the factual context, Mexico had not been confronted with armed conflicts and, therefore, lacked the necessity or urgency to adopt mechanisms that would ensure compliance. However, this is not the case. As reviewed throughout this book, the Mexican state has found itself in various scenarios that could amount to internal armed conflicts, including the “dirty war” during the Cold War, the armed conflict with the EZLN (which arguable received de facto recognition of an armed conflict with the intervention of the ICRC on the basis of Common Article 3 of the GC), and the very controversial campaign against drug trafficking. Still, in spite of these episodes, there has been no adequate criminalization of serious violations of IHL.70 To get a better understanding of the situation and properly appreciate the

65 See

IACtHR, Radilla-Pacheco v. Mexico, Judgment, 23 November 2009, (Radilla-Pacheco v. Mexico). 66 See, generally, Clapham 2016. For a more specific tone: Huneeus 2013, pp. 1–44. 67 See Radilla-Pacheco v. Mexico above n 68, paras 329-334, 343-344. 68 Aristegui Noticias (2015) PGR busca en cuartel militar restos de Rosendo Radilla. https://ariste guinoticias.com/0611/mexico/pgr-busca-en-ex-cuartel-militar-de-guerrero-restos-de-rosendo-rad illa/?utm_source=rss&utm_medium=rss&utm_campaign=pgr-busca-en-ex-cuartel-militar-de-gue rrero-restos-de-rosendo-radilla. Accessed 29 August 2020. An up to date follow up on the case can be found at: https://cmdpdh.org/casos-paradigmaticos-2-2/casos-defendidos/rosendo-radilla-pac heco/#seguimiento. Accessed 29 August 2020. 69 Alexandra Huneeus gives an account of the pessimistic views towards regional human rights systems and the prosecution of international crimes. By contrast she holds an optimistic view by considering that international treaty bodies and courts have become a “quasi jurisdictional organ” that enforces international criminal law. See Huneeus 2013. 70 According to Bassiouni, the ambiguities of international humanitarian law are due to political reasons. He further explains that it is easier for a state to apply individual criminal responsibility in the case of war crimes than in crimes of genocide or against humanity, since the criminal responsibility of war crimes ultimately falls to lower-ranking soldiers, while establishing criminal responsibility for crimes of genocide or crimes against humanity would entail the sanction of high-level officials. See Bassiouni 2008a, pp. 494–495, 517–518.

118

6 Incorporation of the Laws of War in the Mexican Legal Order

shortcoming in that area of law, the following sections will analyze the status of IHL inside Mexico’s legal order.

6.2 War Crimes in Mexican Law 6.2.1 Preliminary Remarks Mexico has been part of the four Geneva Conventions since 1956. In relation to international armed conflicts, Mexico has declared war only on one occasion, in 1942, during World War II.71 There have been episodes since the Mexican Revolution that could qualify as internal armed conflicts, although they have not been formally recognized as such.72 Hence, although it could be said that Mexico is relatively experienced with internal armed conflicts, they are not yet adequately regulated. Like other instruments of international law, Mexico has almost signed all instruments concerning the law of war, but no legislative measures have been enacted. At the same time, generally speaking, the lack of compliance is not only characterized by the lack of prosecution and punishment, but also by the violations of IHL that could amount to “grave breaches”.73 A number of events that occurred during the aforementioned violent periods—although they cannot be analyzed in depth—are worth mentioning. These include the massacre in “Acteal” during the armed conflict in Chiapas (1997).74 It is not, however, an aim of this research to frame the specific events within a predetermined context or under the definition of an international crime; instead, the level of incorporation and criminalization of prohibitions under IHL will be explored. Equally important is to analyze the role of military discipline within the CJM. Not only does the concept of “military discipline” draw the line in terms of jurisdiction but it is also considered a “protected legal interest” playing an important role in terms of the gravity of sanctions.

71 Decreto declarando que los Estados Unidos Mexicanos se encuentran en Estado de Guerra con Alemania, Italia y Japón. DOF, 6 February 1942. See Decree in Appendix B. 72 For example, the “Cristero War” (1926–1929), the so-called “Dirty War” (1960–1980) and the armed conflict in Chiapas from 1994; presumably also the “War on Drugs”, cf. Leiden University 2018. 73 For accounts on human rights violations during the “Dirty War”, see the National Security Archive 2006. The Human Rights Center “Fray Bartolomé de las Casas” has issued plenty of reports regarding human rights abuses during the Chiapas conflict and in the aftermath, see, for example, Centro de Derechos Humanos Fray Bartolomé de Las Casas 1996 and 1999. 74 The deployment of the military against drug trafficking has also brought civilian casualties, such as in Tlatlaya, a municipality in the State of Mexico, where, on 30 June 2014, in a warehouse in the community of San Pedro Limón, 22 corpses were found, including 3 minors. The official version of the army is that the military of the 102nd Infantry Battalion repelled an aggression and, as a result, 22 civilians were killed. The version of the survivors is that they were executed. For a detailed account, see the report issued by the Human Rights Center: Centro de Derechos Humanos 2015.

6.2 War Crimes in Mexican Law

119

Table 6.2 Humanitarian Law Treaties to which Mexico is a State Party Treaty

Date of Signature

Date of Ratification

Comments

Regulation Concerning the Laws and Uses of Land Warfare (The Hague 1899)

July 28, 1899

April 17, 1901

Not published in the DOF

Convention for the Adaptation of the Principles of the Geneva Convention of August 22, 1864, to the Maritime War (The Hague 1899)

July 29, 1899

April 17, 1901

DOF: September 14, 1901

Declaration on the Prohibition of July 29, 1899 Shooting Projectiles and Explosives from the Balloons or by Other Similar Means

April 17, 1901

DOF: September 14, 1901

Declaration on the Use of Bullets that are Easily Dilated or Crushed in the Human Body

July 29, 1899

April 17, 1901

DOF: September 14, 1901

Declaration Concerning the Use of Projectiles Having as their Sole Purpose the Spreading of Asphyxiating or Deleterious Gases

July 29, 1899

April 17, 1901

DOF: September 14, 1901

Convention on the Breaking of Hostilities (The Hague 1907)b

October 18, 1907

November 27, 1909 DOF: February 1–2, 1910

Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (1925)

Approbation by the Senate: November 9, 1931

Adhesion: March 15, 1932

DOF: August 3, 1932

Act Establishing Certain Rules Relating to the Action of Wartime Submarines with Respect to Merchant Ships (1936)

Approbation by the Senate: October 28, 1937

Adhesion: January 3, 1938

DOF: March 3, 1938

Geneva Conventions (I–IV) 1949

December 8, 1949

October 28, 1952

DOF: June 23, 1953

Additional Protocol I

Approbation by the Senate: December 21, 1982

Adhesion: March 10, 1983

DOF: April 21, 1983

Additional Protocol II

Mexico is not a party

Additional Protocol II

November 16, 2006

July 7, 2008

DOF: January 5, 2009

Convention for the Protection of Cultural Property in the Event of Armed Conflict The Hague–1954

December 29, 1954

May 7, 1956

DOF: August 3, 1956

(continued)

120

6 Incorporation of the Laws of War in the Mexican Legal Order

Table 6.2 (continued) Treaty

Date of Signature

Date of Ratification

Comments

Second Protocol to the 1954 Hague Approbation by Convention on the Protection of the Senate: Cultural Property in the Event of April 29, 2003 Armed Conflict (1999)

Adhesion: October 7, 2003

DOF: April 14, 2004

Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (1972)

April 8, 1973

DOF: August 12, 1974

April 10, 1972

Convention on the Prohibition of the Use of Environmental Modification Techniques for Military Purposes or Other Hostile Purposes (1976)

Mexico is not a party

Convention on Prohibitions or April 10, 1981 Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (1980)

February 11, 1982

DOF: May 4, 1982

Convention on the Rights of the Child (1989)

January 26, 1990

September 21, 1990 DOF: January 25, 1991

Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000)

September 7, 2000

March 15, 2002

DOF: May 3, 2002

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (1992)

January 13, 1993

August 29, 1994

DOF: October 5, 1994

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (1997)

December 3, 1997

June 9, 1998

DOF: August 21, 1998

Convention on Cluster Munitions (2008)

December 3, 2008

May 6, 2009

DOF: July 30, 2010

Source Tania Ixchel Atilano a Secretaría

de Relaciones Exteriores (Foreign Ministry Treaty Database). https://aplicaciones.sre. gob.mx/tratados/consulta_nva.php. Accessed 29 August 2020. b The Hague Conventions of 1907 as a set of Conventions include the following Conventions: (A) Convention on the breaking of hostilities; (B) Convention concerning the laws and uses of land warfare and annexed regulations; (C) Convention concerning the regime to be observed with enemy merchant ships at the beginning of the activities; (D) Convention relating to the conversion of commercial vessels into warships; (E) Convention concerning the laying of automatic submarine contact mines; (F) Convention on certain restrictions on the exercise of the right of catch in sea warfare; (G) Convention concerning the bombing by naval forces in times of war.

6.2 War Crimes in Mexican Law

121

As can be seen from Table 6.2 above, with the exception of Additional Protocol II and the “Convention on the Prohibition of the Use of Environmental Modification Techniques for Military Purposes or Other Hostile Purposes”, Mexico is state party to all principal Humanitarian Law treaties.75 Mere ratification of the instruments is not a sufficient condition to comply with the obligation of establishing penal sanctions for violations of IHL committed in international or non-international conflicts (Articles 50, 51, 130 and 47 CG I-IV); especially, since the Mexican legal order considers the principle of legality a core principle of the legal system. Thus, the following section will review criminal law (military and civil) in order to conclude which conducts prohibited by Humanitarian Law are criminalized in the Mexican legal order.

6.2.2 Federal Penal Code The current Federal Criminal Code (formerly: Criminal Code for the Federal District in Matters of Ordinary Law and for the Whole Republic in Federal Matters), dates to 1931. In relation to war crimes, the original text from 193176 already contained the violations of human rights of prisoners, hostages, wounded or inmates” (Violaciones de los deberes de humanidad en prisioneros, rehenes, heridos u hospitales). Article 149 of this law reads as follows: Art. 149 – Anyone who violates the duties of humanity when treating prisoners and hostages of war, wounded or attacks war hospitals shall, for that single act, be subject to: imprisonment of three to six years, except for special cases that fall under military laws.

Note, the term, duties of humanity, speaks of the legal conscience encompassing duties towards humanity as a whole and is an expression of international law. In the humanitarian law treaties to which Mexico was a party in 1931, elements of the wording of Article 149 can be traced in the Declaration of Saint Petersburg of 1868,77 which juxtaposes “demands of humanity” against the needs of war, also expressing the need to “reconcile the needs of war with the laws of humanity”. Likewise, in the “Convention Concerning the Laws and Uses of War on Land” from 1907, the reference to the duties of humanity can be found, both in its preamble and in its fourth article. The preamble states that “the laws of mankind” govern populations and belligerents.78 Additionally, Chapter II, Article 4, referring to prisoners of

75 See also the guidelines for assessing the compatibility between national law and obligations under treaties of International Humanitarian Law, ICRC 2008. 76 DOF, 14 August 1931. See the provisions in the annex. 77 “Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight”, 11 December 1868. Consult in: Schindler and Toman 1988, p. 102. 78 Below is the verbatim quotation from the referenced paragraph: “Populations and belligerents are to remain under the safeguard and rule of the principles of the law of nations, according to the uses established between civilized nations, the laws of humanity and the demands of the public conscience.” See the Preamble of the Convention (IV) in: Schindler and Toman 1988, pp. 69–93.

122

6 Incorporation of the Laws of War in the Mexican Legal Order

war, stipulates that they must be treated “humanely”.79 One could suppose that the Mexican text inserted in the code in 1931 arose primarily as a consequence of debates following the First World War. Yet the “Martinez de Castro Code” of 1871, which predates the Geneva Conventions and the penal codes from 1931, already codified notions related to humanitarian law.80 Although the commission that drafted the Code of 1871 dates to 1862,81 it is likely that the St. Petersburg Declaration inspired the notion “duties of humanity”. The explanatory memorandum of the Code contains a reference to “crimes against the law of nations”, for which the drafters had examined the Codes of Spain and Portugal. As far as the expression violation to the duties of humanity is concerned, it is not clear whether it was a creation of the Mexican legislator or was adopted from some other legal system. Article 1139 of the Criminal Code of 187182 does not define what amounts to duties of humanity but does specify protected persons and objects during wartime: prisoners of wars, hostages, the wounded and hospital inmates. From the wording of Article 1139, violations to the duties of humanity is a crime of its own, since it punishes with six years’ imprisonment anyone who acts against prisoners of wars, hostages, the wounded and war hospitals. Additionally, in its second paragraph foresees criminal responsibility for all other punishable conducts, applying the one with the highest penalty. Important for the aims of this book is the fact that the existence of “crimes against the law of nations” in the code of 1871 suggests that the current crimes of the CPF are not updated according to present-day IHL. Moreover, “crimes against the law of nations” give account of the legal culture of the time known as: La Reforma, which aimed at reaching equality and fairness through law.83 The following quote from the Explanatory Memorandum of 15 March 1871 by Mr. Antonio Martínez de Castro, who was the president of the commission responsible for drafting the Code, confirms my points:

79 See Convention with respect to the laws and customs of war on land (Hague II), opened for signature (29 July 1899), Avalon Treaty Database, entered into force (4 September 1900), Annex to the Convention—Regulations respecting the laws and customs of war on land—Section I: on belligerents, Article 4. 80 For other examples other than the Mexican case, see Bellot 1916, p. 31 et seq. 81 Exposición de Motivos-Código Penal para el Distrito Federal y Territorio de la Baja California sobre delitos del fuero común y para toda la República Mexicana sobre delitos contra la federación, (Explanatory Memorandum Criminal Code for the Federal District and Territory of Baja California on crimes of the common order and for the whole Mexican Republic on crimes against the federation), 1871, p. 8. See the explanatory memorandum in annex. 82 Capítulo IV. Violación de los deberes de humanidad en prisioneros, rehenes, heridos y hospitales. Article 1139—El que violare los deberes de humanidad en los prisioneros y rehenes de guerra, en los heridos, o en los hospitales de sangre, será castigado por ese solo hecho, con seis años de prisión. Si la violación se hiciere atentando contra la vida de dichas personas, o ejecutando algún otro acto que constituya por sí un delito diverso, se observará lo prevenido en los artículos 195 y 196. 83 See López 2010, pp. 27–33 and González 2010, pp. 191–214.

6.2 War Crimes in Mexican Law

123

Crimes against the law of nations. Of the twenty-one codes and projects we have examined, only the Spanish Code and the Portuguese project contain a few crimes against the law of nations; and it has seemed to us that we could contribute to this aim by proscribing those precepts which have been accepted as incontestable, such as: piracy, the violation of archives, on correspondence, and on any other real or personal diplomatic immunity, of a foreign sovereign or of the representatives of another nation, of a parliamentarian or of the one who gives a safe-conduct, on the slave trade; and on the violation of the duties to humanity when it comes to prisoners, hostages, wounded or hospital inmates.84 The commission dealt with these crimes, as their perpetration was very common, and did not do the same for other crimes, for being less frequent. To deal with all, a separate code would be necessary.85

It can be concluded that the wording of the current Article 149 of the CPF has not undergone changes in its content since 1871, but as we will see below, it has only been modified in its categorization. A reform in 1967 subsumed this article under the title “Crimes against humanity”, a category created to include the crime of genocide. According to legislative debates, which discussed the incorporation of the crime of genocide into Mexican law, this would not fall under crimes against international law,86 since for lawmakers, the legal interest to protect under the crime of genocide does not arise from the duty to adhere to international law, but from duties towards humanity as a whole.87 Obligations towards humanity as a whole required the creation of a new category of crimes, i.e. “Crimes against humanity”, which, for the Mexican legislator, consisted of “violation of the duties to humanity” (Article 149) and “genocide” (Article 149bis). The crimes that remained under crimes against international law are piracy (Article 146-147 CPF), violation of immunity and neutrality (Article 148 CPF) and international terrorism (Article 148 bis, 148 ter, 148 cc CPF). The reflections of the legislator on Genocide as a crime to be prevented by humanity as a whole is noteworthy. However, from the legislative work of 1967,88 it is not clear, why the legislature decided to exclude the crime of “violation of the duties to humanity” (which is the closest to war crimes) from Crimes against International Law. This is even more surprising, given that the violation of the duties to humanity—according to international customary law and treaty law—is contrary 84 De

los veintitantos códigos y proyectos que hemos examinado, solo el Código español y el proyecto de Portugal hablan de unos cuantos delitos contra el derecho de gentes; y á nosotros nos ha parecido que no estaría de más hacer otro tanto, fijando los preceptos más seguros y que están admitidos como incontestables, sobre la piratería, sobre la violación de los archivos, de la correspondencia y de cualquiera otra inmunidad diplomática real ó personal de un soberano extranjero, ó de la que da un salvoconducto; sobre el tráfico de esclavos; y sobre la violación de los deberes de humanidad en prisioneros, rehenes, heridos ú hospitales. La comisión se ocupó de estos delitos, por ser muy común su perpetración y no hizo lo mismo respecto de otros, por ser ménos (sic) frecuentes, y porque para tratar de todos seria necesario formar un código aparte. 85 See Explanatory Memorandum in the Criminal Code (1871), pp. 67–68. 86 See Cámara de Diputados 1966a. 87 See Cámara de Diputados 1966b. 88 See DOF, 20 January 1967. Also included in Appendix B.

124

6 Incorporation of the Laws of War in the Mexican Legal Order

to international law.89 A contrario sensu, it would have been equally illustrative to know in depth the arguments about the creation of the legal interest: “Humanity”. By reflecting on the analysis of Article 149, it is evident that the criminal code does not specify what amounts to “duties of humanity”. As noted above, the term refers to an ambiguous notion prior to the Geneva Conventions. These duties can now be interpreted as referring directly to the rules of the Geneva Conventions of 1949. The contentious issue is, however, that this general provision does not contain proportional and adequate penal sanctions according to the seriousness of the conduct. The CPF stipulates a punishment of three to six years for any offence considered a violation to the duties of humanity (in the Martinez de Castro Code of 1871, a single punishment of six years’ imprisonment).90 The violations listed as serious in the Geneva Conventions range from murder to unauthorized use of the Red Cross’ emblem. Evidently, the penalty of three to six years is not proportional to the variety of offences nor to the seriousness of the conduct prohibited in the Conventions. An additional problem is that the subjects protected by this article are prisoners, hostages of war91 and the wounded, yet nothing is said about civilians. As for protecting property, the provision only includes hospitals. Additionally, “crimes against the duties of humanity” could not be considered as serious crimes, since the maximum penalty amounts to 6 years.92 Thus, we are faced with a regulation in the Federal Penal Code that has not been subject to any reform or addition since the date of enactment of the Federal Penal Code and is almost identical in wording to article 1139 of the Penal Code from 1871,93 except that the latter included a second paragraph which expressly addressed “violations to the duties of humanity” as a crime in its own right, foreseeing criminal responsibility for all other conduct committed jointly or if, as a result of the “violation”, the life of the victim was threatened.94

6.2.3 Military Discipline as a Protected Legal Interest 6.2.3.1

Introduction

The following analysis aims at understanding the punitive approach of the military code, bearing in mind that under military law, the highest legal interest to be protected is military discipline. In Chap. 3, Article 13 of the Constitution was reviewed, with 89 Sandoz

et al. 1987, p. 1340. Also see Meron 1989, pp. 25–37. Article 1139 of the Penal Code from 1871 in Appendix B. 91 The taking of hostages is prohibited by Article 147 of the GC IV. 92 Article 194 of the Federal Procedural Code provides for what is considered a serious crime under Mexican law. 93 See the document in Appendix B. 94 Article 1139(2)—Si la violación se hiciere atentando contra la vida de dichas personas, ó ejecutando algún otro acto que constituya por sí un delito diverso, se observará lo prevenido en los artículos 195-196. 90 See

6.2 War Crimes in Mexican Law

125

details given on how it confines military jurisdiction (fuero de guerra) to crimes against, and infringements of, military discipline. The Constituent Assembly had in mind to restrict the army’s legal autonomy and, therefore, gave limited powers to the respective military authorities. The idea of military jurisdiction existing in 1917 as an exception to the rule of civilian judiciary took a turn with the promulgation of the Code of Military Justice in 1933. This change consisted of returning the privileges to the military, such as being investigated and trialed by military authorities. Politically, as historians Jean Meyer and Victoria Unzueta argue, this change was partly due to de facto conditions and also to the political interests of the time. According to Jean Meyer, in the period of 1930–1935, Plutarco Elías Calles turned against some of the values and spirit of the revolution and took cues from fascist movements in Europe.95 Mexico was also experiencing a period of conflict and war, as it was the time of the Cristero War and the synarchist movement.96 It can be concluded that the atmosphere of violence of 193397 was among the most important reasons for why the constitutionalist idea of limiting military jurisdiction was transformed into expanding the scope of “crimes against military discipline” to all crimes committed by the military. With this in mind, it is necessary to review what is understood as military discipline—both at the international and national levels.

6.2.3.2

Definition of “Military Discipline”

Since the armed forces are responsible for defending the interests of the state with the exclusive use of force and certain weapons, they have a greater number of obligations and, therefore, a special disciplinary regime. Discipline among soldiers is defined as a “(…) state of mind which leads to a willingness to obey an order no matter how unpleasant or dangerous the task to perform is. Development of this state of mind among soldiers is a command responsibility and necessity”.98 Discipline is also regarded as component of operational effectiveness.99 In this vein, to maintain this “state of mind”, a set of rules of behavior is needed. This also helps to maintain the hierarchical subordination among members of the armed forces. Compliance with these rules is closely linked with the professionalization of the armed forces and with their efficiency and morale.100 The armed forces have a set of obligations that are distinct from ordinary civilians on the basis of the functions they exert. Depending on the degree of harm, failure to comply with these obligations may be punished administratively (military breaches) 95 Meyer

2003, pp. 25–36. synarchist movement was a popular, nationalist and Catholic movement. 97 Interestingly enough, it was also a time in which various laws were placed into effect by presidential decree, such as the Penal Code of 1931, the Code of Civil Procedure of 1932 and the Code of Military Justice of 1933. See Baggett 1935. 98 See U.S. Department of Defense (“the Powell Report”) quoted in Gibson 2008, pp. 14–15. 99 Ibid., p. 16. 100 Ibid., p. 10; Góngora 2015, p. 1254. 96 The

126

6 Incorporation of the Laws of War in the Mexican Legal Order

or criminally (military offences). Scholar Federico Andreu Gúzman classifies military offences in strictu sensu and latu sensu.101 The former protects only military discipline, while the latter protects civil (ordinary) and military legal interests. In this last classification, the military is preponderant. There is also a third category, namely, “assimilated ordinary offences”, which are offences under ordinary criminal law but treated as military offences.102 Under this label, military offences are latu sensu and assimilated for the Mexican military justice system. They are latu sensu, since the CJM protects military interests and, at the same time, assimilates ordinary offences when committed by military personnel. In addition, these obligations exist primarily in times of war, but also in times of peace. In times of war, the armed personnel’s obligations are mostly described in international conventions such as the Geneva and Hague Conventions, as referred to in previous sections. Not all violations of IHL amount to war crimes, since some violations might be just of “technical nature”.103 Given that war crimes as a category are distinct from military offences, it can be concluded that the armed forces have obligations with respect to the conduct of war, to military service and to the military understood as a social organization. It could be said that both categories: war crimes and military offenses, constitute crimes against military discipline, since they have a disciplinary impact.104 However, given the specific nature of war crimes in the context of international customary law, it would be convenient to classify them separately, especially since they constitute serious violations of international law, while military offences constitute infringements against the military as an institution.

6.2.3.3

Nature of Crimes Against Military Discipline

Generally, crimes against military discipline bring discredit to the institution, harm the principle of obedience to the superior and affect operational effectiveness.105 The latter applies if the act does not violate provisions of humanitarian law, especially Common Article 3 of the Geneva Conventions. Taking as reference the crimes defined in the Code of Military Justice (CJM), the crimes against military discipline can be divided into three categories: (1) Conduct that affect the service; (2) Conducts directly affecting the interests of the state; (3) Behavior involving abuse of power (mistreatment of or injuring prisoners, looting, devastation, loitering, appropriation of loot, smuggling).106 101 Andreu-Guzmán

2004, p. 153. Report of the Special Rapporteur on the independence of judges and lawyers, A/68/285, para 32. 103 Sivakumaran gives a scope of the views around which violations of IHL amount to war crimes. See Sivakumaran 2012, pp. 477–478. 104 Gibson 2008, p. 36. 105 Ibid., pp. 36–38 106 As we can see, this point relates to humanitarian law. 102 UN

6.2 War Crimes in Mexican Law

127

With the above categories, it can be concluded that ordinary crimes do not equate to the harmful behaviors of the CJM (like those who harm military obedience). As stated above, the CJM assimilates ordinary crimes ratione personae through Article 57. However, the asymmetries between ordinary and military criminal law are considerable.107 This is especially the case, since the crimes within civilian law are not directed at the military, nor are they aimed at maintaining order and military obedience, nor are they related to the professionalization of the armed forces. Thus, on the one hand, the military legal order has the purpose of protecting and enforcing military discipline in order to fulfill the objective of effective defense of the Mexican state, while, on the other hand, the penal code is addressed to a wider sector of the population and a wider range of legal interests to be protected. In the cases where common criminal law is applied by military jurisdiction, the principle of “specialty of the law” does not apply, since a military court is not a specialist in, for example, drug trafficking, organized crime or environmental crimes. It is true that anyone belonging to the military can commit any of these crimes and, by doing so, they harm the institution of the armed forces. Nevertheless, primarily these crimes affect interests protected by the civilian penal code, and marginally do these offences affect military discipline. Since 1852, the General Ordinance of the Army has referred to these offenses as “mixed crimes”.108 Some scholars also consider that disciplinary sanctions should also include the prohibition to give orders contrary to humanitarian law as a way of strengthening enforcement of standards.109 This is undoubtedly exemplified in the case of the crime of enforced disappearance, since explicitly punishing the ordering of such an action could perhaps prevent and dissuade the superior from giving the orders in the first place.110

107 On

the inconsistencies of the CJM, see Zaffaroni et al. 2011, pp. 131–132. Zaffaroni also adds that these inconsistencies can only be explained in light of an “informal political pact” that drifted from the constitutional pact. 108 This terminology can also be found in a document of the Ministry of War from 1868, quoted in Unzueta Reyes 2009, note 32, p. 42. Verena Murschetz, who defines pure military crimes as those that are not criminalized in the common criminal law and that damage the military service, also addresses this categorization. For Murschetz, mixed crimes are those that are also found in the common criminal law, such as theft of military goods or damage of military property. See Murschetz 2007, p. 227. 109 In this respect, see Renaut 2008, pp. 319–326. 110 Related to the commission of acts such as the forced disappearances of persons against civilians by the members of the military, which can never be considered as a legitimate and acceptable means for compliance with the military mission, see Rosendo Radilla v Mexico, above n 68, para 277.

128

6.2.3.4

6 Incorporation of the Laws of War in the Mexican Legal Order

Interpretation by the Supreme Court

In a standard set by the Supreme Court (tesis aislada) in 2011, the first chamber of the Court111 clarified the concept of military discipline, pointing to it as an organizing and structural principle of rules, which maintains the hierarchical order and organization of the armed forces for the adequate defense of the Mexican state. They also pointed out that “(…) it must be protected by the legal system and sanctioned by means of military penal regulations”. In this way, the SCJN asserts military discipline as a legal asset, necessary for the defense of the Mexican state. This then suggests that the crimes and faults against military discipline outlined by Article 13 of the Constitution would be all those that harm the hierarchical order and organization of the armed forces and, related to the purpose of these, the defense of the Mexican state. In a standard set by the Supreme Court (tesis aislada) in February 2013, the SCJN argued that the legislative power is the only one competent to specify and define the expression “military discipline”112 and, therefore, the definition of Article 57 CJM would be constitutional. The Supreme Court held military jurisdiction for all cases where military personnel have committed a crime, unless the victim is a civilian.113 While in this standard, there is no reference to violations of human rights, in another case where the military jurisdiction was challenged, the SCJN ruled that, there are two conjunctive conditions114 to restrict military jurisdiction: (a) the involvement of civilians and military personnel; and (b) violation of human rights suffered by a civilian.115 Thus, the first SCJN’s standard establishes that, whenever an offense is 111 SCJN, Disciplina en el ámbito militar. Su función y alcance constitucional como principio orga-

nizativo de las Fuerzas Armadas, Tesis Aislada Constitucional, October 2011, Seminario Judicial de la Federación y su Gaceta, Décima Época, Primera Sala, Libro I, tomo 2, p. 1085. 112 Related to crimes against “military discipline” and how this legal interest supersedes the others, a good example can be found in the case Amparo en revision 224/2012, where the crime was drug related. However, the main criteria to determine if military tribunals were competent was that the soldier disobeyed an order. However, the SCJN failed to address what is the nature of a crime against military discipline. See SCJN, Tribunales del Fuero Militar. Son competentes para conocer de la causa penal seguida a un militar por el delito previsto y sancionado por el artículo 343, fracción I. del Código de Justicia Militar, Amparo en revisión, 11 September 2012, 224/2012, (Amparo en revisión 224/2012). https://perma.cc/W3QP-2TF9. Accessed 30 August 2020. 113 Note that the SCJN leaves it to the legislative power to define what military discipline is. See SCJN, Fuero Militar. El artículo 57, fracción II, inciso a) del Código de Justicia Militar viola el Artículo 13 constitucional, Tesis, 14 February 2013, P.II/2013, Semanario Judicial de la Federación, tomo I p. 366. 114 Also confirming that both conditions have to be fulfilled, see SCJN, Amparo en revision 224/2012, p. 50. 115 SCJN, Tesis Aislada 133/2012, Amparo en revisión, 21 August 2012, 133/2012, pp. 94, 104. Also see the dissenting opinion made by Justices Luna Ramos and Aguirre Anguiano, where they argue against the Rosendo Radilla judgment and in favor of constitutional supremacy, p. 7. A verbatim opinion can be found in the case: Amparo en revision 224/2012. It is important to note that the case Tesis Aislada 133/2012 referred to the execution of Mr. Bonfilio Rubio Villegas, a Nahua native from Tlatzala, Tlapa de Comonfort, state of Guerrero, committed at a military checkpoint while he was travelling by bus. The SCJN judgment provided for the prosecution of the case before a civil and military tribunal. However, the only member of the military prosecuted was found

6.2 War Crimes in Mexican Law

129

committed against a civilian, the military jurisdiction is restricted, and in the second standard, the court specified that the crime committed against the civilian must also constitute a violation of human rights. This last standard undoubtedly creates a situation of ambiguity116 concerning the restriction of the military jurisdiction, since it is subject to the qualification of a “violation of human rights” and this qualification could vary from judge to judge. It is not clear if they refer to violations of rights recognized by international treaties or violations of individual guarantees in the Constitution. Even for the term “serious human rights violations”, there is no consensus as to its definition and its use is not univocal. For Bassiouni, for example, it is not a category in itself, but rather has been used to denote the way in which human rights violations have been carried out.117 If the rationale behind it is that all harm to legal rights protected by the law is a violation of human rights, then the term is redundant. However, in the report on compliance with the Radilla judgment, the Mexican state argued that not all crimes committed against civilians are violations of human rights.118 This reinforces the argument that, in order to avoid inconsistency and vagueness, the term “military discipline” should be strictly defined in order to comply with Article 13 CPEUM;119 and given the presumptions of partiality within the military courts, their jurisdiction should only be restricted to offences described in the CJM (that is, only breaches of military discipline), leaving the jurisdiction of ordinary crimes to civilian courts. This way, recommendations of international organs could be also followed.120 not guilty by the military tribunal. The next of kin of Mr. Rubio have filed a complaint before the IACoHR. See the follow up of the case in: Tlachinollan-Centro de Derechos Humanos de la Montaña (2020) Once años de impunidad castrense ilustran el impacto de militarización de la seguridad en México. https://www.tlachinollan.org/comunidado-once-anos-de-impunidad-castrense-ilustran-elimpacto-de-la-militarizacion-de-la-seguridad-en-mexico/. Accessed 29 August 2020. 116 Also agreeing on this point: Tlachinollan, Centro de Derechos de la Montaña 2013, pp. 52–58; WOLA-Advocacy for Human Rights in the Americas 2017. 117 See Geneva Academy of International Humanitarian Law and Human Rights 2014, p. 16. This report analyzes the different uses of the term “grave”, “serious” and “extreme” for violations of human rights, arriving at the conclusion that its use is not univocal and that it does not equate to aggravating factors of an offense. 118 Here, we find another inconsistency between the judiciary and the statements made by government officials when formulating their arguments before the IACtHR. 119 Article 13 CPEUM: No one can be tried under special laws or special courts. No person or corporation can have any privileges, nor enjoy emoluments, other than those given in compensation for public services and which must be established by the law. Military jurisdiction prevails for crimes and faults against military discipline; but, under no case and under no circumstance can military courts extend their jurisdiction over persons who are not members of the armed forces. Civilians involved in military crimes or faults shall be put on trial before the competent civil authority (translated by the author). 120 For example, the following recommendation made in the UN Report of the Special Rapporteur on the independence of judges and lawyers, A/68/285, 2013 para 89: “Because they have the distinct objective of dealing with matters related to military service, military tribunals should have jurisdiction only over military personnel who commit military offences or breaches of military discipline, and then only when those offences or breaches do not amount to serious human rights violations. Exceptions are to be made only in exceptional circumstances and are to be limited to

130

6.2.3.5

6 Incorporation of the Laws of War in the Mexican Legal Order

Interpretation of the Inter-American Court of Human Rights

The Inter-American Court of Human Rights has established an applicability criterion for military jurisdiction when related to military discipline. In the case of Durand and Ugarte v. Peru, it established that: (a) it must be restrictive and exceptional; (b) it must protect special legal interests linked to the functions assigned by law to the military forces; (c) civilians shall be excluded from military jurisdiction; and (d) it must protect legal interests of the military order.121 These criteria have been followed in other judgments of the IACtHR,122 which have added the principle of a natural judge123 as well as the convenience of civil trials when it comes to violations of human rights. In the Radilla case, the IACtHR stated that even where military tribunals have jurisdiction over common crimes, they must have a relation to the military function or legal interests belonging to the military order.124 According to the court, military jurisdiction also violates the right of access to justice since the investigation and prosecution by the body to which the accused belongs to, does not guarantee impartiality. Therefore, the intrinsic protection inscribed into the separation of powers is undermined by the fact that accuser, accused and judge work in the same institution. Even though, the IACtHR makes several mentions of military discipline in the Radilla judgment, the term was not defined, nor did the court clarify what are to be considered “legal rights of a military nature”. Also, it remains uncontested why common crimes (if they are not human rights violations) should be the object of military jurisdiction125 and, therefore, qualify as crimes against military discipline.

civilians abroad and assimilated to military personnel.” Similarly, UN Economic and Social Council 2006. 121 IACtHR, Durand and Ugarte Case, Judgment, 16 August 2000, (Ser. C) No. 68 (2000), para 117. https://hrlibrary.umn.edu/iachr/C/68-ing.html. Accessed 30 August 2020. 122 The judgments are as follows: (1) IACtHR, Radilla Pacheco v. México Judgment, 23 November 2009, ser. C, num. 209; (2) Fernández Ortega y otros v. México, Judgment, 30 August 2010, ser. C, num. 215; (3) Rosendo Cantú y otra v. México, Judgment, 31 August 2010, ser. C, num. 216; (4) Cabrera García y Montiel Flores v. México, Judgment, 26 November 2010, ser. C, num. 220. 123 IACtHR, Caso Castillo Petruzzi y otros vs Perú. Judgment, 30 August 1999, ser. C, num. 52, para 128. 124 See Radilla Pacheco v. Mexico, above n 68, para 284. 125 See IACtHR, cases of Radilla Pacheco, Fernández Ortega et al. and Rosendo Cantú and other v. Mexico, Monitoring Compliance with Judgment, Order of the Inter-American Court of Human Rights, 17 April 2015, para 15. https://www.corteidh.or.cr/docs/supervisiones/radilla_17_04_15. pdf. Accessed 30 August 2020. Also see UN Human Rights 2013.

6.2 War Crimes in Mexican Law

131

6.2.4 Military Code 6.2.4.1

Offenses Against the Law of Nations

In the Code of Military Justice (CJM) “offenses against the law of nations” (Articles 208-215 CJM) are classified as “Crimes against the External Security of the Nation”. It is rather peculiar that the old term, “law of nations”, was preserved, even though the CJM dates to 1933. To address this issue, I surveyed the military codes from 1882, 1894, 1897 and 1898, and could not find equivalent offenses to “crimes against the law of nations”. According to scholar Renato Bermúdez, the Code of Military Justice from 1901—which was based on the Criminal Code from 1871126 —was the basis of the 1933 CJM.127 However, historically speaking, the term, the “law of nations”, could have referred to customary law in 1871, and less so to positive law.128 When comparing the terminology used in the CJM with the terminology of the Criminal Code (CPF), in the former, there is a chapter entitled “crimes against the law of nations”, while in the latter, there is one referred to as “offenses against international law”. According to the CPF, offenses against international law include piracy, violation of immunity and international terrorism. These three offences are behaviors that fall under categories of public international law, which primarily rules relationships between states. Thus, the different terminology between the CPF and the CJM follow the classic differences between public international law (contractual) and natural law (law of nations).129 Scholar Agustín Basave defines the “law of nations” as a natural interstate law that encompasses all states and the international community,130 mainly comprising fundamental principles of fairness. Additionally, he adds how the law of nations, or ius gentium, derives from ancient Roman institutions. Since natural law principles are intrinsic to the human condition, their logic can be inserted into our analysis of international humanitarian law. After all, the intrinsic value of diminishing suffering, even under the extraordinary circumstances of violent conflicts, arises from our shared human nature.131 The Mexican legal order also maintains the old division between public international law and the law of nations.132 Following this doctrine and in contrast with the protected legal interests at the root of Articles 208-215 CJM, it can be observed that these sources effectively protect the set of rights common to all states,133 and are not subject to the contractual obligations between them.134 These protected legal interests are: the right to autonomy or 126 Bermúdez

2006, pp. 162–164.

127 Ibid. 128 Regarding

the meaning of the term, see Trnavci 2014, pp. 193–266. It could also be interpreted that the 19th century legislator had intended to codify international customary law. 129 Basave 1989. 130 Ibid. 131 See the St. Petersburg Declaration and Martens clause concerning the term “humanity”. 132 Division which can also be found in the work of Vattel. See Vattel 1844. 133 Basave 1989, p. 83. 134 See Vattel 1844, Section 3, §27.

132

6 Incorporation of the Laws of War in the Mexican Legal Order

independence (Article 208), the right to territorial integrity (Articles 209, 210, 213, 215) and the right to national honor (Article 214). At the same time, by including “crimes against the law of nations” within the Sixth Title of Crimes against the External Security of the Nation, the former are crimes understood within the framework of an international conflict. In addition, the crimes stipulated under Articles 208 to 215 CJM punish conduct ad bellum and in bellum. Article 208, for example, outlaws acts of hostility against forces, ships or aircraft of a foreign nation, if by their behavior a declaration of war, violence or reprisal can be incurred (ad bellum). They also punish the looting of towns or villages, attacks on hospitals, ambulances, libraries, museums, archives and communication channels (Article 209; in bellum). Furthermore, the taking of hostages or the carrying out of any kind of abuse against the civil population of an enemy country are also punishable (Article 215). The following table provides a correlation between the behaviors criminalized under Mexican law vis-à-vis the Geneva Conventions (Table 6.3): From the table below, it can be noted that in comparison to the perpetrators, those who promote the criminal actions receive higher punishments. The reason behind this lies in the fact that the CJM primarily protects military discipline. Under this rationale, anyone who undermines or threatens military discipline is severely punished. This is not, however, expressly stated in the code. Nonetheless, from the section above, dedicated to the concept of military discipline, it can be concluded that the CJM primarily punishes acts that undermine military discipline.135 The crime of insubordination in Article 305 CJM (asonada) illustrates how punishments for disobeying orders (a crime essentially against military discipline) also depend on the rank of the offender corporals and above, are punished with 60 years’ imprisonment.136 An explanatory memorandum could help us understand the classifications of the CJM. However, the CJM was issued in 1933 under “extraordinary powers”. These allowed the president to issue laws related to the organization of the military and the navy without following the ordinary legislative procedure.137 135 Regarding

the nature of “military discipline”, I traced a decision of the SCJN from 2005, confirming the high value placed on it, where it was stated that it is a condition fundamental to the effective operation of the military. See SCJN, Delitos contra la disciplina militar a que se refiere la fracción i del artículo 57 del código de justicia militar. Para su acreditación basta que el sujeto que los realice tenga la calidad de militar en activo, Tesis de jurisprudencia, 26 October 2005, 148/2005, p. 247. 136 Artículo 305 Los que en grupo de cinco, por lo menos, o sin llegar a ese número cuando formen la mitad o más de una fuerza aislada, rehúsen obedecer las órdenes de un superior, las resistan o recurran a vías de hecho para impedirlas, serán castigados: I.- Con diez años de prisión los promovedores, instigadores o cabecillas del delito y con cinco años de prisión, los que hubieren secundado a los anteriores, si el delito se cometiere en tiempo de paz, y II. Con pena de treinta a sesenta años de prisión, a todos los promovedores, instigadores o cabecillas de la asonada, de cabos en adelante, y con doce años de prisión los soldados, si el delito se cometiere en campaña. 137 According to the interpretations of the SCJN, the “extraordinary faculties” were given to the president in special circumstances in order to ensure efficiency in the public organization. See SCJN, Justicia militar. el código relativo expedido en 1933 no transgrede los artículos 29 y 92 constitucionales (vigentes en esa época), Tesis Aislada, September 2011, 1a. CLXXI/2011, p. 1039.

6.2 War Crimes in Mexican Law

133

Table 6.3 Correlation Between Norms of the Geneva Conventions and the Code of Military Justice Geneva Conventions Crimes against persons

Crimes against property and other rights

Employing prohibited methods of warfare / Usage of prohibited means of warfare

Article 50(GC I) Article 51(GC II) Articles 53, 147(GC IV) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly

Article 209—without extreme military necessity of the war, ignite buildings, devastation of cemeteries, loot towns or villages, attack hospitals, ambulances or charitable asylums made known by established signs, (…) Destruction of libraries, museums, as well as communication channels: 12 years’ imprisonment- When promoting the action: 30–60 years’ imprisonment Article 363—Marines, who against the orders of their superiors, burned or destroyed ships, buildings or other property: 11 years’ imprisonment For promoting the action or when the perpetrator is a superior within the military corps: 30–60 years of prison

Article 334—Destruction of food supplies and objects; devastation of farms, plantations, roads and looting of villages: 7 years’ imprisonment

(continued)

134

6 Incorporation of the Laws of War in the Mexican Legal Order

Table 6.3 (continued) Geneva Conventions Crimes against persons

Article 53 Additional Protocol (I) Protection of cultural objects and of places of worship

Crimes against property and other rights

Employing prohibited methods of warfare / Usage of prohibited means of warfare

Article 209—destruction of (…) archives, aqueducts and notable works of arta (…)—12 years’ imprisonment. Promoting the action: 30–60 years’ imprisonment Article 208—Acts of hostility against forces, ships, aircraft, persons or property of a foreign nation if by these acts a declaration of war violence or reprisals is provoked: 30–60 years—imprisonment

Articles 51 and 52 Additional Protocol (I)

Article 213—when seizing a vessel, they unnecessarily commit murder, serious injuries or other sufferings, or leave the persons without means of being saved, they shall be punished with 30–60 years’ imprisonment

Parliamentarian as prescribed by the Hague Conventions (Articles 32-34).

Article 214—Offense of a parliamentarian of the enemy: one-year imprisonment

(continued)

6.2 War Crimes in Mexican Law

135

Table 6.3 (continued) Geneva Conventions Crimes against persons

Articles 28, 46, 47 of the Convention concerning the Laws and Uses of Land Warfare (Prohibition against plundering and confiscation of private property)

Article 215—(…) those who confiscate food supplies, means of transport, take hostages, or inflict any type of humiliation against the civilian population of an enemy countryb (5 years’ imprisonment)

Articles 40-41Convention Concerning the Laws and Uses of Land Warfare

Crimes against property and other rights

Employing prohibited methods of warfare / Usage of prohibited means of warfare

Article 325 seizure or confiscation of alien property for the purpose of legitimate appropriation (5 years’ imprisonment). Articles 331, 332, 333, 335, 336—Seizure of private property, either in the form of appropriation of services and looting

Article 208(II)—Violation of armistice, capitulation or other agreement with the enemy (30–60 years’ imprisonment)—in case of no resumption of hostilities or no declaration of war (8 years’ imprisonment)

Source Tania Ixchel Atilano a With regard to protection of works of art, Article 52 of the Federal Law on Monuments and Historic

Areas could also be considered; see Guevara 2004, p. 188. However, this provision is not applicable in the case of an armed conflict, since it is a generic provision against damages to archaeological, artistic or historical monuments (2–10 years in prison). Therefore, it is not, in itself, a war crime. b As can be seen, this provision is very generic, since humiliation could mean torture, serious bodily injury, rape, etc. Taking into account the variety of behaviors that may include the term humiliation, the penalty of 5 years is also inadequate, considering the severity of conduct that may exist.

136

6 Incorporation of the Laws of War in the Mexican Legal Order

The lengthy punishment of 60 years is due to the fact that, before 2005, all these crimes were punished with the death penalty. A reform bill of 2005,138 substituted the death penalty for 60 years’ imprisonment. For example, promoting the destruction of archives or notable works of art (Article 209)139 was punished with the death penalty.

6.2.4.2

Offenses Committed Exercising Military Functions

The tenth title of the CJM, which refers to crimes committed in the exercise of military functions or on their account, includes a chapter (Chapter III, Articles 324-325) that protects prisoners, detainees and the wounded.140 The conducts that are criminalized include: aggravated assault and battery (6 months’ imprisonment), deprivation of food necessary for survival (2 years’ imprisonment), wounding a prisoner who tries to escape when there is no absolute need to hurt him (6 years’ or 15 years’ imprisonment if it results in death), forcing a prisoner to fight against his own country (2 years’ imprisonment), looting of belongings from wounded or prisoners (one year imprisonment) and pillage (5 years’ imprisonment). The Code of Military Justice also encompasses punishment for due process violations, classifying such violations under crimes committed against the administration of justice (Articles 421-433). Although this might be considered as satisfactory to comply with the obligation to sanction conducts prohibited by IHL, the crimes of the CJM do not satisfy all the requirements or all elements described in the Geneva 138 DOF,

29 June 2005.

139 Article 209 before 2005 reform: Anyone who commits the following acts in war without extreme

necessity will be punished with 12 years’ imprisonment: burns buildings, loots towns or villages, attacks hospitals, ambulances or places of asylum, which can be identified by established emblems. The same punishment will be given to anyone who destroys libraries, museums, art works or communications infrastructure. Anyone who promotes the commission of these crimes will be punished with the death penalty (emphasis added by the author). Se castigará con la pena de doce años de prisión la que, sin exigencia extrema de las operaciones de guerra, incendie edificios, devaste sementeras, saque pueblos o caseríos, ataque hospitales, ambulancias o asilos de beneficiencia dados a conocer por los signos establecidos, o cuyo carácter pueda distinguirse a lo lejos de cualquier modo, o destruya bibliotecas, museos, acueductos, u obras notables de arte; así como vías de comunicación. A los promovedores se le aplicará la pena de muerte. 140 The CJM refers to prisoners, detainees and wounded, without defining the differences between the three terms. Article 324-Las violencias contra los prisioneros, detenidos, presos o heridos o algún miembro de su familia, que estuviese en unión o en presencia de ellos, se castigará; I. Con seis meses de prisión cuando el maltrato sea de palabra; II. Con la pena que corresponda a la lesión causada, cuando el maltrato sea de obra, teniéndose como circunstancia agravante la condición del ofendido; III. Con dos años de prisión, si el maltrato no causa lesión, pero implica padecimientos físicos y crueles, o prova al herido, prisionero, detenido o preso, de la curación o del alimento necesarios; IV, con seis años de prisión, cuando al prisionero, detenido o preso que se fugue o intente fugarse, se le haga fuego hiriéndolo, sin que haya habido necesidad absolutamente indispensable para usar de este recurso extremo. Si resultare la muerte del ofendido se impondrá la pena de quince años de prisión; V. Con dos años de prisión cuando se obligue al prisionero a combatir contra su bandera y VI. Con un año de prisión cuando se despoje de sus vestidos u otros objetos, al herido, prisionero, detenido o preso para apropiárselos.

6.2 War Crimes in Mexican Law

137

Conventions. Firstly, these crimes (Articles 421-433 CJM) are directed at “officials and employees in the Military Justice Administration”, but they leave out any other member of the armed forces. Another example is the guarantee to a fair trial, which also implies the prohibition of executions without previous trial. In this sense, Common Article 3 GC, is directed not only to those in charge of military justice, but to all who are in active duty. Another example is found in Articles 130 GC III and 147 of GC-IV, which prohibit “depriving a prisoner of war/civilian of the guarantees of a fair trial”, yet current military legislation does not cover this provision either. Another issue to consider is that the provisions of the CJM are limited; however, the violations to a fair trial could be numerous. Additionally, as we have seen, there is an abundance of ambiguity regarding the application of military jurisdiction. Given that military jurisdiction also applies to crimes committed in times of peace and not just war, it can be concluded that the provisions of the CJM do not protect due process during an armed conflict, rather what they protect is the rightful administration of justice.

6.2.4.3

Offenses Against the Internal Security of the Nation: Rebellion and Combatant Immunity

Crimes against the Internal Security of the Nation are punishable under Articles 218227 CJM141 and include acts of rebellion (Articles 218-223) and sedition (Articles 224-227). These articles define the crime of military rebellion as the raising of arms of elements of the army with the aim to abolish or reform the Federal Constitution, prevent the election of the supreme powers of the Federation, remove the President of the Republic, the Secretaries of State, Justices of the Supreme Court, or Attorney General of the Republic. It also includes the continual raising of arms against “the powers of the Union in terms of Article 122 of the Constitution”.142 The crime of rebellion carries penalties from 30 to 60 years in prison, while sergeants, captains and soldiers who surrender will not receive punishment (Article 219, last paragraph). In relation to IHL and the regulation of armed conflicts, Article 222 of the CJM is of particular interest. This article recognizes the status of “rebels” and legitimizes them as combatants. The provision reads as follows: Article 222 – The rebels shall not be responsible for the deaths or injuries, nor for the damages caused to properties during combat; however, all homicides, or injuries or damage to property caused outside combat will be brought to justice. This applies to both those who order the acts responsible and those who directly carry them out, with penalties to be incurred according to the rules of accumulation.143 141 These

crimes are also punished in Articles 130 (sedition) and 132-138 (rebellion) of the CPF.

142 As we can see, this crime punishes the commonly called coup d’état. The CPF punishes the same

conduct among civilians. The penalties are lower, from 2 to 20 years of imprisonment (Article 132 CPF). 143 Artículo 222–Los rebeldes no serán responsables de las muertes o lesiones inferidas en el acto de un combate, ni de los daños que durante el mismo causen a propiedades; pero de todo homicidio, lesión o daño a la propiedad, que se cause fuera de la lucha, serán responsables, tanto el que los

138

6 Incorporation of the Laws of War in the Mexican Legal Order

From this provision, the following considerations emerge: (1) The code of military justice recognizes rebels as those who take up arms. (2) Murder, injuries and property damage shall not be considered crimes as long as they are committed during combat. (3) Outside combat, murder, injuries and property damages are criminalized. (4) For actions outside of combat, responsibility falls to those who carry out the deeds and those who order them. From the description above, this would amount to what, in the treatment of combatants and insurgents, is called “combatant immunity”. This term implies that persons will not be subject to prosecution under domestic law for taking part in the armed conflict and for committing lawful acts of war, provided that the combatants do not take part in war crimes.144 As defined in Article 218 CJM, the condition for designation as a combatant is to participate in a rebellion. Therefore, rebels that engage in combat are granted the possibility that any acts they commit during combat will remain unpunished. Acts that are then lawful—according to Article 222 CJM— include murder, causing injury or bodily harm, the destruction of property. As a result, prosecution follows for rebelling but not for criminal acts that take place during combat. The definition of combatant under IAC, would certainly fall under Article 222 CJM. In AP I, Article 43(2) combatants are defined as “(…) those who have the right to participate directly in hostilities”. The treatment of combatants further referred to in Article 44 AP I adds the notion that those who enjoy combatant privilege are also legitimate targets for the adversary’s attacks and those who fall into custody of the detaining power enjoy status as prisoners of war.145 However, in comparison to IAC, within the Mexican definition of the crime of rebellion, under AP I, domestic criminal law would be inapplicable. Additionally, since the rebels are subject to detention under criminal law, the status of prisoners of war would not apply. In this sense, rebels share the same fate as unlawful combatants in IAC, since they are subject to capture and detention.146 It can be said that, under Mexican law, the rebels have the right to engage in combat as part of their rebellion, but not to rebel. Article 222 CJM, also reveals that, under domestic law, the category of combatant is recognized and is even broader than IHL on non-international armed conflict,147 since rebels are given permission ordene como los que inmediatamente los ejecuten, aplicándose las penas que correspondan según las reglas de acumulación. 144 See Crawford 2010, pp. 68–77. 145 See Commentary AP I 1952, p. 277. 146 For AP I GC, spies and mercenaries fall under the category of unlawful combatants (Articles 46(1) and 47(1)). Nevertheless, the GC does not accept any intermediate status between civilian and combatant. If the detainees are not entitled to POW status then, they would receive civilian status. 147 For a historical account of the recognition of combatants restricted to IAC, see Perna 2006, pp. 1– 33. Also, Crawford 2010, p. 68; Sivakumaran 2012, p. 513. Rule no. 3 of Customary International Humanitarian Law, further adds that “(…) the lawfulness of direct participation in hostilities in noninternational armed conflicts is governed by national law”. See ICRC, Customary IHL Database, “Rule 3. Definition of Combatants”. Nevertheless, Sivakumaran argues that combatant immunity

6.2 War Crimes in Mexican Law

139

to engage in conflict, without any criminal consequences. Considering that Article 39 of the Mexican Constitution grants the citizens right to change its government, this approach probably followed the rationale that, if indeed, the rebellion had “just cause” the rebels would win and no prosecution would eventuate.148 However, no legal recognition or legitimacy is given to the rebel movement.149 It could also be said that, by giving the right to engage in combat, Article 222 CJM also indirectly protects the civilian population, since these attacks would be punished under criminal law. In contrast to other NIAC approaches,150 under Mexican law, no minimum of intensity or duration is needed in order for “combatant immunity” to be granted. It is also interesting to note how, in contrast to the IHL approach to NIAC, immunity is given abstractly and in advance.151 Article 222 CJM also creates a category between a “common criminal” and “combatant”, which, interestingly, is also in line with interpretations of Common Article 3 GC, in which it is deemed that “insurgents” are not to be treated as common criminals.152 The general preemptive character of the provision could also encourage rebels to comply with the law. In this sense, it is also harmonious with IHL scholarship, since combatant immunity is seen as an incentive to comply with the law of NIAC.153 What lies unregulated is the possibility of rebel combatants succeeding in the internal strife, a certain duration, intensity and control of territory being reached and, in these instances, the question of whether that would amount to a “non-international armed conflict” and what the implications would be.154 As rebels will be prosecuted for rebellion, the question of the status

is more “(…) embedded in the practice of non-international armed conflict than the law suggests”. Cf. Sivakumaran 2012, p. 520. 148 On the just cause of rebellion and the theory of state sovereignty as an obstruction to the right to rebel, see Crawford 2010, pp. 70–71. 149 On the controversy of legitimating rebels during the debates of API I, see Sandoz et al. 1987, p. 46, para 87. On the special concerns of states regarding the label of “internal armed conflict” and terrorism, see Crawford 2010, p. 74. 150 As expressed in the “Conference of Government Experts” in 1971, where they held that in order to apply Article 13 GC (III), hostilities should have continued and continue for a certain time. See ICRC 1971, pp. 56–57. 151 Sivakumaran gives numerous examples of combatant immunity granted after the end of hostilities. See Sivakumaran 2012, pp. 516–520. 152 “(…) Article 3 does not protect an insurgent who falls into the hands of the opposing side from prosecution in accordance with the law, even if he has committed no crime except that of carrying arms and fighting loyally. In such a case, however, once the fighting reaches a certain magnitude and the insurgent armed forces meet the criteria specified in Article 4.A.(2), the spirit of Article 3 certainly requires that members of the insurgent forces should not be treated as common criminals”. See Pictet 1952 p. 40. 153 See Sivakumaran 2012, p. 514. 154 In this regard, Sivakumaran classifies intra-state violence in three categories: rebellion, insurgency and belligerency. A rebellion is of limited duration and could be rapidly suppressed by the police. On the other hand, an insurgency is characterized by serious violence and the police is unable to suppress the violence. Sivakumaran also adds that recognition has no uniform criteria and it lies upon the discretion of the recognizing state. Finally, belligerency requires a political organization of the insurgents, sufficient in character, population and resources. This last category follows clearly,

140

6 Incorporation of the Laws of War in the Mexican Legal Order

of “prisoner of war” does not take place, since they would be subject to common prosecution, imprisonment and punishment. It is also very important to add that, under Article 137 CPF, “combatant immunity” is also given to civilians that rebel. Article 137 CPF reads as follows: When, during rebellion, the crimes of homicide, robbery, kidnapping, arson or others are committed, the rules of accumulation will be applied. The rebels will not be responsible for the deaths or injuries inferred in the act of a combat, nor for the damages caused to properties during combat. For crimes committed outside of combat, responsibility will fall on those who order, those who tolerate and those who directly perpetrate the act.155

The punishments for rebellion, however, are higher for members of the military than for civilians. If a member of the military forces commits rebellion, the punishment would amount from 30 to 60 years’ imprisonment whereas civilians would be punished with 2–20 years’ imprisonment. This is, however, consistent with the notion that military discipline is the highest legal interest to be protected. The rationale and origins of “combatant immunity” date, as with other provisions related to IHL, to the Penal Code of 1871. Article 222 CJM can be found verbatim in Article 1113 of the Criminal Code of 1871.156 The penalties are, however, milder, with 10 years’ imprisonment given if hostilities eventuate and up to five years without hostilities. The explanatory memorandum of the Penal Code of 1871 gives us an insight as to the reasons behind giving rebels immunity for their acts during combat. Generally speaking, the reasons can be found in the motives of the rebels. According to the legislator of 1871, a rebel could not be treated as an ordinary criminal, since the acts could be driven by “political fanaticism”, for following principles “blindly” or for misunderstanding the public good. These considerations were preceded by the Constitution of 1857, which in Article 23 forbade the death penalty for political crimes.157 The latter would follow the contemporary approach of not sentencing fighters to capital punishment during non-international armed conflicts,158 as well as the doctrine of recognition of belligerency from the end of the nineteenth century; as described by Crawford 2010, p. 72. Cf. Sivakumaran 2012, pp. 9–11. 155 Art 137 CJM Cuando durante una rebelión se cometan los delitos de homicidio, robo, secuestro, despojo, incendio, saqueo u otros delitos, se aplicarán las reglas del concurso. Los rebeldes no serán responsables de los homicidios ni de las lesiones inferidas en el acto de un combate, pero de los que se causen fuera del mismo, serán responsables tanto el que los manda como el que los permita y los que inmediatamente los ejecuten. 156 Article 1131 CJM Los rebeldes no serán responsables de las muertes ni de las lesiones inferidas en el acto de un combate; pero de todo homicidio que se cometa, y de toda lesión que se cause fuera de la lucha, serán responsables tanto el que mande ejecutar el delito, como el que lo permita y los que inmediatamente lo ejecuten. 157 Article 23 CPEUM Para la abolición de la pena de muerte, queda á cargo del poder administrativo el establecer, á la mayor brevedad, el régimen penitenciario. Entre tanto, queda abolida para los delitos políticos, y no podrá estenderse á otros casos mas que al traidor á la patria en guerra estrangera, al salteador de caminos, al incendíario, al parricida, al homicida con alevosía, premeditacion ó ventaja, á los delitos graves del órden militar y á los de piratería que definiere la ley. 158 Sivakumaran 2012, p. 525.

6.2 War Crimes in Mexican Law

141

with Article 6(5) of AP II.159 I also found a parallel between the Code of 1871 and the “Lieber Code”, regarding the treatment of rebels. In the “Lieber Code”, considerations of humanity are adopted in order to apply “the rules of regular warfare”, which as expressly stated, did not imply giving “partial or complete acknowledgment” to the rebels. The Mexican Code of 1871 also does not recognize legitimacy to the armed group by granting immunity, as the legitimate use of force remains within the state by applying criminal law for the act of rebelling.160

6.2.4.4

Superior Orders

Prior to the Nuremberg trials, the subordinate who received orders from a superior was excused from his individual responsibility, since he was regarded as an instrument of the superior. An example of this regulation is found in the Penal Code in force during the German Reich, which sought to protect military obedience and discipline.161 Nowadays serious violations of international law or war crimes constitute an exception to the principle of superior doctrine.162 That is, the subordinate cannot claim that he received orders from superiors to excuse himself from his criminal responsibility. In the CJM this is regulated in Articles 110 and 119(IV). In the case of Article 110, its antecedent can be found in Article 735 of the Code of Military Justice of 1894 (see Appendix B) and, in the case of Article 119 fr. IV CJM, its antecedent can be traced to Article 34 para XV of the Martínez de Castro Code of 1871 (see Appendix B). Article 110 CJM establishes individual criminal responsibility for both the hierarchically superior and those who obey the order. This provision itself implies a hierarchically ordered system of responsibility, since it always considers the superior as the perpetrator and the subordinate and recipient of the order as the accomplice (assistant). Excluded from this rule are cases in which an agreement 159 Although

the prohibition of the death penalty is not expressed in Article 6(5), the commentary to AP II tells us that the draft of the committee included amnesty, pardon or reprieve of a death sentence in all cases; however, the paragraph was not adopted in order to “(…) keep the text simple”. See Sandoz et al. 1987, penal prosecutions. 160 The Constitutional Court of Colombia, when approving the constitutionality of APII followed similar reasoning. In para 14 of the decision, they stated that, applying Common Article 3 as well as AP II did not interfere with state sovereignty, nor did it imply giving legitimacy or recognizing armed groups, since “(…) they continue to be subject to the penal legislation of the state and may be punished for taking up arms and disturbing the public order”. See Casebook, ICRC, Colombia, Constitutional Conformity of Protocol II, 16 December 1994, RULING No. C-225/95, Re: File No. L.A.T.-040, para 14. https://casebook.icrc.org/case-study/colombia-constitutional-conformityprotocol-ii#para14. Accessed 30 August 2020. On recognition of belligerency and execution of sovereign power during the civil war in the U.S., see Supreme Court of the United States, The Prize Cases, December 1862, 67 US 635. According to this decision, recognition of belligerency (which could also arise de facto) did not preclude prosecution. https://casebook.icrc.org/case-study/unitedstates-prize-cases. Accessed 30 August 2020. 161 Van Sliedregt 2012, pp. 299–304; Cassese also adds that until 1944 the British and US Military Manuals upheld the “respondeat superior” principle. See Cassese 2008, p. 270. 162 Cassese 2008, pp. 268–280; Van Sliedregt 2012, p. 287.

142

6 Incorporation of the Laws of War in the Mexican Legal Order

existed between the superior and recipient of the order prior to the publication of the order (Article 110, para 3). In this case, the CJM considers both as perpetrators of the crime. It is important to note, that under Article 110 CJM, superior responsibility implies that the violation is against criminal law. Article 110 CJM reads as follows: In all cases, when an order is issued that amounts to a violation of criminal law, responsibility will always be held by the superior who issued the order as well as the subordinates that execute the order if: I. The commission of a crime derived notoriously and directly from the content of the order issued. The one who issued the order or commanded the issuance of the order will be considered as perpetrator, and all those who contributed to executing the order will be considered accomplices (…). II. The commission of a crime had its origin in an alteration in the issuance of an order, or if the crime was committed when executing the order by excess; the person that altered the order or executed it with excess will be punished as a perpetrator, and any other(s) who contributed to the commission of the crime will be considered an accomplice, and III. If, prior to the issuance of the order, an agreement or arrangement occurred between the one who issued the order and those who contributed to executing the order, both parties will be punished as perpetrators.163

As we can see, the provision punishes as perpetrator the superior who issues the orders.164 Equally, the military code excludes superior orders as an excuse to criminal liability. As a result, subordinates also bear responsibility when following an unlawful order. Considering the wording of the article, if the order “amounts to a violation of criminal law”, then we could agree that it must be “manifestly unlawful”. This hypothesis is confirmed when considering Article 119 VI CJM. Article 119 provides for the excuses to criminal responsibility, which establish that a subordinate is excused when executing an order that amounts to a crime, except in the cases where the commission of a crime is notorious or the accused had already

163 Article 110 CJM: Siempre que el cumplimiento de una orden del servicio implicare la violación

de una Ley Penal, serán responsables el superior que hubiere dictado esa orden y los inferiores que la ejecutaren, con arreglo a las siguientes prevenciones: I.- Si la comisión del delito emanare directa y notoriamente de lo dispuesto en la orden, el que la hubiese expedido o mandase expedir será considerado como autor, y los que de cualquiera manera hayan contribuido a ejecutarla serán considerados como cómplices, en caso de que se pruebe que conocían aquellas circunstancias, y sin perjuicio de la responsabilidad en que pudieren haber incurrido tales cómplices, si, para dar cumplimiento a dicha orden, hubiesen infringido, además, los deberes correspondientes a su clase o al servicio o comisión que estuvieren desempeñando; II.- si la comisión del delito proviniese de alteración al transmitir la orden o de exceso al ejecutarla, por parte de los encargados de hacer una u otra cosa, éstos serán considerados como autores, y los demás que hubiesen contribuido a la perpetración del delito serán reputados como cómplices, en los mismos términos antes expresados, y III.- si para la perpetración del delito hubiere precedido a la orden, acuerdo o concierto entre el que la expidió y alguno o varios de los que contribuyeron a ejecutarla, uno y otros serán considerados como autores. 164 See also Article 1 of the Regulations Concerning the Laws and Customs of the Land War from 1907.

6.2 War Crimes in Mexican Law

143

knowledge of it.165 This follows the model of manifest liability or conditional liability enshrined in Article 33 of the Rome Statute166 and characteristic of the domestic law approach to superior orders.167 This is the case of domestic law since it tends to cover all crimes and not only international crimes; hence not all acts punished by domestic criminal law are manifestly unlawful (as in genocide). In this regard, the Rome Statute drifts away from customary international law, by adopting the domestic law approach for war crimes.168 Article 110 CJM establishes three hypotheses by which superiors can be held as perpetrators. As for those who carry out the orders, their culpability is mitigated even though they are obliged as far as is reasonably possible to avoid harm. The only exception to these, is when both the superior and subordinate agree to commit the crime. For all cases, all subordinates who execute the order will be considered responsible for assisting the crime, except in the case of agreement between the superior and the executor (joint commission).169

6.3 Legacy of Nineteenth Century Codification The history of the provisions in Mexican law related to war crimes are not without interest, especially since the CJM of 1933 has its origins in the Martínez de Castro Penal Code of 1871170 and the Military Justice Code of 1894. During the 19th century several efforts were made to codify the usages/conduct of war at the international level, which were already in practice and accepted as international customary law. Among these efforts were the Geneva Convention of 1864 and the St. Petersburg declaration of 1868.171 The St. Petersburg declaration

165 Article 119 Son excluyentes: (…) VI. obedecer a un superior aun cuando su mandato constituya

un delito, excepto en los casos en que esta circunstancia sea notoria o se pruebe que el acusado la conocía. 166 Werle and Jessberger 2014, pp. 251–253. 167 Cassese 2008, pp. 271–272. 168 This is critically assessed by Cassese, who finds that war crimes enlisted in the RS amount to the most serious crimes; therefore, it would be expected that servicemen know very well that the category of crimes under the RS fall under war crimes. He also finds that contradictory situations may arise if the same offence is characterized as crimes against humanity or as war crimes. In this case, the defendant could argue superior orders as an excuse in the case of war crimes. Finally, he urges for harmonization between Article 33 RS and customary international law. See Cassese 2008, pp. 279–280. 169 See ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pre-Trial Chamber, 15 June 2009, ICC-01/05-01/08-424. 170 This code entered into force on 7 December 1871 and was replaced by the Penal Code of 1929. See Franco Guzmán 1979, pp. 139–166. 171 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight. St. Petersburg, opened for signature (11 December 1868), entered into force (11 December 1868).

144

6 Incorporation of the Laws of War in the Mexican Legal Order

reconciled the necessities of war with the laws of humanity, and established that the use of arms should not be contrary to the laws of humanity. Following the predominance of municipal law during the nineteenth century, the United States drafted the first attempt to codify the laws of warfare (the Lieber Code), establishing principles of humanity and humane treatment as restrictions to warfare.172 Other countries—like France (1877) and Serbia (1878)—issued military manuals.173 As a response to the efforts and concerns of regulating warfare, the Institute of International Law at Oxford drafted a Manual in 1880174 that was intended to serve as framework for national legislation and included penal sanctions, albeit rather broadly.175 Mexican jurists responded to the trends of the 19th century towards the “humanization” of warfare by punishing violations to the usages of war. The latter took shape in the Criminal Code of 1871.176 The drafting of the Criminal Code began in 1862 and was published in 1871. The Code was commissioned by president Benito Juárez to the notable jurist, Antonio Martínez de Castro. The Criminal Code was a result of the ideas of the Independence and “Reforma” movement, which was headed by president Benito Juárez and characterized by its highly positivistic approach to the law. The high value given to written and codified law might be an answer for the prompt domestic response to the international trends of regulating warfare. As scholar Robert Kolb puts it, the trend to codify the conduct of war, served to “(…) 172 Article

4: Martial Law is simply military authority exercised in accordance with the laws and usages of war. Military oppression is not Martial Law: It is the abuse of the power which that law confers. As Martial Law is executed by military force, it is incumbent upon those who administer it to be strictly guided by the principles of justice, honor, and humanity virtues adorning a soldier even more than other men, for the very reason that he possesses the power of his arms against the unarmed. See Instructions for the government of armies of the United States in the field. Prepared by Francis Lieber, promulgated as General Orders No. 100 by president Lincoln, 24 April 1868. Published: 1898, Washington. 173 On the early prevention and punishment of war crimes, see Bellot 1916, pp. 31–55. 174 See Institute of International Law at Oxford (Oxford Manual) 1880. 175 PART III: PENAL SANCTION If any of the foregoing rules be violated, the offending parties should be punished, after a judicial hearing, by the belligerent in whose hands they are: Article 84. Offenders against the laws of war are liable to the punishments specified in the penal law. This mode of repression, however, is only applicable when the person of the offender can be secured. In the contrary case, the criminal law is powerless, and, if the injured party deem the misdeed so serious in character as to make it necessary to recall the enemy to a respect for law, no other recourse than a resort to reprisals remains. Reprisals are an exception to the general rule of equity, that an innocent person ought not to suffer for the guilty. They are also at variance with the rule that each belligerent should conform to the rules of war, without reciprocity on the part of the enemy. This necessary rigor, however, is modified to some extent by the following restrictions: Article 85. Reprisals are formally prohibited in case the injury complained of has been repaired. Article 86. In grave cases in which reprisals appear to be absolutely necessary, their nature and scope shall never exceed the measure of the infraction of the laws of war committed by the enemy. They can only be resorted to with the authorization of the commander in chief. They must conform in all cases to the laws of humanity and morality. 176 Código Penal para el Distrito Federal y Territorio de la Baja California sobre delitos del fuero común y para toda la República Mexicana sobre delitos contra la federación, 7 December 1871, (Código Penal 1871).

6.3 Legacy of Nineteenth Century Codification

145

transfer the religious and moral background of war to the strictly scientific concept of law”.177 The Mexican Criminal Code was far ahead of international and local efforts since it not only codified the usages of war (e.g. the St. Petersburg Declaration), but it also criminalized the acts deemed contrary to them. The drafters entitled the crime as: “violations of the duties to humanity”. Article 1139 of the Criminal Code of 1871 does not define what amounts to duties of humanity but does outline the protected persons and objects during wartime: prisoners of wars, hostages, the wounded and hospital inmates. From the categorization of Article 1139, “violations of duties to humanity” is a crime of its own, since in its second paragraph, it foresees criminal responsibility for all other conduct committed jointly or, if as a result of the “violation”, the life of the victim was threatened. It is also relevant to note that Article 1139 was classified under Section XV of the code, namely: “Crimes against the law nations”. Under this category the following crimes are found: piracy, violation to immunities, slavery trade, slavery and “violations of the duties to humanity”. Although the commission to draft the Code of 1871 dates back to 1862, it is likely that the notion of “duties to humanity” was inspired by the St. Petersburg Declaration, which already entailed the term “laws of humanity” that were to be respected during wartime. Hence, the crime “violation of the duties to humanity” might be a transfer of the said declaration. Also, the “Lieber Code” promulgated in 1863 could be considered a reference to Article 1139. However, Martínez de Castro, in his explanatory memorandum,178 mentions that, of the twenty something (veintitantos) codes and projects that were examined, only the Spanish Code and the Portuguese draft code contained certain “crimes against the law of nations”. The projects examined were somehow insufficient as Martínez de Castro stressed that some development was needed concerning piracy, slave trade and “duties to humanity” and added that the drafting commission dealt with these crimes, as their perpetration was very common.179 Robert Kolb argues that the principle of humanity180 emerging from the midnineteenth century evolved as a restriction to warfare and as a counterpart to the principle of necessity. His argument, that in the mid-nineteenth century (mainly due to ideological reasons), municipal law dominated international law, does support 177 Kolb

2013, p. 29. de motivos” (Explanatory memorandum), Código Penal 1871, pp. 67–68. 179 Ibid. (…) Delitos contra el Derecho de gentes. “De los veintitantos códigos y proyectos que hemos examinado, solo el Código español y el proyecto de Portugal hablan de unos cuantos delitos contra el derecho de gentes; y á nosotros nos ha parecido que no estaría de mas hacer otro tanto, fijando los preceptos mas seguros y que están admitidos como incontestables, sobre la piratería, sobre la violación de los archivos, de la correspondencia y de cualquiera otra inmunidad diplomática real ó personal de un soberano extranjero ó de los representantes de otra nación, de un parlamentario ó de la que da un salvoconducto; sobre el tráfico de esclavos; y sobre la violación de los deberes de humanidad en prisioneros, rehenes, heridos ú hospitales. La comisión se ocupó de estos delitos, por ser muy común su perpetración, y no hizo lo mismo respecto de otros, por ser menos frecuentes, y porque para tratar de todos sería necesario formar un código aparte. (…)” 180 Kolb 2013, p. 29. 178 “Exposición

146

6 Incorporation of the Laws of War in the Mexican Legal Order

my hypothesis that “violations of the duties to humanity” might well have been a novel legal creation that superseded the development of international law and legal scholarship, and most of all, that the Mexican legal order adopted a humanitarian character at an early stage. Regarding superior orders, it is telling that a nineteenth century code already banned the application of the respondeat superior principle as a defense, especially since it was widely applied by states in the mid-19th century. Major discussions of its abrogation followed until 1943 when allied powers sought to prosecute German war criminals.181 As an example, the British war office abrogated the superior orders defense in April 1944.182 In this vein, the Nuremberg tribunal interpreted that “(…) among the criminal law of most nations it was not the existence of the order that mitigates punishment but whether moral choice was in fact possible”.183 Finally, the expedition of the Rome Statute ended with the debate regarding superior orders as a defense. Going back to the Martínez de Castro Code, it is especially noteworthy as far as its explanatory memorandum is concerned. In the section regarding the circumstances that exclude criminal responsibility, the jurist Martínez de Castro explains the figure of passive obedience in para XV of Article 34, referring to the Codes reviewed by the drafting committee. The drafting committee concluded that passive obedience excluded criminal responsibility, without exception, in most of the codes reviewed. However, they also emphasized the need to distinguish between when obedience is legitimate and obligatory. De Castro added that excluding criminal responsibility for the subordinate who obeys an order “(…) is to regard the agent as a real automaton. It enables many crimes, for in knowing that anyone who obeys is not responsible, it allows the subordinate to commit the wildest crimes as mere and vile instruments of their leaders, being also assured of impunity”.184 The notion embedded in the Criminal Code of 1871, was without a doubt ahead of its time, since as explained before, it was not until the end of the Second World War that, internationally, it was considered that following orders could not preclude criminal liability.185 181 For an extensive review on the respondeat superior principle as a defense in international criminal

law, see Lippman 1996, pp. 4–58. p. 15. 183 Kolb 2013, p. 29. 184 “(…) En algunos códigos se pone la obediencia pasiva como circunstancia excluyente, sin distinción ninguna; pero esto es considerar al agente como un verdadero autómata y dar ocasión á muchos crímenes; porque sabiendo que el que obedece es irresponsable, se prestarían los inferiores a cometer los mayores atentados, como viles instrumentos de sus jefes, seguros de la impunidad”. See “Exposición de Motivos” (Explanatory memorandum), Código Penal, 1871, pp. 13–14. The idea of Martínez de Castro is in line with, what later, the court in the Eichmann Case argued against the superior orders excuse, which the Court called: “blind obedience”. See Less 1987, paras 216 and 228. In a broader interpretation and related to the “automaton” notion, a connection can also be found between Martínez de Castro’s dismissal of superior orders and the International Military Tribunal (IMT), in the sense that the acts of individuals cannot be shielded or excused as being acts of states, since they are committed by individuals. See IMT, France et al. v Göring et al, Judgment and Sentence, 1 October 1946, 22 IMT 411, p. 466. 185 See Kelsen 2008, pp. 91–133. 182 Ibid.,

6.3 Legacy of Nineteenth Century Codification

147

Thus, it can be concluded that the provisions on “superior orders” and “violations against the duties of humanity” are not a result of the implementation of contemporary international law or IHL; rather, Mexico’s provisions are a product of its own legislative history and evolved simultaneously with and along the trajectory of Mexican Law in the 19th century.

References Andreu-Guzmán F (2004) Military Jurisdiction and International Law: Military Courts and Gross Human Rights violations, vol. I. International Commission of Jurists, Geneva Baggett S (1935) The delegation of legislative power to the executive under the Constitution of Mexico. Southern California Law Review 114. Basave A (1989) Filosofía del Derecho Internacional, 2nd edn. UNAM, Mexico Bassiouni M (1998) Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities. Transnational Law & Contemporary Problems, Vol.8: 199–276 Bassiouni C (2008a) International Criminal Law; Volume 1: Sources, subjects and contents. Martinus Nijhoff Publishers, Leiden Bassiouni C (2008b) International Criminal Law. International Enforcement. Martinus Nijhoff Publishers, Leiden Bellot H (1916) War Crimes: their prevention and punishment. In: Problems of war. Papers read before the Grotius Society, vol. 2, pp. 31–55 Bermúdez R (2006) Breve reseña histórica del derecho penal militar mexicano. Boletim Científico, no. 18 Cámara de Diputados (1966a) Sesión de la H. Cámara de Diputados efectuada el día 14 de octubre de 1966, Legislatura XLVI, año II, período ordinario, 14 de octubre de 1966, número de diario:14 Cámara de Diputados (1966b), Sesión de la H. Cámara de Diputados efectuada el día 18 de octubre de 1966, Legislatura XLVI, año II, período ordinario, 18 de octubre de 1966, número de diario:14 Cassese A (2008) International Criminal Law, 2nd edn. Oxford University Press, Oxford Centro de Derechos Humanos Fray Bartolomé de Las Casas, AC (1996) Ni paz ni justicia ó informe general y amplio acerca de la guerra civil que sufren los ch’oles en la zona norte de Chiapas diciembre de 1994 a octubre de 1996. https://frayba.org.mx/wp-content/uploads/2017/02/961 012_ni_paz_ni_justicia_frayba.pdf. Accessed 29 August 2020 Centro de Derechos Humanos Fray Bartolomé de Las Casas, AC (1999) Informe Especial sobre ejecuciones en Chiapas, 1999. https://frayba.org.mx/wp-content/uploads/2017/02/990601_eje cuciones_en_chiapas_frayba.pdf. Accessed 29 August 2020 Centro de Derechos Humanos Miguel Agustín Pro-Juárez (2015) Tlatlaya a un año la orden fue abatir. https://centroprodh.org.mx/2015/06/30/tlatlaya-a-un-ano-la-orden-fue-aba tir-2/. Accessed 29 August 2020 Clapham A (2016) Human Rights and International Criminal Law. In: Schabas W (ed) The Cambridge Companion to International Criminal Law. Cambridge University Press, Cambridge Código Penal para el Distrito Federal y Territorio de la Baja California, sobre delitos del fuero común y para toda la República Mexicana, sobre delitos contra la federación - Código Martínez de Castro - (1871) Librería de Donato Miramontes, Chihuahua, Mexico Crawford E (2010) The treatment of combatants and insurgents under the law of armed conflict. Oxford University Press, Oxford Franco Guzmán R (1979) 75 años de Derecho Penal en México. In: LXXV años de evolución jurídica en el mundo, vol. I. UNAM, Mexico, pp. 139–166 Geneva Academy of International Humanitarian Law and Human Rights (2014) What amounts to "a serious violation of international human rights law? Geneva Academy, Geneva

148

6 Incorporation of the Laws of War in the Mexican Legal Order

Gibson M (2008) International Human Rights Law and the Administration of Justice through Military Tribunals: Preserving Utility While Precluding Impunity. Journal of International Law & International Relations, Winter 2008 Góngora J (2015) La reforma al artículo 57 del Código de Justicia Militar a la luz de los estándares de la Corte Interamericana de Derechos Humanos sobre jurisdicción militar. Boletín Mexicano de Derecho Comparado, vol. 48, no. 144 González G (2010) La ley Juárez: reflejo de la cultura jurídica y legal de la primera mitad del siglo XIX. In: Vázquez J (ed) Juárez: historia y mito. El Colegio de México, Mexico City, pp. 191–214 Guevara J (2004) México frente al Derecho Internacional Humanitario. Universidad Iberoamericana, Mexico Heffes E (2016) Generating Respect for International Humanitarian Law: The Establishment of Courts by Organized Non-State Armed Groups in Light of the Principle of Equality of Belligerents. In: Gill T et al (eds) Yearbook of International Humanitarian Law, Volume 18. T.M.C. Asser Press, The Hague, pp. 181–201 Hobe S (2011) Der asymmetrische Krieg als Herausforderung der internationalen Ordnung und des Völkerrechts. In: Heintze H, Ipsen K (eds) Heutige bewaffnete Konflikte als Herausforderungen an das humanitäre Völkerrecht. Springer Verlag, Berlin/Heidelberg Huneeus A (2013) International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts. American Journal of International Law 107: 1–44. ICRC (1971) Conference of government experts on the reaffirmation and development of international humanitarian law applicable in armed conflicts, chapter V. https://www.loc.gov/rr/frd/Mil itary_Law/pdf/RC-Report-conf-of-gov-experts-1971.pdf. Accessed 30 August 2020 ICRC - Advisory service on International Humanitarian Law (2008) Guidelines for assessing the compatibility between national law and obligations under treaties of International Humanitarian Law. https://www.icrc.org/en/document/guidelines-assessing-compatibility-between-nat ional-law-and-obligations-under-treaties. Accessed 29 August 2020 ICRC (2019) International Humanitarian Law and the challenges of contemporary armed conflicts – recommitting to protection in armed conflict on the 70th anniversary of the Geneva Conventions. ICRC, Geneva ICRC (undated) Customary IHL Database, “Rule 3. Definition of Combatants”. https://ihl-dtabases. icrc.org/customary-ihl/eng/docs/v1_rul_rule3. Accessed 30 August 2020 Kelsen H (2008) La paz por medio del derecho, 2nd edn. (Echávarri L (transl.)) Editorial Trotta, Madrid Kolb R (2013) The main epochs of modern international humanitarian law since 1864 and their related dominant legal constructions. In: Mujezinovic et al (eds) Searching a principle of humanity in humanitarian law. Cambridge University Press, Cambridge Leiden University (2018) The situation of drug related violence in Mexico from 2006-2017: A non-international armed conflict? Leiden IHL Clinic Report Series no. 28, Leiden Less A (1987) Schuldig. Das Urteil gegen Adolf Eichmann. Athenäum Verlag, Frankfurt Lippman M (1996) Conundrums of Armed Conflict: Criminal Defenses to Violations of the Humanitarian Law of War. Penn State International Law Review 15: 1–111 López J (2010) Las Leyes de Reforma a 150 años de su expedición. UNAM, Mexico Meron T (1989) Human Rights and Humanitarian Norms as customary law. Oxford University Press, New York Meyer J (2003) El Sinarquismo, el Cardenismo y la Iglesia, 2nd edn. Tusquets editores, Mexico Murschetz V (2007) Auslieferung und Europäischer Haftbefehl. Springer Verlag, Vienna/New York Perna L (2006) The Formation of the Treaty Law of Non-International Armed Conflicts. Martinus Nijhoff Publishers, Leiden/Boston Pictet J (1952) Geneva Convention I, Commentary. ICRC, Geneva Renaut C (2008) The impact of military disciplinary sanctions on compliance with international humanitarian law. International Review of the Red Cross 90: 319–326

References

149

Sandoz Y (2008) Penal Aspects of International Humanitarian Law. In: Bassiouni C (ed) International criminal law; Volume 1: Sources, subjects and contents. Martinus Nijhoff Publishers, Leiden Sandoz Y, Swinarski C, Zimmermann B (eds) (1987) ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. Martinus Nijhoff Publishers, Geneva Schindler D, Toman L (1988) The Laws of Armed Conflicts. Martinus Nijhoff Publishers, Leiden Sivakumaran S (2012) The Law of Non-international Armed Conflict. Oxford University Press, Oxford Somer J (2007) Jungle justice: passing sentence on the equality of belligerents in non-international armed conflict. IRRC, Volume 89 Number 867: 655–690 The National Security Archive (2006) Draft Report Documents 18 Years of ’Dirty War’ in Mexico. https://nsarchive2.gwu.edu//NSAEBB/NSAEBB180/index.htm. Accessed 29 August 2020 Tlachinollan, Centro de Derechos de la Montaña (2013) Jurisdicción militar y derechos humanos: elementos para las reformas pendientes. https://www.tlachinollan.org/wp-content/uploads/2015/ 01/INFORME-jurisdiccion-militar-y-ddhh.pdf. Accessed 30 August 2020 Trnavci G (2014) The meaning and scope of the law of nations in the context of the alien tort claims act and international law. University of Pennsylvania Journal of International Law 26: 193–266 UN Economic and Social Council (2006) Draft Principles Governing the Administration of Justice through Military Tribunals, E/CN.4/2006/58 UN General Assembly Security Council (1992) Third Report of the United Nations Observer Mission in El Salvador, A/46/876-S/23580. https://digitallibrary.un.org/record/141108/files/ A_46_876_S_23580-EN.pdf. Accessed 29 August 2020 UN Human Rights (2013) Military Courts: report, A/68/285. https://undocs.org/en/A/68/285. Accessed 31 August 2020 UN Human Rights Council (2008) Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, A/HRC/8/3/Add.2 Unzueta Reyes V (2009) Amicus Curiae presentado ante la Corte Interamericana de Derechos Humanos en el caso Rosendo Radilla Pacheco contra los Estados Unidos Mexicanos. https://www. senado.gob.mx/comisiones/justicia/docs/Justicia_Militar/Acad_MesaIII_VUR.pdf. Accessed 31 August 2020 Van Sliedregt E (2012) Individual Criminal Responsibility in International Law. Oxford University Press, Oxford/New York Vattel E (1844) The law of nations; or principles of the law of nature, applied to the conduct and affairs of nations and sovereigns, 6th US edn. T.&J.W. Johnson, Law Booksellers, Philadelphia Weinke A (2006) Die Nürnberger Prozesse. CH Beck, Munich Werle G, Jessberger F (2014) Principles of International Criminal Law. Oxford University Press, Oxford WOLA-Advocacy for Human Rights in the Americas (2017) Justicia Olvidada la impunidad de las violaciones a derechos humanos cometidas por soldados en México. https://www.wola.org/ wp-content/uploads/2017/11/WOLA_MILITARY-CRIMES_RPT_SPANISH.pdf. Accessed 30 August 2020 Zaffaroni E et al (2011) Manual de Derecho Penal Mexicano, parte general. Porrúa, Mexico

Chapter 7

Interpretation of International Criminal Law Principles by the Mexican Judiciary

Contents 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 The Halconazo Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 Preliminary Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Contextual Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Legal Chronicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.4 Appeal No. 1/2004-PS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.5 Investigative Powers of the SCJN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Constitutional Controversy 33/2002 Over the Interpretative Declaration to the Inter-American Convention on Forced Disappearance of Persons . . . . . . . . . . . . . 7.5 The Rosendo Radilla Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.1 Prior Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.2 Outcomes of the Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.3 Interim Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Cavallo Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.2 Resolutions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6.3 Outcome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

152 153 154 154 157 157 159 180 185 187 187 188 191 193 193 194 196 199

Abstract This chapter will review how the Mexican judiciary—especially the Supreme Court—has applied and interpreted international criminal law (ICL) principles. The review of these interpretations will intertwine with the positions of the legislative and executive powers. Overall, the analysis will also provide the pathway of transitional justice at the political moment when it was expected, but which was not delivered. The intricate arguments of the Supreme Court in all three cases will be identified. Also their inconsistencies vis-à-vis international law and international customary law will be confronted. This chapter will also show that there is no foreseeable criterion when it comes to certain ICL principles, since it can be deduced that the Supreme Court’s arguments were more political than legal. Finally, these inconsistencies have paved the way for even more impunity, regardless of the IACtHR judgment on the Radilla case. Keywords Transitional justice · Statutory limitations · Non-retroactivity principle · Dirty War · State crime · Human rights violations © t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_7

151

152

7 Interpretation of International Criminal Law …

7.1 Introduction This chapter will turn to different paradigmatic cases or “landmark cases”,1 characterized by the implementation of ICL principles. In order to evidence how ICL or customary law principles are applied in the Mexican judiciary, the Halconazo,2 Cavallo and Radilla cases will be reviewed in the sections below. The first case—often referred to as the Halconazo case—evolved around the judgment of senior officials (including former president Luis Echeverría Álvarez) for the events that occurred on 10 June 1971, when student protests in the streets of San Cosme in Mexico City were met by armed violence deployed by the security services.3 There were two main decisions by the SCJN in relation to the Halconazo case. The first developed within what is called the facultad de atracción, by virtue of which interested parties were able to request the SCJN to review the legality and constitutionality of a resolution issued by the judiciary (the SCJN serving at the time as an appellate court). The second decision revolves around the faculty of investigation (facultad de investigación) of the SCJN.4 The nature of these appeals is different, but in both, the SCJN interpreted principles of international criminal law. Above all, it clarified its stance regarding ICL in a period, in which many expected, or hoped, that the SCJN would decide favorably in matters concerning widespread violations of the right to life, physical integrity and freedom. Expectations also existed that the Court would create a new criterion that not only diverged from previous practices of interpretation, but also would signify a clear break with the previous regime by incorporating some of the interpretations in decisions from other countries that also experienced democratic transition. For example, the ECtHR had already issued its decision on “border guard cases” (Mauerschützenfall),5 which addressed the criteria and conditions of non-application of statutory limitations for the most serious crimes for states in democratic transition. The Inter-American Court of Human Rights had also handed down its Barrios Altos 1 Abu

Chouka and Jiménez 2015. the decision of the Magistrate of the Fifth Unit Court in Criminal Matters of the First Circuit, appeal number 415/2004, quoted in: SCJN, Request for this high court to exercise the power provided for in the second paragraph of Article 97 of the Constitution, 24 April 2006, 1/2006, (Halconazo request). 3 The Halconazo is also known as the Corpus Christi Massacre, as it happened on the feast day of Corpus Christi, on Thursday, 10 June 1971. It took place in Mexico City, starting with a student demonstration organized in solidarity with the students of Monterrey, who were on strike as a new state law removed autonomy from the University of Nuevo Leon. From the testimonies, it is concluded that when the riot squad opened the crossing at the avenues of Melchor Ocampo and San Cosme, the Halcones group (“the falcons”) attacked the students with kendo rods and bamboo sticks, as well as high caliber weapons. In the end, according to estimates, there were up to 120 dead. 4 This is a competence that was removed from the powers of the SCJN and granted to the National Commission on Human Rights (CNDH) in the course of constitutional reforms on human rights in 2011. See DOF, Reforma Constitucional en materia de Derechos Humanos, 10 June 2011. 5 ECtHR, Streletz, Keßler and Krenz v. Germany, Judgement, 22 March 2001, Application nos. 34044/96, 35532/97 and 44801/98. 2 See

7.1 Introduction

153

v. Peru ruling, which held that statutes of limitations were inapplicable for crimes of torture, extrajudicial executions and forced disappearances.6 Yet, as we will see, these advances in international criminal law, which spelled out specific principles, had little influence at the domestic level in Mexico.7 The digression into the statutory limitations debate in Germany is made to contrast the approaches of interpretation within national jurisdictions. The different practices will help us to see the different solutions to the same problem. As a result of the insights from Germany’s approach, the narrow interpretation of the Mexican judiciary towards the alleged commission of international crimes will become evident, not only for not considering principles of international law but also for not addressing the nature of statutory limitations within domestic law. The following sections will also reveal the dynamics of ICL within a domestic legal system and, above all, the non-recognition of customary international law. The fact that no consensus was reached by the Mexican Supreme Court, and that even the Mexican justices argued for statutory limitations to be observed for the crime of genocide is quite revealing of the dearth of implementation of international criminal justice within the Mexican legal system, raising the question as to whether any credibility is given to international criminal law at all. The fact that the Halconazo case trial took place during a time in which the decline of sovereignty vis-à-vis globalization was argued (mainly given the end of the cold war)—and, therefore, an embrace of the principles of international law principles would have been expected— is also quite remarkable.8

7.2 Methodology Since the arguments of both the prosecutor and the Supreme Court are of relevance for analyzing the state practice towards the principle of ICL, they will be presented in a dialectical fashion. Thus both positions will be confronted. There are four categories in the arguments put forward by the Prosecutor (FEMOSPP) which are classified as: (a) Retroactive application of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity; (b) Interruption of statutory limitations; (c) Due process guarantees; and (d) Inapplicability of constitutional immunities. In line with the theoretical, discursive and historical trajectory

6 See IACtHR, Caso Barrios Altos vs Perú, Judgment, 14 March 2001 (Caso Barrios Altos), para 41.

https://www.corteidh.or.cr/docs/casos/articulos/seriec_87_ing.pdf. Accessed 6 September 2020. 7 Cases that could have been cited include the trial of Adolf Eichmann in Jerusalem, the prosecution

in Germany of National Socialist crimes, the cases of Klaus Barbie, Paul Touvier and Maurice Papon in France, as well as the decisions of the International Criminal Tribunals for the former Yugoslavia and Rwanda. References to previous cases by order of mention are found in: Werle and Wandres 1995; Jones 2000; Bass and Gary 2004; Sadat 2008. 8 In this regard, see Broomhall 2003, pp. 185–192.

154

7 Interpretation of International Criminal Law …

of the so-called “dirty war”9 and the forced disappearance of persons during that period, the Rosendo Radilla case will be analyzed. Finally, the analysis will drift to the extradition of Cavallo, which will stand in sharp contrast to the previous cases, and to the Foreign Ministry (SRE) statements. Although it is clear that in both cases the litigious matter is different, it becomes evident that in the Cavallo case, the SRE adopted a stance more in line with international law, while in the Radilla case it argued in favor of non-retroactive application of international legal obligations, even though it was a case of forced disappearance. This analysis will provide us with a tool to verify the SCJN’s argumentative line around ICL cases and whether ICL rules and principles have been used in a systematic way. Similarly, the description, analysis and comparison of these three cases will deliver elements to determine if the resolutions of the SCJN reveal legal or political motivations for establishing legal truths.

7.3 The Halconazo Case 7.3.1 Preliminary Considerations The violence of the counter-insurgency policies ordered by the PRI party during the 1960s and 70s, left thousands of victims.10 The claims of the victims throughout the years were represented by various civil groups and committees.11 With the creation of the National Human Rights Commission (CNDH) in 199012 a “Special Program on Presumed Missing Persons” was conceived to investigate the circumstances of the so-called “dirty war”.13 When the PAN’s candidate, Vicente Fox, was elected president of Mexico, after 70 years of uninterrupted rule by the Institutional Revolutionary Party (PRI), the rhetoric of change reached a new height as well as the hopes for

9 The

term “dirty war”, acquired an official definition from the “Historical Report to the Mexican Society”, drafted by the Special Prosecutor’s Office, FEMOSPP. This term was defined as: “counterinsurgency actions to contain armed groups considered as lawbreakers”. It is also interesting how, in the historical report, the term “dirty” is related to crimes against humanity and also to “acts contrary to honor, ethics and law”. The report also mentions that the term “dirty war” had been typical of literature and journalism. See CNDH 2001, pp. 27, 33, 279. At the moment, this term is considered limited because it only gives account of the conflict between the guerrilla and the army, leaving out dissident groups. On the subject, see Centro de Derechos Humanos Miguel Agustín Pro Juárez 2014. 10 See Avina 2014. Regarding the links between the violence during the “dirty war” and the war on drugs, see Avina 2016; Rath 2016. 11 Such as the “Eureka Committee”, founded in 1977 by Rosario Ibarra de Piedra, whose son disappeared in 1975. 12 The CNDH was created by former president, Carlos Salinas de Gortari, in 1990, and was part of his “modernizing” reforms of the mid-nineties. 13 Gutiérrez and Cantú 2012, p. 35.

7.3 The Halconazo Case

155

accountability. In line with this “zeitgeist”, the CNDH issued its report and recommendation 26/2001.14 The objective of this report was the detailed account of facts and judicial processes regarding victims’ complaints of the “dirty war” and was built on 532 files of complaints15 and testimonies submitted on forced disappearances. The CNDH concluded that these 532 files contained evidence of at least 275 cases of persons who had disappeared.16 It also considered that reparations to the victims of the “dirty war” would be critical to a successful democratic transition (PRI-PAN). The latter became a core demand of public discourse. The report concluded with the recommendation that the federal executive must issue orders in such a way as to designate a special prosecutor in charge of the investigation and prosecution of offenses that might arise from the facts reported.17 As a result, former president, Vicente Fox, installed the Special Prosecutor’s Office for the Investigation of Crimes Committed in the Past against Social and Political Movements (FEMOSPP).18 In the report 26/2001, the CNDH collected evidence of human rights violating practices under PRI rule and this formed the basis of the FEMOSPP investigations.19 Regarding the criminal complaints filed at the FEMOSPP, the most prominent involved accusations of genocide against former president Luis Echeverría.20 The cases were filed by groups of victims from events surrounding 2 October 1968 (“Tlatelolco Massacre”)21 and 10 June 1971 (“Halconazo”). Former members of the National Strike Council, Raúl Alvarez Garín, Roberto Escudero, Felix Lucio Hernández Gamundi and Cesar Tirado, initiated the official claim in 1998, and submitted witness reports of the 2 October 1968 events.22 The inquiry into the

14 See

CNDH 2001. p. 26. 16 CNDH 2001, p. 26. 17 Ibid., p. 27. 18 It is worth reflecting on the name of the Special Prosecutor’s Office, “FEMOSPP”, as it implies two things: On the one hand, that social and political movements were seen specifically as a thing of the past and, on the other, that there was no need to investigate crimes of the present or in the future, in the “post-PRI-era” (something that, in reality, did not eventuate). The name of the Prosecutor’s Office is certainly revealing of the “Zeitgeist” of the year 2000, where the notion that there would be no social movements or social violence prevailed, under the assumption that there would be no reason for it, since another party was already in power. The political transition implied that there would no longer be repression by the state. That is to say, during the PAN period there was the notion that not only social movements were a thing of the past as injustice would end with the democratic transition and as a result also violence against opposition groups would come to an end. 19 CNDH 2001, pp. 45–46. 20 It is certainly controversial to classify these acts as genocide because they took place against a national group whose constituents were students. However, this can be understood as a response and strategy to encounter the denial of justice for victims, with the expectation that, as a result, they would be given a response from the judicial authority to their demand for clarification and prosecution of these acts. 21 On 2 October 1968, students gathered at Tlatelolco Square in Mexico City, where some of them were shot dead. See Philip 1992, pp. 19–63. 22 Comité 68 Pro Libertades Democráticas 2008a, p. 66. 15 Ibid.,

156

7 Interpretation of International Criminal Law …

Tlatelolco massacre resulted in the house arrest of former president Luis Echeverría Álvarez. However, after various Amparo suits submitted by both parties, the trial against the former president was dismissed for lack of proof of criminal responsibility. Judge Luna of the one-judge circuit court, for example, pointed out that the case regarding the crime of genocide was on the grounds that the authorities of the government at the time (2 October 1968) jointly carried out a concerted action, prepared and coordinated to exterminate a national group, made up of students from different universities. However, according to Judge Luna, none of the evidence provided by the prosecutor, justified the presumption of the participation of Luis Echeverría Álvarez in the preparation, conception or execution of genocide.23 Subsequently, in 2015 the “National Institute of Information” (INAI)24 ordered the opening of the files based on the exceptions to the classification of information, namely, cases concerning crimes against humanity or serious violations of human rights and those that protected the right to truth and accountability.25 It is worth highlighting that, even though criminal responsibility could not be proven, the preliminary inquiry is still ongoing against former president, Echeverría.26 This chapter will focus on the Halconazo case; however, the Tlatelolco Massacre of October 196827 must be kept in mind for giving context to the Halcanazo case, since both cases appear to be part of the same strategy, namely to reach accountability at the highest level and to frame the human rights violations as “state crime”.28

23 Statement by Judge Jesús Guadalupe Luna Altamirano of the Third Criminal Court of the First Circuit, at a press conference on 12 July 2007, in: Comité 68 Pro Libertades Democráticas 2008b, pp. 157–158. 24 Instituto Nacional de Acceso a la Información y Protección de Datos Personales (INAI), La PGR deberá entregar versión pública de las Averiguaciones Previas, en las que se consignó a Luis Echeverría por el delito de genocidio, Instruye INAI, Resolution, 19 August 2015, RDA 1021/15. https://perma.cc/4FLZ-CVFR. Accessed 5 September 2020. 25 Ibid., p. 2. 26 Animal Político, La PGR tiene dos Averiguaciones contra Echeverría por genocidio pero los datos no aparecen, 1 April 2015. https://www.animalpolitico.com/2015/04/la-pgr-tiene-dos-ave riguaciones-contra-echeverria-por-genocidio-pero-los-datos-no-aparecen/. Accessed 6 September 2020. 27 The events of 2 October 1968 are again viewed symbolically for the human rights situation in Mexico, as the disappearance of 43 students in Ayotzinapa occurred as they were organizing the commemoration of the 2 October events and planning a march to Mexico City. On the student movement and the need to punish those responsible for the brutal repression in order to establish the rule of law, see Becerra 2008, pp. 371–394. 28 See Doyle 2003.

7.3 The Halconazo Case

157

7.3.2 Contextual Facts The official accusations of the Halconazo case evolved from the preliminary inquiry of the Tlatelolco Massacre of 1968, as the plaintiffs argued they were both part of the same policy that persecuted and repressed students and members of opposition groups.29 The plaintiffs, Raul Alvarez Garin, a member of the National Strike Council of the 1968 student movement and the Committee 68 Pro Libertades Democráticas, AC, argued that the events of 1971 amounted to a crime of genocide that begun with the repression of students in Tlatelolco Square.30 The accusation gives account of how, during a student demonstration, young men dressed in civilian clothing (Halcones-Falcons) armed with wooden poles attacked the students.31 Allegedly, Los Halcones operated under instructions of Federal District officials and agents of the Federal Judicial Police.32 The accusation identified at least 35 deceased persons, the exact number unknown, as well as wounded students who were attacked at the Ruben Leñero hospital.33

7.3.3 Legal Chronicle As shown above, the investigation into the “dirty war” raised the public’s attention,34 and resulted in the recommendations issued by the CNDH (26/2001) in November 2001. On 10 June 2002,35 the preliminary inquiry (PGR/FEMOSPP/011/2002) concentrated on the alleged conspiracy between members of the federal government and the Halcones paramilitary group. The collected evidence resulted in the incrimination of former president, Luis Echeverría Álvarez, former secretary of the interior, Mario Augusto José Moya y Palencia, as well as Luis de la Barrera Moreno, Miguel Nazar Haro, José Antonio Gonzalez Aleu and eight other subjects for the crime of genocide. After completion of the preliminary investigation, the Public Prosecutor’s Office concluded the inquiry on 22 July 2004. Alleging the crime of genocide may seem peculiar at first glance.36 However, the case documents reveal how the committed offenses were part of a state strategy and were conducted by state organizations; being the students a collectivity subject to 29 Comité

68 Pro-Libertades Democráticas 2008b, p. 40. “Segunda ampliación de la denuncia del 10 de junio de 2002” in: Ibid., pp. 143–149. 31 See Doyle 2003. 32 See Comité 68 Pro-Libertades Democráticas 2008b, p. 145. 33 Ibid., p. 147. 34 In relation to the re-launch of the investigations and the increase of interest in this subject at the end of the 1990s, see Cómite 68 Pro Libertades Democráticas 2008a, pp. 25–27. 35 SCJN, Recurso de Apelación No. 1/2004-PS (Appeal Judgment No. 1/2004-PS), 15 June 2005, (Halconazo Appeal) p. 1. 36 Offense incorporated in the Federal Criminal Code by means of an addition (Article 149 bis) published in the DOF of 20 January 1967. The Decree can be consulted in Appendix B. 30 See

158

7 Interpretation of International Criminal Law …

persecution. In the realms of litigation, it was strategic to allege the crime of genocide, since it increased the possibility to achieve accountability due to the nature and exceptions applicable to the crime of genocide (like the non-applicability of statutory limitations). What is more, a broad interpretation of victims was not entirely new. In the cases against Pinochet and Cavallo, Judge Baltasar Garzon framed the human rights violations—which took place against a national group and were characterized by a specific political orientation—as crimes of genocide.37 The “Committee 68” followed suit and also interpreted students as a defined national group. As stated before, framing the events of 1968 and 1971 as Genocide against students might be debatable. But the crimes were not typical and arose in a context when organized, autonomous opposition was declared inimical to the state. Additionally, it was the collusion with state structures that made the crimes so offensive to Mexican society.38 On 24 July 2004, the sitting judge determined that the possibility for punitive action for the crime of genocide had expired and,39 therefore, decreed the dismissal of any criminal action.40 The Federal Public Prosecutor’s Office appealed the decision on 27 July 2004 and requested, once the public hearing was held, the referral to the SCJN. The SCJN eventually issued its decision on 15 June 2005, acting as an extraordinary court of appeal41 and ordered that criminal action against former president, Echeverría Álvarez, and interior secretary, Mario Augusto José Moya, had not yet expired. The Fifth Unitary Court for criminal matters, for its part, decided that the students “(...) did not have the status of victims, required for the crime of genocide”.42 Rather, it argued that the evidence reflected the elements of murder,43 which at that point had already expired.

37 The following are transcripts of the petition calling for the extradition of Miguel Cavallo with excerpts from one of the official texts of the Argentine Higher School of War. The text shows that human rights violations by the armed forces took place in the context of an explicit strategy against a political ideology: “(...)populism, classism and socialism are three examples of ideologies whose infiltration in Argentina distort, confuse and mislead nationalism. Argentina should expect nothing from the outside world, which only seeks the surrender to Marxism, of countries that follow the Christian denomination. Nowadays, the worst of what has happened, and the most disastrous consequences have come to show: the tendency of Marxist ideologies towards nationalism, and even Argentine nationalism, in the Roman Catholic and Apostolic Church” (translated by the author). The text can be found in Equipo Nizcor (2000) Auto solicitando la extradición de Ricardo Miguel Cavallo. https://www.derechos.org/nizkor/arg/espana/cavallo2.html. Accessed 6 September 2020. 38 This can be proved with the protests that take place year after year in Mexico City. See Aristegui noticias (2017) Halconazo: 46 años de exigir justicia. https://aristeguinoticias.com/1006/mexico/ halconazo-46-anos-de-exigir-justicia-fotos/#&panel1-1. El Heraldo de México (2019) Activistas y estudiantes marchan en la CDMX a 48 años del Halconazo. 6 September 2020. 39 Taking into account Articles 105 and 149 bis of the Federal Penal Code, the term of the statute of limitations for the crime of genocide would be 30 years. The events occurred on 10 June 1971 and the official inquiry was filed on 10 June 2002, i.e. 31 years later. 40 Halconazo Appeal, above n. 36, p. II. 41 Ibid., p. 106. 42 Halconazo request 1/2006, above n. 2, p. 17. 43 Ibid.

7.3 The Halconazo Case

159

As the case was left unsolved, the former head of government in the Federal District, Alejandro Encinas, requested that the SCJN make use of the competencies enshrined in the second paragraph of Article 97 CPEUM44 to investigate the circumstances and the “legal truth” of what happened on 10 June 1971. In the opinion of the former head of government, these events constituted serious violations of constitutional rights.45 In the request, it was also argued that, for the sake of restoring the rule of law, the opening of a fact finding investigation was necessary.46

7.3.4 Appeal No. 1/2004-PS The appeal against the dismissal of criminal action listed several grievances,47 which can be categorized as follows: (a) Retroactive application of the Convention on Statutory Limitations; (b) Interruption of statutory limitations; (c) Violation of various due process guarantees; (d) Non-application of constitutional immunity. By systematically detailing each side’s position, the inconsistencies in the SCJN’s line of argument will be demonstrated.

7.3.4.1

Retroactive Application of the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes against Humanity

Arguments of the FEMOSPP The FEMOSPP highlighted that the time elapsed between the initial signing of the treaty and ratification by the Senate was substantial. On 3 July 1969, the President of the United States of Mexico signed48 ad referendum the “Convention on

44 Under the constitutional reform of human rights, the investigative power conferred to the SCJN was removed from the second paragraph of Article 97 CPEUM. As of this reform, this power was granted to the CNDH, inserting this power in the last paragraph of Article 102 CPEUM. 45 Halconazo request 1/2006, above n. 2, p. 2. 46 Ibid., p. 5. 47 Halconazo Appeal, above n. 36, p. 75. 48 Noteworthy is that, among the nine signatory countries to the Convention on the Non-Applicability of Statutory Limitations (Belarus, Bulgaria, Hungary, Mexico, Mongolia, Poland, Romania, Russian Federation, Ukraine), Mexico was the only non-member of the Warsaw Pact, as even Mongolia obtained observer status within this organization in the year 1963. See Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity, opened for signature (26 November 1968), UNTS, entered into force (11 November 1970) (Convention on statutory limitations). On the other hand, it is also noteworthy that Mexico signed the treaty on 3 July 1969, a year after the Tlatelolco Massacre. At the date of the signing of the Convention, Echeverría Alvarez was Secretary of the Interior. Therefore, it can be concluded that he was aware of the exceptional and grave character of international crimes.

160

7 Interpretation of International Criminal Law …

Statutory Limitations”, which was approved by the Senate on 10 December 2001,49 and published in the DOF on 16 January 2002 with a subsequent statement of errata dated 11 February 2002. This statement of errata contained an interpretative declaration formulated by the Senate50 submitting that the government of Mexico “(...) will consider statutory limitations non-applicable only to crimes dealt in the Convention, which are committed after the entry into force of the Convention with respect to Mexico”,51 i.e. the Convention would be applicable only after February 2002. As mentioned above, the judge of the case determined that “(...) criminal action expired with respect to the crime of genocide”,52 and dismissed the case. The judge relied on procedural aspects, but did not invoke or test substantial merit, probable responsibility or elements of the crime in the case. Focusing on procedural formalities did not reflect the importance society gave to the “right to truth” (derecho a la verdad), nor does it substantiate claims made during the “democratic transition” of the PAN party, in which ascendance to power claimed to have inaugurated a period of fighting impunity for offenses committed during the “dirty war”. For this reason, the Federal Public Prosecutor’s Office stated in its grievances (agravios) that the statute of limitations for the crime of genocide did not apply given the ratification by the Mexican state of the Convention on Statutory Limitations. In this sense, the ratification crystallized the willingness of the new government to comply and fight impunity. In addition, the prosecutor also disputed the validity of the interpretative declaration formulated by the Mexican state, since the content equaled a reservation, given that it objected to and limited the application of the Convention. For the Public Prosecutor’s Office, an interpretative declaration should be of an explanatory nature and does not apply to the scope and terms of the application of a treaty. This interpretative declaration was, therefore, incompatible with the purposes of the treaty. Arguments of the SCJN The case juxtaposed procedural and substantial reasoning, which converged victims’ rights and violations of international law. The SCJN’s response focused on four points that meandered between formal and substantial elements of constitutional law: (a) the principle of legality (nullum crimen sine lege) and its relation to the guarantee of non-retroactivity; (b) the nature of the interpretative declaration; (c) the nature of the Convention; and (d) the validity or plausibility of applying the convention retroactively. Regarding the guarantee of non-retroactivity, the Court explored the effects of the Convention with reference to Article 14 of the CPEUM. This norm states in its first 49 The

delay in ratifying this Convention is also unclear, since if Mexico was to be included in the nine signatory countries, it would have to be assumed that it was in its interest to approve the Convention internally. This contrasts with the urgency given to the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Treaty of Tlatelolco), signed in Mexico City on 14 February 1967 and ratified by Mexico on 20 September of the same year. 50 This statement of errata can be found in the annex of this book. 51 See DOF, 11 February 2002. See the document in Appendix B. 52 Halconazo Appeal, above n. 36, p. 75.

7.3 The Halconazo Case

161

paragraph that: “(...) no law will be given retroactive effect to the detriment of any person whatsoever”, adding that this guarantee is enforceable vis-à-vis the legislator and the executor of a law.53 It follows the principle of protecting the “governed” both from the law and from the application of the law. In other words, for the SCJN, retroactive laws cannot be issued, nor can laws be applied retroactively, when it is to the detriment of the accused. The Court evidently invokes a basic function of law to protect citizens from arbitrary rule by a sovereign unbound by clearly defined legal provisions: “there is no crime without law” (nullum crimen sine lege).54 This principle limits the powers of the sovereign and lays norm creation within the legislature.55 It also ensures that all individuals know in advance56 which behaviors are punishable and to what extent. However, as will be analyzed in greater depth later, crimes under international law constitute an exception to this principle,57 due to their harmful consequences, collective nature as well as the specific characteristics of the persons committing the crimes, who are often part of the state or the military.58 Before analyzing this in detail, the legal context and history foundations referred to in the Court’s decision will be explored. Some of the peculiarities of the Court’s argument are the constant citation of historical precedents, some anachronistic. It referred to principles in the Constitutions of 1857 and 1917, and various case decisions, such as that of 1929, which itself cited the Constituent Assembly from 1917 warning against the retroactive applications of laws.59 The historical points of reference are, however, unsuitable for the crimes of genocide, crimes against humanity and war crimes. For the framers of the Constitutions of 1857 and 1917, it was simply not conceivable that the “state” could produce large-scale victimization; especially since the state was seen as the solution to the arbitrariness of the sovereign. The state itself was still in a stage of configuration, “crimes against humanity”60 or “genocide” did not exist in the legal world at the time of the constituent assemblies of 1857 or 1917. World War II provided the historical context for the articulation of these crimes. 53 Halconazo

Appeal, above n. 36, pp. 79-80. is a principle of the Enlightenment, formulated by Cessare de Beccaria and Anselm von Feuerbach, see Vormbaum 2009, pp. 25–52; Lozano 2011, pp. 725–742. 55 On the influence of the Enlightenment on criminal law, the protection of citizens with respect to the sovereign, and how this left its mark on European penal codes of the nineteenth century, see Schmidt 1995, pp. 212–281; Vormbaum 2009. 56 The fact that a punishment is foreseeable, constitutes an element of criminal law in its general preventive nature. The same can be said regarding the principle of specificity. See Hettinger 1986, pp. 33 et seq. See, generally, Gropp 2005, pp. 51–75. 57 With regard to the retroactive application of the law in cases of National Socialist crimes in the former Federal Republic of Germany, see Pieroth 1992, pp. 102–104. 58 Regarding the concept of “state crime”, see Dawn 2011, pp. 213–223; Barak 2015a, b. 59 In this criterion from 1929, it is emphasized how the Constituent Assembly provided in “an absolute way that no law will be given retroactive effect”. 60 Crimes against humanity as defined in the RS and detailed in Chap. 6. The violations to the laws of war were already considered to be codified in the late 19th century as part of what a “modern” state should accomplish and as a way of achieving peace. See Hippler and Vec 2015. 54 This

162

7 Interpretation of International Criminal Law …

The constituents conceived the idea that arbitrary abuses by the sovereign were to be restrained by means of law, codification, punishments and, more importantly, through due process guarantees. These were, in fact, suitable forms of protection, before the concept of the state as an organization and as an agent appeared.61 On the other hand, it is noteworthy that the birth of liberal criminal law goes hand in hand with that of the state. Therefore, the simultaneity of the formation of the modern state and the modern criminal order (rooted in Enlightenment thought),62 excludes the SCJN’s invocations of the constituent of 1857 or 1917.63 The birth of the Mexican nation in those two culminating moments, 1857 and 1917, preceded the notion that organized political power could evolve into systematic and large-scale victimization.64 As a result, it is not possible to apply pre-World War II jurisprudence to attacks against the civilian population, that were presumably organized by the State and that may constitute crimes under international law. The principle of non-retroactivity conceived in the constitutions of 1857 and 1917 was thought for “common criminality”, in which the offenders were ordinary individuals and not e.g. a complex network of governmental institutions or government agents. The constituents did not foresee the involvement of organized political power (“state crime”) or organized crime, as in the Halconazo case. In this matter, we have, for example, a configuration in which, presumably from the organized hierarchical structure of the state (the precise rank within the hierarchy is still unknown), an order was issued to form paramilitary groups such as the “Halcones”, with the sole purpose of intimidating demonstrators.65 The matter clearly constitutes a violation of the rights to life, humane treatment and personal liberty, along with the right to a fair trial, all of which are enshrined in the Mexican Constitution. Nevertheless, the episode was not addressed as such by the SCJN. Finally, it is worth questioning the validity of 61 This could also be attributed to the conformation of the modern state, which was accompanied by a division of powers. At the time of constitutionalist foundations, the modern state was seen as the solution to the abuses of the sovereign and not as a source of abuse, as occurred later throughout the 20th century. An early example of the denunciation of the abuses by the state occurred during the First World War and was referred to as “contrary to humanity” as in the case of the German invasion of Belgium. For the accusations of intellectuals like George Bernard Shaw and HG Wells describing the militaristic actions of Germany as “(...) attacks on civilization and humanity”, see The New York Times (1914) Current History of the European War – Common Sense About the War -. https://archive.org/stream/commonsenseabou00shawgoog#page/n6/mode/2up. Accessed 6 September 2020. 62 See Vormbaum 2009, p. 25 et seq. 63 The notion of the “state” as an organization capable of committing crimes through the abuse of power and the use of its infrastructure is a later development. The articulation of this notion is reflected in, for example, the “abuse of power” considered as an element of international crimes. See ICC 2002. 64 In this sense, Naucke’s position is very clear, even pointing to serious state crime or state-supported delinquency (staatsverstärkten Kriminalität) as a fourth branch of criminal law, which in his view should be developed in the future. See Naucke 1996, pp. 82–83. The philosopher, Karl Jaspers, also noted a new form of criminality committed by the state, which should also be criminalized as such. See Jaspers 1988, p. 60. 65 The exact number of dead is unknown; according to the letter of complaint there were 35 fatalities. See Cómite 68 Pro-Libertades Democráticas 2008b, pp. 145–146.

7.3 The Halconazo Case

163

attempts to invoke provisions of a constitution (that of 1857), which was ultimately revoked by a revolution. Regarding the non-retroactivity principle argued by the SCJN, the justices pointed out that the principle “(...) is contained in most of the legislation of the countries of the world”,66 but failed to mention that in many legal systems around the world, the crimes of genocide and murder are not subject to statutory limitations.67 The SCJN also referred to the first paragraph of Article 15 of the International Covenant on Civil and Political Rights (ICCPR) when discussing the principle of non-retroactivity, but neglected the fact that the same Covenant contains a second paragraph in Article 15, which outlines the so-called Nuremberg Principles.68 The Nuremberg Principles posit an exception to the principle of non-retroactivity of the law for cases in which an “(...) act[s] or omission[s] which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations”.69 The second point is exactly what the prosecutor argued. The SCJN followed the opposite interpretation and reasoned that the arguments of the Public Prosecutor would result in “decriminalizing” a conduct, that of genocide, no less.70 It is not entirely clear whether this approach by the SCJN emulates what happened in some South American countries with respect to their amnesty laws, but paradoxically confirms the pre-existing criminalization of the crime of genocide. In the case of the preliminary inquiry, the guarantee of non-retroactivity would not be applicable, since the crime of genocide had long existed at the time of the events. The Halconazo event occurred in 1971 and, at that time, genocide was already criminalized in the Federal Penal Code. The arguments of the SCJN pose new questions over the lack of procedural rules regarding the prosecution of genocide, since the non-application of statutory limitations is not established in Mexican law. Throughout the decision of the SCJN, there was no reference to the second paragraph of Article 15 of the Covenant and its sources, which rely on the “Nuremberg principles”. The exception to the non-retroactivity principle is also enshrined in Article 7 of the European Convention on Human Rights (ECHR) of 4 November 1950 as follows: 1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission, which, at the time when it was committed, was criminal according to the general principles of law, recognised by civilised nations.

66 Halconazo

Appeal, above n. 36, p. 85. Kok 2007. 68 See UN International Law Commission 1950, para 97. Also in this regard, see Naucke 1996, pp. 52–54; Tomuschat 2006, pp. 830–844; Safferling 2009. 69 See International Covenant on Civil and Political Rights, opened for signature (16 December 1966), UNTS, entered into force (23 March 1976), Article 15 para 2. 70 Halconazo Appeal, above n. 36, p. 76. 67 See

164

7 Interpretation of International Criminal Law …

Therefore, it can be concluded that the character of the provision referred to by the Public Prosecutor does not refer to the domestic legal sphere, but rather is a provision allowing retroactive application of a law (in this case, the Convention on Statutory Limitations), provided that the exception to the retroactive application of the law has been articulated in international law. In the case of the exception to the principle nullum crimen sine lege, two previous steps are assumed from Article 7 ECHR: the recognition of a crime by civilized nations71 and the ex post facto criminalization within domestic law.72 Provided that such conduct is prohibited by international law, it does not matter in which moment it is implemented by any particular state and once the conduct is committed it can always be investigated and prosecuted.73 The forum where this occurs depends on the particular state; it might be within national jurisdiction and if the competent state fails to investigate and prosecute it might fall into the jurisdiction of an international tribunal (e.g. ICTY, ICTR or ICC); a third state may even be competent, as in the case of universal jurisdiction.74 Regarding the recognition made by Article 7, second paragraph, of the ECHR, it refers to UN Resolution 95 (I) from 11 December 1946,75 which confirms the universal validity of the principles established in the Statute of the Military Tribunal of the Nuremberg Trials.76 Thus, the exception to the principle, nullum crimen sine lege, and the principle of non-retroactivity arise for the first time in the Statute of the

71 In accordance with the second paragraph of Article 7 of the European Convention on Human Rights. 72 However, these principles could be applied directly. 73 Spiga 2011, pp. 5–23. 74 As was the case against Eichmann, in which, the judges appealed to the universal jurisdiction to prosecute crimes that harm all humanity, taking as a precedent the crime of piracy. The following is cited in paragraph 12 of the judgment: “The abhorrent crimes defined in this Law are crimes not under Israeli law alone. These crimes which offended the whole of mankind and shocked the conscience of nations are grave offences against the law of nations itself (delicta juris gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, in the absence of an International Court, the international law is in need of the judicial and legislative authorities of every country, to give effect to its penal injunctions and to bring criminals to trial. The jurisdiction to try crimes under international law is universal”. See District Court of Jerusalem, Attorney General v. Adolf Eichmann, Judgment, 11 December 1961. Note that, generally, the choice of the forum of prosecution relies motu proprio with the state. Examples of the latter are Eichmann, Klaus Barbie, Cavallo and Ríos Mont. As an exception, allied forces decided who would be in charge of the prosecution; examples of these cases are: the IMT in Tokyo and Nuremberg. In the case of the Security Council examples include the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). 75 Adopted unanimously. In this case, it is important to note that Mexico was among the 50 founding states that signed the “Act of San Francisco”, signed on 26 June 1945 and ratified on 7 November 1945. See UN—Founder member states. https://www.un.org/depts/dhl/unms/founders. shtml. Accessed 6 September 2020. 76 See United Nations-General Assembly 1946. The timeliness and applicability of this resolution was embodied in ECtHR Kolk and Kislyiy v. Estonia, Admissibility Decision, 17 January 2006, Application no. 23052/04 and Application no. 24018/04.

7.3 The Halconazo Case

165

Military Tribunal of Nuremberg (IMT),77 which, in turn, refers to “grave breaches” of the Geneva Conventions,78 the Hague Conventions, and customary law.79 What went unnoticed by the justices of the SCJN was the fact that international law had already admitted or conceived a different regime for crimes committed under the direction of, or in compliance with, a state policy, as presumably occurred in the Halconazo case. According to Article 8 of the IMT Statute, individual responsibility is not voided by the receiving of orders from a superior, nor are they validated merely by having been issued as government policy.80 That is to say, not everything committed by the government would be considered as complying with international law.81 A contemporary approach supports the notion that crimes committed under the

77 Naucke points out that, in fact, the origins of this exception and this new positivist regime—as he refers to it—can be traced to Article 227 of the Treaty of Versailles. This Article states that Allied Powers publicly accuse William II of Hohenzollern, former Emperor of Germany, for the supreme offense against the international morality of the sanctity of Treaties. From this article, the Kaiser’s responsibility for War Crimes was subsequently derived. Thus, Naucke believes that this Article constitutes an abstraction, from which a different regime was envisaged for those who exercise state power. According to Naucke, this abstraction was inscribed into Article 6 of the Statute of the Military Tribunal, especially in regard to crimes against humanity. Said provision expressly states that offenses, such as murder, extermination and deportation shall be the jurisdiction of the Military Court, regardless of whether these conducts were crimes in the countries where they were committed. See Naucke 1996, pp. 21, 52. 78 Although the crimes described therein actually constituted a novum in criminal law, see Safferling, 2009 p. 148 et seq. 79 According to the IMT, the judgments were based on Regulation no. 10 of the Allied Control Council. As an example of the rationale of the indictments of subsequent crimes in Nuremberg, the following is a quotation from the so-called Case 2-United States of America vs Erhard Milch: “COUNT TWO (9) The said War Crimes constitute violations of International conventions, particularly of Articles 4, 5, 6, 7, 46 and 52 of the Hague Regulations, 1907, and of Articles 2, 3, 4, 6 and 31 of the Prisoners of War Convention (Geneva, 1929), the laws customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed, and Article II of Control Council Law No. 10”. See Nuremberg Military Tribunals 1949, p. 363. 80 The content of this Article was adopted in the principles issued by the UN International Law Commission in the year 1950, also called the “Nuremberg Principles”. Article 8 of the IMT Statute was adopted as Principle IV of the Nuremberg Principles. The differences between the two documents are commented on Cassese 2009b, p. 1. 81 In fact, this was part of the criticism made by the defense during the Nuremberg trials, pointing out that crimes under international law are acts of state (such as war) and that the establishment of individual criminal responsibility for the commission of such crimes by an International Criminal Court would give rise to a super-state control. This argument could be reframed in terms of the complementary nature between international law and domestic law. Above all, considering that the limits of domestic law are set by the international order through e.g. certain prohibitions such

166

7 Interpretation of International Criminal Law …

authority of the state are inclusive of any instrumentalization or use of public power (at any level) that entails an attack on the freedom, dignity or equality of citizens.82 As for the statutory limitations of the crime, it could also be reasoned that the purpose of the “Convention on Statutory Limitations” was that genocide, crimes against humanity and war crimes should not expire regardless of the date they were committed.83 Thus, for the Halconazo case, the principle of non-retroactivity was not applicable, since the prosecutor invoked a crime that at the time of the events already existed under Mexican law.84 Moreover, Mexico has been party to the Genocide Convention since 1952.85 As a result, the SCJN could have appealed to the nature of the crime of genocide and declare the non-applicability of statutory limitations. They could also have appealed to the procedural nature of the statute of limitations and, consequently, that it did not qualify as a violation of the non-retroactivity principle (Article 14 CPEUM). In terms of the declarative interpretation made by the Senate to the Convention on Statutory Limitations, the SCJN considered the interpretation as a confirmation of the general principle of non-retroactivity in international law (that amounts to saying that the Convention breached international law) and domestic law. Therefore, the Court argued that declaring void the declarative interpretation amounted to “un-applying” Article 14 CPEUM (non-retroactivity guarantee).86 Finalizing this argument by emphasizing the totalitarian character of sacrificing individual rights for the rights of a collectivity. The individual rights the Court aimed to protect, were those of the accused, that of the high officials accused, while the “collective rights” were those of the victims.87 By adopting this approach, they “double favored” the high officials accused as they were already at an advantage over the victims by having access to power and by leading the institutions of the state.88

as slavery, piracy and genocide. At the same time, international law has its limits in domestic law because its powers cannot exceed national sovereignty. See UN General Assembly 1949, pp. 39–40. 82 See Naucke 1996, p. 46; Dawn 2011, pp. 213–223; Barak 2015a, b. 83 Also, in the sense that crimes against humanity cannot go unpunished and, therefore, statute of limitations are not applicable. In this regard, see IACtHR, Caso la Cantuta vs Perú, Judgment, 29 November 2006, Serie C No. 162, para 225. 84 Halconazo Appeal, above n. 36, p. 76. 85 DOF, 11 October 1952. See the Decree in Appendix B. 86 Recurso de Apelación no. 1/2004-PS, p. 106. 87 “El gran peligro que implica el sacrificar los derechos individuales frente a una pretendida existencia de derechos de la humanidad, la raza, la nación u otra entidad personificada, difusa y totalizadora de este tipo, es el reproducir la mecánica de argumentación totalitaria frente a la cual estos derechos sirven como defensa; y hacer a un lado la legalidad positiva por una pretendida “legalidad superior” que encarna a la justicia o algún otro valor que un juzgador considere relevante en un momento determinado. Los argumentos totalitarios han seguido esta mecánica de argumentación y los resultados han sido siempre nefastos para la humanidad que pretenden proteger y que utilizan como fundamento.” Cf., Halconazo Appeal, above n. 36, p. 110. 88 As for this decision on individual rights v group or collective rights, deductions could be made about a certain ideological bias of the SCJN towards “collective rights”, as they are associated with economic systems contrary to liberal ones. See Bisaz 2012.

7.3 The Halconazo Case

167

The question thus is whether the events that occurred in 1971 could have been framed as crimes against humanity, without violating the principle of nonretroactivity. That could have been also plausible if the Special Prosecutor had invoked international law and international customary law. Scholar Valentina Spiga, for example,89 rightly puts forward the judgment of the Israeli Court in the “Demjanjuk” case, in which the Court simply positioned itself as a new jurisdictional forum for crimes that were previously considered as such, without violating the principle of non-retroactivity. This point of view is interesting and worth considering, since it makes national jurisdictions simply “recipients” of existing precepts of international law.90

7.3.4.2

Interruption of the Statutory Limitations

Preliminary Considerations As shown, the exception to the principle of non-retroactivity is related to the nonapplication of statutory limitations to the crimes of genocide, crimes against humanity and war crimes. The law can be applied retroactively if the non-application of statutory limitations is guaranteed. Otherwise, the clauses of Article 7 of the ECHR and 15 of the ICCPR would be ineffective. If a conduct does not constitute a violation of domestic law at the time of its commission, it will result in an ex post criminalization, making the application of law, by definition, retroactive. To illustrate the point, suppose that state “A” is a party to the ICCPR, it has ratified the Genocide Convention and its former dictator, who ruled 35 years ago has been charged with genocide. The provisions of the aforementioned instruments could not be complied with if, at the same time, the procedural rules regarding statutory limitations were applied. Thus, the non-application of statutory limitations is secondary or complementary to the principles of Nuremberg adopted in Article 7 of the ECHR and Article 15, paragraph two, of the ICCPR; without them, the assumptions referred to in the ECHR and the International Covenant could not be activated and its object and purpose could simply not be fulfilled. In order to contrast the SCJN’s approach and argument, it is convenient to review the debate in the Federal Republic of Germany (BRD) regarding statutory limitations. The prosecution of Nazi crimes brought with it the problem of how to apply ex post facto criminal rules (to the crime of genocide). The German judicial authorities rejected the position of the IMT and applied the law in force at the time of committing the crimes. In the reasoning of the time, doing otherwise would imply a violation of Article 103 (II) of the German Constitution (GG). Therefore, they took as a starting point, the Criminal Code of the German Empire (Reichsstrafgesetzbuch), in force during the National Socialist regime. Of relevance is that the laws that served as a reference had, in fact, been declared invalid by the occupying authorities. As a result 89 See

Spiga 2011, p. 14.

90 As to the inadmissibility of statute of limitations for cases of torture, extrajudicial executions and

disappearances, see Caso Barrios Altos v Perú, above n. 6, para 41.

168

7 Interpretation of International Criminal Law …

of applying the Criminal Code of the German Empire, the trials were instituted for common crimes such as murder (mostly in degree of participation), which expired 20 years after the crimes were committed. The questions then were very similar to those faced in the Halconazo case: can the law be applied retroactively? Is the nonapplicability of statutory limitations given by the nature of the crime? Are statutory limitations of substantive or procedural nature? Debates on the Prescription of Crimes Committed during National Socialism The Federal Republic of Germany declined the opportunity to codify the principles of international law established in Nuremberg within the framework of the UN General Assembly,91 which involved the incorporation in domestic law of the crimes punished by the IMT Statute. The main reason for not doing so was the “non-retroactivity” principle for criminal matters. The adequacy of the German legislature’s method of incorporating Section II of Article 7 of the ECHR has been disputed.92 By not codifying the principles of Nuremberg or, where appropriate, the contents of the IMT Statute, the Criminal Code in force between 1933 and 1945 was taken as the basis for the prosecution of crimes committed during National Socialism. This basis also affected the terms of prescription, since, as of 1939, murder had a prescription period of 20 years.93 The debate arose when, on 8 May 1965, the period of time elapsed during which all crimes committed in the course of Nazi dictatorship and World War II could be prosecuted.94 This circumstance led to the need for the German legislator to consider if the statute of limitations should be abolished or extended. The solution to this problem was reached progressively, so that time limitations were modified three times regarding the crime of murder. The first reform of 13 April 1965 recognized the chaotic context in the four years of occupation immediately after the war, and dictated that statutory limitations could not be applied in the interval from 8 May 1945 until 31 December 1949.95 The second reform was implemented in 1969 and added another ten years to the prescription period, meaning that it lasted a total of 30 years.96 The third and final reform was legislated in 1979, and abolished all statutory limitations for the crimes of genocide and murder.97

91 In

this regard, see the following scholarly works: Jaspers 1988; Sambale 2001; Werle 2001; Jähnke (ed.) 2006 §§ 61–79 b; §§ Vor 78–78a; Safferling 2009. 92 See Tomuschat 2006, pp. 832–837. In this regard, scholar Gerhard Werle holds that, first, the legislator failed in its duty to incorporate a solution to the issue of prosecuting and judging crimes committed during National Socialism. Secondly, this omission led to the failure of the effective prosecution within the judiciary. See Werle 1992, p. 2535. 93 Jähnke 2006, §78, p. 75. 94 Werle 1992, pp. 2531–2532. 95 See Deutscher Bundestag 1965, p. 315. In the discussion, it was also considered to eliminate completely statutory limitations, but this proposal was rejected. 96 Deutscher Bundestag 1969, p. 1065. 97 Deutscher Bundestag 1979, p. 1046.

7.3 The Halconazo Case

169

The interesting aspect of this debate98 is the discussion on the legal nature of statute of limitations. Proponents of the view that statute of limitations are substantive law hold that it is related to the seriousness of the crime and the penalty. Proponents of the view that it is procedural law hold that prescription is, in practice, a limitation to prosecution, or a self-limitation of the state to exercise its repressive power. In the end, the German Constitutional Court found that it is of a procedural nature and that the non-application of the statutory limitation does not affect the principle of legality and non-retroactivity enshrined in Article 103 of the German Constitution.99 Evidently, the German case could be considered as even more contentious than the Mexican, if we take into account that the legislator had to argue for the nonapplication of statutory limitations for the crime of murder, which is not recognized as being free of limitations by international law. Nevertheless, that made possible the investigation and prosecution of crimes committed during National Socialism. Relating the latter to the “Halconazo” case, the SCJN could have had solid arguments for the non-applicability of statutory limitations, since the commission of the crime of genocide was alleged by the Special Prosecutor; therefore, the Convention on Statutory Limitations could have been directly invoked.100 The FEMOSPP’s Arguments The Special Prosecutor reasoned in this specific case that the time limitations to prosecute should be interrupted, since several procedures took place after the official inquiry was made. These procedures date to the years 1971, 1972 and 2001.101 The Special Prosecutor considered all these procedures were related to the investigation of the events of the “Halconazo” case and, therefore, according to the Federal Procedural Code (CFPP) interrupted the statutory limitations.102 Arguments of the SCJN The SCJN constricted itself to analyzing if the documents submitted by the Special Prosecutor effectively amounted to procedures that interrupted statutory limitations. They concluded that they did not comply with the requirements established in the Procedural Code (CFPP) in force when the crimes were committed. The evidence presented by the Special Prosecutor consisted of three documents: (a) a preliminary inquiry initiated on 21 June 2001; (b) a certified copy of Criminal Case 848/71 and

98 For

an overview of this debate at that time, see Schünemann 1979, pp. 177–182. 1969, p. 1059. The argument for the relation between appropriate penalties, seriousness of crime, and statute of limitations is difficult to make for the Mexican case. Often, penalties do not relate. See, for example, the penalties of environmental crimes, which are 1–9 years’ imprisonment (articles 414–423 CPF). 100 See Kok 2007, p. 265 et seq. In this exhaustive study, Kok elaborates on the statute of limitations for crimes against humanity, genocide and war crimes, during the period 1945–1964. The author points out that there was no unanimous state practice nor a unanimous opinio juris regarding the non-application of statutory limitations for these offenses. 101 Halconazo Appeal, above n. 36, pp. 36–38. 102 Ibid., p. 40. 99 NJW

170

7 Interpretation of International Criminal Law …

its Appeal 391/72; and (c) a simple copy of the Preliminary Inquiry 1863/71 from 10 June 1971. The first piece of evidence, the preliminary inquiry from 2001, did not qualify since the preliminary investigation was initiated 30 years after the events occurred. In addition, Article 111 of the Procedural Code, at the time of the events, stated that the interruption of statutory limitations would not apply when half of the time period foreseen to trigger the prescription had already lapsed. The second piece of evidence—a copy of criminal proceedings—arose as a consequence of a preliminary inquiry into the crime of “firearm shooting”. The SCJN explained that a preliminary investigation initiated to inquire into the circumstances of a crime consisting of “firing a firearm” cannot interrupt statutory limitations for the crime of genocide, since the interruption must have the same legal reason.103 This implies that the preliminary inquiry to which the SCJN refers to would have had to be initiated for the crime of genocide.104 The third piece of evidence was also considered insufficient since, in addition to being a simple copy, it did not establish the crime and individual responsibility.105 It should be noted that the Public Prosecutor’s Office presented these simple copies, estimating that they were related to Preliminary Inquiry 1863/71.106 Essentially, the SCJN presented two arguments: (a) there was not sufficient proof that the prosecutor was actively investigating (absence of procedural actions); and (b) failure to prosecute in 1982. Both of these arguments actually reveal the lack of proper investigation of the crimes committed in 1971. The SCJN simply stated that documents presented refer to “(...) some students”,107 without mentioning the number or names of the victims who had been deprived of their lives by orders of public officials. Related to this point, the SCJN admitted in its line of argument that there were no procedures or due diligence conducted towards the effective investigation and prosecution of the crimes. The last procedural activity related to Halconazo was the dismissal of the prosecution, which for the SCJN was not appropriate to interrupt the period of the prescription, since it is not a diligence that gives continuity to the process, but in fact terminates criminal prosecution. All the aforementioned arguments are contradictory, since they confirm serious violations of human rights against students, violations to a fair trial and violations of the victims’ rights. At the same time, by not supporting the Special Prosecutors’ 103 Halconazo

Appeal, above n. 36, p. 129. seems improbable that the victims of the Tlatelolco massacre had the possibility to file a preliminary inquiry for the crime of genocide, considering the reluctance of the authorities after 30 years of the events. See the account of what happened with the first complaint in 1998 in: Comité 68 Pro Libertades Democráticas 2008a, pp. 66–67. 105 It is interesting that, when referring to these records, the SCJN reports: “(...) various public officials, (...) agreed to carry out an attack against student groups that demonstrated on 10 June 1971 (...) through a group called ‘Los Halcones’, who attacked said students, depriving some of them of their lives.” (Translated by the author). However, at no point in the account does the SCJN go into details of whether these facts were properly prosecuted nor does the Court explore who these “various public officials” were. See Halconazo Appeal, above n. 36, p. 130. 106 Ibid., p. 49. 107 Ibid., para 3, p. 130. 104 It

7.3 The Halconazo Case

171

allegations, they promoted impunity. It is also noteworthy that when the Court refers to the “deprivation of the life of some students”, it does not refer to a single judgment or judicial document, leaving the nebula over the source of this information intact: Was it an assumption of the Court? Was it determined by a judge? If so, in which preliminary inquiry? What punishment did the perpetrators of this crime receive? Additionally, the Court did not deliberate over the nature of statutory limitations, simply stating that such deliberation was not relevant for the judgment of the case.108 On the failure to prosecute in 1982, the SCJN omits to recognize that the crimes that were the object of the preliminary inquiry were alleged to have been part of public policy, backed by state power, and that the accused were not ordinary citizens, but had great resources and institutions at their disposal. In addition, we must not forget the fact that the political party to which all these officials belonged remained in power for another thirty years, eclipsing the entire period in which criminal action against the perpetrators could have been taken. Given the political structure of a presidential state as in Mexico, it is clear that the victims or the next of kin did not have the factual possibilities109 (legal possibilities, as the SCJN itself pointed out, were given by the Constitution) to exercise their rights to know the truth, to an effective preliminary investigation and to due criminal proceedings of the crimes they were victims of.110 In this sense, as in the case of the prosecutions of crimes during the National Socialist dictatorship in Germany, the SCJN could have opted for the suspension of statutory limitations for the period of the PRI party rule. It is interesting how the SCJN itself points to the possibility of giving retroactive effects to the law when these “(...) establish procedures or beneficial resources for high social purposes or for purposes of humanitarianism.”111 In this case, they fail to point out what, in their interpretation, amounts to high social purposes or “purposes of humanitarianism”. For example, we could point to the right to truth or victims’ rights to clarification of the facts as a social purpose112 and as an effective remedy. As the 108 See

Halconazo Appeal, above n. 36, p. 139. for the difference between factual and legal possibility, also see Naucke 1996, pp. 70–71. 110 In the same sense, see Becerra 2008, pp. 381–384. 111 Halconazo Appeal, above n. 36, pp. 82–83. 112 Although it is true that by 2005 the right to truth was not as clear or as well-positioned as it is today, since the UN did not recognize and guarantee it until 2013 in the resolution: A/Res/68/15. However, by 2005 several documents already affirmed the importance and need for victims of massive or systematic violations of human rights to have access to the truth. See UN Security Council 1993; UN Economic and Social Council 1998; UN Commission on Human Rights 2005. In this regard, the inconsistencies within the domestic order, can be evidenced by contrasting the Court’s reasoning with the declaration of Luis Ernesto Dérbez, former head of the Ministry for Foreign Affairs (SRE), in the framework of a meeting held by the UN Security Council on 23 September 2003. “In that connection, it is important to work towards the establishment of institutions that work on judicial responsibility and reparation to victims, incorporating the political and institutional dimensions of the theme of justice and the rule of law. Likewise, we need to build institutions that will contribute to obtaining reliable information with regard to the facts and whose work will focus on securing the necessary evidence to prosecute those responsible for crimes against humanity. In parallel, we must highlight the need to facilitate States’ access to international justice mechanisms”. See UN Security Council 2003, pp. 9–10. From the above, it can be concluded that, 109 As

172

7 Interpretation of International Criminal Law …

IACHR noted in its 1986 annual report: “Society has the inalienable right to know the truth of what has happened, as well as the reasons and circumstances in which aberrant crimes came to be committed, in order to prevent these events from happening again in the future”.113 The SCJN could also have considered the opening of a judicial procedure as a way of maintaining national unity or credibility and thereby meeting the demands that are made each year in the “marches of corpus” and in the marches remembering the Tlatelolco massacre. The term “purposes of humanitarianism” is somewhat confusing as it could lead to speculations that the SCJN is referring to humanitarian law, which evidently follows some humanitarian purposes of achieving the least possible harm in the conduct of an armed conflict.114 Another humanitarian aspect is, of course, investigating crimes to avoid their repetition, which is an essential objective of international criminal law. Yet, none of these points were articulated or even tested as plausible arguments in the decision made by Mexico’s highest court. In their interpretation of international law, the SCJN also argued that the principle of non-retroactivity also applied to international treaties,115 even though the Convention on Statutory Limitations in Article I indicates that the crimes subject to the convention have no restrictions on their prosecution, regardless of the date when they were committed. The purpose of this Convention was to enable the prosecution of these crimes due to their gravity and severity. To make an interpretative declaration applicable in the future (as formulated by the Mexican state), removes all meaning from the Convention. Moreover, the Rome Statute116 had already been signed by the Mexican state117 and debated in the Senate at the time of discussing the appropriateness of ratifying the Convention on Statutory Limitations.118

although in 2003, the SRE internationally recognized the importance of prosecuting perpetrators, providing reparations to victims, obtaining information to bring the judicial proceeding to justice in order to prosecute those responsible for crimes against humanity; the SCJN denied the possibility of clarifying crimes committed within the framework of what the CNDH called a confrontation between civil organizations and public security forces in the 70s and early 80s of the 20th century. Compare CNDH 2001, p. 28. See also OAS-Asamblea General 2014. 113 Comisión Interamericana de Derechos Humanos 1986, p. 2. 114 International Committee of the Red Cross-Advisory Service 2004. It is also defined as the set of rules designed to regulate the treatment of civilians and military personnel injured or active during an armed conflict. All these rules are contained primarily in the Geneva Conventions and in the Hague Conventions of 1907. See Fleck 2013, pp. 101–104. 115 Halconazo Appeal, above n. 36, p. 85. 116 Article 29 RS. In this sense, Schabas, in his commentary to this article, remarks on the lack of unanimity with respect to the customary character of the non-application of statutory limitations for the crimes of genocide and crimes against humanity. See Schabas 2008, pp. 845–848. 117 The RS was opened for signature in the year 1998 and was signed by Mexico in the year 2000. 118 See Comisiones unidas de relaciones exteriores, organismos internacionales y de justicia 2001.

7.3 The Halconazo Case

7.3.4.3

173

Violation of Due Process Guarantees

The FEMOSPP’s Arguments In its third complaint, the Special Prosecutor argued that, during the Presidency of Luis Echeverría (1970–1976), the state could not guarantee the victims’ rights and that their complaints were partially heard for the following reasons: (a) The President of the Republic had direct control of the Public Prosecutor, since he appointed the Attorney General of the Republic (Article 85, IX CPEUM). (b) At the time of the events, the Public Prosecutor’s Office had the absolute monopoly of criminal action, since its determinations were not subject to independent judicial control. (c) The Public Prosecutor lacked autonomy with respect to the federal executive, since the President had a series of powers that prevented the effective investigation of crimes. (d) The agents of the Public Prosecutor’s office enjoyed relative immunity, since Article 60 of the Organic Law of the Federal Public Prosecutor’s Office prohibited their detention unless requested by a judge. (e) The victims or “next of kin” had no legal possibility to establish their rights to effective access to justice. (f) There was a dynamic of complicity on the part of the President of the Republic, a situation that lasted until the day the president was in office on 30 November 1976. This complicity is shown in an agreement issued by the Public Prosecutor in charge of the Preliminary Investigation on 3 November 1982, which stated that any investigations of the events of 10 June 1971 had elapsed. (g) The events themselves indicate that the constitutional regime had been suspended, since the rights to freedom of speech and assembly were violated. Arguments of the SCJN The Court first analyzed the role of the Public Prosecutor in order to define the impartiality of its duties. For this, it ventured into an expansive historical contextualization of the institution, tracing it back all the way to 1302.119 Along the way, it interrelated the historical conditions of the French Revolution, Colonial Mexico, the Napoleonic era and wars, the Constitution of Apatzingán, the Constitution of 1857 and the Constituent Assembly of 1917, concluding that the figure of the Mexican Public Prosecutor (Ministerio Público) was mainly influenced by the French and Spanish institutions. In total, this historical count covers 15 pages of a total of 30 regarding the third grievance.120 Despite this long historical account, the SCJN does not realize that the origin of the Public Prosecutor’s Office lies precisely in protecting citizens from unrestrained 119 Halconazo

Appeal, above n. 36, p. 150. predominance of the SCJN’s argument on the historical review of the ministerio público stands out since the fundamental arguments of the grievances presented by the Public Prosecutor were not about the historical legitimacy of the ministerio público, but about the factual impossibility of the victims to exercise their right to truth. This factual impossibility arose from the subordination of functionaries to the former president of the republic embedded in his constitutional powers and, in particular, the dependency of the Public Prosecutor on the president. To this last point, the SCJN only dedicated eight pages.

120 The

174

7 Interpretation of International Criminal Law …

exercise of power and guaranteeing impartiality in criminal proceedings. Central to the duty of protecting citizens from arbitrary and partial decisions was the creation of an institution separated from the judicial authority and which would have the task of leading an investigation and bringing an accusation before a judge. Yet, in reference to the fact that the determinations of the Public Prosecutor’s Office were unassailable, the Court maintained that they were always in conformity with the Constitution and, therefore, did not violate any right or principle.121 Of course, this reasoning leaves aside the fact that constitutional coherence does not necessarily imply that individual rights are not violated. The history of fascism in Europe attests to this fact.122 In this regard, the reasoning of the SCJN remain uncritical. This lack of criticism drives the concept of “constitutionality” to evolve into something uncontestable.123 Not surprisingly then, the Court reiterates, at this point of the argument, that according to Article 133 CPEUM, international treaties are at a lower level than the Constitution and, therefore, they cannot challenge domestic law. Furthermore, the SCJN explores the rights contained in the Constitution at the date of the Halconazo such as the right to expeditious justice or the division of powers exercised by the Public Prosecutor as a subordinate of the head of the executive, stating that it cannot be considered as unconstitutional, because the constitution provides for this division of powers.124 What it fails to do, however, is to analyze the gap between formal and factual conditions. In this case, even if the Constitution granted rights, the possibility of exercising them was actually non-existent.125 This point was a core argument of the Public Prosecutor: the factual impossibility of initiating a preliminary inquiry given the dependence of the Public Prosecutor on the executive adding to it the nature of the presidential regime.126 In addition, the SCJN stated that the justice system was in line with the constitutional mandate. This, however, is contrary to CNDH recommendation 26/2001, which, in a very clear way, describes how, in cases of torture and forced disappearances, the Public Prosecutor’s Office did not provide for due diligence during the investigations and failed to prosecute the crimes.127 The SCJN invoking jurisprudence from 1971 to justify the lack of the right to appeal decisions of the Public Prosecutor is also questionable. The Supreme Court also argued that even though citizens had no recourse to appeal to the Public Prosecutor’s decisions, the Public Prosecutor was also accountable before an administrative court as a public servant.128 However, the same jurisprudence cited also notes that the administrative responsibility of public servants does not give the right to 121 Halconazo

Appeal, above n. 36, p. 165. Staff and Mortati 1994, pp. 265–362. 123 See Chap. 4 of this book. 124 Halconazo Appeal, above n. 36, p. 167. 125 As for factual versus legal possibilities, see Naucke 1996, pp. 76–78. 126 See Chap. 2 of this book. 127 CNDH 2001, p. 60. 128 However, this in no way guaranteed the victims’ right to appeal, since an administrative procedure relies upon the administrative authority. 122 See

7.3 The Halconazo Case

175

challenge determinations of the Public Prosecutor since this was not a right held by citizens.129 It is also important to note how in this part of the ruling, the SCJN argues the existence of “social rights” which earlier in the decision130 the SCJN had declared as non-existent. In short, the Court’s reasoning is contradictory and without any attempt of systematization. On the next matter, the SCJN admits the subordination of the prosecutor to the head of the executive as being constitutional without challenging the fact that, in the Halconazo case, the former head of the Prosecutor Office was also an alleged perpetrator. In this respect, constitutionality again seemed like a blindfold or a faith based dogma that prevented from looking beyond constitutionality. As a result, the SCJN was not able to make an analysis of the relationship between the Constitution, the exercise of power and state criminality. The Court also pointed out that it is not possible to interrupt statutory limitations for factual considerations not articulated in the law. This argument only points to law as an abstract entity without connection to the legal context and facts, leaving the victims with no possibility to exercise their own rights. Finally, the lack of investigation into and prosecution for the 10 June 1971 events led the SCJN to consider their implication as “a mere speculative conjecture”.131 What is more, it blamed the victims for not having denounced the crimes in a timely manner,132 even though it was probable that their omission was due to fear of retribution. Consequently, the SCJN lost sight of the fact that the crimes under investigation (i.e. murder) have to be investigated ex officio, and by blaming the victims for the delay, the Court erroneously transferred the obligation to investigate and prosecute a crime to the victims. The Court also concludes that the statements of the Special Prosecutor regarding lack of criminal prosecution as well as the “interruption” of the Democratic Rule of Law are statements of a “dogmatic nature”.133 They do not, however, explain exactly what they mean by “dogmatic” and stress that the formal existence of individual rights equals the existence of a democratic state, without making a distinction between formal aspects and factual conditions. 129 See

Halconazo Appeal, above n. 36, p. 172, para 2. pp. 106–108. 131 “(...) el no funcionamiento de la institución del Ministerio Público en que se quiere hacer descansar la interrupción de la prescripción, constituye una mera conjetura especulativa, sin valor en el proceso penal”. Ibid, p. 176, para 2. 132 Ibid., p. 174. The accusation against the victims, regarding the official inquiry not being made in a timely manner and, therefore, not attributable to the state, is also present in the Rosendo Radilla case, in the response of the United Mexican States to the complaint filed by the IACHR. The letter of interest is as follows: “First, it should be noted that the first complaint made by Mrs. Tita Radilla occurred in 1992, that is 18 years after the date on which the complainant became aware of the disappearance of her father. The Mexican State is, of course, aware that the obligation to investigate and punish presumed violations of human rights cannot be transferred to the petitioners, but it is also necessary to point out that the investigation and punishment of such facts becomes more difficult when they are not reported in due course.” Cited from: Cossío and Mejía 2012 pp. 218–220. 133 Halconazo Appeal, above n. 36, p. 177, para 2. 130 Ibid.,

176

7 Interpretation of International Criminal Law …

Similarly, they left without consideration the Public Prosecutor’s decision of 1982, in which prosecution of the Halconazo case was dismissed. 134 The SCJN rejected any relation between the decision of not prosecuting and the circumstance that the alleged perpetrators were former representatives of state authority and under a one-party rule could have exercised their influence.135 Finally, from all the allegations made by the special prosecutor on the subject of due process, the SCJN never referred to any of the observations and factual considerations made by the CNDH in its Recommendation 26/2001. Yet it admits that “(...) some people died (...) on that date”.136 Recommendation 26/2001, clearly stated that the procedures foreseen in the legal system in force at the time of the commission of crimes did not operate to ascertain the whereabouts and ensure respect for the physical and moral integrity of the people detained in the context of the “dirty war”.137 The said recommendation also gives valuable information related to the Halconazo case, like the modus operandi of public servants in Mexico’s anti-subversive war during the 70s and beginning of the 80s. This modus operandi involved the socalled “Special Brigade” or “White Brigade”, which operated in urban areas, made up of members of the Federal Security Directorate, the Attorney General’s Office, the Federal District Attorney General’s Office, the General Direction of Police and Transit of the Department of the Federal District, and the Attorney General’s Office of the State of Mexico and of the Mexican Army.138 Most controversially, the SCJN dismisses victims’ grievances as unfounded, pointing out that it was not proven that “(...)any act carried out from the structure of government had the a priori or a posteriori approval of the president”.139 This was, however, the whole purpose of the preliminary inquiry: to investigate the alleged involvement of the former president. Therefore, the SCJN created something akin to a tautology or Catch 22, because it a priori dismissed a call for an investigation on the grounds that it had not found out

134 Ibid.,

p. 173. involvement of the state and even of the former president Echeverría was subsequently confirmed in a judgment by a unitary tribunal, where it refers to the participation of a paramilitary group which operated under the General Directorate of General Services of the Department of the Federal District (Dirección General de Servicios Generales del Departamento del Distrito Federal) and subordinated to the chief executive. See Fifth Criminal Court of the First Circuit 2014, appeal, 415/2014. 136 Halconazo Appeal, above n. 36, p. 173. 137 CNDH 2001, p. 48. 138 CNDH 2001, p. 36. 139 “Lo anterior, tomando en consideración que la representación social de la Federación parte del supuesto de que el único que tenía la atribución de ejercer la acción penal es el mismo que buscaba librarse de responsabilidades, ya que, según su dicho, cualquier ilícito realizado desde la estructura de gobierno contaba con la aprobación a priori o a posteriori del Presidente de la República, sin que la representación social de la Federación soporte la veracidad de sus premisas al respecto, limitándose a formular aseveraciones abstractas y generales sobre el particular”. See Halconazo Appeal, above n. 36, p. 179. 135 The

7.3 The Halconazo Case

177

what it had aimed to do. This was precisely the purpose of the FEMOSPP, which President Vicente Fox himself had agreed upon.140

7.3.4.4

Inapplicability of Constitutional Immunity

Arguments of the FEMOSPP The special prosecutor argued that, in relation to high officials such as the president, statutory limitations had to be suspended and, as a result, constitutional immunity would be inapplicable according to articles 108-114 CPEUM. Specifically, the reform of Article 114 CPEUM in 1982 stated that statutory limitations shall be interrupted as long as state authorities such as the President of the Republic, Deputy, Senator, Supreme Court Judge or Federal Public Prosecutor perform their duties.141 Arguments of the SCJN Given the date on which the events occurred (1971), the SCJN analyzed, first and foremost, whether the 1982 reform was applicable retroactively and as a result constitutional immunity to the former president would be void. It is worth underlining how, in this regard, the SCJN admits the procedural protection that accompanies the exercise of public office,142 but does not at any time consider the manner in which such a procedural protection can obstruct the right to truth. According to the Court, the framework of the reform to Article 114 CPEUM subordinates a private interest—that of the functionary—to the interests of the common good. This subordination is of particular relevance, since the same SCJN, in previous cases, positioned itself against sacrificing individual rights vis-à-vis a diffuse entity.143 This leads to an inconsistent argument on the part of the SCJN. Regarding the retroactive application of a constitutional reform, the Court points out that the Constitution is a logical whole and that all constitutional rules have the same hierarchy.144

140 In this sense, the recommendation of the CNDH points out the modus operandi of public servants.

Additionally, the executive decree regarding the creation of FEMOSPP expressly declares as objectives of said Special Prosecutor’s Office the investigation and truth finding of gross violations committed by public servants (Article 1). 141 Among the public servants mentioned in Article 111 CPEUM are: the President of the Republic, Deputies, Senators of the Congress of the Union, Judges of the Supreme Court of Justice of the Nation, Head of Government of the Federal District, Attorney General of the Republic and the Attorney of Justice of the Federal District. 142 Halconazo Appeal, above n. 36, p. 184. 143 Ibid., p. 108. It should be noted that Article 114 refers to “interests” and not “rights”; however, it could be said that, as stated by the SCJN itself, this referred to procedural protections or “rights” of public officials who were sacrificed for a common interest. 144 Ibid., p. 190.

178

7 Interpretation of International Criminal Law …

This led the Court to argue that the prohibition of retroactive application is only relevant to laws145 or “rules of lower hierarchy than the Constitution”.146 What was left unchallenged, was whether a treaty that is not a law could violate the principle of non-retroactivity. Regarding constitutional norms, the SCJN stated that “particular” or special norms shall supersede the general norm.147 This notion is also relevant to the subject, since the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity regulates a special subject, making it critical to explore the specificity of treaties, such as those against forced disappearance, torture, genocide and slavery as well as the Vienna Convention on Treaties and the Rome Statute. With this being the last argument of the SCJN, another inconsistency is in the core reasoning of the judgment. Thus, of the four grievances formulated by the Special Prosecutor, the SCJN only declared valid the one regarding the interruption of statutory limitations, due to the suspension of immunity enshrined in Article 114 CPEUM. That resulted in the continuing of investigations of the crime of genocide against former president Luis Echeverría and former inner minister Mario Augusto Moya Palencia.

7.3.4.5

General Assessment

It could be argued that, contrary to what was held by the SCJN, to allow the prosecution of the 10 June 1971 events did not imply the violation of any constitutional guarantee, because the accused could have been prosecuted within procedural law and within a fair trial. Sustaining, as the SCJN did, that applying the Convention on Statutory Limitations meant violating the dignity of the accused would imply that subjection to criminal proceedings is contrary to the dignity of a human person. Yet criminal procedural law does not violate the dignity of the human person, since its purpose is to protect citizens from unrestrained exercise of power through fair and transparent procedures. Moreover, the SCJN should have protected the international legal order by insisting on the fulfillment of obligations that the Mexican state imposed on itself by ratifying the treaties invoked by the prosecutor and with it assuming its responsibility to prevent and punish the most serious crimes. In particular, the Court should have taken a more defensive position against transgression by the Senate regarding the interpretive statement made on the Convention on Statutory Limitations. International treaty law provides the Court with the means to do so.148 The opposite would 145 Ibid.,

p. 192.

146 Relating this to the constitutional reform of 2011 in the field of human rights, the hierarchy of the

Convention on non-Statutory Limitations would be on the same hierarchical level as the Constitution, since it provides greater protection to victims; additionally, the principle of non-retroactivity would not be applicable. 147 Halconazo Appeal, above n. 36, p. 193. 148 It is important to emphasize that the Convention on Statutory Limitations is not an arbitrariness of the international community, but rather a convention summoned by the General Assembly of the United Nations and, therefore, a treaty and source of international law. By signing and ratifying

7.3 The Halconazo Case

179

amount to affirming that international law is not law, or that the Mexican state does not recognize sources of law outside of its own domestic legal order. By understanding international law not only as the set of treaties, but all its sources as a whole,149 the SCJN could have harmonized its interpretations with public international law.150 However, the SCJN omitted to incorporate international customary law. The SCJN also failed to note151 that the reason for the existence of the Convention on Statutory Limitations was precisely enabling the investigation and prosecution of crimes that had already expired.152 Regarding the scope of interpretative declarations and their distinctions from a reservation, the Court argued that “(...) statements in this sense are elucidating or explanatory of the scope of the treaty rules in domestic law”.153 However, the interpretative declaration made to the Convention on Statutory Limitations goes beyond a mere “explanation” and is contrary to the objective of the Convention.154 At this point, we can see the notion of constitutional supremacy over international law crystallized, as statutory limitations were applied to international crimes. Given the criminal inquiry filed by the FEMOSPP, discussions followed around the historical and political significance of the massacres of October 1968 and June 1971.155 The SCJN decision was also discussed and scholars concurred that the Court should have played a more active role in protecting the respect and validity of international law.156 the Convention, the Mexican state takes a specific action: In this case to render ineffective the regulations related to the statutory limitations on the crime of genocide, crimes against humanity and war crimes. 149 As for the fragmentation of international law in the Mexican legal system, see Corzo 2012, pp. 235–260. 150 At this point, it is important to remember and contrast the position of the Mexican state regarding the application of the provisions of NAFTA regarding the panels of arbitration. 151 Halconazo Appeal, above n. 36, pp. 85–86. 152 The above can be clearly read in the preamble to the Convention: “Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitations for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for these crimes.” (emphasis added) 153 Halconazo Appeal, above n. 36, p. 101. 154 This observation was also made in the draft decree presented by the then senator, Leticia Burgos Ochoa, who called for the withdrawal of the Interpretative Declaration on the Convention on NonStatutory Limitations. This initiative was presented in 2003 and dismissed on 30 September 2004. The text is available at https://sil.gobernacion.gob.mx/portal. Accessed 7 September 2020. 155 The volume: Imprescriptibilidad del Genocidio: los foros del Senado, collates the discussions that followed throughout 2003–2005, when scholars, activists and legislators discussed the importance of clarifying the human rights abuses of 1968 and 1971 and the urgency to combat impunity. See Cómite 68 Pro Libertades 2008c. Also see Karl 2014b, pp. 735–739. 156 See, for example, Caballero 2011 pp. 1–22; Guevara 2004, pp. 85–114. Scholar Manuel Becerra Ramírez—who has written thoroughly on the subject—has also argued that punishing those responsible could have served the political transition from one state-party rule to multi-party democracy. See Becerra 2004, 2006, pp. 205–228. Also see Corzo 2006, pp. 229–237. On the perspective of international NGOs, see Human Rights Watch 2006, pp. 69–110.

180

7 Interpretation of International Criminal Law …

7.3.5 Investigative Powers of the SCJN 7.3.5.1

Introduction

Prior to the constitutional reform on human rights of 2011,157 Mexico’s Supreme Court could exercise investigative powers. These are not to be confused with faculties associated with, or linked to, issuing a judgment on a criminal matter. These “special powers” are much better understood in the context of the right to truth, since they are intended to discover facts.158 The CPEUM stated, in its Article 97, para 2, the possibility of the SCJN appointing one or more of its members, a district or circuit judge, or to designate a special commissioner to find facts regarding a serious violation of human rights, when the federal executive, any of the chambers of Congress, or the governor of any state requested it. As the constitutional text rightly pointed out, the articulation of this capacity was centered on “inquiries” and not on a jurisdictional function for issuing a judgment. Therefore, this power of inquiry is more similar to the activity carried out by the Public Prosecutor, but, of course, without the effects of a preliminary investigation. We can see this in the second paragraph of Article 97 of the CPEUM, which states that the Supreme Court can appoint a person solely to investigate the conduct of any federal judge or magistrate, or any act or acts which may constitute a violation of any individual guarantee. The resulting document of the investigation constitutes a report.159 In the words of former justice, Góngora Pimentel, “(...) it is a purely declarative opinion”.160 The origin of this “special power” granted to the SCJN by the Constituent Assembly of 1917 is unknown.161 Fix-Zamudio and Carpizo connect it with events from 1879, when the Supreme Court prosecutor requested the intervention of the Court in order to clarify results of an election.162 Internationally, the investigative powers of the SCJN are similar to the “fact finding missions” of the UN.163 The SCJN has exercised its investigative powers164 six times.165 Chronologically closest to the “Halconazo” case was the “Aguas Blancas” case from 1996. On 28 157 To

this day, the competent authority is the National Human Rights Commission (CNDH). the investigative nature of this “special faculty” or “power”, see Fix-Zamudio 1994, p. 55; Carpizo 2011, pp. 313–337. As for the investigative function, see Morineau 1997, pp. 795–811. 159 Carpizo 2011 p. 319. 160 SCJN 1995, Expediente Varios 451/95, Voto particular, p. 112. 161 Fix-Zamudio 1998, p. 215. 162 An outline of the above can be found in Morineau 1997, p. 796. 163 As to the origin of this faculty endowed to the SCJN, Reyes sustains that this faculty could have had its origin in the Conventions of the Hague of 1899 and 1907, in which Mexico participated as a signatory state and in which a “fact finding” mechanism like that found in the second paragraph of Article 97 CPEUM was established. See Reyes 2011, pp. 2–4. 164 This explanation is made since, previously, the SCJN could also investigate violations regarding the right to vote. The same faculty that was later transferred to the Electoral Tribunal after its creation in 1996. 165 These cases were: Caso León, expediente varios 3/46; Caso el Vado Aguas Blancas, expediente 3/96; Caso Lydia Cacho, expediente 2/2006; Caso Texcoco y San Salvador Atenco, expediente 158 For

7.3 The Halconazo Case

181

June 1995, in the municipality of Coyuca de Benitez, Aguas Blancas, in the state of Guerrero, state security forces killed 17 peasants in an attack. Considering the seriousness of the act and the widespread dissemination of a video that showed the events, it was the Mexican Commission for the Defense and Promotion of Human Rights (CNDH), who requested the SCJN to exercise its investigative powers. The Court, however, dismissed the request on the grounds that individuals had no standing to trigger the constitutional mechanism. The president at the time, Ernesto Zedillo Ponce de León, asked the Court to investigate the events in March 1996,166 with the file 3/96 being opened in the SCJN. Upon commencement of the investigation, judges and members of the commission167 carried out various proceedings: they visited the crime scene, conducted various interviews and collected expert witnesses. They concluded that there had been a violation of individual rights and identified various authorities as responsible: the former governor of the state of Guerrero, Rubén Figueroa Alcocer; former Secretary General of Government, José Rubén Robles Catalán; and ex-Attorney General of Justice, Antonio Alcocer Salazar. It is important to note is that the preliminary inquiry was not filed against the former governor, since the PGR declared itself incompetent on procedural grounds168 and the State Attorney’s Office later exonerated the former governor since his direct participation could not be proved. An impeachment against Governor Rubén Figueroa was also dismissed by PRI congressmen in 1996.169

7.3.5.2

Request for Investigation into the Halconazo by the SCJN

By triggering the second paragraph of Article 97 of the CPEUM, the Head of Government of the Federal District requested the SCJN in March 2006 to exercise its investigative powers. The request was supported with the criteria applied in the Aguas Blancas case and argued that the violence on 10 June 1971 constituted a violation of rights perpetrated by exactly the same authorities who have the obligation to protect the population.170 It also gave evidence of the social effects and seriousness of the violations. The character of the so-called “social effects” essentially meant that, the situation and harm done to society in the Aguas Blancas case was very similar to that of the Halconazo and, therefore, obliged the SCJN to exercise its investigative powers. These similarities are found in the modus operandi executed in both cases, 3/2006; Caso Appo Oaxaca, expediente 1/2007 y Caso Guardería ABC, expediente 1/2009. An account can be found in the following master’s thesis: Hernández 2013. 166 Morineau 1997, p. 794. 167 See SCJN, Petición del Presidente de los Estados Unidos Mexicanos para que la Suprema Corte de Justicia de la Nación ejerza la facultad prevista en el párrafo segundo del articulo 97 de la Constitución Federal, solicitud 3/96 (Aguas Blancas Request), p. 460. 168 Even though the Organic Law of the Office of the Attorney General of the Republic in Article 4(d) provides for the PGR to prosecute in matters within the competence of the states, if the local prosecutor requires so. 169 OAS 2000, p. 1406. 170 Halconazo request 1/2006, above n. 2, p. 3.

182

7 Interpretation of International Criminal Law …

consistent of the violent attack of a march in the making.171 In addition, the request for investigation also pointed out that the paramilitary group, “the Halcones” were created and ordered by state authorities.172 Given the ad hoc creation of this paramilitary group, it follows that the attack in question was properly planned, organized and coordinated by the government. The involvement of state authorities translated into violations of fundamental human and constitutional rights such as the right to life and personal integrity, freedom of speech, the right petition, the right to peaceful assembly, right to free movement within the national territory and the fair trial, among others. Notwithstanding the arguments of the petitioners,173 the plenary of the SCJN dismissed the need to exercise the power of investigation174 for the following reasons: (a) it was not a current situation and, therefore, had no practical purpose; (b) the danger had already disappeared and the state of insecurity no longer existed, largely because the authorities involved had ceased to be public servants; (c) the PGR has done what was necessary for the clarification of facts and the search for both a historical and legal truth.175 Related to the search of historical and legal truth, the Supreme Court only accounted for proceedings made by the special prosecutor from 2004 onwards, failing to point out the lack of criminal prosecution for more than 30 years. Interestingly, the judgment to which the SCJN refers as finding the legal truth176 admits that the facts of the case did not merit the accusation of genocide but a murder committed against a group of students by the paramilitary group, Los Halcones. This group was under the command of the Deputy Director of General Services of the Department of the Federal District, allegedly having the task to repress students.177 However, the SCJN failed to question the motives of creating such a paramilitary group and if the public servant followed orders from superiors. What is unfortunate about this decision is the SCJN’s conclusion that such an investigation lacked utility and purpose, despite the fact that the perpetration of a crime was evident and neither individual criminal responsibility nor the involvement of state agencies were clarified. Thus, the SCJN declined the opportunity to find the truth regarding the degree of participation of the different state authorities. Findings 171 Halconazo request 1/2006, above n. 2, p. 2. According to the Aguas Blancas report, authorities marched in front of a rally and instead of interacting with demonstrators peacefully, the authorities violently attacked them, leaving 17 peasants dead; see Aguas Blancas request, above n. 168, p. 460 ss. 172 Halconazo request 1/2006, above n. 2, p. 9. 173 In the request for investigation, Mexican jurist, Jorge Carpizo, was quoted. He stated that the 1971 events produced a national clamor and scandal. The remarks of this famous scholar differ notably from the passivity of the SCJN towards the violent and harmful events. See Halconazo request 1/2006, above n. 2, p. 4. 174 Ibid., p. 14. 175 Ibid., p. 15. 176 Quinto Tribunal Unitario en materia penal del primer circuito, Toca de apelación, número 415/2004. Cited in: Halconazo request 1/2006, above n. 2. 177 Ibid. p. 18.

7.3 The Halconazo Case

183

of facts would also have shed light onto the motives and background of the crimes perpetrated against the demonstrators. As for the lack of practical purpose, this argument is also unconvincing, especially since, the Halconazo case has become a historical event of such social relevance that it has given rise to a national outcry epitomized in the annual commemorations and demonstrations, which continue to this day, 50 years after the events.178 In addition, investigating the truth may have contributed to a climate of greater security and confidence in the judicial system. Moreover, solving what happened in 1971 could have been the start of unpacking the series of violent episodes that have taken place in Mexican history since the “dirty war”. As mentioned previously, the SCJN’s investigative power is similar to that of UN fact-finding missions; therefore, it does not pursue criminal accountability, rather their purpose is to gather detailed knowledge of the circumstances of any situation.179 Therefore, the SCJN could have embraced the spirit of a “truth commission”,180 which could have contributed to the establishment of a true democratic transition by identifying the actors and victims as well as the whole social and political context that gave rise to the events. In this sense, the SCJN omitted to incorporate recommendations from the CNDH report 26/2001, which detailed human rights violations of the 1970s and 1980s, carried out in coordination with the state apparatus. None of the resolutions discussed above mention this recommendation. Of particular interest may have been the CNDH’s reference to the principle of continuity of the state, arguing that: “(...) criminal responsibility subsists independently of changes in government over time”.181 This concept may have been particularly useful as a counterpart to the SCJN’s argument concerning the lack of utility in investigating the facts of Halconazo, due to the fact that the perpetrators were no longer in office and—therefore, according to the Court—did not pose a threat.182 Additionally, as stated by the petitioner, the Court could have also reasoned in favor of the right to truth—as it did in the Aguas Blancas case—in accordance with Article 6 CPEUM.183 178 Milenio Diario (2019) Marchan al Zócalo a 48 años de “El Halconazo”. https://www.milenio. com/politica/comunidad/marcha-al-zocalo-por-48-anos-de-el-halconazo. Accessed 10 September 2020. As for the social clamor generated by the Halconazo, see Hernández 2013, p. 5. 179 UN General Assembly 1991. 180 In this regard, see also the arguments of the Justices Pimentel and Silva in their minority cited in: Ibarra 2009, pp. 4–6. 181 CNDH 2001, p. 67. 182 Halconazo request 1/2006, above n. 2, pp. 14–15. 183 In the Aguas Blancas case, the SCJN determined that, preventing knowledge about the true account of past events amounted to a serious violation of individual rights. Following the Court’s reasoning and, in accordance with Article 6 CPEUM, the state has the obligation to provide for truthful and complete information about the motives and circumstances of crimes committed with intent or knowledge of state authorities. According to the SCJN decision on the “Aguas Blancas” case, to do otherwise would “(...) incorporate in the political life the culture of deception, of machination and concealment, instead of confronting the truth and taking rapid and effective actions to disclose it and propagate it to citizens” (translated by the author). See SCJN, Tesis aislada, P. LXXXIX/96, solicitud 3/96, 23 April 1996, p. 513.

184

7 Interpretation of International Criminal Law …

Regarding the right to truth, there are important ramifications to take away from the Aguas Blancas decision. The right to information not only refers to the government granting access to certain documents, but also must provide suitable conditions for information to be generated. This echoes what had already been confirmed by the IACHR in its document, Right to the truth in the Americas, which highlights the relationship between the right to truth and the right of access to information in accordance with Article 4 of the American Declaration of the Rights and Duties of Man, and Article 13 of the American Convention on Human Rights.184 The IACHR document also adds that the right to truth is not only conferred upon victims and their relatives, but to society as a whole.185 This is perfectly applicable to the Halconazo case, since the events were of such magnitude that there is a categorical need to know the circumstances of what happened. As highlighted, the “right to the truth” is a central issue in so-called transitional justice processes,186 for which it is imperative that victims and their relatives know what happened and fully understand the circumstances in which the harmful acts occurred. Against the majority vote, Justice Cossío considered the exercise of investigative powers reasonable for the Court. According to the Justice, the events of 10 June 1971 constituted serious violations of constitutional rights, which should have been investigated and, as a result, should have led to criminal prosecutions.187 Additionally, Justices Genaro David Góngora Pimentel and Juan N. Silva Meza based their dissenting vote on the “right to the truth” enshrined in Article 6 CPEUM, undertaking a good effort to consolidate what is defined as a “right to the truth”, since it was a relatively recent concept not widely invoked.188 They also reasoned that the exercise of the investigative powers did not imply judging the same offense twice, since the SCJN’s conclusions are not a verdict or sentence, but rather a report. Contrary to what was resolved by the plenary chamber of the SCJN, the minority vote of these two Justices considers various topics of international criminal law and transitional justice. They emphasized victims’ rights to truth, democratic transition, the political role of the SCJN, as well as the time delay between the events and the opening of a “fact finding” investigation. As for the time delay, they argued that the more time has lapsed, the greater the possibility to objectively investigate the facts.189

184 OAS

2014, p. 33. p. 34. 186 Ibid., p. 19. 187 See Halconazo request 1/2006, above n. 2, Section: Cossío dissenting opinion, p. 5. 188 The IACHR itself has pointed out how the right to truth is not explicitly included in the interAmerican human rights instruments. See OAS 2014, p. 25. Also, resolution 2005/66 of the High Commissioner for Human Rights of the UN, confirms this, since it stresses how the “right to truth” is also not an explicit right in the international norms of human rights nor in humanitarian law. A reference to the right to the truth is (though not explicitly) contained in Article 32 of Additional Protocol I to the Geneva Conventions. 189 As to this matter, distinct reasoning can be observed between the arguments of the minority of Supreme Court justices and the plenary. For the plenary of the SCJN, the time elapsed was so considerable that it minimized all practical purposes of an investigation. They also considered that 185 Ibid.,

7.3 The Halconazo Case

185

Clearly, the arguments of the two Justices are consistent with the practice and theory of international criminal law and transitional justice, which contrast with the simpler line of argument that dismissed the fact-finding investigation of the Halconazo.190

7.4 Constitutional Controversy 33/2002 Over the Interpretative Declaration to the Inter-American Convention on Forced Disappearance of Persons The constitutional controversy 33/2002, analyzed central issues relevant to international criminal law, such as the retroactive persecution of a crime, military jurisdiction (war crimes vs. military discipline offenses), as well as the importance and necessity of investigating, prosecuting and punishing past crimes. This constitutional controversy has its origin in a law suit initiated in 2002 by the head of government of the Federal District, Andrés Manuel López Obrador, against the House of Senators of the Congress of the Union, Constitutional President of the United Mexican States and the Secretary of the Interior of the Federal Public Administration.191 Andrés Manuel López Obrador argued that the reservations and interpretative declarations in the decree of approval of the Senate made to the Inter-American Convention on the Forced Disappearance of Persons were against the international obligations of the Mexican state.192 The content of the reservation focused on the military jurisdiction, while the interpretive declaration on the temporary scope of the Convention, arguing that it could not be applied retroactively. As has been pointed out, this contradicts the principles of ICL, since one of the purposes of retroactive application is to create the possibility that crimes of the past may be prosecuted. The central aim is to avoid impunity. The reservation to Article IX of the Convention essentially enabled militaries to evade civilian justice. Said article holds that acts constituting the forced disappearance of persons cannot be considered as committed in the exercise of military functions nor can military jurisdiction be admitted for the prosecution of this crime. However, as a consequence of the reservation, the military could not be investigated and tried for the crime of forced disappearance by civilian authorities. The SCJN the greater the time elapsed, the lesser the harm and danger. See Halconazo request 1/2006, above n. 2, pp. 14–15, 19. 190 The information on the events of 1968 was made public in the year 2018 by the Institute of Public Information. See Sin Embargo (2018) Los archivos del 68, que ocultó medio siglo el Estado mexicano, quedan abiertos por primera vez https://www.sinembargo.mx/20-09-2018/3473906. Accessed 9 September 2020. 191 SCJN, Controversia Constitucional interpuesta por el Jefe de Gobierno del Distrito Federal, 33/2002, 29 June 2004 (Constitutional controversy 33/2002), p. 2. 192 The reservation was formulated in a decree, see: DOF, 18 January 2002. The interpretative declaration was made through an erratum (Fe de erratas), see DOF, 27 February 2002.

186

7 Interpretation of International Criminal Law …

validated “marginally”193 the reservation, by dismissing the constitutional suit on grounds of jurisdiction. It was pointed out that the Secretary of National Defense (SEDENA) and military justice belong to the federal order, not affecting the jurisdiction of the Federal District. In addition, the SCJN held that the crime of forced disappearance, defined in the Criminal Code of the Federal District (CPDF) is addressed to public servants of the Federal District, excluding then the military. By disregarding the arguments in favor of civilian jurisdiction when it comes to investigating and prosecuting enforced disappearance committed by military personnel, the question of whether Article IX of the Convention is contrary to Article 13 of the CPEUM194 remained unchallenged.195 Regarding the interpretative declaration and the temporal scope of validity imposed by it, the SCJN confirmed its content, noting that the principle of nonretroactivity governs laws and treaties.196 Additionally, the SCJN determined that the crime of forced disappearance is of a permanent nature, meaning that the commission of the crime extends through time until the person’s whereabouts are known, or the person is found. Therefore, the Convention could be applied retroactively to any case in which the whereabouts remain unknown, without violating any constitutional principle. As we can see, this constitutional controversy paved the way for further discussion of the conformity of military jurisdiction with international treaties as well as the retroactive application of provisions of ICL. This was, in some way, preparatory to what would later be debated before the Inter-American Court of Human Rights in the Rosendo Radilla case. However, even though the suit was based on an international treaty, the SCJN never addressed or referred to sources of international law in this matter. In terms of military jurisdiction and the impartial prosecution of enforced disappearance, the Supreme Court could have found further interpretations of this concept within international humanitarian law, rather than arguing in terms of scope and definition of “crimes against military discipline”. One explanation for not incorporating concepts of IHL or international law, in general, might be that the justices had little familiarity with these bodies of law and that, as explained in Chap. 2, the Mexican legal order does not recognize customary international law. The findings regarding military jurisdiction are, in fact, further cast into doubt, since the SCJN itself concluded in the Cavallo extradition case that a military crime is defined by the activity and not by the subject. This will be detailed in Sect. 7.6.

193 The

wording of the Supreme Court’s reasoning is as follows: “(...) which does not constitute a special jurisdiction in itself prohibited by Article 14 of the constitution”. (Translated by the author). See Constitutional Controversy 33/2002, above n. 192, p. 195. 194 Article 13 CPEUM establishes the jurisdiction for crimes and offenses that violate military discipline. 195 As we will see in further sections, in the Radilla case the IACtHR commented on the interpretations made by the SCJN, the Senate, and the federal executive. 196 Constitutional Controversy 33/2002, above n. 192, pp 234 y 259.

7.5 The Rosendo Radilla Case

187

7.5 The Rosendo Radilla Case 7.5.1 Prior Considerations The forced disappearance of Mr. Rosendo Radilla was one of many complaints submitted to the General Directorate of Human Rights, under the Ministry of the Interior, in 1988.197 With the creation of the National Human Rights Commission (CNDH), these files were handed over to a special unit and, in turn, the Special Program on Presumed Disappeared Persons (“Predes”) was also created.198 With the transition of power from the PRI to the PAN, President Vicente Fox promised to clarify and prosecute the crimes of the past, which led to Recommendation CNDH 26/2001, giving birth to the FEMOSPP.199 The creation of the FEMOSPP also had an impact on the Radilla Case, since it constituted one of the 275 cases of forced disappearance that the CNDH was able to account for.200 The total of alleged forced disappearances went as high as 532 cases and covered the entire 1970s and early 1980s.201 The Inter-American Court of Human Rights, in its judgment of 23 November 2009, attributed the Mexican state responsibility for the forced disappearance of Mr. Rosendo Radilla Pacheco.202 The Rosendo Radilla case was one of many cases that evidenced the Mexican judiciary’s inability or unwillingness to clarify, prosecute and condemn those responsible for crimes during the dirty war. The Rosendo Radilla case is an example of how international human rights law and international criminal law intertwine, and where the role of international human rights courts in promoting the prosecution of international crimes is evidenced.203 It is also a clear example of where

197 CNDH

2001, p. 29; Gutiérrez y Cantú 2012, p. 35. next of kin of Mr. Radilla Pacheco, Andrea Radilla filed in this investigative unit (Predes) a complaint regarding the forced disappearance of her father. 199 See Doyle 2006, Chapter 8, p. 14. 200 CNDH 2001, p. 44. 201 CNDH 2001, p. 45. 202 See IACtHR, Radilla-Pacheco v. Mexico, Judgment, 23 November 2009, (Radilla-Pacheco v. Mexico), paras 3–6. The Court declared the state was responsible for the violation of the rights to personal liberty, to humane treatment, to juridical personality, to life and to a fair trial and judicial protection. It also declared that the state failed to comply with the obligation to adopt domestic legal effects, in order to criminalize adequately the crime of enforced disappearance. 203 Mr. Rosendo Radilla was a musician and peasant from the state of Guerrero who disappeared on 25 August 1974 during the military operations against guerrilla movements in the region. It was in the year 1992 that Rosendo Radilla’s family formally filed a criminal accusation before the Public Prosecutor’s Office of the State of Guerrero. Mr. Radilla’s next of kin, Tita Radilla Martínez, filed a petition before the Inter-American Commission on 15 November 2001, after all domestic remedies had been exhausted. After the conclusion of various proceedings, on 13 March 2008, the IACHR allowed the case to the jurisdiction of the Inter-American Court of Human Rights. 198 The

188

7 Interpretation of International Criminal Law …

state responsibility should—in cases of widespread human rights violations—lead to criminal responsibility.204 Although the Rosendo Radilla judgment involved only one case of enforced disappearance, it also revealed a series of state acts that could fall under international crimes due to their widespread nature.205

7.5.2 Outcomes of the Judgment The IACtHR acknowledged the pattern of widespread abuse by state organizations, such as the army.206 The judgment states that the objective of the army during the “dirty war” was inter alia to arrest all those who were considered supporters of the guerrillas, even though they did not participate directly in the activities of the armed groups.207 Moreover, the Court stated that the disappearance of Mr. Rosendo Radilla happened “(…) within a pattern of massive arrests and forced disappearances”.208 In terms of transitional justice, the ruling of the Inter-American Court affirms the continuity between the PRI regime of the 70s–80s and the PAN government in 2000, confirming the failed political transition from one-party to multi-party rule. Most importantly, it implicitly recognizes that one-party rule from 1924 to 2000 under the PRI did have an effect in promoting impunity.209 According to the Court, despite the regime change, there were no efficient judicial processes that lived up to the promises of transitional justice, in order to ensure accountability, serve justice and achieve reconciliation.210 The litigation of the case before the IACtHR also reflects the inconsistencies within the Mexican state practice. On the one hand, Mexico is enthusiastic in creating treaty law, but when it comes to applying it, there is no recognizable pattern. For example, as the crimes occurred prior to the date of ratification of the Court’s contentious jurisdiction, the Mexican state argued in the preliminary objections that the Court was not competent rationae temporis.211 The Mexican state also argued that the matter 204 On

the relation between state responsibility and international crimes, see Meron 2011, pp. 208– 215. 205 Radilla-Pacheco v. Mexico, above n. 203, para 152. 206 Ibid., paras 152–153. 207 Ibid., para 151. 208 As we can see, these are all acts that could qualify as crimes against humanity, given the “widespread” nature of the acts; see ibid., para 152. Regarding the context in which the forced disappearance occurred, see paras 150–153. 209 About continuities and the failed transition with special focus on the state of Guerrero, see Karl 2014a, pp. 87–190. Regarding political killings in the state of Guerrero during the 1980s, see Schatz 2011. 210 Radilla-Pacheco v. Mexico, above n. 203, paras 158, 173–217. Also see Human Rights Watch 2006. 211 See Informe en el que el Estado Mexicano contesta la demanda de la CIDH, in: Cossío and Mejía 2012, pp. 141–142.

7.5 The Rosendo Radilla Case

189

of litigation (forced disappearance) should be dismissed as “(...) it was probable that Mr. Radilla was already dead”.212 Regarding military jurisdiction, no consistent pattern was found since, in the case of Constitutional Controversy 33/2002,213 the SCJN marginally confirmed the constitutionality of the military jurisdiction, when declaring it was not in its faculties to challenge the reservation made to the InterAmerican Convention on enforced disappearance. By leaving the question unchallenged, the position of the Mexican state before the international community was that military tribunals were within the Mexican constitutional framework, since they were not special tribunals and not constituted ad hoc. According to this rationale, the Convention on enforced disappearance was regarded as unconstitutional, since it banned military jurisdiction.214 In the Rosendo Radilla case, the IACtHR stated that military jurisdiction was a breach of international law and incompatible with the American Convention on Human Rights.215 The latter triggered a new interpretation by the SCJN, establishing that Article 13 CPEUM should be interpreted in a manner consistent with the constitutional principles of due process and access to justice.216 This resulted in banning military jurisdiction when civilians were involved. Notwithstanding legislative reforms, when it comes to the prosecution of the enforced disappearance of Mr. Radilla, the only person arrested was General Francisco Quirós, and he was not tried for the crime of enforced disappearance but for “illegal deprivation of freedom”,217 within the jurisdiction of the First Military Judge under the

212 Ibid.,

p. 155. Sect. 7.4 of this chapter. 214 “(...)De lo anterior se infiere que el Gobierno de los Estados Unidos Mexicanos, al formular reserva al artículo IX de la referida norma de derecho internacional, quiso significar que ésta no puede ser aplicada en el territorio nacional, en la porción que excluye la competencia de los tribunales militares para conocer de los hechos constitutivos de desaparición forzada de personas cometidos por los militares en servicio, así como la parte en que la convención considera como tribunales especiales a esos órganos jurisdiccionales, ya que la estimó contraria al espíritu del artículo 13 constitucional que consagra el fuero de guerra para los delitos y faltas que atenten contra la disciplina militar, el cual no constituye una jurisdicción especial prohibido por el artículo 14 de la propia Norma Fundamental. Le asiste la razón a la Cámara de Senadores al alegar la improcedencia del juicio respecto de la reserva impugnada pues, contrariamente a lo sostenido por el jefe de Gobierno del Distrito Federal en su demanda, resulta inexacto que condene a la ineficacia las distintas normas jurídicas que se han establecido en el derecho común para sancionar la conducta delictiva mencionada, en particular la establecida en el Código Penal para el Distrito Federal publicado en la Gaceta Oficial del Distrito Federal el dieciséis de julio de dos mil dos, en su artículo 168 (281 sextus del Código Penal para el Distrito Federal anterior), contenido en el libro segundo, título III, capítulo IV, cuyo tenor es el siguiente: (...). See Constitutional Controversy 2002, above n. 192, “considerando sexto”. 215 Overall the IACtHR argued against Article 57 CJM, as insufficient to guarantee a right to judicial protection. See Radilla-Pacheco v. Mexico, above n. 203, paras 286–289. 216 SCJN, Resolución del Expediente Varios, Acuerdo del Tribunal Pleno de la SCJN, 912/2010, (Varios 912/2010), para 38. 217 Radilla-Pacheco v. Mexico, above n. 203, paras 236-238. In this regard, Kleffner, claims that obstacles to national enforcement of international crimes crystallize in “misapplication”, such as the “wrong classification of a crime”, see Kleffner 2008, p. 54. 213 See

190

7 Interpretation of International Criminal Law …

First Military Region.218 Such an outcome, resulted from the non-application of the criterion derived from Constitutional Controversy 33/2002, which defined the crime of enforced disappearance as permanent. Additionally, human rights advocates Juan Carlos Gutiérrez Contreras and Silvano Cantú Martínez pointed out how the proceedings of the FEMOSPP investigation had serious deficiencies, since the military never testified, despite the victim’s allegations of military involvement.219 Another outcome of the IACtHR judgment was the debate of the role of international courts in the Mexican legal order. The ICC came up in the debate (“varios— 912/2010”). The deliberations between the justices evidenced their understanding of the ICC’s hierarchy and jurisdiction. The main considerations regarding the ICC refer to the explicit recognition in the Constitution of the jurisdiction of the ICC. The explicit recognition in the Constitution troubled the justices since, according to them, the Constitution provides for two “supreme tribunals”. In the justices’ understanding there is only one “supreme tribunal”, namely the SCJN,220 which added to the argument that the IACtHR is not explicitly recognized in the Constitution. Consequently, some justices reasoned the ICC was the only international tribunal recognized by the Mexican Constitution.221 It should also be noted how one of the justices (Cossío Díaz) emphasized that the exception in Article 21(8) CPEUM is an exception to the ICC within the Mexican state and not an exception to “the system of international jurisdiction”.222 From the discussion on the jurisdictional authority of the IACtHR, the need to reform the CPEUM evolved in order to make rulings issued by international courts binding for the SCJN.223 This discussion originated due to the fact that there was no previous situation in which an international court declared the Mexican state responsible; equally, there was no regulation in the Mexican legal order as to how to enforce judgments of the Inter-American Court.224 This can, however, be explained by the late acceptance of the contentious jurisdiction of the Court.225 Another relevant issue triggered by the Rosendo Radilla case was whether the SCJN had the powers to interpret the reservations made by the Mexican government 218 Radilla-Pacheco

v. Mexico, above n. 203, para 260. and Cantú 2012, p. 39. 220 SCJN, Expediente varios 489/2010, cited in: Cossío and Mejía 2012, p. 471. 221 See remarks made by Justice Aguirre Anguiano in ibid., pp. 540–541. 222 Ibid., p. 514. 223 Cossío and Mejía 2012, pp. 540–541. It is useful for the topic of this book to consider the approaches of the justices of the SCJN towards the ICC, as these give guidelines to the reforms that would have to be relevant for an effective fulfillment of the judicial requests of cooperation made by the ICC, or even universal jurisdiction in any given case. 224 This matter must also be considered in the case of the prosecution of international crimes; if the International Criminal Court made a request for assistance that involved the Mexican Judicial Branch, it would face the problem of execution. In order to facilitate the ICC’s course of action, it would be advisable to render it effective before the judiciary and thus the politicization of cases could be avoided. In this regard, Article 87 a. (A) RS provides that requests for cooperation shall be made through the diplomatic channel. 225 It should be noted that the Rosendo Radilla judgment was the first one to come from an international court that condemned Mexico as responsible for violations of human rights. 219 Gutiérrez

7.5 The Rosendo Radilla Case

191

to international treaties. With eight votes in favor, the SCJN determined that it was not admissible to review reservations made by the Senate to the Court’s jurisdiction and to the Inter-American Convention against Forced Disappearance.226 Such a deliberation would have been very useful in the Halconazo case, since the merits of the allegation constituted the incompatibility of the declarative interpretation made by the Mexican state to the Convention on Statutory Limitations.227 Finally, it is important to note that the SCJN only deliberated on the compliance of the questions at issue within their jurisdiction, such as diffuse control of treaties as well as the domestic application of any jurisprudence issued by international courts incompatible with international standards. As for the issues concerning the forced disappearances during the 1970s, the SCJN was of the opinion, it would be in the competence of the Public Prosecutor’s Office (Article 21 of the Constitution) to investigate these crimes.

7.5.3 Interim Conclusions The Rosendo Radilla judgment is testament to the impunity suffered by victims during the so-called “dirty war”, not only in the immediate aftermath but also in the period in which the FEMOSPP was active. Regardless of the state’s responsibility established by the IACtHR, the domestic task to investigate and prosecute the individuals responsible for the widespread violations acknowledged by the Court has still not been accomplished.228 This is further evidence that the investigation and prosecution of individual criminal responsibility lies within the state’s political will. It is not that the Mexican legal order lacks instruments to prosecute. In spite of not having yet incorporated “crimes against humanity”, it could prosecute for ordinary crimes. Individual criminal responsibility for international crimes could also have

226 In

that same matter, Justice Cossío had already pointed out in an interview in November 2005 that: “(...) the SCJN has no power to remove the reservations imposed by the Senate and the Presidency”. See Periódico La Jornada (2005) Femospp debe replantear su alegato sobre genocidio. https://www.jornada.unam.mx/2005/11/19/index.php?section=politica&article= 022n2pol. Accessed 10 September 2020. The Justices’ statements regarding the investigation of Tlatelolco, 1968, for the crime of genocide, even led the members of the victims’ committee to demand that the justice excuse himself from the discussions within the Court. See El Universal (2006) Exigen que Ramón Cossío no participe. https://archivo.eluniversal.com.mx/nacion/134046. html. Accessed 10 September 2020. 227 See the deliberations of the SCJN, Discusión del proyecto del expediente varios 912/2010, cited in: Cossío and Mejía 2012, pp. 728–734. 228 In March 2018, the Federal Prosecutor Office (PGR) issued a report, which stated that 244 cases were still pending, including the Rosendo Radilla case. See La Jornada, San Luis (2018) Aún en trámite, 244 casos encargados a la Femospp. https://lajornadasanluis.com.mx/nacional/aun-en-tra mite-244-casos-encargados-a-la-femospp/. Accessed 10 September 2020. The UN High Commission on Human Rights has also expressed concern regarding the high number of unprosecuted cases of enforced disappearance and others. See UN High Commissioner’s Office Mexico 2015.

192

7 Interpretation of International Criminal Law …

been supported by different types of evidence that could prove the existence of international customary law. However, as we saw in the Halconazo case, the Supreme Court tends not to consider international practice. The Rosendo Radilla case gives, therefore, an account of how the Mexican judiciary has failed to apply customary international law when it comes to combating impunity for crimes committed by the state apparatus and/or in compliance with state policy, causing serious harm to individuals. Principles of ICL were already in practice and becoming part of international customary law when the “dirty war” occurred, and even the Mexican state was party to the Convention against Genocide, the Geneva Conventions and the Convention on Statutory Limitations.229 It was not until the Rosendo Radilla case was brought before the Inter-American Court that the Mexican government and the SCJN took steps to incorporate principles of International Law—in this case those concerning forced disappearance. However, the Supreme Court’s approach in this case was not satisfactory for those who were hoping that state authorities would adopt a wider view of transitional justice and full compliance with human rights treaties. Despite the constitutional reform of 2011, which aimed precisely at strengthening human rights in Mexico’s constitutional order, the crucial point of the IACtHR judgement—the lack of criminal investigation and prosecution for more than 40 years—was simply ignored. Additionally, the judicial power never addressed the forced disappearances and torture, which resulted from the execution of a public policy consisting of intimidating social movements as well as guerrillas during the 1970s.230 In terms of transitional justice, the ruling of the IACtHR also makes clear, that serious violations of human rights committed in the past have remained unpunished. This task is pending and is linked to today’s human rights abuses that could amount to international crimes.231 In this regard, the full realization of transitional justice trials would break with the state-party rule by laying open the participation of authorities as well as their way of operating. Essentially, this could be helpful in identifying and combating current patterns of abuse and systematic human rights violations. In the absence of transitional justice and thus preemptive measures, a door is open for future engagement in the same patterns of conduct as during the “dirty war”. Not least, the disappearance of 43 students of the Teacher Training College (Escuela Normal), Isidro Burgos in Ayotzinapa Guerrero, on 26 September 2014, could be considered a consequence of the reigning impunity.

229 In

this case, Becerra rightly states that, regarding international law on human rights and international criminal law, Mexico has always expressed full acceptance of these treaties, and is not characterized as a “persistent objector”. For him, it is not tenable to suggest that Mexico has failed to comply with international regulations. See Becerra 2008, pp. 383–384. 230 See CNDH 2001. 231 See Karl 2014a, b; Avina 2014.

7.6 Cavallo Case

193

7.6 Cavallo Case 7.6.1 Introduction The Cavallo case is paradigmatic for the exercise of universal jurisdiction by Spain. After the demise of the last dictatorships in South America, the prosecution of crimes committed during the military dictatorships in Chile and Argentina under international law brought Spain under the international spotlight. In addition, in its Organic Law, Spain adopted universal jurisdiction, and exercised it actively. It was not only Spain, though, that was deserving of attention, since Mexico became the first country to invoke universal jurisdiction to extradite a foreign national to a third state.232 The laws passed under the Raul Alfonsin government in Argentina between 1986 and 1987, referred to as the “Full Stop Laws” (leyes de punto final), and the subsequent amnesties granted by the presidential successor, Carlos Menem, led a group of victims as well as relatives of victims of the Argentine dictatorship to file a complaint before the Criminal Court of Instruction no. 5 of the National Court in Madrid, Spain. The complaint cited Article 23233 of the Organic Law 6/1985 of the Judiciary, which included the possibility of Spain exercising jurisdiction as a “third state” (in other words, universal jurisdiction) for crimes under international law. The head of this court was the famous Baltazar Garzón and among the investigations of crimes committed during the military junta in Argentina was the case of former lieutenant, Miguel Angel Cavallo, alias, “Serpico”.234 However, although several arrest warrants had already been issued, none of them had included Cavallo.235 A report by the Mexican newspaper, Reforma, identified Miguel Ángel Cavallo as the director of the company selected to carry out the National Registry of Vehicles (RENAVE). For that purpose, Cavallo was residing in Mexico City. On the day the investigative report was published (24 August 2000), Cavallo took a plane to Buenos Aires, stopping in Cancún, where he was detained at the request of Interpol. While held in Cancún, the Spanish court issued an international arrest warrant against Cavallo.236 It is interesting to note the political context237 leading up to the detention of Cavallo and his extradition. By August 2000, the presidential elections had taken place, and the PAN had won the presidency, with Vicente Fox beginning his term in December of that year. Thus, the outgoing PRI government of Ernesto Zedillo would 232 For references on this topic, see Thalmann 2009, pp. 231–258; Roth 2009, pp. 278–309; Méndez

and Tinajero-Esquivel 2001, pp. 5–8; Cassese 2009a, p. 633. In Mexican scholarship: Guevara 2002, 2004; Becerra 2004; Siqueiros 2004. 233 This Article was amended on 13 March 2014, limiting the exercise of universal jurisdiction, see Boletín Oficial del Estado, BOE 63, March 14, 2014, pp. 23026–23031. See also Sesé 2014. 234 Méndez and Tinajero-Esquivel 2001, p. 6. 235 A recount of the above and everything related to the arrest of Cavallo in Mexico can be found in Roht-Arriaza 2005, pp. 140–149. 236 Ibid. 237 See Chap. 2 of this book.

194

7 Interpretation of International Criminal Law …

not be responsible for the extradition decision, but the future PAN government. On 12 September 2000, the Spanish court filed an order requesting the extradition of Ricardo Miguel Cavallo for crimes committed in the period from 24 March 1976 to 10 December 1983. The foreign ministry (SRE) sent the matter to the District Court. The presiding judge, Jesús Guadalupe Luna,238 resolved the matter in January 2001 (already under the PAN government), imposing the extradition proceeding only for the crimes of genocide and terrorism, as he considered the crime of torture had already prescribed.239 With regard to jurisdiction, Judge Luna ruled that questions of jurisdiction would have to be resolved by the requesting state, adding that extraterritorial jurisdiction was a procedural matter, which did not affect the principle nullum crimen sine lege. Thus, the judge did not examine the modality of the crimes Cavallo was accused of. This was, however, an unfortunate development, since such an analysis could have revealed similarities with the crimes committed in the “Tlatelolco massacre” of 1968 and set parameters to define a “national group” as a group for the purposes of the crime of genocide.240 It is, therefore, not surprising that Cavallo’s case also raised expectations regarding the prosecution of crimes committed in Mexico— particularly, the 1968 and 1971 massacres.241 However, as we will see, in the Cavallo case, the SCJN did not analyze substantive issues related to the crime of genocide, torture and non-application of statutory limitations. The SRE approved the extradition and the defense of Cavallo promoted an amparo (appeal) trial on 23 February 2001.242 The SCJN hearing of that amparo lawsuit is the focus of the analysis below.

7.6.2 Resolutions The SCJN decided to allow the extradition of Cavallo for the crimes of genocide and terrorism, without examining the competence of the requesting state as it was not explicitly regulated in the extradition treaty between Mexico and the Kingdom of Spain.243 The crime of torture was not included in the ruling, since at the time of the 238 Jesus Guadalupe Luna Altamirano was also the judge in the criminal case of the 1968 Tlatelolco

massacre and decided that the crime was subject to statutory limitations. See Comité 68 Pro Libertades Democráticas 2008b, p. 47. 239 SCJN, Cavallo Case, Extradition decision, 10 June 2003, Amparo en revisión 140/2002, Judgment, (Cavallo case), “Resultando Primero”. 240 For the framing of the student movement as a national group, Comité 68 Pro Libertades Democráticas 2008b, pp. 57–58. 241 See the declassified cable of the US Embassy in Mexico, in Doyle 2010. 242 See Cavallo case, above n. 240. 243 Ibid., pp. 982–988; although the extradition treaty between both countries does not have any express provision on the review of competence by the requested state, it does refer to international extradition law for matters regarding the extradition procedure. Yet, Article 10, Section III, of the International Extradition Act states that the alleged extradition must be submitted to a competent authority established by a law issued prior to the moment of the charges. According to Justice

7.6 Cavallo Case

195

commission of the crime, the penalty for torture was six months to six years, resulting in a prescription period of three months to three years. Additionally, given the principle of non-retroactivity, the provisions contained in the Mexican Federal Law to Prevent and Punish Torture, were not applicable, since the crimes were committed prior to the date of its entry in force.244 Regarding the crime of torture, the SCJN failed to consider interpretations of customary international law, such as those considered in the Furundzija case (ICTY).245 In its judgment, the trial chamber pointed out the main features of the prohibition against torture. One of these features is its jus cogens nature. A consequence of the prohibition of torture being an absolute value is that “(…) every state is entitled to investigate, prosecute, punish or extradite individuals accused of torture”.246 Most importantly, the ICTY concluded that the crime of torture is not covered by a statute of limitations.247 As the SCJN disregarded this consideration, it also failed to notice that the perpetrator of torture was benefiting from the statutory limitations, especially since Article 17 of the bilateral extradition treaty between Mexico and Spain stipulates that a person extradited shall not be punished in the territory of the requesting party for an offense other than that for which extradition has been granted.248 The SCJN could also have considered asserting universal jurisdiction, bearing in mind that the offender was on Mexican territory and that jus cogens249 entitles states to prosecute if the state with primary jurisdiction (territorial, offender or victim’s

Román Palacios, the said provision establishes the obligation of the Mexican state to review the competence of the requesting state and, most importantly, the jurisdiction exercised by Spain under universal jurisdiction, did not comply with the requirements of Article 10, Section III, since universal jurisdiction was adopted by Spain by virtue of its Organic Law published on 1 July 1985. The facts attributed to Cavallo occurred prior to this reform. The second point where Justice Román Palacios disagreed (on this point the judges, Sergio Salvador Aguirre Anguiano, José de Jesús Gudiño Pelayo and Juan Díaz Romero, also concurred in their minority vote) concerned the fact that Spain lacked the competence to exercise universal jurisdiction in the case of the crime of genocide, since, in accordance with the Genocide Convention, it only recognizes the jurisdiction of states where the events took place (territorial principle) or that of the international tribunals. However, there is also a consensus that the Convention allows third states to exercise jurisdiction. Regarding the obligation of third parties to prosecute, the matter remains unsettled. For this point, see Thalmann 2009, pp. 231–258. In favor of the obligation erga omnes to prosecute based on jus cogens norms, see Bassiouni 2008, pp. 178–180. 244 Published in the Official Gazette—DOF, 27 December 1991. 245 International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Furundizija, Judgment—Trial Chamber II, 10 December 1998, IT-95-17/1T, (Furundizija), paras 151–157. https://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf. Accessed 11 September 2020. 246 Ibid., para 156. 247 Ibid, para 157: “It would seem that other consequences include the fact that torture may not be covered by a statute of limitations (...)”. 248 “El individuo entregado en virtud de extradición no será procesado, juzgado o detenido para la ejecución de una pena por un hecho anterior y diferente al que hubiese motivado la extradición[...]”. 249 Furundizija, above n. 246, para 144.

196

7 Interpretation of International Criminal Law …

state) fails to act.250 Other interpretations to be considered and dismissed were those made by the House of Lords251 in the Pinochet extradition case.252 Another important aspect of the SCJN decision, concerns military crimes. Mr. Cavallo’s defense argued that he could not be extradited since both the Mexican Act on International Extradition and the bilateral treaty between Spain and Mexico, state that subjects cannot be extradited in the case of military crimes. In terms of military jurisdiction, the SCJN253 reasoned that the protected legal interest of genocide is not that of the military, but of humanity as a whole, and, therefore, granted the extradition request.254 As shown in previous sections and in the Rosendo Radilla case,255 Mexican law provides for military jurisdiction when ordinary crimes are committed. Thus, in order to avoid confusion between the nature of these crimes and the applicable jurisdiction, the distinction made in this case by the SCJN is plausible and to be considered for the prosecution of international crimes under Mexican law.

7.6.3 Outcome As can be seen, Cavallo’s extradition to Spain was the result of a mix of factors, some of them legal. But to a large extent it was due to political circumstances (as was the 250 In

this regard see Cassese 2003, pp. 591–595. as expressed by Lord Browne Wilkinson in his opinion of the extradition case of General Pinochet. See House of Lords, Regina v. Bartle and the Commissioner of Police for the Metropolis and Others Ex Parte Pinochet, Judgment, 24 March 1999. https://www.publications.par liament.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm. Accessed 11 September 2020. 252 In the sense that the Mexican state, omitted its obligation to try Cavallo for the crimes that he was charged with based on universal jurisdiction, see Guevara 2002, p. 103. 253 Cavallo Case, above n. 240, p. 965. It should be noted that the remarks made by the SCJN, concerning Article 57 of the Military Penal Code, are not made in this resolution but in a review of the case from 2003. See SCJN, Contradicción de Tesis 101/2003-PS, pp. 33–34. The resolution reads as follows: “From the above, it is clear that there are two main groups of crimes that must be reviewed by military courts: (a) Those typically military, specified in the Second Book of the Code of Military Justice; (b) Those of the common or federal order, as long as in their commission they have fulfilled any of the circumstances that are expressed in subsection II of Article 57. In fact, military courts are competent to hear, on the one hand, purely military crimes, which were created precisely to safeguard military discipline. On the other hand are crimes of the common or federal order, which nevertheless safeguard various legal interests other than military discipline, in terms of Article 57, Section II, of the Code of Military Justice. These cases must be known by military courts when certain requirements meet” (translated by the author). 254 The claim of the SCJN that the legal interest protected within the crime of genocide is “humanity as a whole” certainly contradicts the argument of Judge Cossío in the Halconazo case, where he argued that “collective interests” as opposed to individual interests endanger democracy—even citing Hannah Arendt for that purpose. See Halconazo Appeal, above n. 36 pp. 106–109. 255 In this sense, the Inter-American Court of Human Rights in the Radilla case pointed out that military jurisdiction should only apply to crimes strictly related to military discipline or to crimes that harm protected legal interests of the military. See Radilla-Pacheco v. Mexico, above n. 203, paras 284, 313. 251 Especially

7.6 Cavallo Case

197

transition from PRI to PAN, with one of the main claims of the PAN party being its respect for human rights).256 It is also worth considering that the Mexican authority that decides on extradition is the SRE, which is part of the executive power.257 The analysis of the judicial decisions of the case showed that, in a strict sense, they did not revolve around principles of international law, but were limited to the application of a bilateral extradition treaty between Mexico and Spain. Following this rationale, Mexico and Spain have consented to the prosecution of aliens for crimes committed as part of a state strategy or decisive involvement of government structure in a third state, but not for crimes committed within their territorial jurisdictions.258 Another point to emphasize is the interplay between the different authorities and the differentiated application of concepts of international law, which do not follow a systematic pattern. As can be seen in the case of Cavallo’s extradition, the SRE was very enthusiastic to appeal to “international customary law”, the “Nuremberg principles” and resolutions of the International Criminal Tribunals for Rwanda and the former Yugoslavia,259 whereas the arguments raised by the SRE ten years later in the Radilla case claimed the non-applicability of international law.260 The SRE’s friendly approach to international law in the Cavallo case was also supported by the legislature, which called for “(...) the unity of all peoples and national states in the fight against crimes against humanity and impunity”.261 This could, however, be only 256 The Cavallo extradition was used by the SRE to promote the government’s commitment to human

rights, as expressed by the former secretary of foreign relations, Jorge Castañeda: “(...) The decision to grant the extradition of Ricardo Miguel Cavallo ratifies, above all, the commitment of the Mexican government to combat abuses and violations of human rights anywhere in the world” (translated by the author). See SRE 2001, p. 141. Also, in the same issue of this magazine, the Cavallo extradition was regarded by the foreign ministry as one of their main achievements; pp. 147–148. 257 For a critical position on the extradition procedure in Mexico, see Dondé Matute 2011, pp. 155– 158. 258 Denial of justice by the Spanish government was also emphasized in the UN Report of 2014, prepared by the High Commissioner for Human Rights of the United Nations and signed by Pablo de Greiff. See ONU—High Commissioner on Human Rights 2014. 259 Cavallo Case, above n. 240, pp. 119–124. 260 It emphasizes above all that the Mexican state was right in formulating the interpretative declaration made to the Inter-American Convention on the Forced Disappearance of Persons, omitting the contents of the principles of Nuremberg. See Informe en el que el Estado Mexicano contesta la demanda de la CorteIDH, in: Cossío and Mejía 2012, pp. 137–256, 146–147 et seq. 261 The discussions held in Congress regarding the extradition of Cavallo contrast with the ongoing inactivity about the criminalization of crimes against humanity. On 29 September 2000 the thenmember of Congress, Luis Miguel Barbosa Huerta (PRD), called for the unity of all peoples and national states in the fight against crimes against humanity and impunity. It also made clear that crimes against humanity were punishable under international law, and even invoked as principles of international cooperation the UN General Assembly resolution 3074 of 1973, the Moscow declaration of 1943 and the Statute of the Tribunal of Nuremberg of 1945. The arguments of this congressman show very clearly the divergences within the Mexican state around international criminal law. That is to say, on the one hand there is the lack of criminalization of crimes against humanity (and, therefore, the impossibility of initiating a preliminary inquiry for crimes against humanity), on the other hand, a very strong political will expressed by the foreign ministry (SRE) helps the Spanish judiciary prosecute crimes committed during the military dictatorships of the Southern Cone. Finally, there are the arguments held by the legislative power regarding the affirmation of the

198

7 Interpretation of International Criminal Law …

a support of rhetorical nature. On the other hand, judicial authorities did not invoke principles of customary international law in any of their interpretations to support prosecutions of international crimes (e.g. during the so-called “dirty war”). The nonapplication of customary international law by the judiciary is nonetheless consistent with the denial of the Mexican Constitution to recognize customary international law. As we saw in Chap. 2, Article 133 CPEUM provides only for the incorporation of treaties with no mention of recognizing customary international law. The interplay between the different authorities and their differentiated way of applying international customary law could, however, be interpreted as a plain exercise of the separation of powers. It is also worth emphasizing the arguments of Judge Luna Altamirano, who held that states have an obligation to include in their domestic legislation the provisions of international treaties, while also prohibiting state parties from including provisions that obstruct the observance of a treaty. Such reasoning could have been applied when interpreting the interpretative declaration to the Convention on Statutory Limitations and, thereby, pave the way to inquire whether the Halconazo case qualified as a state crime.262 In the same vein, the request for extradition for the crime of genocide was based on “genocide against a national group”. For the Spanish judge, Baltazar Garzón, those groups or sectors belonging to the Argentine nation that disagreed with the political project of the military leadership constituted a “national group”,263 which, in turn, is a description that fits those students demonstrating at Mexico City’s square, Tlatelolco, where the 1968 massacre took place. Another point that shows an asymmetric interplay between the application of domestic and international law is the matter of military jurisdiction. Article 11 of the Law on International Extradition as well as Article 5 of the Law on Extradition between Mexico and Spain indicates that individuals will not be extradited for military offenses. The SCJN decided that the crimes of genocide, terrorism and torture cannot qualify as crimes that exclusively harm the military order,264 but as crimes that affect all humanity and are not subject to military jurisdiction.265 However, in a ruling of 2005, the SCJN confirmed that military jurisdiction is applicable for all crimes committed by members of the military (disregarding the harm done to principles of international criminal law. This can undoubtedly be due to the political context and the prestige that would support the request of Judge Baltasar Garzón, since as we saw in Chap. 5 of this book, it was the legislature itself that proposed that the jurisdiction of the ICC be approved on a case-by-case basis. On the text concerning the arguments held in Congress on the Cavallo extradition, see Cámara de Diputados 2000. 262 Scholar Ruth Kok also agrees on the inconsistencies and contradictions between the Cavallo and Halconazo cases. See Kok 2007, p. 196. 263 On the extradition resolution, see Equipo Nizcor 2000. 264 The exception against extradition when military crimes are concerned is generally accepted, since it is understood that the prohibition of extradition depends on the characteristics of the crime and not on those of the suspect. Concerning this subject, military crimes are divided into: pure military crimes and mixed crimes. On this topic, see Murschetz 2007, pp. 227–229. 265 Amparo en revisión 140/2002, p. 493.

7.6 Cavallo Case

199

other protected legal interests other than military discipline), making no exceptions between ordinary crimes and the most serious crimes or treaty crimes such as enforced disappearance.266 As a result, we have a double interpretation, one that is applicable to the internal order and one to the international order.267 Last but not least, considering the high value that the Mexican legal order gives to written law, it is worth noting the acceptance of universal jurisdiction made in the Cavallo case, since it is, in fact, not explicitly recognized, nor has Mexico traditionally been a supporter of universal jurisdiction, given its history of protecting constitutional sovereignty.268 However, it is contradictory that the Court did not assert universal jurisdiction and adjudicate Cavallo for the crime of torture.269 Overall, the SCJN decision faced major criticism,270 especially for not granting the extradition for the crime of torture and, by doing so, failing to comply with obligations that had evolved in customary international law, such as the principle aut dedere aut judicare.271

References Abu Chouka S, Jiménez H (2015) El 68 y la Guerra Sucia: cambio y continuidad frente a la violencia de Estado en el caso Ayotzinapa. Paper presented at Después de Ayotzinapa: Estado, crimen organizado y sociedad civil en México, Symposium, Lateinamerika Institut-Freie Universität, Berlin Avina A (2014) Specters of Revolution: Peasant guerrillas in the cold war Mexican countryside. Oxford University Press, Oxford Avina A (2016) Mexico’s long dirty war. The origins Mexico’s drug wars can be found in the Mexican state’s decades-long attack on popular movements advocating for social and economic justice. NACLA-Report on the Americas 48: 144-149 Barak G (2015a) Crimes of the powerful and State-routinized crime. https://www.greggbarak.com/ whats_new_10.html. Accessed 5 September 2020. Barak G (2015b) The Routledge International Handbook of the Crimes of the Powerful. Routledge, New York Bass G (2004) The Adolf Eichmann case: universal and national jurisdiction. In: Stephen M (ed) Universal jurisdiction. University of Pennsylvania Press, Philadelphia

266 A

review of this reasoning can be found in Cossío 2010. Also see SCJN, Delitos contra la disciplina militar a que se refiere la fracción i del artículo 57 del código de justicia militar. para su acreditación basta que el sujeto que los realice tenga la calidad de militar en activo, Novena Época, Primera Sala, Registro No. 175969. 267 Examples of this doctrine are found in: Villalpando 1995 and in the SCJN criteria, above n. 267. It is also interesting to highlight the issue pointed out by scholar Dondé in the sense that the expansive criterion of Article 57 of the Code of Military Justice (...) creates obstacles to the definition of the concept of military crimes. See Dondé 2011, pp. 84–87. 268 For a similar point, see Roht-Arriaza 2005, pp. 143–144. 269 In the sense that the Mexican state omitted to meet its obligation to prosecute Cavallo for the crimes that he was charged with based on universal jurisdiction, see Guevara 2002, p. 103. 270 See Becerra 2004, pp. 585–626; Guevara 2004, pp. 85–114. 271 On this principle applied to the crime of torture, see Bassiouni 2001, pp. 123–135.

200

7 Interpretation of International Criminal Law …

Bassiouni M (2001) Universal Jurisdiction for International Crimes: historical perspectives and contemporary practice. Virginia Journal of International Law, Vol. 42 Bassiouni M (2008) International criminal law; Volume 1: Sources, subjects and contents. Martinus Nijhoff Publishers, Leiden Becerra M (2004) El caso Cavallo. Anuario Mexicano de Derecho Internacional, pp. 585-626 Becerra M (2006) Comentarios sobre la sentencia de la Suprema Corte de Justicia de la Nación en el caso de los ‘Halcones". Cuestiones constitucionales. Revista mexicana de derecho constitucional, número 14, pp. 205-228 Becerra M (2008) La cultura jurídica y el movimiento del 68. Revista Alegatos 70: 371-394 Bisaz C (2012) The Concept of Group Rights in International Law Groups as Contested RightHolders, Subjects and Legal Persons. Martinus Nijhoff Publishers, Leiden/Boston Broomhall B (2003) International Justice and the International Criminal Court. Oxford University Press, Oxford Caballero J (2011) Incorporación del derecho internacional en el derecho interno. In: Segovia T, Mejía R (eds) Sentencias de la Suprema Corte de Justicia de la Nación desde el análisis de los Derechos Humanos: recopilación de ensayos. SCJN, México D.F., pp. 1-22 Cámara de Diputados (2000) Proposición con punto de acuerdo en relación a la detención del exmilitar argentino Miguel Ángel Cavallo, Sistema de Información Legislativa. https://sil.gobernacion. gob.mx/Archivos/Documentos/2000/09/asun_3212_20000929_1118339998.pdf. Accessed 12 September 2020 Carpizo J (2011) ¿Es acertada la probable transferencia de la función de investigación de la Suprema Corte a la Comisión Nacional de los Derechos Humanos? In: Carbonell M, Salazar P (eds) La reforma constitucional de derechos humanos: un nuevo paradigma, UNAM, Mexico Cassese A (2003) Is the bell tolling for universality? A plea for a sensible notion of universal jurisdiction. Journal of International Criminal Justice, no. 1 Cassese A (2009a) The Oxford Companion to International Criminal Justice. Oxford University Press, New York Cassese A (2009b) Affirmation of the principles of International Law recognized by the Charter of the Nürnberg Tribunal, Assembly Resolution 95(I), New York, 11 December 1946. UN Audiovisual Library of International Law. https://legal.un.org/avl/pdf/ha/ga_95-I/ga_95-I_e.pdf. Accessed 7 September 2020 Centro de Derechos Humanos Miguel Agustín Pro Juárez (2014) Desapariciones forzadas durante la guerra sucia en México e impunidad. Informe conjunto al Comité contra las Desapariciones Forzadas en el marco de la adopción de la lista cuestiones durante la séptima sesión del comité (1526 de septiembre de 2014). https://tbinternet.ohchr.org/Treaties/CED/Shared%20Documents/ MEX/INT_CED_ICO_MEX_17810_S.pdf. Accessed 6 September 2020 Comisión Interamericana de Derechos Humanos (1986) Informe anual de la Comisión Interamericana de Derechos Humanos. 1985-1986, OEA/Ser.L/V/II.68 Comisión Nacional de los Derechos Humanos -CNDH- (2001) Recomendación 26/2001. Gaceta de la CNDH, México. https://www.cndh.org.mx/sites/all/doc/Gacetas/136.pdf. Accessed 5 September 2020 Comisiones unidas de: relaciones exteriores, organismos internacionales; y de justicia (2001) Proyecto de decreto por el que se aprueba la Convención sobre la Imprescriptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad. Gaceta Parlamentaria, Mexico. https://sil.gobernacion.gob.mx/Archivos/Documentos/2001/12/asun_299223_200 11210_880268.pdf. Accessed 7 September 2020 Comité 68 Pro Libertades Democráticas (2008a) Procesos Inconclusos, Deslinde de Responsabilidades. Comité 68 Pro Libertades Democráticas, Mexico Comité 68 Pro Libertades Democráticas (2008b) Denuncia y criterios del Comité 68. Las imputaciones a los genocidas. Comité 68 Pro Libertades Democráticas, Mexico Comité 68 Pro Libertades Democráticas (2008c) Imprescriptibilidad del Genocidio: los foros del Senado. Comité 68 Pro Libertades Democráticas, Mexico

References

201

Corzo E (2006) Genocidio, imprescriptibilidad y retroactividad (comentario a la sentencia del recurso de apelación 1/2004-PS). Cuestiones constitucionales. Revista mexicana de derecho constitucional, número 14 Corzo V, Corzo E (2012) La aplicación del derecho internacional en México. INACIPE, Mexico Cossío J (2010) Fuero militar: sus alcances y limitaciones. Cuestiones Constitucionales, 22 Cossío J, Mejía R (2012) El caso Radilla estudio y documentos. Porrúa, Mexico Dawn R (2011) State Crime. In: Chambliss W (ed) Crime and criminal behavior. Sage Publications, Los Angeles Deutscher Bundestag (1965) Bundesgesetzblatt I No. 16, Bonn p. 315 Deutscher Bundestag (1969) Bundesgesetzblatt No. 71, Bonn, p. 1065 Deutscher Bundestag (1979) Bundesgesetzblatt No. 41, Bonn, p. 1046 Dondé J (2011) Extradición y debido proceso. INACIPE-Tirant lo Blanch, Mexico Doyle K (2003) The Corpus Christi massacre. Mexico’s attack on its student movement, June 10, 1971. https://nsarchive2.gwu.edu/NSAEBB/NSAEBB91/. Accessed 13 September 2020 Doyle K (2006) Draft report documents 18 years of dirty war in Mexico. Special Prosecutor: State responsible for hundreds of killings, disappearances. https://nsarchive2.gwu.edu/NSAEBB/NSA EBB180/index.htm. Accessed 12 September 2020 Doyle K (2010) Evidencias en los archivos de crímenes de derechos humanos en México: El caso de Aleida Gallangos. https://nsarchive.gwu.edu/NSAEBB/NSAEBB307/doc13.PDF. Accessed 6 September 2020 Equipo Nizcor (2000) Auto solicitando la extradición de Ricardo Miguel Cavallo. https://www.der echos.org/nizkor/arg/espana/cavallo2.html. Accessed 12 September 2020 Fix-Zamudio H (1994) Introducción al estudio de la defensa de la Constitución en el ordenamiento mexicano. Cuadernos constitucionales México-Centroamérica, no. 12 Fix-Zamudio H (1998) Significado actual del control constitucional en México. In: Memoria del simposio internacional: el significado actual de la Constitución. UNAM, Mexico Fleck D (2013) The handbook of international humanitarian law. Oxford University Press, Oxford Gropp W (2005) Strafrecht Allgemeiner Teil. Springer Verlag, Berlin/Heidelberg Guevara J (2002) México frente a la jurisdicción universal: la extradición de Ricardo Miguel Cavallo. Revista Mexicana de Derecho Público 3: 60-101 Guevara J (2004) La extradición de Cavallo continúa. Isonomía, no. 21, pp. 85-114 Gutiérrez J, Cantú S (2012) Sentencia del caso Rosendo Radilla Pacheco y la justicia en México. Editorial Ubijus, Mexico Hernández J (2013) Facultad de investigación de violaciones graves. Justificación de una reforma. Masters’s thesis, Universidad Panamericana, Mexico Hettinger M (1986) Die zentrale Bedeutung des Bestimmtheitsgrundsatzes (Art. 103 II GG). JuS, L 17, pp. 33 et seq. Hippler T, Vec M (eds) (2015) Paradoxes of peace in nineteenth century Europe. Oxford University Press, New York Human Rights Watch (2006) Lost in Transition. https://www.hrw.org/reports/2006/mexico0506/ mexico0506web.pdf. Accessed 6 September 2020 Ibarra F (2009) Seminario “Análisis de sentencias relevantes”. Suprema Corte de Justicia de la Nación, facultad de investigación 1/2006 (AI 1/2005), caso Halconazo. Reforma Judicial: Revista Mexicana de Justicia 13: 135-154 ICC (2002) Elements of crimes, Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002, part II.B, RC/11. https://www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B45BF9DE73D56/0/ElementsOfCrimesEng.pdf. Accessed 6 September 2020 International Committee of the Red Cross-Advisory Service (2004) What is International Humanitarian Law? ICRC, Geneva Jähnke B (2006) StGB: Leipziger Kommentar; Großkommentar. 3. ed., §§ 61-79 b; §§ Vor 78-78a, Walter de Gruyter, Berlin Jaspers K (1988) Wohin treibt die Bundesrepublik?, 10th edn. Piper Verlag, Munich

202

7 Interpretation of International Criminal Law …

Jones J (2000) The practice of the International Criminal Tribunals for the former Yugoslavia and Rwanda. Transnational Publishers, New York Karl S (2014a) Kampf um rehumanisierung, die Verschwundenen des schmutzigen krieges in Mexiko. Transcript-Global Studies, Bielefeld Karl S (2014b) Rehumanizing the Disappeared: Spaces of Memory in Mexico and the Liminality of Transitional Justice. American Quarterly, 66(3): 727-748 Kleffner J (2008) Complementarity in the Rome Statute and national jurisdictions. Oxford University Press, Oxford Kok R (2007) Statutory limitations in International Criminal Law. T.M.C. Asser Press, The Hague Lozano L (2011) Reflexiones sobre Cesare Beccaria y el Derecho Penal. In: Campos F, Cienfuegos D (eds) Entre libertad y castigo: dilemas del Estado contemporáneo. Editorial Laguna, Mexico, pp. 725-742 Méndez J, Tinajero-Esquivel S (2001) The Cavallo Case: A New Test for Universal Jurisdiction. Human Rights Brief, vol. 8, no.3 Meron T (2011) Human rights and humanitarian norms as customary law, 2nd edn. Clarendon Press, Oxford Morineau M (1997) Aguas blancas. Estudio de un caso de aplicación del segundo párrafo del Artículo 97 de la Constitución Política de los Estados Unidos Mexicanos. Boletín Mexicano de Derecho Comparado, pp. 795-811 Murschetz V (2007) Auslieferung und Europäischer Haftbefehl. Springer Wissenschaft, Austria Naucke W (1996) Die Strafjuristische Privilegierung Staatsverstärkter Kriminalität. Vittorio Klostermann, Frankfurt am Main Nuremberg Military Tribunals (1949) Trials of war criminals before the Nuremberg Military Tribunals. US Government Printing Office OAS (2000) Inter-American yearbook on human rights, 1998, Vol. 2. Martinus Nijhoff Publishers, The Hague/Boston/London OAS-Asamblea General (2014) Derecho a la verdad en las Américas, OEA/Ser.L/V/II.152. https:// www.oas.org/es/cidh/informes/pdfs/Derecho-Verdad-es.pdf. Accessed 7 September 2020 Philip G (1992) The Presidency in Mexican Politics. Palgrave Macmillan, London Pieroth B (1992) Der Rechtsstaat und die Aufarbeitung der vorrechtsstaatlichen Vergangenheit. In: Diskussionen auf der Tagung der Vereinigung der Deutschen Staatsrechtslehrer in Gießen vom 2. bis 5. Oktober 1991. De Gruyter, Berlin/New York Rath T (2016) From spent cartridges to militarization: the military and the political right in Mexico. Nuevo Mundo (mundos nuevos) colloques. https://journals.openedition.org/nuevomundo/68869. Accessed 5 September 2020 Revista Mexicana de Política Exterior (2001) Primer informe de labores del secretario de Relaciones Exteriores, no. 62-63 Reyes P (2011) La facultad indagatoria de la Suprema Corte de Justicia de la Nación: una revisión. Cuestiones Constitucionales, no. 8 Roht-Arriaza N (2005) The Pinochet effect. Transnational justice in the age of human rights. University of Pennsylvania Press, Philadelphia Roth R (2009) The extradition of génocidaires. In: Gaetta P (ed) The UN Genocide Convention: A commentary. Oxford University Press, Oxford, pp. pp 278–309 Sadat N (2008) The French Experience. In: Bassiouni C (ed) International criminal law, International Enforcement. Nijhoff Publishers, Leiden Safferling C (2009) Lernen von Nürnberg – Die Relevanz des Nürnberger Hauptkriegsverbrecherprozess für das moderne Völkerstrafrecht. Zeitschrift des Max Plancks Instituts für europäische Rechtsgeschichte, 14 Sambale A (2001) Die Verjährungsdiskussion im Deutschen Bundestag. Ein Beitrag zur juristischen Vergangenheitsbewältigung. Dr. Kovaˇc Verlag, Berlin Schabas W (2008) Article 29. In: Triffterer O (ed) Commentary to the Rome Statute. CH Beck, Berlin/New York

References

203

Schatz S (2011) Murder and politics in Mexico. Political killings in the Partido de la Revolución Democrática and its consequences. Springer Verlag, Berlin/Heidelberg Schmidt E (1995) Einführung in die Geschichte der deutschen Strafrechtspflege. Vandenhoeck and Ruprecht Verlag, Göttingen Schünemann B (1979) 17 Thesen zum Problem der Mordverjährung. Juristische Rundschau, pp. 177-182 Senado de la República (2001) Proyecto de decreto por el que se aprueba la Convención sobre la Imprescriptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad, Gaceta Parlamentaria Sesé O (2014) La limitación de la justicia universal en la Ley Orgánica de 1/2009. Tiempos de Paz, no. 112 Siqueiros J (2004) Extradición y. jurisdicción universal. El caso Cavallo. Revista de Derecho Privado, núm.7 Spiga V (2011) Non-retroactivity of Criminal Law. Journal of International Criminal Justice, Vol. 9 SRE (2001) Primer informe de labores del secretario de Relaciones Exteriores. Revista Mexicana de Política Exterior, no. 62–63: 119–164 Staff I, Mortati C (1994) Verfassung im materiellen Sinn. Ein Beitrag zur Rechtsentwicklung im fascistischen Italien und im Deutschland der Weimarer Zeit und im Nationalsozialismus. Quaderni Fiorentini per la Storia del Pensiero Giuridico Moderno Thalmann V (2009) National criminal jurisdiction over genocide. In: Gaetta P (ed) The UN Genocide Convention: A commentary. Oxford University Press, Oxford, pp. 231–258 Tomuschat C (2006) The Legacy of Nuremberg. Journal of International Criminal Justice 4: 830–844 UN Commission on Human Rights (2005) Resolution 2005/66, E/CN.4/RES/2005/66 UN Commission on Human Rights (2014) Informe del Relator Especial sobre la promoción de la verdad, la justicia, la reparación y las garantías de no repetición, A/HRC/27/56/Add.1. https:// ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/27/56/Add.1. Accessed 11 September 2020 UN Economic and Social Council (1998) Report of the Working Group on Enforced or Involuntary Disappearances of the UN, E/CN.4/1999/62 UN General Assembly (1946) Resolution adopted by the General Assembly 95 (1). Principles of International Law recognized by the Charter of the Nurnberg Tribunal, A/RES/1/95. https://www. un-documents.net/a1r95.htm. Accessed 6 September 2020 UN General Assembly (1949) United Nations International Law Commission, The Charter and Judgment of the Nürnberg Tribunal -History and Analysis, Memorandum submitted by the General Secretary, A/CN.4/5 UN General Assembly (1991) Declaración sobre la determinación de los hechos por las Naciones Unidas en la esfera del mantenimiento de la paz y la seguridad internacionales, Res. 46/59 UN High Commissioner’s Office Mexico (2015) Declaración del Alto Comisionado de la ONU para los Derechos Humanos, Zeid Ra’ad Al Hussein, con motivo de su visita a México. https:// www.hchr.org.mx/index.php?option=com_k2&view=item&id=767:declaracion-del-alto-comisi onado-de-la-onu-para-los-derechos-humanos-zeid-ra-ad-al-hussein-con-motivo-de-su-visita-amexico&Itemid=265. Accessed 10 September 2020 UN International Law Commission (1950) Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal. In: Yearbook of the International Law Commission, vol. II UN Security Council (1993) Report of the Commission on the truth for El Salvador, S/25500 UN Security Council (2003) 4833rd meeting, S/PV.4833. https://www.securitycouncilreport. org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/IJ%20SPV4833.pdf. Accessed 7 September 2020 Villalpando J (1995) La justicia militar en México. Revista de Administración Pública. https:// revistas-colaboracion.juridicas.unam.mx/index.php/rev-administracion-publica/article/view/ 18966/17075. Accessed 10 September 2020 Vormbaum T (2009) Einführung in die moderne Strafrechtsgeschichte. Springer, Heidelberg

204

7 Interpretation of International Criminal Law …

Werle G (1992) Der Holocaust als Gegenstand der bundesdeutschen Strafjustiz. Neue Juristische Wochenschrift, p. 2529-2535 Werle G (2001) Rückwirkungsverbot und Strafkriminalität. NJW Werle G, Wandres T (1995) Auschwitz vor Gericht. Völkermord und bundesdeutsche Strafjustiz: mit einer Dokumentation des Auschwitz-Urteils. C.H. Beck, Munich

Chapter 8

Implementation of Humanitarian Law During the Armed Conflict in Chiapas

Contents 8.1 Preliminary Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2 The “Lacandona” Declaration and Humanitarian Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Hostilities and Amnesty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4 The Role of the International Committee of the Red Cross in the Conflict . . . . . . . . . . . 8.5 Judicial Enforcement—Prosecution of War Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

205 206 207 209 211 215

Abstract This chapter examines the armed conflict in Chiapas. The Chiapas conflict is a good example of the following: (a) state denial of an internal armed conflict on its territory; (b) the participation of non-state actors in the application of IHL (the EZLN); and (c) the recognition of an armed conflict by a third party, in this case, by the ICRC. The EZLN directly applied IHL and declared itself a belligerent force, meaning that intervention of the ICRC in Chiapas is also a good example of non-judicial enforcement of humanitarian law. The government issued amnesty laws and signed “peace agreements” and, by doing so, acknowledged, not explicitly, but implicitly, the nature of the armed conflict. In addition, the implications of the Acteal Massacre will be analyzed, since it could amount to a war crime. As the Mexican state has not yet punished those responsible for the crime, this omission could amount to a violation of IHL. Finally, this chapter will deliver strong arguments to fully incorporate the provisions of the Rome Statute and IHL, based on the way the Mexican state reacted to the conflict. Otherwise, civilians will remain unprotected against the violence that derives from an armed conflict. Keywords Non-international armed conflict · Combatant immunity · Enforcement of IHL · Amnesty · Protection of civilians · Non-state actors · War crimes

8.1 Preliminary Remarks The conflict in Chiapas is an example of the practice of the Mexican state towards IHL, as well as the applicability of international rules to internal armed conflicts by non-state actors, such as the EZLN (Ejército Zapatista de Liberación Nacional). It is also an example of the divergences that sometimes occur within the domestic © t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_8

205

206

8 Implementation of Humanitarian Law During the Armed …

legal order when it comes to recognizing an internal armed conflict. Even though the EZLN as a non-state actor committed to comply with international humanitarian law, no declaration or commitment was issued on the side of the Mexican state. In this vein, as we will see in the sections below, regardless of the International Committee of the Red Cross’ (ICRC) participation in Chiapas for ten years, the Mexican state never admitted the existence of an internal armed conflict. If we subsume within the definition of internal armed conflict the development given by the Tadic decision, namely, (a) a level of intensity and (b) a level of organization of the armed group.1 The Zapatista Army exercised protracted violence, characterized by a number of incidents of a certain length2 and possessed a level of organization, such as a command structure, uniforms and even the issuances of laws.3 Finally, regardless of the denial of recognition by the Mexican state of the armed conflict, it is important to add that characterization of the “non-international armed conflict”, was given by the actual participation of a third party, namely, the ICRC.

8.2 The “Lacandona” Declaration and Humanitarian Law The armed conflict in Chiapas began on 1 January 1994, when the EZLN declared war on the Mexican state with what is known as the “Declaration from the Lacandona Jungle” (Declaración de la Selva Lacandona).4 In this declaration, the EZLN invoked Article 39 of the Constitution, which provided for the popular origin of national sovereignty, as well as the right of the people to alter or modify their form of government.5 The declaration of the EZLN, constitutes a formal recognition of applicability of international humanitarian law.6 In the Declaración de la Selva Lacandona, the EZLN subjected themselves to the laws of war of the Geneva Convention and requested the support of the ICRC to monitor and regulate combat, and to protect the civilian

1 ICTY, Prosecutor v. Tadic, Opinion and Judgment, 7 May 1997, IT-94-1-T (Tadic), paras 561-568. 2 Even though hostilities lasted for 12 days, Becerra Ramírez argues, on the contrary, that Common

Article 3 would not apply to such a conflict because it was not a continuous battle. He also considers that the applicable law is international human rights law and not IHL. See Becerra 2001, pp. 152–153. 3 The EZLN issued a “Law on Women”, which, overall, gave equal rights to women that participated in the armed group. See El Despertador Mexicano, Órgano Informativo del EZLN 1993. On lawmaking by non-state actors, see Roberts and Sivakumaran 2012. 4 Ejército Zapatista de Liberación Nacional 1994, Primera declaración de la selva lacandona 1994. https://enlacezapatista.ezln.org.mx/1994/01/01/primera-declaracion-de-la-selva-lacandona/. Accessed 15 September 2020. 5 In this sense, the invocation of Article 39 of the CPEUM is consistent with the theory of natural law, by which citizens have the right to alter or abolish the government, if authorities fail in their duty to govern. See Perna 2006, pp. 9–13. 6 Sivakumaran classifies these declarations as “less traditional sources” of IHL, see Sivakumaran 2012, pp. 107–152. Specifically, on the EZLN, see p. 122.

8.2 The “Lacandona” Declaration and Humanitarian Law

207

population. Thereby, the EZLN essentially self-declared itself a belligerent force.7 In the same declaration, they established their military forces under the name “Zapatista National Liberation Army” (EZLN) and formulated different mandates, which relate directly to certain provisions of the Geneva Conventions. Since these mandates relate and commit to the rules of the GCs, the EZLN could indeed be considered a belligerent force and receive the protection of humanitarian law. The stipulations of the declaration that relate to IHL are as follows: • • • •

A responsible command, namely the General command of the EZLN. Orders issued from the EZLN to protect the civilian population. Adoption of distinctive signs and a red and black flag, with the letters, EZLN. Demand for unconditional surrender of the enemies before engaging in combat.8

8.3 Hostilities and Amnesty After the Zapatistas declared war on 1 January 1994, fighting took place in the state of Chiapas, involving clashes with police forces and the armed forces. The fighting lasted for 12 days. With the ceasefire declared on 12 January, the peace process was initiated.9 In order to facilitate a peace process, an amnesty law was passed by Congress on 22 January 1994,10 which eliminated criminal consequences for crimes committed between 1 January and 20 January in several municipalities in the state of Chiapas.11 Since this law was only applicable to federal crimes, a state law was issued on 25 January regarding local crimes.12 Despite these amnesties, practically one year later, on 9 February 1995, President Zedillo issued an arrest warrant against SubComandante Marcos, implicating the EZLN leader for crimes of sedition, conspiracy and terrorism.13 This is, however, not uncommon for state parties when confronted

7 Belligerent

status was discussed by Víctor Manuel Martínez Búllez Goyri, who argues that the Zapatista Army of National Liberation could not be considered a belligerent force, because the members of the armed group always appeared with their faces covered. However, the Geneva Conventions do not specify the physical appearance of a belligerent. See Martínez Búllez Goyri 1994, p. 128. 8 This order could relate to the prohibition of wounding or treacherously killing members of the enemy side, as provided by Article 23(b) of the Hague Conventions of 1907. 9 For a detailed account, see Plasencia 1994, pp. 157–184. 10 Decreto de Ley de Amnistía, DOF, 22 January 1994 (Amnesty Law). See the full text in Appendix B. 11 Article 1, Amnesty Law 1994. 12 Plasencia 1994, p. 178. 13 El Informador. Diario Independiente (1995) Orden de aprehensión en contra de Marcos: Zedillo. 10 February 1995.

208

8 Implementation of Humanitarian Law During the Armed …

with armed conflicts within their borders, since they often label rebel groups as criminals.14 Some scholars opposed the denomination of terrorism in the warrant against Sub-Comandante Marcos,15 since the Zapatistas’ goals to overthrow the government did not amount to terrorist activities which intimidated or propagated fear among the civilian population. Recalling the review made to the crime of rebellion in Chap. 6 of this book, the Federal Criminal Code, in its Article 137, grants combatant immunity to the rebels, i.e. deaths and injuries inflicted during combat are not punishable. In this sense, the Amnesty should apply for the crime of rebellion and for acts outside of combat. Finally, by applying Article 137 of the Criminal Code, Sub-Comandante Marcos would not be a “terrorist” but a rebel. Related to the “peace agreements”, Becerra Ramírez points out that the use of the term “peace” in the agreements suggests that the government itself considered the Zapatista rebellion an armed conflict.16 Moreover, the terms used in the Amnesty law17 belong to the law of war and also show how the formal treatment of the EZLN by the Mexican government fell into the categories of armed conflict. Together, this suggests that the government not explicitly, but implicitly, acknowledged the nature of the conflict. It is worth noting that former president Zedillo invoked section VI of Article 89, activating the executive’s power to deploy the armed forces, and also ordered the Mexican army to collaborate with the PGR and carry out patrols in different parts of the state of Chiapas.18 The arrest warrant against Sub-Comandante Marcos was declared non-prosecutable on 24 February 2016 due to the statute of limitations.19

14 See

Médecins Sans Frontières 2016 and Sivakumaran 2012, pp. 204–205. Further examples of labeling armed groups as terrorist organizations by the national states are: the PKK in Turkey, the FARC and ELN in Colombia. These groups have been also targeted as terrorist groups by the Council of the European Union in its Council Common Position, 2209/67/CFSP, 26 January 2009. Regarding the armed conflict in Syria, a similar characterization is made by Turkey to the Kurdish armed group, the YPG. See Tom O’Connor—Newsweek Magazine (2018) U.S. is giving weapons to terror group in Syria, Turkey says. http://www.newsweek.com/us-giving-weapons-terror-groupsyria-turkey-says-777436. Accessed 14 September 2020. On the armed conflicts in northern Syria, see Bellal 2018. 15 Against labeling the Zapatistas as “terrorists”, see Plasencia 1994, pp. 170–172. 16 Becerra 2006, p. 98. 17 E.g. the term “acts of hostility” in Article 3 of the Amnesty Law, above n. 10. 18 Diario de Colima (1995) Ordena Zedillo aprehender a “Marcos”, tensión en Chiapas. Regarding the same issue, see the open letter of former president Zedillo to the Mexican public regarding the arrest warrant and events in Chiapas: p. 6. http://www1.ucol.mx/hemeroteca/pdfs/100295.pdf. Accessed 14 September 2020. 19 Periódico La Jornada (2016) Prescriben delitos por los que en 1995 se libró orden de aprehensión contra Marcos. http://www.jornada.unam.mx/2016/02/24/politica/005n1pol. Accessed 14 September 2020.

8.4 The Role of the International Committee of the Red …

209

8.4 The Role of the International Committee of the Red Cross in the Conflict As mentioned above, the intervention of the ICRC was primarily due to the request made directly by the EZLN itself and its intention to abide by the laws of war.20 The intervention of the ICRC is a good example of implementation and non-judicial enforcement of humanitarian law made by a third party to a non-international armed conflict.21 The ICRC arrived in Chiapas on 5 January 1994, together with the Mexican Red Cross, offering to aid the victims of the conflict and ensure that the protection of humanitarian law was guaranteed.22 The mission lasted ten years, with the ICRC withdrawing from Chiapas in 2004. During that 10-year span of its operations, it had two offices (one in Mexico City, and another one in San Cristobal de las Casas in Chiapas), consigned 7 delegates and collaborated with 31 national delegates.23 Moreover, the Red Cross also included the Spanish and German Red Cross for its operation—both of which were present since the beginning of the conflict in Chiapas.24 The participation of the ICRC in Chiapas was relevant to the extent it that provided a precedent in IHL regarding the approach of the parties in a conflict.25 Operationally, the ICRC created free zones in Chiapas (two for the EZLN) and established medical services. Moreover, through negotiations with SubCommandante Marcos,26 it facilitated a way for dialogue between the EZLN and

20 In

favor of this request, see Mégevand 1995, pp. 94–108. Against this formulation, see Búllez Goyri 1994, p. 74. 21 Sivakumaran identifies three types of mechanisms for implementation and non-judicial enforcement of the law of armed conflict: (1) the mechanisms internal to the parties to the conflict; (2) belligerent reprisals; and (3) activities of entities that are external to the conflict such as UN, ICRC or NGOs. See Sivakumaran 2012, p. 430. 22 Mégevand 1995, p. 94 et seq. 23 Programa conjunto para la paz 2012, p. 46. 24 The German Red Cross carried out four humanitarian aid projects, consisting of health programs, support for the population, distribution of 40 tons of maize, flour and beans, and support to agricultural production for self-consumption. See the Mexican and German Red Cross website: http:// www.cruzrojaalemana-chiapas.org/antecedentes.htm. Accessed 14 September 2020. On this topic, information can also be found in the report: Programa conjunto para la paz 2012. 25 Henckaerts and Doswald-Becks 2005, pp. 1551–1552. It is also an example of the preemptive activities that the ICRC undertake, since warnings were made about the prohibitions of international law for causing unnecessary suffering or loss of life through the use of arms. In the words of SubCommandante Marcos, the ICRC functioned as a “facilitator” of dialogue between the parties due to its moral authority and thanks to its principle of neutrality. See Enlace Zapatista 2001a. 26 It is worth noting how Béatrice Mégevand, head of the ICRC delegation describes Marcos as the link between the indigenous world and the modern and industrialized Mexico. She also described the demands of the Zapatista movement as “pragmatic and basic”. Finally, the author reports on the restrictions of free transit in the territories controlled by the Mexican Armed Forces. See Mégevand 1995, pp. 97–98. The views of the ICRC delegate clash with the opinion made of Mexican scholars who mostly discredited the Zapatista movement. See Melgar Adalid 1994.

210

8 Implementation of Humanitarian Law During the Armed …

the Mexican government,27 and served as third party guarantor for voting in the two free zones of the EZLN (also known as the “Zapatista zone”).28 Assistance for the internally displaced was also provided, consisting of food distribution, relief for agricultural self-sufficiency, and establishment of temporary camps for 20,000 internally displaced persons.29 The ICRC formally withdrew in 2004.30 Even though the participation of the Committee was due to the correct invocation of IHL by the EZLN, the Mexican government has not yet acknowledged the valid request made by the EZLN.31 Nevertheless, the Mexican government, in an official document, explains that the ICRC’s participation in the conflict in Chiapas was based on Common Article 3 of the four Geneva Conventions.32 Eventually, the dialogue between the EZLN and the Mexican government resulted in the drafting of the “Agreements of Peace” (Acuerdos de San Andrés Larraínzar). Altogether, the trajectory of the conflict and the ICRC’s role reflect the complex and ambiguous situation, in which the state denied recognizing an internal armed conflict. However, it was forced to do so implicitly as a result of the declaration made by the EZLN and the intervention of the ICRC.33

27 These actions included the transfer of the EZLN members to meeting points with the government and facilitating offices. 28 Mégevand 1995, pp. 103–104. 29 Internal Displacing Monitoring Centre 2008, p. 102. 30 The ICRC’s participation was not without controversy since it refused to provide security to the EZLN during the 2001 “Zapatista caravan”. The Zapatista caravan was intended to move from the Zapatista enclave in Chiapas to Mexico City in order to demand from Congress the fulfillment of the San Andrés Larraínzar agreements and the issuance of a law on Indigenous Rights and Culture. At that time, Sub-Comandante Marcos accused the former foreign secretary, Jorge G. Castañeda, of obstructing the Committee’s participation in the caravan. The ICRC confirmed that its refusal to intervene was due to the fact that it did not receive the request of the Mexican government as required. On the contact made by the EZLN with the ICRC, given the “humanitarian and neutrality principles” of the ICRC, see Enlace Zapatista 2001b. 31 See Misión Permanente de México ante los Organismos Internacionales con sede en Ginebra 2016. 32 The SRE document reads as follows: ICRC Participation in the Chiapas Conflict—The International Committee of the Red Cross requested, on 10 January 1994, the authorization of the Government of Mexico to provide assistance, with the Mexican Red Cross, for direct access to the victims—both civilian and military—of the events that occurred in Chiapas. In this regard, the ICRC, as a neutral, independent and impartial humanitarian institution, offered its services to the Government of Mexico. This ICRC proposal was based on Common Article 3 to the four Geneva Conventions of 12 August 1949, which states that the ICRC may offer its services in this type of situation, as well as Articles 5.2 d) and 5.3 of the Statutes of the International Movement. In this context, the Government of Mexico acceded to the request of the ICRC, which responded to the desire to ensure strict compliance with IHL, within the framework of the peace and reconciliation process. 33 Regarding the denial of the Mexican state to recognize the armed conflict in Chiapas, see Becerra 2001, pp. 123–157.

8.5 Judicial Enforcement—Prosecution of War Crimes

211

8.5 Judicial Enforcement—Prosecution of War Crimes So far, the armed conflict in the region of Chiapas and the application of IHL have been described. However, the main interest regarding ICL is the prosecution of crimes and the question of whether international crimes have been committed. This might have been the case in the Chiapas conflict and this will be examined in detail below. On 22 December 1997, forty-five indigenous people were killed in the town of Acteal, in the municipality of Chenalho in Chiapas, while praying in a local church. This event is referred to as the “Acteal Massacre”.34 Among the victims were women and children. According to thea testimonies, the attackers were members of paramilitary groups,35 and the victims were part of “Las Abejas”, a civil society group, which had sympathized with the EZLN. While the official version maintains that the killings were the result of conflicts between communities and an act of revenge,36 the victims’ version is that the killings were performed by paramilitary groups who “(…) acted with the acquiescence of the state against Tzotzil natives in Acteal-Chenalhó”.37 Notwithstanding the different versions, the fact is that the victims, as civilians, enjoyed protection and immunity under IHL. As stated in Chap. 6, Mexico is party to the four Geneva Conventions and, therefore, obliged to comply with Article 3, which is common to all GC. Article 3 GC is considered a minimum in order to guarantee humane treatment during a NIAC and has also been customary international law since the Nicaragua case.38 Common Article 3(1)(a) GC prohibits “(…) violence to life and persons, in particular murder of all kinds (…)”. Since 45 peasants were killed while praying in a church, the act could qualify as a violation of IHL. Additionally, violence to life is a specific prohibition and part of customary international law39 derived from the principle of humane treatment. The parties to the conflict have to guarantee that civilians are protected

34 It should be noted that the modus operandi is similar to other events, such as those that occurred in El Charco, Ayutla de los Libres (Guerrero) in 1998, where eleven indigenous (N’avi) civil society activists were attacked and killed by gunmen while they were sleeping. See Liga mexicana por la defensa de los derechos humanos 1999. 35 See Programa conjunto para la paz 2012, p. 31. 36 IACHR, Manuel Santiz Culebra et al., petition 212-05, admissibility, 1 November 2010, report no. 146/10, (Acteal Massacre Mexico). https://perma.cc/X8G2-U6A9. Also see Hernández 2012, pp. 108–110. 37 Acteal Massacre Mexico, above n. 36, paras 1, 9. 38 The first decision to acknowledge the customary law character of Common Article 3 GC was given by the ICJ in the Nicaragua judgment. See ICJ, Military and paramilitary activities in and against Nicaragua, Merits-Judgment, 27 June 1986, paras 218-220. In this respect and highlighting the failure of the ICJ to support the crystallization of Article 3 into customary law with opinio juris and practice, see Meron 2011, pp. 25–37. See also rule 89 of Customary International Humanitarian law, available at https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule89#Fn_ 12160436_00020. Accessed 14 September 2020. 39 See rule 89 of Customary International Humanitarian law.

212

8 Implementation of Humanitarian Law During the Armed …

from acts such as murder, cruel treatment or corporal punishment.40 Unlike AP I GC,41 applicable to international armed conflicts, Common Article 3 GC does not expressly grant protection to the civilian population. However, this protection derives from the prohibition to commit certain acts against persons who do not take part in the hostilities.42 The obligation of the parties to the conflict derives from Common Article 3 GC as well as from the law of state responsibility.43 Additionally, the crime of rebellion indirectly supports this obligation, as argued in Chap. 6. Under Mexican law, the crime of rebellion awards rebels combatant immunity, but they can be prosecuted for conduct outside of combat. As a result, rebels are obliged to protect the integrity of civilians. Ultimately, the EZLN, in the “declaración de la Selva Lacandona”, committed to protect civilians. In addition to the intervention of the ICRC based on Common Article 3 GC, the crimes perpetrated in Acteal could be considered war crimes if proven that they unfolded in the course of an internal armed conflict in Chiapas, and that the crime was perpetrated because of the armed conflict.44 It would then be left for the domestic jurisdiction to examine if there is a link between the armed conflict and the alleged facts. However, up until now, the Acteal Massacre has not been investigated as a war crime;45 this could be due to the lack of recognition by the Mexican state of a noninternational armed conflict. Non-recognition of customary international law by the Mexican state as well as not being signatory to AP II GC cannot be seen to provide an excuse, since Mexico is party to all Geneva Conventions; as a result, Common Article 3 would then be applicable. Regardless of the fact that, under Mexican criminal law, 40 Contemporary, all these violations to the principle of humane treatment are criminalized under Article 8(2) (c) (i) RS. Since the acts were perpetrated prior to the RS, we refer only to common Article 3. 41 Article 51 AP I: “(1) The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. (2) The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. (3) Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities. (…)”. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature (12 December 1977), 1125 UNTS 3, entered into force (7 December 1979) (Additional Protocol I). 42 Tadi´ c, above n. 1, para 615. 43 On the law of State responsibility in non-international conflicts, see Bothe 1994, pp. 241–252. 44 See in this regard the jurisprudence of the ICTY, Aleksovski, Judgment, 25 June 1999, IT-95-14/1, para 45. 45 It is important to note that in the mid-90 s, before the ICTY was established, the concept of “war crimes” was still not applicable to NIAC. The Commission of experts that examined the conflict in the former Yugoslavia, as well as the ICRC commentary on this regard, express that the notion of war crimes was only limited to international armed conflicts. See ICRC 1993, para 4. Critical to this assumption, Sivakumaran 2012, pp. 476–477. Today, it can be considered that this difference is surpassed, mainly thanks to the definition of crimes under the RS.

8.5 Judicial Enforcement—Prosecution of War Crimes

213

violations of Common Article 3 GC have not been criminalized as such, these could be investigated and prosecuted under ordinary criminal law. If the Acteal Massacre would amount to the commission of a war crime under Article 3(1) (a) GC, the state would, to date, also have failed to comply with its obligation to prosecute persons suspected of having committed violations of IHL.46 Additionally, the crime could also be prosecuted as a result of the omission to prevent it. According to different accounts, authorities knew, no later than October 1997, of the increasing violence and attacks in the region.47 Regardless of whether the “Acteal Massacre” is labeled as a “war crime”, one of the pillars of ICL is to combat impunity and, therefore, the crimes committed in Acteal should be prosecuted and punished, especially since the parties failed to protect civilians from murder. Unfortunately, this follows the trend of lack of prosecution when it comes to crimes “(…) committed in the context of an internal armed conflict, in which usually amnesties, truth commissions or pardons are preferred.”48 However, grave violations of Common Article 3 GC, such as the murder of civilians, are not subject to amnesties or pardons, because the duty to prosecute grave violations is derived from state responsibility as well as the duty to protect human lives.49 The only prosecution that has taken place ended in the acquittal of 86 civilians in the year 2013, as the SCJN considered their responsibility could not be established.50 These “acknowledgments of innocence” for violations of due process left the criminal responsibility for the Acteal case unresolved. To this day, it is unknown whether or not there were governmental structures involved in the killings. There is also a question as to whether the ICRC in its intervention in Chiapas was aware of the danger to the members of the Acteal community.51 In any case, as the object and purpose of the Geneva Conventions is to regulate the use of force as well as to minimize unnecessary suffering, the circumstances that led to the Acteal Massacre remain open to scrutiny.52 It should also be noted that, even in the absence of an armed 46 See Rule 158 of Customary International Law. https://ihl-databases.icrc.org/customary-ihl/eng/ docs/v1_rul_rule158. Accessed 14 September 2020. 47 Hernández 2012, pp. 105–106. 48 See Crawford 2010, pp. 104–112. 49 For this view see Bothe 1994, pp. 241–252. On the void character of amnesties concerning war crimes, since they derogate peremptory norms, see Domb 1994, pp. 267–253. 50 Diario Digital Sin Embargo (2015) Familias de Acteal acusan que, a 18 años, el Estado olvida la justicia, pero busca comprarlos. http://www.sinembargo.mx/21-12-2015/1582162. Accessed 14 September 2020. On the acknowledgments of innocence, see SCJN, Reconocimiento de inocencia, 11/2011; 15/2011; 7/2012; 41/2012; 42/2012; 43/2012. https://www.sitios.scjn.gob.mx/codhap/com pleto/caso_acteal. Accessed 14 September 2020. 51 The Acteal Massacre led to human displacement and in 2001 the ICRC participated in the returns of families belonging to the civil group “Las abejas”. See the study on human displacement in Chiapas in: Programa conjunto para la paz 2012, p. 46. 52 For reasons that are inherent to the very subject of this research, it is not possible to investigate thoroughly (it would be a matter of other research) to what extent the ICRC or the Red Cross’ national organizations that intervened in the conflict became aware of the conflicts prior to the massacre of Acteal or whether they did possess information of the existence of paramilitary groups in the area. Considering the reports available it is possible to confirm that the Red Cross was the

214

8 Implementation of Humanitarian Law During the Armed …

conflict, states have the duty to conduct criminal proceedings if serious violations of human rights occur, as provided by Article 25 of the American Convention on Human Rights.53 Regarding the victims, as their appeal for the crimes to be investigated and prosecuted was left unattended,54 they claimed state responsibility before the InterAmerican Commission of Human Rights (IACHR). In 2005, the civil organization, “Las Abejas”, filed a complaint before the IACHR alleging the responsibility of the state for what happened in Acteal as well as for the lack of criminal accountability for those responsible for authorizing the crime. The IACHR declared the petition admissible in 2010. In 2015, the petitioners declined the possibility of reaching a friendly settlement and are awaiting the IACHR’s merits report.55 However, on 4 September 2020, the next of kin of 18 victims56 signed a friendly settlement with the Mexican state, in which the state, in a ceremony, admitted its responsibility.57 It can be concluded that, the Chiapas conflict also exemplifies the lack of judicial enforcement by domestic courts. The way the Mexican state reacted to this conflict delivers strong arguments for full incorporation of the provisions of the Rome Statute and IHL. Otherwise civilians will remain unprotected against the violence deriving from an armed conflict. The example of the armed conflict in Chiapas also proves that Mexico has suffered several chapters of unrest and, therefore, it is necessary to legislate on armed conflicts as well as on crimes against humanity. Finally, the fact that the “Acteal Massacre” has, to this day, not been effectively prosecuted is also an argument to incorporate principles of ICL in order to prevent and punish international crimes. It is not a matter of this book to fully examine if the “Acteal first organization to give account of the number of deceased persons in the massacre. See Centro de Derechos Humanos, Fray Bartolomé de las Casas A.C 1998, p. 28. It is also necessary to frame the role of the SCJN in that matter. The SCJN refused to exercise its investigative power (Article 97 CPEUM) but did not dismiss to examine the proceedings of the suspects, releasing a total of 86 detainees due to irregularities in the process. As if the irregularities in the process were produced by an abstract entity, there was no statement regarding the responsibility of those who violated the due process, such as the then head of the PGR. 53 Supporting the interpretation that states have the duty to investigate violations of human rights, see Inter-American Commission on Human Rights, Rio Frío massacre, Colombia, 6 April 2001, Report Nº 62/01, para 73; IACtHR, Loayza Tamayo Case, Reparations, 27 November 1998, Serie C/ 42, para 169. 54 Activists in 1998 also pursued triggering the “fact finding” competence of the SCJN; however, the request was rejected. See Hernández 2013, pp. 165–169. 55 Diario Digital Sin Embargo (2015) Familias de Acteal acusan que, a 18 años, el Estado olvida la justicia, pero busca comprarlos. http://www.sinembargo.mx/21-12-2015/1582162. Accessed 14 September 2020. 56 The victims’ group: “Las Abejas”, declined to sign the agreement and is waiting for the merits report by the IACHR. See Portavoz Chiapas (2020) Sobrevivientes de Acteal rechazan un fin amistoso. https://portavozchiapas.com.mx/2020/08/12/sobrevivientes-de-acteal-rechazanun-fin-amistoso/. Accessed 15 September 2020. 57 Noteworthy is also the fact that during the solemn act of state responsibility, no member of the military was present. See Aristegui Noticias (2020) Acuerdo amistoso sobre Acteal, ‘incompleto e inaceptable’: Hermann Bellinghausen. https://aristeguinoticias.com/0409/mexico/acuerdoamistoso-sobre-acteal-incompleto-e-inaceptable-hermann-bellinghausen/. Accessed 15 September 2020.

8.5 Judicial Enforcement—Prosecution of War Crimes

215

Massacre” falls into crimes against humanity or war crimes. However, the fact is that 45 civilians were killed while the conflict was still ongoing. When examining the best ways to incorporate ICL in the domestic legal order, it is then of relevance to bear in mind the previous chapters of violence as well as the inability of the state to provide for an effective investigation and prosecution. The Chiapas conflict is a good example of the State’s denial of recognizing an internal armed conflict, the participation of non-state actors in the application of IHL and the recognition of an armed conflict given by a third party, in this case by the ICRC. Unfortunately, it is also an example of the failed protection of civilians and of lack of prosecution of international crimes, being to this date pending.

References Becerra M (2001) Relación entre derecho internacional y derecho interno: el desafío de la aplicación de los Convenios de Ginebra. In: Fraidenraij S, Méndez Silva R (eds) Elementos de Derecho Internacional Humanitario. UNAM, Mexico Becerra M (2006) La recepción del derecho internacional en el derecho interno. UNAM, Mexico Bellal A (2018) The War Report 2017. The Geneva Academy of International Humanitarian Law and Human Rights, Geneva Bothe M (1994) War Crimes in Non-International Armed Conflicts. Israel Yearbook on Human Rights, Vol. 24 Centro de Derechos Humanos, Fray Bartolomé de las Casas A.C (1998) Acteal: entre el duelo y la lucha. https://frayba.org.mx/historico/archivo/informes/981201_acteal_entre_el_duelo_y_la_l ucha_frayba.pdf. Accessed 14 September 2020 Crawford E (2010) The treatment of combatants and insurgents under the law of armed conflict. Oxford University Press, New York Domb F (1994) Treatment of war crimes in peace settlement, prosecution or amnesty? Israel Yearbook on Human Rights, Vol. 24 El Despertador Mexicano, Órgano Informativo del EZLN (1993) Ley Revolucionaria de Mujeres, No.1 Enlace Zapatista (2001a) Palabra del Ejército Zapatista de Liberación Nacional, a la Cocopa: el EZLN ya hizo contacto con el Comité Internacional de la Cruz Roja, febrero. http://enlacezapatista.ezln.org.mx/2001/02/19/a-la-cocopa-el-ezln-ya-hizo-con tacto-con-el-comite-internacional-de-la-cruz-roja/. Accessed 14 September 2020 Enlace Zapatista (2001b) El EZLN ya hizo contacto con el comité internacional de la Cruz Roja. https://enlacezapatista.ezln.org.mx/2001/02/19/a-la-cocopa-el-ezln-ya-hizo-contacto-conel-comite-internacional-de-la-cruz-roja/. Accessed 14 September 2020 Henckaerts J, Doswald-Beck L (2005) Customary International Humanitarian Law: Practice, Volume 2, Parts 1 and 2. Cambridge University Press, Cambridge Hernández J (2013) Facultad de Investigación de violaciones graves. Justificación de una reforma. Bachelor Thesis, Universidad Panamericana, Mexico Hernández L (2012) Acteal impunidad y memoria. El cotidiano, 12: 99–115 ICRC (1993) Some Preliminary Remarks by the ICRC on the setting-up of an International Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia, DDM/JUR/442b. Internal Displacing Monitoring Centre (2008) Mexico: evictions of indigenous communities fuel displacement in Chiapas. https://www.refworld.org/pdfid/4796f48b2.pdf. Accessed 14 September 2020

216

8 Implementation of Humanitarian Law During the Armed …

Liga mexicana por la defensa de los derechos humanos (1999) Informe sobre la masacre de “El charco”. https://perma.cc/H6AV-PT3S. Accessed 15 September 2020 Martínez Búllez Goyri V (1994) Sobre la posibilidad de dar reconocimiento de beligerancia al Ejército Zapatista de Liberación Nacional. In: Melgar Adalid M (ed) La rebelión en Chiapas y el derecho. UNAM, Mexico Médecins Sans Frontières (2016) The practical guide to humanitarian law combatants. https://guidehumanitarian-law.org/content/article/3/combatants/. Accessed 15 September 2020 Mégevand B (1995) Between Insurrection and Government - ICRC action in Mexico. International Review of the Red Cross, no. 304 Melgar Adalid M (ed) (1994) La rebelión en Chiapas y el derecho. UNAM, Mexico Meron T (2011) Human rights and humanitarian norms as customary law, 2nd edn. Clarendon Paperbacks, Oxford Misión Permanente de México ante los Organismos Internacionales con sede en Ginebra (2016) Participación del CICR en el conflicto de Chiapas. http://mision.sre.gob.mx/oi/index.phpopt ion=com_content&id=94%3Aorgcicr&catid=13%3Acontenidoorganismo&Itemid=4. (Link no longer active) Last accessed 18 June 2016 Perna L (2006) The Formation of the Treaty Law of Non-International Armed Conflicts. Martinus Nijhoff, Leiden/Boston Plasencia R (1994) El conflicto en Chiapas, consideraciones de derecho penal. In: Melgar Adalid M (ed) La rebelión en Chiapas y el derecho. UNAM, Mexico Programa conjunto para la paz (2012) Estudio sobre desplazados por el conflicto armado en Chiapas. https://www.sdgfund.org/sites/default/files/CPPB_%20ESTUDIO_%20Mexico_Est udio%20sobre%20los%20desplazados.pdf. Accessed 14 September 2020 Roberts A, Sivakumaran S (2012) Lawmaking by nonstate actors: engaging armed groups in the creation of international humanitarian law. Yale Journal of International Law 37: 107–152. http:// digitalcommons.law.yale.edu/yjil/vol37/iss1/4. Accessed 13 September 2020 Sivakumaran S (2012) The Law of Non-International Armed Conflicts. Oxford University Press, Oxford

Chapter 9

Application of Provisions of the Rome Statute in Resolutions of Domestic Law

Contents 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Right to Freedom of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.2 The Radilla Pacheco Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.3 The “Clandestine Graves of San Fernando” Case . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Prosecution of Crimes Committed during the Dirty War: The Case of Martha Alicia Camacho . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

217 218 218 219 221 222 224

Abstract This chapter analyzes cases in which provisions of the Rome Statute have been directly applied for the right to information and for the prosecution of crimes committed during the so-called “dirty war”. The several laws on the right to freedom of information provide for an exception for the classification of information regarding crimes against humanity. As the Mexican legal order has not yet incorporated this crime, the Supreme Court has resorted directly to Article 7 of the RS in order to declassify criminal prosecutions. The latter brings inconsistencies, as under criminal law an act can be framed as an ordinary crime and, at the same time, a crime against humanity according to the law on information. This chapter will show that these inconsistencies are not only present in practice but also within the normative framework. Finally, the case related to the “dirty war” exemplifies well how the principles and concepts of ICL have permeated into the arguments of defense lawyers as well as prosecutors. Keywords Rome Statute · Crimes against humanity · Right to freedom of information · Classification of information · Legality principle · Domestic incorporation

9.1 Introduction An interesting phenomenon in Mexican state practice is that, although the contents of the RS have not been incorporated into domestic criminal law, the provisions of the RS have found application in other areas of Mexican law, such as the right to freedom of information (derecho a la información). As for the prosecution of crimes © t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_9

217

218

9 Application of Provisions of the Rome Statute …

committed during the so-called “dirty war”, during the research for this book I found one case1 in which the RS is applied and referred directly by the federal prosecutor. The cases described below not only serve to show the inconsistencies of Mexican law but also illustrate how state practice has evolved in previous years into applying principles and norms of ICL.

9.2 Right to Freedom of Information 9.2.1 Introduction In 2002, the Federal Law of Transparency and Access to Governmental Public Information (LFTAIPG) came into force.2 Symptomatic for the PRI-PAN government transition, the law was considered part of the new democratic era. Among other things, the last paragraph of Article 14 stipulates that: “Information shall not be classified when it comes to investigating serious violations of fundamental rights or crimes against humanity”. It can only be assumed that the insertion of crimes against humanity in the Federal Transparency Law was a consequence of the rapprochement of the Vicente Fox government with these issues.3 It falls in the same time period as when the FEMOSPP was created and the “Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity” was ratified. Unfortunately, the explanatory memorandum of the law does not make any reference to, nor give any explanation about, the decision to incorporate crimes against humanity. Thus the focus of our analysis will be complemented by the General Law on Transparency and Access to Public Information of May 2015.4 This Law mentions, in a more extensive manner, crimes against humanity in Articles: 5, 74(e), 113, 115 and 148. As in the LFTAIPG, crimes against humanity serve as an exception to the classification of information. It is worth noting how the criminal legislation (Código Penal Federal) has not yet incorporated these crimes, but rather a law of transparency and information.5 In addition, to counteract the gap in criminal matters, the General Transparency Law makes a direct reference to international treaties: 1 Since

the time of writing, new criminal cases may have been heard that refer directly to the Rome Statute. The reader should bear in mind that this is not an exhaustive analysis of cases. In relation to the crime of torture since 2015, the Supreme Court has invoked directly Article 7 RS, arguing that the crime of torture is a crime against humanity. However, this criterion raises serious doubts in the light of the principle of legality in criminal law and its strict application given by Art. 14 of the Mexican Constitution. Due to the length of this work, it is impossible to analyze these cases in depth. For a thorough list of these cases, see Secretaría de Relaciones Exteriores 2017, p. 5. 2 DOF, 11 June 2002. 3 The explanatory memorandum does not reveal any comment regarding the inclusion of crimes against humanity. 4 DOF, 4 May 2015. 5 It is worth noting that the right to information is directly linked to the right to the truth for the victims. However, under Mexican law, the right to the truth is limited by the lack of criminalization of crimes against humanity. Therefore, the right to truth is incomplete, because access to information is

9.2 Right to Freedom of Information

219

Article 5—In accordance with national law or international treaties to which the Mexican State is a party, information that is related to serious violations of human rights or crimes against humanity shall not be classified.6

Following the reasoning of the lack of criminalization of crimes against humanity and, therefore, the lack of a definition for those crimes within the Mexican system, Article 36 of the Regulations of the Federal Law on Transparency and Access to Public Information7 makes the same reference to International Treaties as well as to resolutions issued by international organizations whose competence is recognized by the Mexican state.8 Consequently, ICC decisions and jurisprudence would be of relevance for the Mexican legal order regarding the right to freedom of information. The exception to the classifying of information for crimes against humanity or serious violations of human rights has been noted in two cases: (a) in the Radilla Pacheco case; and (b) in the case of “Clandestine Graves of San Fernando”. In both cases, Article 14 of the LFTAIPG has been invoked, due to the denial of the Attorney General’s Office (PGR) to declassify the preliminary finding records, which omitted recognizing violations of human rights.

9.2.2 The Radilla Pacheco Case In the Radilla Pacheco case, the IACtHR found the Mexican state responsible for the forced disappearance of Rosendo Radilla Pacheco in 1974, calling the case a serious violation of human rights, presumably perpetrated by the army. Notwithstanding the judgment of the IACtHR, the Attorney-General denied the next of kin of Rosendo Radilla, Tita Radilla, from having access to the investigation files that detailed the disappearance of her father. The decision issued by the second district judge confirmed the refusal of the PGR to provide information on the investigation, since, according to the judge, the investigation was strictly confidential. The reasoning was challenged afterwards before the SCJN.9 In the Amparo review, the first chamber of the SCJN interpreted that the limits to the access of information are not enough. It is also necessary that the events that occur are investigated and prosecuted according to the gravity of these and as crimes against humanity, if this were the case. 6 Artículo 5. No podrá clasificarse como reservada aquella información que esté relacionada con violaciones graves a derechos humanos o delitos de lesa humanidad, de conformidad con el derecho nacional o los tratados internacionales de los que el Estado mexicano sea parte. 7 DOF, 11 June 2003. 8 Artículo 36. Para los efectos del artículo 14 de la Ley, se considerarán como violaciones graves de derechos fundamentales y delitos de lesa humanidad los que se establezcan como tales en los tratados ratificados por el Senado de la República o en las resoluciones emitidas por organismos internacionales cuya competencia sea reconocida por el Estado Mexicano, así como en las disposiciones legales aplicables. 9 See SCJN, Delitos o crímenes de lesa humanidad para efectos del derecho de acceso a la información, Amparo en revisión, 30 November 2011, 168/2011, (Amparo en revisión 168/2011), p. II. https://www.sitios.scjn.gob.mx/codhap/sites/default/files/engrosepdf_sentenciar elevante/AmparoRevisi%C3%B3n_168_2011_0.pdf. Accessed 19 September 2020.

220

9 Application of Provisions of the Rome Statute …

not absolute in the case of criminal investigations (averiguaciones previas) as it is stated in the last paragraph of Article 14 of the LFTAIPG. In order to determine what is considered a crime against humanity, the SCJN referred to the Federal Criminal Code (CPF) and the Rome Statute. By referring directly to the provisions of the RS, the SCJN followed what is known as the “reference method” when implementing the crimes listed in the RS.10 The interpretation of the SCJN is inaccurate, since the Court refers to “crimes against humanity” (delitos contra la humanidad) within the CPF. The mistake lies in the fact that reference is made not to a crime as such, but to the third title of the Federal Criminal Code. This third section (crimes against humanity) lists the crimes of: (a) violation of the duties to humanity and (b) genocide. As we know, both are different and separate crimes, differing in nature from what are now known as “crimes against humanity”. More importantly, the crime of violation of the duties to humanity dates back to the original CPF text from 1871.11 As we recall from Chap. 6 in this book, the acts punished relate to those prohibited by IHL and they would instead be related to Art. 8 of the RS. Finally, the crime of violation of the duties to humanity preceded the legal construction of “crimes against humanity”, since it is a legal category created as a consequence of the Second World War (1939–1945). Therefore, the connection drawn by the SCJN between the crime of violation of the duties to humanity of the CPF and crimes against humanity referred to in the LFTAIPG is erroneous. Nevertheless, it is important to mention the reference made by the SCJN to Articles 1, 4 and 7 of the RS,12 recognizing that “(...) the treaty defines what crimes against humanity are”,13 i.e. the Court recognized sources of law other than those of Mexican origin. The Supreme Court also determined that the Federal Institute for Access to Information (IFAI)14 is the body authorized to interpret the Transparency Law and, therefore, in a position to assess the existence of crimes against humanity. This does not imply that the IFAI decides on criminal responsibility, but that it only determines, prima facie, whether the given facts can plausibly be interpreted as serious violations of human rights or as crimes against humanity, with the understanding that “(...) the judging of these facts can only be made by the competent judicial authority”.15 Since crimes against humanity are not criminalized in the Federal Criminal Code, the SCJN ruling suggests that the prosecution of crimes against humanity would not be possible under domestic law. In conclusion, the exception to the classification 10 See

Case Matrix Network 2017, pp. 21–23.

11 See the original text in the annex of this dissertation. Note that, in the Code of 1871, the crime, “vio-

lation of the duties to humanity”, was located under title 15, namely, “Crimes against International Law” (delitos contra el derecho de gentes). 12 See Amparo en revisión 168/2011, above n 9, p. IX. 13 Ibid., p. 41. 14 Following the enactment of the General Transparency Law in May 2015, the IFAI changed its name to INAI (National Institute for Transparency, Access to Information and Protection of Personal Data). 15 See Amparo en revisión 168/2011, above n 9, p. 59.

9.2 Right to Freedom of Information

221

of information, means that the IFAI could cite Article 14 of the LFTAIPG only for purposes of access to the preliminary investigation (averiguación previa).

9.2.3 The “Clandestine Graves of San Fernando” Case The “Clandestine Graves of San Fernando” case16 is another example in which Article 14 of the LFTAIPG was invoked to remove the classification of information imposed by the PGR. The review appeal filed before the IFAI invoked the criteria of the SCJN referred to above (Amparo review 168/2011), as well as the Sixth District Court’s review of administrative matters. They held that the RS contains the guidelines that define what a crime against humanity is.17 This resolution forced the PGR to declassify information about municipal police detained in connection with the discovery of dead bodies in clandestine graves in 2011 in the municipality of San Fernando, Tamaulipas. On 2 March 2016, the case was still being heard in the first chamber of the SCJN. The Amparo review—filed by a family member of the victims—aimed to have the requesting authorities comply to declassify information in cases involving crimes against humanity or serious violations of human rights. The SCJN was to determine the scope of this exception for all victims of these crimes. However, the draft resolution, voted on 2 March 2016, did not address the issue of crimes against humanity.18 This appears logical, if we consider the inconsistencies between the regulation on the right to information and the absence of a criminal definition of the crime against humanity. It is clear that this inconsistency in the Mexican legal system must be homogenized, as there is a risk that the investigative or jurisdictional authority in criminal matters would repeatedly refuse to declassify information, because no definition of crimes against humanity in domestic criminal law exists.19 This leaves Article 14 of the LFTAIPG without effect as there is no provision that it could refer to. The effects of this inconsistency were also reflected in, for example, the “Tanhuato” case, in which, presumably, 42 alleged members of organized crime were executed by 16 In the municipality of San Fernando in the state of Tamaulipas in northern Mexico, 47 clandestine graves were found on 6 April 2011, containing the remains of at least 193 people. This is also known as the “Second Massacre of San Fernando”. The first massacre of San Fernando refers to the mass murder that occurred in the same municipality of Tamaulipas between 22 and 23 August 2010. In the massacre, 72 illegal immigrants were slaughtered, the majority of whom were Hondurans and Salvadorans. 17 See Instituto Federal de Acceso a la Información y Protección de Datos (IFAI), Definición delitos de lesa humanidad, Recurso de Revisión, 20 August 2014, 1924/14, (Recurso de Revisión 1924/14), p. 49. https://nsarchive2.gwu.edu/NSAEBB/NSAEBB499/IFAI-resolution.pdf. Accessed 19 September 2020. 18 Fundación para la Justicia (2016) Conoce SCJN caso sobre migrantes víctimas de masacre en San Fernando. https://fundacionjusticia.org/conoce-scjn-caso-sobre-migrantes-victimas-de-mas acre-en-san-fernando/. Accessed 19 September 2020. 19 As happened in the case of the “San Fernando graves”; see Recurso de Revisión 1924/14, above n 17, p.7.

222

9 Application of Provisions of the Rome Statute …

the federal police.20 The case remained classified until 2019,21 since the prosecutor continuously refused22 to apply a concept not provided for by criminal domestic law, even though the requirements established by the SCJN in its Amparo review 168/2011, prima facie, applied.23

9.3 Prosecution of Crimes Committed during the Dirty War: The Case of Martha Alicia Camacho Martha Alicia Camacho and her husband, José Manuel Alapizco, were members of the communist league “September 23”, and were arrested by the Federal Security Directorate in 1977. Presumably, the Security Directorate extra-judicially executed her husband and tortured Marta Alicia Camacho.24 As part of the actions of the Vicente Fox government regarding the prosecution and judging of crimes committed during the so-called “dirty war”, Martha Alicia Camacho filed a complaint with the Special Prosecutor’s Office for Social and Political Movements of the Past (FEMOSPP), accusing the state of forced disappearance25 and “extrajudicial execution”.26 Since the events occurred in 1977, the investigation began for criminal violations of the law in force at the time of the acts in question. These included illegal deprivation of liberty, murder and abuse of authority. In 2013, the PGR issued the non-exercise of criminal prosecution (no ejercicio de la acción penal). The federal public prosecutor argued the crimes in question had statutory limitations and did not qualify as crimes against humanity within the framework of Article 7 RS, because the treaty came into force after the commission of the crime. The victim contested the PGR’s decision in an Amparo (227/2013). In the request for Amparo, several references were found to the non-applicability of statutory limitations to crimes against humanity as well as direct references to the Rome Statute. First, the applicant invoked a violation of her rights under the Rome Statute, citing 20 Tanhuato is a region in Michoacán where a confrontation between federal police and presumed members of organized crime took place in May 2015. As a result of the confrontation, fortytwo alleged members of organized crime and one policeman died. See Diario Digital Animal Político (2015) En Tanhuato hubo un enfrentamiento no ejecuciones, defiende el comisionado de la PF. https://www.animalpolitico.com/2015/05/en-tanhuato-hubo-un-enfrentamiento-no-ejecuc iones-defiende-el-comisionado-de-la-pf/. Accessed 19 September 2020. 21 El Excelsior (2019) CNDH deberá transparentar caso Tanhuato. https://www.excelsior.com.mx/ nacional/cndh-debera-transparentar-caso-tanhuato/1291432. Accessed 17 September 2020. 22 Revista Proceso (2016) Ordena Inai a la PGR entregar versión pública del caso Tanhuato. https://www.proceso.com.mx/466212/ordena-inai-a-la-pgr-a-entregar-version-publicacaso-tanhuato. Accessed 20 September 2020. 23 See Amparo en revisión 168/2011, above n 9, p. 46. 24 See Centro de Derechos Humanos, Miguel Agustín Pro Juárez A.C. 2018. 25 In 2001, the crime of enforced disappearance was enacted in Article 215-A in the Federal Criminal Code. 26 The crime of extrajudicial execution does not exist in Mexican criminal law.

9.3 Prosecution of Crimes Committed during the Dirty War …

223

Articles 7(a), (f), (h), (i) and 29 of the RS.27 The victim also cited the reformed Article 1 of the Constitution,28 which places human rights treaties at the constitutional level, enabling the plaintiff to directly invoke the precepts of the RS. The plaintiff further indicated that the forced disappearance amounted to a crime against humanity, for which statutory limitations are not applicable. The Amparo judge ruled that, although the commission of the crimes was prior to the signing and ratification of the RS, the crime of enforced disappearance is continuous: after all, the whereabouts of the victim were still unknown. Thus, in accordance with the criteria of the Inter-American Court of Human Rights in the Rosendo Radilla case, the crime of forced disappearance can be framed as a crime against humanity. The Amparo judge supported his decision with the “Convention on the Non-Applicability of Statutory Limitations to Crimes of War, Genocide and Crimes against Humanity”, arguing that the objective of this Convention is to combat impunity for these crimes and avoid obstacles to prosecution.29 The Charter of the Nuremberg International Military Tribunal is also cited in support of the argument.30 According to the press release of the Centro Agustín Pro de Derechos Humanos (Agustín Pro Human Rights Center), this is the only case in Mexico in which crimes against humanity as such have indeed been prosecuted.31 The Amparo judgment declared the dismissal of criminal prosecution to be unsubstantiated, effectively returning the preliminary inquiry to the PGR.32 This means that the investigations would have to focus on forced disappearance, and not just murder. What remains to be seen and of importance for the development of international criminal law in Mexico, is whether the PGR will proceed with the investigation on the grounds of crimes against humanity, directly invoking Article 7 of the RS. As described in Chap. 4 of this book, given the positivistic approach of the Mexican legal order and the principle, nullum crimen sine lege, anchored in the Mexican Constitution, it seems unlikely that the judges would directly resort to Article 7 of the RS.33

27 Juzgado Octavo de Distrito de Amparo en Materia Penal en el Distrito Federal, Amparo indirecto 227/2013, 29 July 2014, p. 27. 28 However, invoking Art. 1 CPEUM might not be satisfactory. As discussed in Chaps. 2 and 3 of this book, the Rome Statute is not a human rights treaty as it just provides for competency for the International Criminal Court. See Art. 5 RS. 29 Amparo indirecto 227/2013, above n 27, p.119. 30 Ibid., p. 112. 31 Centro de Derechos Humanos, Miguel Agustín Pro-Juárez A.C. 2018. 32 Amparo indirecto 227/2013, above n 27, pp. 141-147. 33 While the criminal inquiry is still open, the Secretary of the Interior offered a public apology to Martha Alicia Camacho. See Aristegui Noticias (2019) 42 años después, Estado mexicano se disculpa con Martha Camacho por tortura militar. https://aristeguinoticias.com/2309/mexico/42anos-despues-estado-mexicano-se-disculpa-con-martha-camacho-por-tortura-video/. Accessed 17 September 2020.

224

9 Application of Provisions of the Rome Statute …

References Case Matrix Network (2017) Implementing the Rome Statute of the International Criminal Court. https://www.legal-tools.org/doc/e05157/pdf/. Accessed 20 September 2020 Centro de Derechos Humanos, Miguel Agustín Pro-Juárez A.C (2018) Caso Martha Alicia Camacho Loaiza. https://www.centroprodh.org.mx/index.php?option=com_content&view=cat egory&layout=blog&id=270&Itemid=214&lang=es. Accessed 19 September 2020 Fundación para la Justicia (2016) Conoce SCJN caso sobre migrantes víctimas de masacre en San Fernando. https://fundacionjusticia.org/conoce-scjn-caso-sobre-migrantes-victimas-de-mas acre-en-san-fernando/. Accessed 19 September 2020 Secretaría de Relaciones Exteriores (2017) Contribución de México a la labor de la comisión de derecho internacional sobre el tema “crímenes de lesa humanidad”. https://legal.un.org/ilc/ses sions/69/pdfs/spanish/cah_mexico.pdf. Accessed 10 September 2020

Part IV

Towards an Adequate Incorporation of International Criminal Law

Chapter 10

Proposed Legal Framework

Contents 10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Constitutional Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.2 Article 21 Para 8 CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.3 Article 13 CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.4 Article 29 CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.5 Article 37 CPEUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.6 Article 108 CPEUM—Sanction of High-Ranking Officials . . . . . . . . . . . . . . . . . 10.2.7 Article 76(I)—Faculties of the Senate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 Federal Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.1 General Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.2 Considerations of the General Principles of International Criminal Law . . . . . . . 10.4 Other Legislative Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.1 General Dispositions on International Humanitarian Law . . . . . . . . . . . . . . . . . . . 10.4.2 Items Related to the Military Code of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.3 General Law to Prevent and Punish Torture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.4 Law of International Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.5 Law of National Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.6 Extrajudicial Executions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.7 Law of the Official Gazette of the Federation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5 Urgency of Domestic Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.6 Universal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.7 Extradition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.8 Non-application of Statutory Limitations and Exceptions to the Nullum Crimen Sine Lege Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.9 Penalties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.10 Transitional Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

228 230 230 232 233 234 234 235 236 237 237 239 252 252 253 255 256 257 257 258 258 259 261 261 263 264 268

Abstract This chapter delivers solutions in order to incorporate adequately international criminal law in the Mexican legal system. Amendments to the existing laws and selective adaptation of specific provisions are suggested. The major objective of these suggestions is to avoid gaps between international and domestic law. Legislative measures are suggested to the Mexican Constitution, Federal Criminal Code, Code of Military Justice and other secondary bodies of law which relate to international criminal law. Historical, Political and factual considerations are made when © t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_10

227

228

10 Proposed Legal Framework

drawing upon these suggestions. Legislative steering also needs granting effectiveness to these rules and translating them into actual investigations and prosecutions. This requires political will, however the measures suggested would bring recognition for victims, promote civic trust, and contribute to the strengthening of the rule of democratic law. A transitional justice approach is also suggested as it provides clarification of facts, which in turn leads to the dismantling of corrupt structures, thereby fulfilling the preventive function of law enforcement vis-à-vis criminality. Keywords Domestic implementation · Transitional justice · Universal jurisdiction · Modified incorporation · Criminalization of grave breaches · Accountability · War on Drugs

10.1 Introduction Given the consistent non-recognition of customary international law in the Mexican legal system, and given the high value placed on written law, it is necessary to incorporate into domestic norms the main rules of international criminal law. Since the RS is an international instrument that includes provisions from IHL and other conventions such as the Convention against Genocide, it could be taken as a model for an overall direct application of ICL rules. However, the RS was drafted ambiguously, precisely so that all parties could accede to signing the treaty.1 Domestic implementation would amount to adopting all legislative measures necessary to fulfill the international obligations in this matter. Necessary legislative measures also refer to adapting the international rules to the national legal context. In this sense, in order to comply with the anticipatory obligation drawn in Article 88 RS,2 the Mexican state should make the necessary arrangements so that deficiencies in the domestic legal order are overcome. Among the most important “necessary measures of implementation” could be considered inter alia amendments to existing laws and selective adaptation of specific provisions, criminalization to ensure compliance, guarantees of non-repetition, effective access to justice, avoidance of national doctrines to prevent impunity, application of international standards through domestic courts as well as protection to the victims. In the case of Mexico, the RS can, without a doubt, be taken as a guiding framework. Problems arise, however, in the dynamic of maintaining congruence with the entire domestic legal order and avoiding gaps between international law and domestic law. The danger of these gaps is that they could lead to non-compliance with international obligations or denial of victims’ rights. Eliminating these contradictions or gaps between domestic and international law would lead to fulfilling the objectives of ICL. We have seen that some provisions in Mexico’s law predate the current Constitution, which itself dates to 1917. All innovations in international criminal law, however, resulted from the Second World War. Additionally, Mexico faces the threat 1 See

Triffterer 2008, pp. 36–47. 2019, Article 88, para 689.2.

2 Hiéramente

10.1 Introduction

229

of drug cartels, which themselves pose a challenge to ICL in terms of the framing of the classic category of “armed groups”. Additionally, from combatting drug cartels results intersections between international humanitarian law, human rights law and international criminal law. The reality of the violence that these groups inflict as well as the effects of deploying the military should be addressed with adequate punishments. Therefore, the model of “modified incorporation” should be taken into consideration, including the possibility that non-state armed groups could potentially perpetrate international crimes. As scholar Werle points out, there are three models of adopting substantive international criminal law: complete incorporation, non-incorporation and modified incorporation (legislative creation).3 In the Mexican case, given all the contextual conditions described in the previous chapters, it would be advisable to incorporate all necessary norms to comply with IHL (especially conducts prohibited by customary law but not included in the ICC Statute) and with the obligations derived from ratifying the RS. The incorporation of all these norms would have to be adapted to the Mexican factual and normative context. The UN Human Rights Council, as part of the recommendations of the Universal Periodic Review in 2013, also favored the incorporation of RS content into the Mexican legal system.4 Legislation in this area will also have effects on transitional justice, as the necessary legislative adjustments would allow for the prosecution of crimes committed during the “dirty war” and other violent episodes in the country’s history. Since the RS has adopted the prohibitions from IHL, particularly those referring to war crimes, the Mexican legislator can adopt this model and apply proportional punishments, abolishing the 60 years’ imprisonment for promoting a crime established in the CJM (Articles 208, 209, 363). Regarding Common Article 3 of the GC, its incorporation in domestic law would necessarily lead to the regulation of internal armed conflict, providing for the necessary protection to all combatants. This is highly recommended, even if some scholars consider the categorical distinction between international and internal conflict as superseded. Especially in the case of Mexico, this regulation could lead the obligations and prohibitions of the military in the fight against crime being outlined. Above all, it would solve the legal loophole concerning the deployment of the military for domestic security matters, since such a regulation could define armed conflict vis-à-vis threats to inner security. Based on the findings of this work, harmonization between Mexico’s legal order and international obligations should encompass: incorporating Common Article 3 of the GC; defining “crimes against humanity” and “war crimes”; and amending (or withdrawing) Article 21 of the CPEUM so that the ICC can fully exercise its jurisdiction. In order to complete these legislative measures, various adjustments have to be made to the General Part of the Penal Code, as well as to other laws related to the matter. Regarding the access to justice (one of the objectives of ICL), it is necessary to combat impunity within Mexican borders. This approach has the additional benefit 3 Werle 4 UN

and Jessberger 2014, pp. 146–148. 2013, paras 148.12, 148.16.

230

10 Proposed Legal Framework

of contributing to a transitional justice model and to benefit the vertical and horizontal dynamics of the international legal system. Additionally, by transforming the contents of ICL in national law, the Mexican state would be “willing to” prosecute as prescribed in Article 17 RS. If we understand the incorporation of rules as a process, this must be based on legislative activity, which will have effects in different branches of law, such as criminal law, criminal procedure law, constitutional law, military law, and the right to information. Hence, there are also several legal branches within the domestic order that require adjustments. The incorporation of ICL rules necessarily has to be accompanied by the political will to comply with the laws. For example, in the case of the practice of torture in Mexico, ratification of the various instruments to fight torture5 and the enactment of a law against torture have not led to the reduction of torture.6 Thus, it is expected that a single legislative action will not solve the problem of impunity, which is why a true transition is needed to break with the continuity of the political hegemony of the PRI. This research has shown that in the case of Mexico, the lack of implementation of the ICL concerns customary international law, the Rome Statute, humanitarian law, as well as transitional justice. This chapter will briefly outline the main provisions that must be reformed to adequately harmonize ICL and the Mexican legal system. Although this is not a comparative study, the example from German law of the Code of Crimes Against International Law (VStGB)7 is illustrative of a legislative effort to avoid gaps between domestic criminal law and international criminal law. Reference will also be made to the draft Convention on Crimes against Humanity of the UN International Law Commission.8

10.2 Constitutional Reforms 10.2.1 Introduction The analysis of the historical background and political context has shown that the reasons for the lack of implementation and incorporation of ICL are diverse. At the 5 The

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment was ratified by Mexico on 23 January 1986 and the Inter-American Convention to Prevent Torture on 2 November 1987. See the ratification status of Mexico in: UN High Commissioner on Human Rights. https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID= 112&Lang=SP. Accessed 19 September 2020. 6 On the reports of non-compliance of the Convention against Torture, see the report of the InterAmerican Commission on Human Rights 2014; UN General Assembly, Human Rights Council 2014. On the correlation between ratification of human rights treaties and non-compliance with treaties, see Hathaway 2002. 7 Act to Introduce the Code of Crimes against International Law, Bundesgesetzblatt 2002, Teil I., No. 42, 29 June 2002 (VStGB), pp. 2254–2260. 8 UN International Law Commission 2015.

10.2 Constitutional Reforms

231

same time, however, we can also identify the importance of the political hegemony exercised by the PRI during 70 years. It is only natural that such an extensive time period under the control of one organization has shaped the way in which international law has been implemented and incorporated into domestic law. The value assigned to sovereignty in the Mexican discourse, in general, and constitutional discourse, in particular, has been a recurrent theme in debates on implementing international treaties. The insistence to defend Mexico’s constitutional sovereignty, as it was often referred to, must be understood on the basis of two factors: the proximity to the US and its influence on Mexican politics, as well as the foundation of the Mexican state as a post-colonial project. These past experiences have raised a defensive shield against any influence that could be perceived as external to Mexico. Interestingly, in this work a selective approach was also identified when incorporating commercial treaties and human rights treaties.9 On the one hand, as early as 1994, Mexico adhered to a free trade agreement10 (which even transformed the legal order and sovereignty in jurisdictional terms with the introduction of panels of arbitration), but on the other hand, the Mexican state has not reacted with the same speed and effectiveness when it comes to incorporating international human rights standards. In this regard, globalization does not solely imply the restructuring of international trade and exchange of goods and services across borders, but also the interchange between normative orders, which in turn implies greater international cooperation and acceptance of international tribunals.11 In this sense, the core of ICL is eminently universal because its ultimate goal is the preservation of the existence and dignity of the human race. Yet, commercial globalization is much more dynamic than the transformation of law and the state. In face of this reality, domestic legal orders should not only respond promptly to the challenges of economical nature but also to the new challenges that protection to human rights faces. In the case of Mexico and, in light of its antagonism to outside powers, Mexico’s approach and inclinations towards the influences of a globalized world in economic terms is a little surprising. On the one hand, it eagerly introduced liberalizing reforms that opened its market to the world, while other areas—specifically human rights law—were not as influenced by international law. Especially as we saw in Chap. 4, customary international law plays no role either at the constitutional level nor at the interpretative level of the Supreme Court.

9 See

García 2013.

10 As an example of enacting legislation related to treaties of economic nature: Law on the approval

of international treaties in economic matters (Ley sobre la aprobación de tratados internacionales en materia económica), DOF, 2 September 2004. 11 Fassino 2000.

232

10 Proposed Legal Framework

10.2.2 Article 21 Para 8 CPEUM When we turn to international criminal law, the first measure for the proper incorporation of its norms is the amendment of the eighth paragraph of Article 21 of the Constitution. As we have seen in Chaps. 3 and 5, Article 21(8) creates different conflicts of normative and jurisdictional nature between the Mexican and international legal order. Arguments in favor of the adoption of this paragraph evolved around questions of constitutional sovereignty. Perhaps, from a historical point of view, this defense of sovereignty could be understood until the mid-1990s. However, today the world order has changed and, therefore, the defense of sovereignty is no longer understood in terms of what was conceived at the time of the La Reforma movement in the nineteenth century, during the constituent process of 1917 or during the post-revolutionary period. Finally, the objective of international tribunals such as the ICC is not to weaken the sovereignty of nations, since it is based in international law, which is respectful of internal sovereignty. Hence, one of the obligations of states vis-à-vis international organizations is international cooperation, not its hindrance (Article 88 RS). Likewise, paragraph 6 of the preamble to the RS12 expressly states the obligation of each state party to exercise criminal jurisdiction against those responsible for crimes under international law. Mexico’s large contributions13 to the ICC should not compensate for its shortcomings to fully facilitate the operation of the ICL system within its borders. When it comes to inconsistency or even failures to abide by the obligations under the Rome Statute, Article 21(8) CPEUM constitutes one of the main obstacles to complying and cooperating with the ICC. From the discussion in Chap. 3, it was concluded that “constitutional restrictions” in terms of the SCJN thesis 293/2011 validate the contents of Article 21(8) CPEUM and transform it into a “restriction” because, according to this criterion, constitutional restrictions are above international treaties. However, the “constitutional restriction” of Article 21(8) CPEUM contradicts the purpose and objectives of the RS, since it limits the ICC’s free exercise of its jurisdiction and subjects it to the approval of both the Senate and the executive. Moreover, as seen in Chap. 3, the very same clause, Article 21(8) would be equivalent to a covert reservation. The Uruguayan reservation was presented as an analogy, and if the Uruguayan case14 does indeed serve as a precedent, it could be expected that the international community would not accept a provision such as Article 21(8) CPEUM. Thus, as an alternative wording, the following is proposed: 12 Triffterer

2000, p. 4.

13 Below are the contributions to the ICC made by Mexico in contrast with those made by Colombia.

In the year 2013 Mexico contributed US $ 23,937,199 and Colombia US $ 1,872,973; in 2014 Mexico US $ 27,217,158 and Colombia: US $ 2,334,128; in 2015 Mexico US $ 30,688,909 and Colombia US $ 2,822,643. The contributions can be found at: https://asp.icc-cpi.int/en_menus/asp/ CBF/Pages/default.aspx. Accessed 19 September 2020. In the debate at the 13th session of the ASP, in December 2014, Mexico emphasized “(...) being one of the main contributors to the Court’s budget”. See ICC Assembly of States Parties 2014. 14 See Chap. 5 of this book.

10.2 Constitutional Reforms

233

The jurisdiction of international tribunals established in international treaties to which the United Mexican States is party shall be recognized in terms of and in accordance with the procedures established in those treaties. In criminal cases, the procedures carried out by the International Criminal Court, as well as compliance with its decisions and judgments, shall be fully recognized and enforced by the Mexican state in accordance with the provisions of the Rome Statute. Resolutions, as well as irrevocable judgments issued by such courts, shall enjoy binding force. The administrative, legislative and judicial authorities of the federal, common and military jurisdiction must guarantee their compliance with the law.15

This wording is very adequate as it covers all the jurisdictional areas of the ICC and, by not limiting the jurisdiction, retains the possibility that the ICC will exercise its jurisdiction both in terms of execution of requests and enforcement of sentences. It also incorporates the ICC within the Mexican legal system and transforms it into a complementary body, while also incorporating other international tribunals. Together, this lifts the veil of controversy from judgments issued by international courts, such as that which hampered the Inter-American Court of Human Rights and its judgment in the Radilla case. The simple repeal of the eighth paragraph of Article 21 of the Constitution also presents itself as a solution to the problem raised in Chap. 3, since the Mexican Constitution states in Article 133 that, once a treaty is ratified by the Mexican state, it is part of the national legal system.

10.2.3 Article 13 CPEUM As noted in Chap. 3, Article 13 of the Constitution provides for military jurisdiction. The term fuero militar (war jurisdiction) applies indiscriminately either to what is commonly referred to as military jurisdiction or as military privilege. For the above, it is recommended that the term fuero militar be changed to that of “military jurisdiction”, which is the most commonly used, as it denotes neutrality. However, regarding “(…) crimes and misdemeanors against the military discipline” to which military jurisdiction applies according to Article 13 CPEUM, the SCJN in the Amparo 133/2012 determined that it is up to the legislator to define what amounts to crimes and faults against the military discipline. Following this reasoning, it is plausible to define in Article 13 CPEUM what the offenses against military discipline are. Adopting the criteria and guidelines of both the IACHR and IHL, and based on the considerations set out in Chaps. 3 and 6, violations to military discipline would only be those acts that amount to infringements to rules that maintain order and military obedience or those that bring discredit to the military as an institution. Embracing this definition as well as excluding all crimes under ICL from

15 This wording was that proposed by the executive and presented to the LVIII Legislative Assembly

in 2001. See García 2004, pp. 143–149.

234

10 Proposed Legal Framework

military jurisdiction would eliminate possible obstacles of cooperation or conflicts of jurisdiction between the ICC and the Mexican state.

10.2.4 Article 29 CPEUM Article 29 of the Constitution regulates the state of emergency. The article foresees non-derogable rights and prohibitions such as inter alia the right to life, personal integrity, political rights, freedom of speech, principle of legality, and the prohibition of torture, slavery, and forced disappearance. However, the prohibition of genocide is not included. The non-derogable character of the prohibition of genocide is given by its jus cogens nature, meaning that its prohibition is universally accepted by state practice and opinio juris.16 As result, all states are obliged to outlaw genocide, as an obligation erga omnes.17 In terms of treaty law, Article 6 (3) of the ICCPR states that obligations assumed under the Genocide Convention, specifically, the prohibition of killing constituting genocide is non-derogable.18 Additionally, the Inter-American Convention on Human Rights, states in its Article 26(1) that derogating measures during a state of emergency must not be inconsistent with other obligations under international law. As a result, in order to comply with customary as well as with conventional international law, the prohibition of genocide must be included as nonderogable if a state of emergency is declared under Article 29 CPEUM.

10.2.5 Article 37 CPEUM Regarding the obligation for international cooperation in Articles 86-102 of the RS, it is suggested to amend section “C” (V) of Article 37 of the Constitution, which stipulates: C. Mexican citizenship can be revoked in the following cases: (…) V. Helping a foreigner or foreign government against the nation in any diplomatic controversy or before an international court.19 16 Such was the conclusion of the ICJ regarding the Reservations to the Convention and Punishment

of the Crime of Genocide. See ICJ Advisory Opinion 1951, p. 19. In this regard see also Bassiouni 1996a, pp. 63–74, 1996b; Forrest et al 2006, pp. 34–36. 17 As confirmed by the ICJ in the Barcelona Traction case, see ICJ, Barcelona Traction, Light and Power Co. Ltd. (Belg. v. Spain), Judgment, 5 February 1970, I.C.J. 3, (Barcelona Traction Case) para 34. 18 For a complete study on the derogation of provisions of the ICCPR under a state of emergency see UN Human Rights Committee 2001. 19 Artículo 37-C) La ciudadanía mexicana se pierde: V. Por ayudar, en contra de la Nación, a un extranjero, o a un gobierno extranjero, en cualquier reclamación diplomática o ante un tribunal internacional, y (...).

10.2 Constitutional Reforms

235

As we can see, this article results in a clear contradiction with the obligations acquired when ratifying the RS. By relating the present article in terms of international cooperation with the RS, Article 37 CPEUM sanctions the aid before an international court, with the loss of Mexican citizenship. This article also indirectly differs with interpretations of the SCJN in which it establishes the obligation of the state to abide by the judgments of international tribunals. Thus, on the one hand, the SCJN rules that the Mexican state is bound by its obligations vis-à-vis international tribunals, yet, on the other hand, the Constitution prescribes sanctions for citizens that help an international tribunal.20 Thus, this norm would have to be repealed from the Constitution.21

10.2.6 Article 108 CPEUM—Sanction of High-Ranking Officials Article 108 of the Constitution is situated in the fourth Section which bears the name: Public Servants’ Accountability, Individuals related to Administrative Liabilities or Corruption Acts.22 Among other elected officials, this title outlines the responsibilities of the President of the Republic. One of the main objectives of the precepts of ICL, and even the origin of this branch of law, is the imperative to combat impunity and to ensure that all subjects involved, regardless of their rank, are criminally responsible for their commission or participation in what are considered the most serious crimes under international law. In this case, Article 108(2) CPEUM, poses an obstacle to the prosecution of core crimes, since in its second paragraph it states that “(...) the President of the Republic, during his term in office, may be impeached only for treason or serious common crimes.”23 Under Mexican criminal law, common crimes are understood as part of the local (or non-federal) legal order. This becomes readily evident in Article 7 of the Criminal Code of the Federal District (CPDF), which lists crimes of the local order under its jurisdiction, while the Federal Criminal Code (CPF), under Article 1, lists what crimes are under its jurisdiction. Article 57 Section II of the CJM also denotes a distinction between crimes of the common order and those of the federal order. Thus, it can be concluded that, in the case of Article 108, the president could not be charged 20 An example is the following SCJN criteria: “Judgments of the Inter-American Court of Human Rights. All the authorities of the Mexican state, including the judicial power of the federation, must comply with said judgments” (translated by the author). See SCJN, Tesis: 1a. CXLIV/2014 (10a.), Semanario Judicial de la Federación Décima Época, primera sala, 11 April 2014. 21 The commentary to the Mexican Constitution edited by former Justice Cossío, remarks that Article 37 would not apply to the IACtHR or the ICC, as both jurisdictions have been duly ratified. See del Toro Huerta 2017, pp. 744–746. 22 Artículo 108—Título Cuarto De las Responsabilidades de los Servidores Públicos, Particulares Vinculados con Faltas Administrativas Graves o Hechos de Corrupción, y Patrimonial del Estado. 23 Article 108, (2)—El Presidente de la República, durante el tiempo de su encargo, sólo podrá ser acusado por traición a la patria y delitos graves del orden común.

236

10 Proposed Legal Framework

for federal crimes (presidential immunity). The crime of genocide, for example, is of the federal order (Article 149 bis CPF). This would run counter to the opinio juris24 invalidating immunity when international crimes are committed. Withholding immunity would imply that the president is granted constitutional protection, when he/she has violated the Constitution or omitted to prevent crimes related to ICL or its punishment. It is, therefore, recommended that Article 108 should contain a wording by which the president may be accused of crimes of genocide, crimes against humanity and war crimes, following a declaration by the Chamber of Deputies (Articles 110-111 CPEUM). Such a provision would comply with Article 27 of the RS. In case of a request for the surrender of a person to the ICC, it should be pointed out in Article 111 of the CPEUM that for such cases no impeachment should proceed. This is in accordance with the second paragraph of Article 27 RS, which states that the rules of special procedures shall not prevent the Court from exercising its jurisdiction. Likewise, in order to comply with the requirement of equality before the law and with the requirement of the RS outlining due process guarantees, reforms should also include that criminal trials are entrusted to a tribunal and not within the legislative power, as it involves criminal responsibility of the president and not political responsibility, as is the case with a political trial. For all of these reasons, it is necessary to withdraw constitutional immunity from the president—at least for offences considered most serious, such as war crimes, crimes against humanity, and genocide.25 The Constitution should also provide for the surrender of the president to the ICC in the hypothetical case of the president being investigated by the ICC and such a surrender should not be subject to an impeachment procedure (juicio de procedencia).

10.2.7 Article 76(I)—Faculties of the Senate In more general terms, it could also be proposed that, accompanied by the power to ratify an international treaty, the Senate should be forced to submit a bill that would allow full compliance with a treaty or, as Matute and Pérez Nieto suggested, create a constitutional revision26 to allow the study of the content of the treaty. This serves to verify whether there are contents of the treaty that could be unconstitutional and 24 See Cassese 2008, pp. 305–314; Pedretti 2013, pp. 211–230; Werle and Jeßberger 2014, pp. 270–

279; Kreß and Prost 2016, margins 22–36. 25 It is also considered that an explicit reference to international crimes is not necessary since already

the SCJN has made a direct reference to Article 7 RS and therefore, the definition of ”serious common crimes” would be given. This interpretation however leaves aside the crimes of genocide and war crimes and more importantly would imply that the SCJN has the power to legislate in terms of criminalizing a conduct. Which as we saw in Chap. 2, is a faculty of the Congress (Article 50 CPEUM) and of the state legislatures (Article 115 CPEUM). See Fierro 2017, pp. 1773–1782. 26 In favor of a Constitutional Council like that of France, see Dondé and Montoya 2006, pp. 47–66. In favor of a constitutional revision, see Perez Nieto 1995, pp. 265–292.

10.2 Constitutional Reforms

237

whether the Constitution requires reforms for compliance with the treaty. It would also be useful to generate recommendations for legislative measures to follow, as a form of compliance, since a treaty obliges the whole state and not only the judiciary.27 This would also allow a systematization of the ratified treaties and all other normative bodies within the domestic order.

10.3 Federal Penal Code 10.3.1 General Considerations The greatest challenge for incorporation of ICL lies in the criminalization of crimes against humanity and war crimes. As we have seen, in the constitutional arena, we do not require an additional constitutional clause as long as the eighth paragraph of Article 21 is withdrawn so that the ICC can exercise its jurisdiction freely. In the case of criminal law, the RS presents itself as a model for implementation, which would only require some adaptations to the particularities of the Mexican legal system and the actual situation at hand. One example of the overwhelming reality is the violence deployed by some drug trafficking groups.28 Examples deriving from this violence that should be considered as punishable acts, and not only as aggravating actions, could be the dissolution of bodies in acid, the use of clandestine graves or mutilation of bodies for the purpose of transmitting some message. The disproportionate use of force by the army and the police should also be considered as a crime in itself. With regard to the use of the armed forces in the fight against crime, consideration should also be given to the commission of offenses during or as part of these activities, and the fact that these could amount to crimes against humanity. This is especially the case since the commission of this category of crimes is not dependent on an armed conflict. An example which illustrates gaps when it comes to criminal responsibility of the armed forces is the crime of “deprivation of liberty”. For the CPF and the CPDF one of the aggravating circumstances is to be a member of a public or private security corporation. Given that the armed forces are not members of a police institution, it is not possible to apply this aggravating circumstance.29 This not only harms the rights of the victims, but also the principle of equality before the law. Members of the 27 By making the judiciary the safe keeper of international treaties, its binding character is somehow settled ex post or suspended until it is breached and then rectified by the judicial branch, when in fact the obligation is always ongoing (performative). At every moment in which an authority exercises its powers, it must be in accordance with the different treaties to which the Mexican state is a party. It is impossible for every civil servant to know the content of all the obligations derived from these treaties, hence the utility of transforming obligations into law, which could even be organized and systematized according to the subject of the treaty or the subjects it addresses. In this way, it is easier for a public servant to comply with international obligations. 28 On this subject, see the bachelor’s thesis of Koster de Anne 2012. 29 See the following SCJN standard: Privación ilegal de la libertad, cuando el sujeto activo pertenezca o haya formado parte del ejército, no se actualiza la calificativa de que haya sido

238

10 Proposed Legal Framework

armed forces are at an advantage, given that for the same criminal act and as agents of the state, they are not held responsible for the same aggravating circumstances as the police. Violations to due process also arise in terms of military jurisdiction. If both the police and armed forces carry out law enforcement tasks, the police are at a disadvantage, as they do not have a specialized jurisdiction such as military jurisdiction. The question then is fairly simple: Given that both carry out the same tasks and both exercise a particular mandate, how are the jurisdictional privileges of the military justified? The federal jurisdiction of crimes against humanity and war crimes would be justified under Article 50(I)(a) of the Organic Law of the Judicial Power of the Federation.30 This article establishes that federal crimes are all those inscribed in international treaties, which can serve as a criterion for integrating ICL offenses into the federal order.31 In case a single penal code is approved that is valid for all states of the Mexican Republic, these considerations would be without effect. Federal jurisdiction of core crimes would also be consistent with Article 6 of the CPF as it provides that when an offence is not covered by the code, but in a special law or in an international treaty to which Mexico is a party, the crime could be applied directly and complementarily from the general and special part of the code.32 The latter also leads to the conclusion that the crimes foreseen in the RS could be applied directly.33 However, given the principle of legality and to avoid ambiguities between the domestic and international legal order, it is necessary to fulfill domestic constitutional requirements (Article 14 CPEUM) regarding the specificity of the material and mental elements of the crimes as well as their respective punishments.34 Whether a single criminal code is enacted or not, I recommend a separate chapter within the Federal Criminal Code in which all provisions regarding core crimes are brought together. Regarding war crimes, the example of the German Code of Crimes Against International Law could be considered, in which the crimes are listed according to the protected legal interest, and a distinction is made between protected persons (Geneva Law) and prohibited means and methods of warfare (Hague Law).35 integrante de alguna corporación de seguridad pública, in: Semanario judicial de la Federación 2008, p. 1115. 30 Organic Law of the Federal Judiciary (Ley Orgánica del Poder Judicial de la Federación). DOF, 26 May 1995. 31 On other possible legislative pathways to ensure the federal prosecution of core crimes, see Villarreal 2017. 32 Artículo 60-Cuando se cometa un delito no previsto en este Código, pero sí en una ley especial o en un tratado internacional de observancia obligatoria en México, se aplicarán éstos, tomando en cuenta las disposiciones del Libro Primero del presente Código y, en su caso, las conducentes del Libro Segundo. 33 In this respect see Dondé 2011, p. 21. 34 With regard to the convenience of adequately incorporating core crimes in the national legal system, see Chirino 2012. 35 See §8 of the German Code of Crimes against International Law (2002), above n 7. To visualize the systematization of war crimes according to the protected legal interest, see Chap. 6, Table 6.3 in this book.

10.3 Federal Penal Code

239

Finally, to enable a clearer systematization, treaty crimes such as torture, enforced disappearance and illicit drug trafficking, should be brought under a different chapter with the title “treaty based crimes”.

10.3.2 Considerations of the General Principles of International Criminal Law The general principles of ICL are supported in domestic criminal law. In this sense, national laws have more developed concepts than ICL itself. The general principles of criminal law enshrined in the RS have been inspired by the Anglo-Saxon common law tradition and by the “civil law” (European continental law) system.36 There are several provisions in the RS taken from common law, which may cause incompatibilities with Mexican domestic law (notwithstanding the reform in the area of criminal justice).37 Therefore, I suggest adjustments to the general section of the CPF, including a clause that would refer directly to the RS if the domestic order does not contain an applicable provision. There are cases of an almost identical correlation between the RS and the CPF—for example, Articles 25 and 25(3) of the RS and its assumptions regarding modes of participation. These relate directly to the notions in articles 13–14 of the CPF regarding perpetrator, co-perpetrator, assistance and contribution to the commission of the crime as well as organized crime. The general principles of criminal law enshrined in the CPF could be roughly applied to ICL cases, including provisions of criminal liability, intent, error, modes of participation, causes of exclusion of responsibility and state of necessity (Articles 1-23 CPF).38 As a result, when incorporating the contents of the RS, they should be combined with the entire Mexican criminal law system, while being related to the other criminal systems that contain ICL rules.39 The latter would also promote international cooperation.40 Given the particularities of ICL and the nature of the offenses, it is likely that many of the principles enshrined in the general part of the CPF would be of no relevance

36 Weigend

2009, §2 VStGB, above n 7, p. 486. of the reform in criminal justice, which included numerous principles of the AngloSaxon procedural system. Compare with the constitutional reforms in: Instituto de Investigaciones Jurídicas 2016. 38 Also, the German Code of Crimes against International Law apply a subsidiarity character for the general principles of criminal law, cf. § 2., above n 7. 39 This is clear, given the system of international cooperation that emerges from ICL. It is also important to say that, unlike the general principles of criminal law, the drafting of a “special part” is necessary, given the nullum crimen sine lege principle. In addition, codifying crimes against international law allows the content of the unlawfulness of the crimes to be determined. In this sense, it could be said that the special part is “closed” or “limited”, because in terms of crimes they do not refer to other bodies of law, while general principles do. 40 In this sense, Article 24(4) of the General Victims’ Law establishes that international tribunals and international organizations can access freely to archives related to human rights violations. 37 Regardless

240

10 Proposed Legal Framework

for ICL. For example, applying “legitimate defense” for the crime of genocide.41 Nor should it be forgotten that the cases and concepts foreseen in the general part of the Penal Code were constructed for ordinary crimes. That is why the general part of the ICL is only preliminary and it will be necessary to leave it to future jurisprudence of international and national tribunals to develop better concepts applicable to the general part of ICL.42

10.3.2.1

Superior Responsibility

Pursuant to Article 28 of the RS, commanders and other superiors are responsible when they fail to supervise or exercise control over their subordinates or if they fail to prevent or repress the commission of crimes. Failure to prevent or repress is acknowledged when the superior knew or had reason to know and negligently ignored the actions of the subordinates. In this regard, the Mexican legal order could find some inspiration at the provisions of the Penal Code of 1871, as it already contained superior responsibility. As noted in Chap. 6, the Martínez de Castro Code is a great paragon of modernity in this matter.43 For military personnel, the suggested model is that established by the Additional Protocol I of the 1949 GCs, as well as Article 6 para 1 of the International Convention for the protection of all persons from enforced disappearance, to which Mexico is a party. This Article states: Article 6 1. Each State Party shall take the necessary measures to hold criminally responsible at least: (b) A superior who: (i)

Knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance;

(ii)

Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and

(iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution;

41 In

this sense, see BT/Drucks 14/8524, pp. 6–7.

42 This was the idea of the German legislator in drafting the VStGB, by directly complementing the

general principles with the German Penal Code. See the Explanatory Memorandum of the Draft Law for the Introduction of the VStGB, BT/Drucks 14/8524, p. 13. 43 Article 6 of the Federal Law to Prevent and Punish Torture does not admit the order of a superior as a cause of justification: Article 6—If exceptional situations are invoked such as internal political instability, urgency in investigations or any other circumstances, these shall not be considered as causes that exclude responsibility for the crime of torture. Nor can the order of a superior or any other authority be invoked as justification (translated by the author).

10.3 Federal Penal Code

241

(c) Subparagraph (b) above is without prejudice to the higher standards of responsibility applicable under relevant international law to a military commander or to a person effectively acting as a military commander. 2. No order or instruction from any public authority, civilian, military or other, may be invoked to justify an offense of enforced disappearance.44

In addition to this, violation of the duty of supervision and failure to report a crime45 should be criminalized in the cases of crimes against humanity, genocide and war crimes. As can be seen, the first offense refers to ex ante conduct, while the second refers to ex post conduct. These omissions may be willful, and these crimes could be related to the obligations established in Article 23 of the Mexican Manual of the Use of Force of Common Application to the Three Armed Forces.46 Another important consideration to make is to identify how responsibility of the superior command arises from acts of subordinates. Nora Karsten47 considers that, given the nature of the crimes against international law, they can only be conceivable within the framework of an “organization”, characterized by its “hierarchy” and “authority”.48 It is then an obligation of the superior to watch that this “organization” is not abused or used for the commission of crimes contrary to international law.49 Hence, it is justifiable to assign responsibility to the superior as perpetrator for acts of subordinates. The argument for considering the superior as perpetrator and not as assistant is due to the fact that, given his hierarchy and power, it would have been possible for him to avoid or obstruct the commission of the crime. In conclusion, the degree of responsibility as perpetrator is a consequence of his hierarchy and his “effective power” to avoid the crime.50 In the context of the recipients of ICL norms, the concept of organization must be adopted in Mexican domestic law. Given the systematic and widespread nature of crimes against humanity and genocide, these are carried out within the framework of a state or private structure/organization. War crimes differ in this matter, since these can by nature be committed by individuals (e.g. torture of a prisoner of war) but not 44 See International Convention for the Protection of all Persons from Enforced Disappearance, opened for signature (20 December 2006), United Nations, Treaty Series, vol. 2716, entry into force (23 December 2006), Article 6. 45 As provided in §§ 13 and 14 VStGB, above n 7. 46 DOF, 30 May 2014. From Article 23, it can be observed that there is no punishment for superiors in case of non-compliance. Compare with Articles 42–44 of the “National Law on the Use of Force” (DOF, 27 May 2019) (Ley nacional sobre el uso de la fuerza), which is rather broad and does not provide for any explicit sanctions if superiors fail to supervise their subordinates, making a direct referral to the criminal code; which has no provision on the failure of the superior to report a crime. 47 In her doctoral thesis, she analyzes the origins of the “criminal responsibility of civil superiors” from a comparative perspective (among them the VStGB). See Karsten 2010. 48 Karsten 2010, pp. 425–427. 49 Ibid., pp. 426–427. 50 As for the indirect perpetration by the use of another person at the top of a state organization, Claus Roxin’s theory should not be forgotten. See the latest edition of his work: Roxin 2019. In relation to the application of Roxin’s theory in transitional justice cases in Latin America like the Fujimori case, see Pariona 2011. With regard to the superior’s responsibility in the VStGB, see Eser et al 2003, p. 295. For a critical insight on Roxin’s theory, see Weigend 2011.

242

10 Proposed Legal Framework

Fig. 10.1 Types of organizations. Source Tania Ixchel Atilano

necessarily within the framework of an organization. Together, these considerations give rise to the above schematic organizational assumptions (Fig. 10.1). It could also be said then that the “civil” superiors are part of an organization that could be either public (authority) or private (company). In itself, it is not clear from where this responsibility derives in the case of companies. Karsten points out that what is essential is that “(...) it is duty of the superior to watch that the company is not misused to commit Crimes Against International Law.”51 In the case of drug cartels, although they are private organizations, they engage in illicit activities, so they could not be entitled with the duty to monitor. However, their classification as a private organization is another issue pending more in depth research.52 Within private organizations, companies are not excluded from the commission of crimes against international law. One could venture into thought experiments over the sale of weapons or environmental damages resulting from a company’s behavior that can lead to ICL crimes. It is clear that the addressees of this assumption are those whose responsibility should be delimited by the nature of their products or by the danger involved in the services they provide.53 These dangers must also be 51 “Ein Vorgesetzter ist verpflichtet, eine Nutzung oder Missbrauch der Behörde des Betriebes zur Begehung von Völkerstrafrechtsverbrechen zu verhindern.” See Kartsen 2010, p. 427. 52 Regarding considerations if the ”war on drugs” meets the threshold of non-international armed conflict, see Comer and Mburu 2016. 53 See Kartsen 2010, p. 427.

10.3 Federal Penal Code

243

suitable for damaging a legal interest protected by ICL.54 There are even draft projects that point to ecocide as a crime under international law and in which companies are held fundamentally accountable.55 Therefore, Mexico must remain vigilant regarding developments in this matter.56 It is clear that not any superior of a company, nor any authority of a public body, can be responsible for the acts of its subordinates. These responsibilities must be related to crimes contrary to international law and also have a series of requirements, which will be addressed in the following sections. Superior Military Commanders Superior military commanders are those that de jure57 are part of a military organization. A military organization is constituted under law; it is an organ of a state. As an organ of a state, it operates openly, is obliged to exercise its functions under international humanitarian law, has a centralized command control and is well trained for combat58 against threats to the state.59 As for “private military enterprises”, these are not part of the state per se; however, they are contracted by the state to act in their aid.60 Therefore, these should be treated as “military”, since in functions and hierarchy, they are very similar to the military and they also act by orders of the state. That is, their functions do not derive directly from a constitutional mandate such as that of the armed forces, but of a contract in which one of the contracting parties is the state. Another sui generis case within the category of superior military commanders is that of the head of the executive power who, in some cases, enjoys the rank of “maximum commander of the armed forces”. This is the case in Mexico, since according to section VI of Article 89 of the CPEUM, the head of the federal executive (president of the republic) “(...) may place the totality of the permanent armed force, the army, the navy and the air force, under its command for the purpose of protecting the internal security and external defense of the federation”.61 Superior Command in an Armed Group Unlike a military organization, an armed group is one that does not act within the context of the law. That means it is a group that has de facto power and that internally has an organization, in structure and hierarchy, similar to the one of the military with 54 Such

as, for example, the companies dedicated to weapon manufacturing. 2020. 56 See Atilano 2018. 57 This distinction between de jure and de facto armed groups is also found in ICC, Situation in the Central African Republic in the case of the Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ICC-01/05-01/08, paras 409–414, 443, 457. 58 Knoops 2007, pp. 509–510. 59 Weigend 2009, p. 520. 60 Lehnhardt 2008, p. 1025. 61 Artículo 89 Las facultades y obligaciones del presidente, son las siguientes: (VI)—Preservar la seguridad nacional, en los términos de la ley respectiva, y disponer de la totalidad de la Fuerza Armada permanente o sea del Ejército, de la Armada y de la Fuerza Aérea para la seguridad interior y defensa exterior de la Federación. 55 Pereira

244

10 Proposed Legal Framework

delineated roles and responsibilities, although in its form of operation it does not have the “(...) training or tactical professionalism of a soldier”.62 If compared to state armed forces, an armed group will not appear to be organized.63 The commentary to AP II notes that the term “armed force” must be understood in a broader sense, adding that the existence of a responsible command implies some degree of organization but not necessarily the hierarchical degree of a military organization.64 The term “organization” might seem too ambiguous, and in this regard the jurisprudence of the ICTY has shed some light in giving some indicators of what amounts to an “organized group”. Some of the indicative factors developed by ICTY jurisprudence are: (a) existence of headquarters; (b) the ability of the group to gain weapons; (c) its ability to plan, coordinate, and carry out military operations; and (d) its ability to define a unified military strategy and use military tactics.65 Hence, if they are able to organize or to develop some of these factors, it is understood to be characterized by responsible command.66 Furthermore, its aims are different from those of a military organization, since they are not intrinsic to the preservation of the state, but on the contrary, its action is guided by ends often contrary to the status quo. These could be of “political, ethnic, religious or economic nature”67 (armed narco-trafficking groups fall under the economic category).68 Knoops points out that armed groups “(...) do not follow rules under international humanitarian law, their use of force is not well controlled and they use violence unjustifiably”.69 This is, however, not always the case, for example, the National Democratic Front of the Philippines, in exercise of the right to self-determination, engaged in civil war and pleaded for “(...)organs of political power, administering people’s civil, political, social, economic and cultural life” to be established.70 The recognition of organization within an armed group is relevant in order to ensure compliance with IHL as well as to define responsibilities if crimes are committed. Related to this matter, even though, the conduct of the armed forces outside of combat might be considered illegal, protection of belligerents 62 See

Knoops 2007, p. 511. this regard, see Sivakumaran 2012, p. 174. The author stresses how misleading it can be if we always compare the degree of organization between state armed forces and non-state armed groups. 64 See Sandoz et al 1987, p. 1352. 65 See ICTY, The Prosecutor v Ramush Haradinaj and others, Trial Chamber, Judgment, 3 April 2008, IT-04-84-T, para 60. The ICC’s pre-Trial Chamber has adopted this criterion, adding that responsible command entails the possibility to impose discipline and the ability to carry out military operations. Cf. ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Judgment, Trial Chamber III, 21 March 2016, ICC-01/05-01/08-3343, paras 134–135. 66 See Sivakumaran 2012, p. 175. 67 Knoops 2007, p. 511; Weigend 2009, pp. 521–522. 68 The study made by the Leiden University, concludes that seven out of the nine major drug cartels that operate within the Mexican state, fulfill the criterion of “organization”. See Leiden University 2018, paras 85, 94, 104, 126 and 135. Similarly, Comer and Mburu conclude that the “Sinaloa Cartel” and “Los Zetas” fulfill the requisite level of organization to be considered an armed group. See Comer and Mburu 2016, pp. 79–83. 69 Knoops 2007, pp. 510–511. 70 See ICRC 1996. 63 In

10.3 Federal Penal Code

245

should be given, while the obligation to protect persons and objects during a NIAC should be observed.71 In this sense, encouragement of the parties is necessary in order to ensure compliance with the rules of armed conflict. As a result, in order to guarantee protection to all persons during armed conflict, the incorporation in Mexican domestic legal order of Article 29 GC (IV) should be considered, as this provides that the party to the conflict in whose hands protected persons may be, is responsible for the treatment given by its agents. In this regard, rules of IHL apply to all parties to an armed conflict.72 As a result, domestic legislation should be adequate to ensure that all members of an armed group—regardless of the aim they are pursuing—are guaranteed with belligerent protection, while also being obliged to comply with the regime of protected persons. As a result of this approach, members of an armed group would be bearers of rights and obligations, where the superior command would hold responsibility. Criminal responsibility should then be established for superior commands of the military as well as of armed groups. As an example of the criminal responsibility of superior commanders, Articles 4, 13, 14 VStGB could serve as reference.73 Civilian Superiors Civilian superiors could either belong to a “civil” or “public” organization. The “civil organization” would then be a company and the public organization any state agency. As mentioned earlier, not all “superiors” of these organizations or bodies are responsible for the acts of their subordinates, since these acts have to be related to crimes against international law. It could be argued that, for the actions that they carry out and for the subordinates who are in charge, they are considered by the RS as responsible for crimes contrary to international law, not for the “purposes” of the organization. As explained by Karsten, if only the “purpose” requirement were taken into consideration, only those organizations whose purpose it is to commit crimes against international law would be prosecutable.74 In the case of hierarchical superiors in state organizations other than the military, it is not so difficult to relate crimes against international law with the activities or tasks of such organizations. The clearest example is the police. However, in the case of private organizations, it is perhaps difficult to relate the commission of an international crime by a subordinate within the realm of activities of the private organization in question. For practical purposes, the differences between “civilian” and “military” would have to be translated into legal consequences. This differentiation is useful, since

71 Werle

and Jeßberger 2014, pp. 418–419. pp. 423–425. 73 Section 13 and section 14 VStGB refer to violation of the duty of supervision and omission to report a crime, above n 7. See ibid., p. 159. 74 Karsten 2010, p. 407. 72 Ibid,

246

10 Proposed Legal Framework

according to the RS “civil superiors” are responsible when they are actually exercising the activity and are in effective control,75 while for the military they are “permanently” responsible since they are always in control.76 Requirements to Attribute Responsibilities to the Superior In order for a superior to be responsible for the crimes committed by his subordinates, he must have: (a) command power; and (b) objective control.77 That is, the link between superior and subordinate is not only explained by the relationship of subordination between the two,78 but also by the “possibility of control” of the commission of the crime. This possibility of control is given by the material ability to prevent or punish the criminal conduct of the subordinates.79 The ICC has delivered several factors that indicate material ability such as: the official position of the suspect; his power to issue or give orders; the capacity to ensure compliance with the orders issued (i.e. ensure that they would be executed); his position within the military structure and the actual tasks that he carried out; and the power to promote, replace, remove or discipline any member of the forces.80 In addition, if the superior ordered the commission of the conduct, it would be considered that he “(...) controls the overall commission of the crime”.81 The power of command refers to the possibility and ability of the superior to give orders and enforce them. Objective control, on the other hand, refers not only to those who are in charge of the “military unit”, “troop” or “police battalion”, and has the hierarchical primacy over them, but rather to those who have effective control over subordinates.82 This effective control implies that the superior is actually able to influence the behavior of his subordinates.83 If the superior was not in a position to avoid the outcome (although hierarchically and formally, he has control), that person could not be held responsible. This assumption could fit for those cases in which the hierarchical superior was not in the “line of combat” and, therefore, could not prevent the imminent action of the subordinate. However, in case the power of command is delegated to a third party, that third party involved would be responsible as well as the original “superior” who delegated his functions, as long as it could be 75 Werle

and Jeßberger 2014, p. 228. the specific case of crimes against international law, this differentiation may seem a bit idle. According to their gravity, it is difficult to imagine them being executed in a single moment. Many of them are even continuous crimes (as in the case of enforced disappearance), so it is difficult to think that, in practice, the responsibility of the superior is only constricted to “office hours”. 77 BT/Drucks 14/ 8524, p. 51. 78 Werle and Jeßberger 2014, pp. 225–228. 79 So defined by the ICTY in Prosecutor v. Mucic et al, Judgement, Appeals Chamber, 20 February 2001, para 256. 80 ICC, Prosecutor v. Bemba, Pre-Trial Chamber II, Decision Pursuant to Article 61 (7)(a) and (b) of the Rome Statue on the Charges of the Prosecutor against Jena-Pierre Bemba Gombo, 15 June 2009, para 417. 81 As noted by Nehrlich 2007, p. 20. 82 Weigend 2009, pp. 521, 1009, 1011–1012. 83 Werle and Jeßberger 2014, p. 226. 76 In

10.3 Federal Penal Code

247

demonstrated that he had the possibility to supervise the one to whom he delegated his powers and that, in fact, he could prevent the result.84 As for the responsibility of the omission: In order for the superior responsible to be held responsible for this, not only would it be necessary to prove that the superior increased the probability of the commission of the offense by not acting and not performing effective control,85 but also it requires that the superior’s action effectively had prevented the wrongdoing of the inferior or subordinate. That is to say, a causal relationship must also be verified between the superior’s omission and the result of the wrongdoing.86 In this case, the Mexican domestic order should ensure that failure to exercise control properly and or inaction of the superior as such be criminalized. As in Article 28 RS, the superior should also be responsible for the subordinate’s acts, in this case “failure to act”, a subsidiary crime of the one committed by the subordinate.87 In the case of paramilitary groups, responsibility remains with any authority that had knowledge of the crimes committed against the civilian population and still did nothing to prevent it.88

10.3.2.2

Acting Under Orders

A fundamental element of ICL is that receiving orders from a superior does not exclude from criminal responsibility. In this case, Article 33 of the RS provides that any person following an order of a government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless the order was not manifestly unlawful, the person did not know the order was unlawful or the person was under a legal obligation to obey orders. That is, under the RS there is an exclusion from criminal responsibility for war crimes, but not for crimes of genocide and crimes against humanity, since both are considered manifestly unlawful conduct. In relation to superior orders, the corresponding adjustments must also be made under 84 Werle

and Jeßberger 2014, p. 317. generally, ICC, The Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, 15 June 2009, ICC-01/05-01/08. 86 As it usually is in crimes of omission, in this sense: Wessels 2012, pp. 285–286. For the specific case of the VStGB, see Weigend 2009, pp. 528–529. 87 See Nehrlich 2007, pp. 679–680. In this regard, the commentary to the RS states that this matter is not fully resolved, since the ICC has not yet addressed this question; there is still much debate on whether the superior should be responsible for the subordinate’s actions. The commentary offers three different solutions for the interpretation of Article 28: (a) superior responsibility should give rise to direct responsibility for the principal crime, through the theory of “commission by omission”; (b) superior responsibility is a mode of participation; and (c) the superior is just convicted for the failure to act, with the level of responsibility as well as the gravity of the “principal crime” evaluated. See Kortfällt 2017, paras 280–281. 88 Consider the case of Acteal, in which paramilitary groups killed 45 people. In this case, civilian or military authorities would have criminal responsibility for not having prevented the crime if all the above conditions were met. 85 See,

248

10 Proposed Legal Framework

Mexican law for the crimes of torture and forced disappearance. It would be relevant to stipulate in the respective military and police internal regulations that excessive use of force resulting in crimes under international law cannot be relied upon as an excuse when committed under superior orders, while also emphasizing that such an order could result in the commission of the most serious crimes according to national and international law. Giving the subordinate the right to complain and/or disobey in case of receiving an order constituting a crime against international law could also be considered. There are then two elements that exclude criminal responsibility when acting under the order from superiors: 1. the subject does not recognize that the order is unlawful 2. it is not manifest that the action to be carried out is unlawful When a subordinate commits a crime under the order of a superior, the CPF, in its Article 16, recognizes the possibility of negligence and reduces the penalty, while the CJM either assumes it is an intentional offense (Article 110) or a legitimate justification that excludes punishment altogether (Article 119 IV). Hence, in the case of adopting the ICL standards, both the CPF and CJM have to be harmonized and either limited responsibility (RS Article 33(1)) or absolute responsibility should be opted for. In this last case, the subordinate is accountable even if the order was not manifestly unlawful.89

10.3.2.3

Common Article Three of the Geneva Conventions

As discussed in previous chapters, Common Article three to the GC defines IHL “violations” in the context of non-international conflicts. In order to comply with the obligation to punish the violations of IHL, it is suggested to define in domestic law what is a non-international conflict. Given that conflicts of this type have occurred in contemporary Mexico, the reasoning argued in this research has practical utility, also for use by the armed forces in crime prevention. Since a non-international armed conflict involves not only military forces, the obligations in terms of penal repression set forth in common Article 3 GC should be enacted in the Criminal Federal Code (CPF) and not in the Military Code (CJM). As established in Sect. 10.3 of this chapter, Article 50(I)(a) of the Organic Law of the Judicial Power of the Federation provides that federal crimes are all those inscribed in international treaties.90 Therefore, said provision can serve as a criterion for integrating common Article 3 GC into the federal order. The prohibitions of Common Article 3 GC would reinforce and spread the notion that even in armed conflict, neither deprivation of life nor serious injury to 89 The model of absolute responsibility would be more suitable in order to avoid the contradictions that could evolve from the RS adoption of limited liability for war crimes. In this regard see Cassese 2008, p. 278. 90 Organic Law of the Federal Judiciary, above n 30.

10.3 Federal Penal Code

249

body or health are legitimate. Criminal repression could consequently influence the obligations and prohibitions of the army when deployed in law enforcement tasks. Derived from Common Article 3 GC the violations to be criminalized are the following: 1. 2. 3. 4. 5. 6. 7. 8.

Violence to life and person Willful killing Mutilation Cruel treatment Torture Outrages upon personal dignity, in particular humiliating and degrading treatment Taking of hostages The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees. 9. Omission to collect and care for the wounded and sick These prohibitions, as part of the ICL, should also be defined as free of statutory limitations and retroactive, as Mexico has been a party to the Hague Conventions since 1901 and to the GCs since 1953. The provisions regarding internal conflict and the prohibitions in Common Article 3 GC in conjunction with the Convention on the Non-Applicability of Statutory Limitations may provide a framework of criminal responsibility for events during the so-called “dirty war”. If the “dirty war” fulfills the requirements of internal armed conflict, investigations of “war crimes” could be triggered. By triggering investigations, the Mexican state would comply with its obligations contracted when signing the GC. If, after defining the cases of internal armed conflict, the events that occurred during the “dirty war” would not fall into this category, then the acts would have to be investigated under crimes against humanity. With regard to the “war on drugs”, if the category of internal armed conflict is applied,91 it would result in giving the quality of belligerents to members of drug cartels and, therefore, actions in combat or committed during the hostilities would be justified.92 In this regard, an IHL approach would be better than an “ordinary” criminal law approach, because in the factual conditions, the operations of the 91 On this topic, see Nill 2013, pp. 467–509; Bergal 2011, pp. 1042–1088. Marco Sassoli and Noam

Lubell debated if the war on drugs in Mexico qualifies as a non-international armed conflict. After summarizing the criteria that defines a NIAC, Sassoli, argued that the conflict in Mexico amounts to an armed conflict. Special remarks were made on the purpose of the organized groups, which in the case of drug cartels are not of political nature; however, the ICTY has already stated that the purpose is irrelevant (see ICTY, The Prosecutor v Fatmir Limaj and others, Trial Chamber-Judgment, 30 November 2005, IT-03-66-T, para 170). On the other hand, Noam Lubell argued, the category of NIAC was construed under a notion of a civil war, where the purpose of the non-state armed group is to end a certain regime and, therefore, drug cartels would not fall into this category since their interest is to continue with the drug-trafficking business. He also added that not all cartel groups can be presumed to be “organized” and, therefore, if IHL was to be applied, on the operational level, it would be very difficult for the military armed forces to distinguish between “organized armed groups” and “non-organized armed groups”. See Sassoli and Lubell 2018. 92 See Kreβ and Megret 2015, pp. 50–51.

250

10 Proposed Legal Framework

military against drug cartels are not that of law enforcement but war-like as they combat the members of the narco cartels as military targets. This assumption can be concluded from the various reports of combats between the military and narco cartels where members of so-called “criminal groups” usually end up deprived of life,93 these combats sometimes end up with civilian victims.94 In terms of making organized groups comply with IHL, a number of measures can be taken like e.g. the dissemination of humanitarian rules. In this regard, the narco cartels publicize and spread information of their actions by using banners or “narco-mantas”, which they

93 There is no official record of the combats and the deceased; however, from a search on the internet, a certain pattern of combat by the military can be identified. I cannot refer to all the news found about “criminals” deceased in military operations; however, here is a small sample: Diario Animal Político (2017) Enfrentamiento entre militares y civiles deja un muerto y dos heridos en Navolato. https://www.animalpolitico.com/2017/05/enfrentamiento-mil itares-navolato/. Diario La Opinión (2017) Enfrentamiento entre militares y narcos deja 18 muertos. Otros siete delincuentes fueron detenidos tras los tiroteos registrados en Tamaulipas y Nuevo León. https://laopinion.com/2017/08/24/video-enfrentamiento-entre-militares-y-narcosdeja-18-muertos/. RPP Noticias (2017) Ocho narcos muertos tras enfrentamiento con la Marina en Ciudad de México. https://rpp.pe/mundo/mexico/8-narcos-muertos-tras-enfrentamiento-conmilitares-en-ciudad-de-mexico-noticia-1065631. Revista Proceso (2017) Enfrentamiento entre narcos y militares en Durango deja al menos 10 muertos. https://www.proceso.com.mx/497 841/enfrentamiento-en-la-sierra-durango-deja-10-muertos. Diario el Tiempo (2017) Sube a 7; narcos abatidos por el Ejército durante balacera en Madera. https://www.tiempo.com.mx/noticia/ 81271-balacera_enfrentamiento_en_madera_abate_ejercito_a_siete_y_aseguran_arsenal/1. Diario El Tiempo (2018) Balacera entre Ejército y criminales en Carichí; varios muertos. https://www.tie mpo.com.mx/noticia/113215-balacera_enfrentamiento_criminales_ejercito_carichi_muertos/1. El Economista (2017) Enfrentamiento en Guerrero deja nueve muertos. Un enfrentamiento entre militares y presuntos criminales en el violento estado de Guerrero, en el sur de México, dejó nueve personas muertas, entre ellas un soldado, dijeron el domingo autoridades locales. https://www.elecon omista.com.mx/noticia/Enfrentamiento-en-Guerrero-deja-nueve-muertos-20170918-0070.html. El País (2014) Enfrentamiento entre militares y narcos deja 22 muertos. El Ejército Mexicano mata a 22 en enfrentamiento. https://elpais.com/internacional/2014/06/30/actualidad/1404163345_627935. html. All accessed 19 September 2020. By way of contrast, reports of the SEDENA from 2016 inform that between 2007 and 2012 the use of force by the military against threats or attacks from drug cartels took the lives of 326 members of the army, whereas the number of deceased aggressors amounted to 2,959. See Periódico La Jornada (2016) Hasta 2012 el número de muertos de los atacantes es 10 veces mayor al de los soldados. https://www.jornada.unam.mx/2016/05/26/politica/ 014n1pol. Accessed 19 September 2020. 94 For example, a family in northern Mexico was killed during combat, see Diario Animal Político (2018) Matan a familia en enfrentamiento en Nuevo Laredo entre marinos y presuntos delincuentes. https://www.animalpolitico.com/2018/03/muere-familia-en-enfrentamiento-en-nuevo-lar edo-entre-marinos-y-presuntos-delincuentes/. Accessed 19 September 2020. In this regard see also Perez et al. 2019, pp. 23–42.

10.3 Federal Penal Code

251

hang in different points of their strongholds.95 So in the same way, the state could use the same technique to publicize rights and duties under IHL. From this analysis follows that it is also advisable to incorporate the fundamentals of Article 8(2)(f) RS, in which an internal armed conflict occurs among non-state armed groups, e.g. among different guerrilla groups. With regard to combatants, the model of Article 222 of the CJM, which legitimizes their actions during a combat, could also be adopted.96

10.3.2.4

War Crimes

Chapters 2 and 3 showed that the Mexican legal order places great value on constitutional principles such as the principle of legality. The human rights reform of 2011 and the reform of Article 1 CPEUM adopted a criterion by which human rights norms should be interpreted according to the Constitution and international treaties. But as the judiciary lacks experience directly applying international treaties, it has led to confusion around the application of this article and the safeguarding of the Constitution.97 Chapters 2 and 3 of this book have also shown how the state practice favors written law and domestic law over international law; therefore, Article 8 RS should be implemented. War crimes, in the context of an international conflict may seem very foreign to the Mexican reality. However, given the transformation and trans-nationalization (e.g. cyber wars) of armed conflicts, it is becoming increasingly necessary to incorporate these crimes into the national legal order. This would also prevent judges and members of the military from having to resort to interpretations and investigations of precedents of international law. It is suggested that a generic clause be adopted that is adaptable to developments in IL, as well as to transformations and new phenomena that appear in armed conflicts. The advantages are obvious: the recipients of these rules will then be aware of their legal responsibility and the consequences of their conduct, which may also serve as a means of preventing crime. Sanctions should be proportional and should apply equally to civilian and military authorities. Knowledge of prohibited conduct and its sanctions is of particular importance to authorities that carry weapons, as an assurance that the use of these weapons is not unlimited. The criminalization of prohibitions of IHL should contain categorizations of combatants, combatants outside of combat, prisoners of war, civilians and cultural property. All of these categories contain a protection clause in international law. The ICRC98 proposes that sentences and sanctions should be made public. The publication of the judgment must cover the whole process including the clarification of facts. The ICRC document also recommends drafting codes of conduct that clearly state how subordinates should behave during conflict. 95 For

the use of “narco-mantas”, see Stratford Worldview 2012. Chap. 6 of this book. 97 See Muro 2015. 98 ICRC 2008. 96 See

252

10 Proposed Legal Framework

In summary, as a guiding framework towards adequate criminalization of war crimes in Mexico, Article 8 of the RS can be used, taking into account the specifications outlined in this chapter. In order to incorporate the specifics of the Mexican context, it is essential to define internal armed conflict.

10.4 Other Legislative Measures 10.4.1 General Dispositions on International Humanitarian Law The lack of an adequate legal framework on humanitarian law could be one of the reasons that explains the failure so far to investigate and prosecute alleged war crimes. The main actors in the violent episodes described in the course of this book have not only been police forces, but very frequently military forces. Given the absence of a normative framework, it is not possible to define whether they have exceeded their powers, especially when it comes to applying lethal force, which is an inherent power of the armed forces for the defense tasks entrusted to them. IHL clearly states the assumptions in which civilians and belligerents must be protected, as well as the fact that lethal force has limits. In the case of law enforcement tasks, the use of lethal force must be used only when no other form of deterrence is possible.99 In 2009, former president, Calderón Hinojosa, created an “Intersecretarial Commission on International Humanitarian Law”,100 which includes, inter alia, the drafting of bills to sanction prohibitions of IHL, as well as to carry out activities of dissemination and promotion of IHL. The regulations of this Commission were issued on 4 August 2011 and provide for the tasks and powers of its members.101 A report by the Inter-Secretarial Commission from the year 2013 and presented to the “Continental Conference of National Commissions on International Humanitarian Law”102 refers to the fact that, between September 2010 and October 2011, a preliminary draft of an initiative to harmonize federal criminal legislation with international crimes in the area of IHL was prepared. The article, “The Work of Mexico’s Inter-Ministerial Committee on International Humanitarian Law”,103 from 2014, also refers to a bill whose aim is to incorporate war crimes in the Mexican legal system. However, neither document reveals any specific information about the

99 See

ICRC 2015. por el que se crea con carácter permanente la Comisión Intersecretarial de Derecho Internacional Humanitario, DOF, 19 August 2009. 101 Secretaría de Relaciones Exteriores 2016. 102 Conferencia continental de comisiones nacionales de derecho Internacional humanitario 2013, p. 9. 103 Salazar 2014, pp. 1049–1059. 100 Acuerdo

10.4 Other Legislative Measures

253

contents of these bills nor the specific prohibited conduct of IHL to be punished.104 The author made a direct inquiry to the Ministry of Foreign Affairs (SRE), however it replied that the information could not be disclosed.105 The only piece of legislation related to IHL that has been enforced was enacted in 2007,106 namely the “Law for the Use and Protection of the Name and Emblem of the Red Cross”. Its statutory law of the year 2014107 only punishes the misuse of the Red Cross emblem with a fine of up to 50 times the minimum wage.

10.4.2 Items Related to the Military Code of Justice Due the intertwined and close cooperation between the military and the head of the executive, it would be desirable for civilian authorities to prosecute and punish international crimes, since the lack of independence and impartiality given by the subordination between the executive and the military might lead to the shielding of perpetrators.108 In order to achieve prosecution by civilian authorities, war crimes should be incorporated in the Federal Criminal Code, since the subjects with obligations and the objects of protection are not limited to the military sphere. Equally, the legal interests that protect war crimes supersede that of order and military discipline. If international crimes were to be included in the Code of Military Justice, contradictions with Article 9 of the Extradition Law would arise. The aforementioned provision states that: “(...) extradition will not be granted if the crime falls under military jurisdiction”.109 As discussed in Chap. 3, the criterion of military jurisdiction in Mexico is ratione personae. Therefore, if international crimes were included in the CJM, any offense committed by military personnel against military personnel, active military personnel or combatants, would be a matter of military jurisdiction (except in the case of passive civilian subjects) and, therefore, they would not be extraditable. In any case, to avoid contradictions, a clause is suggested which clarifies that international 104 The ICRC also reports these draft initiatives, noting that the criminalization of war crimes within

the framework of a single Penal Code (Código penal único) was envisioned in 2012. Until the date of writing of this book the single penal code has not been approved. In the ICRC report of the year 2014, there is no longer any indication of draft initiatives in the area of criminal repression of war crimes under Mexican law. See ICRC documents: Aplicar el DIH. Participación de los Estados americanos en los tratados de relevancia para el derecho internacional humanitario y su aplicación nacional. Avances y actividades en América, Informe 2010–2011; Informe 2012–2013; Informe 2014–2015; Informe 2018–2019. All available at icrc.org. 105 Email dated 7 July 2016, sent to the person appointed for these matters by the Ministry of Foreign Affairs (SRE), in file of the author. This is a good example of the lack of transparency, which prevents a theoretical discussion and the exchange of ideas. 106 DOF, 23 March 2007. 107 DOF, 25 March 2014. 108 Kleffner 2008, p. 54. 109 In this regard, the criteria developed by the SCJN in the Cavallo case could be adopted. See Chap. 7 in this book. Law on international extradition, DOF, 29 December 1975.

254

10 Proposed Legal Framework

crimes (war crimes included) are not subject to military jurisdiction, nor should they be crimes of the military order in accordance with Article 13 CPEUM. It is also recommended that Articles 35 and 36 of the CJM are harmonized.110 Both are within the Second Title: “Of the auxiliaries of the military justice administration”. The first, Article 35, belongs to the chapter concerning the judicial archive and the library. However, when referring to the works and publications that will be part of the library they never refer to those related to IHL and ICL. Therefore, in compliance with the obligation to disseminate IHL, the library should be formed of works and publications on these topics. On the other hand, Article 36 of the CJM is part of the chapter that refers to the public prosecutor, stating that this is the only authority competent and qualified to prosecute. It should be clarified in the CJM that the ICC is a legitimate authority with investigative and prosecutorial functions. This is particularly relevant since the former Chief Commander of the Army, General Cienfuegos has stated that the army would only follow orders from Mexican authorities.111 Giving explicit powers to the ICC, would eliminate the gaps between domestic law and ICL, leaving the path open for the ICC to fully exercise its jurisdiction. Article 100 CJM could also be amended with the following wording: “(...) any military officer who discovers or is aware of war crimes, crimes against humanity or genocide, shall promptly notify the superior and the public prosecutor. Violation of this provision shall be considered a crime of military order”. This crime could be linked to the “Manual of the Use of Force, Common Application to the Three Armed Forces”, published May 2014.112 Regarding war crimes and crimes against humanity, to assure compliance, it is also necessary to amend the “General Regulation on Military Duties” (Reglamento general de deberes militares).113 For example, Article 14 of this regulation, stipulates that: “(...) the superiors are obliged to comply exactly and must enforce that their subordinates follow the rules they receive; if disobedience occurs due to omission or recklessness, the subordinate will be held responsible”. It would then be advisable to integrate a clause that provides the following: “except in the cases of crimes that involve violations of human rights, war crimes, crimes against humanity or genocide in accordance with Article 100 CJM”. Likewise, it should be recalled that provisions related to IHL, especially the crimes under the title, “Crimes Against the Law of Nations”, date to 1871 and, therefore, lack the normative content achieved in 1949, when the Geneva Conventions were drafted. As a result, the scope of criminalization of grave violations to IHL is incomplete, since it does not follow contemporary standards, but those of the nineteenth century. Finally, in the current legislation, there is no explicit obligation on the part of the superior to report and investigate crimes committed by subordinates. This omission 110 Military

Code of Justice (Código de Justicia Militar) DOF, 31 August 1933. Chap. 3 in this book. See also El Economista (2015) Soldados no declararán ante CIDH: Cienfuegos. https://www.eleconomista.com.mx/politica/Soldados-no-declararan-anteCIDH-Cienfuegos-20151006-0198.html. Accessed 20 September 2020. 112 DOF, 30 May 2014. 113 DOF, 26 March 1937. 111 See

10.4 Other Legislative Measures

255

could be punished as a military crime and thus contribute to complete fulfillment of obligations derived from humanitarian law.114

10.4.3 General Law to Prevent and Punish Torture To comply with the ideals of international criminal law to end impunity, it is also necessary to reform the General Law to Prevent and Punish Torture.115 This law only covers torture committed by public servants but not by groups belonging to organized crime, such as drug cartels. From the various reports on torture, it appears that these groups do indeed use torture.116 Thus as a parameter, Article 7(1)(f) of the Rome Statute and Article 7 of the German Code of Crimes against International Law could be considered. Both envisage the crime of torture not only committed by public servants. In this sense, the Convention Against Torture (which falls within the scope of protecting human rights) differs from the perspective of ICL. For this reason, if crimes against humanity are to be punished under Mexican law, then Article 24 of the General Law to Prevent and Punish Torture would also have to be reformed, since it defines torture as a crime committed by the public servant who, due to his attributions, inflicts serious pain or suffering on a person in order to obtain information from such a person.117 Adopting the ICL approach, which not only achieves greater protection, would also be consistent with Article 1 of the CPEUM, which states that broader protection for the individual will be favored at all times. Thus, by adopting the modality of torture to a crime against humanity, protection will be given not only to those who suffer pain inflicted by public servants but also by criminal groups and for reasons other than obtaining information, which may simply include sadism or revenge. In conclusion, there would then be two forms of torture: that perpetrated by the state, or with the acquiescence of the state, and that committed by organized groups, whether or not they have a political or economic orientation and regardless of whether their motive in committing torture was to obtain information.

114 Renaut

2008, pp. 319–326. general para prevenir, investigar y sancionar la tortura y otros tratos o penas crueles, inhumanos o degradantes, DOF, 26 June 2017. 116 See UN Human Rights Council 2017, paras 21–28. On the case of the drug trafficking group, Los Zetas, see Open Society Foundations 2016. About Los Zetas as an organized group, see Insight Crime 2018. 117 Artículo 24-Comete el delito de tortura el Servidor Público que, con el fin de obtener información o una confesión, con fines de investigación criminal, como medio intimidatorio, como castigo personal, como medio de coacción, como medida preventiva, o por razones basadas en discriminación, o con cualquier otro fin. 115 Ley

256

10 Proposed Legal Framework

10.4.4 Law of International Cooperation Given that the “International Cooperation Law” was rejected by the Chamber of Deputies in 2016, it will have to be redrafted to comply with the obligation imposed by Article 86 of the RS.118 Furthermore, this study has also suggested that the cooperation and communication process should be between the ICC and the judicial branch to prevent it from being politicized.119 Likewise, it should be made clear that it is mandatory to comply with the requests made by the ICC, in order to ensure that authorities don’t argue lack of competency of the court, such as has occurred with the Interdisciplinary Group for the Ayotzinapa case triggered by the OAS.120 Furthermore, filing an Amparo against a request for cooperation from the ICC, could only proceed for procedural matters and not for substantive matters. The latter would amount to an infringement of Article 27 of the VCT, given the fact that, an Amparo resolution would invoke domestic law against an international obligation.121 In any given case, the appropriate forum where substantive issues would have to be discussed would be before the ICC itself in The Hague and not through an Amparo trial. At the same time, the Cooperation Law will allow the Mexican state to fulfill its obligation of vertical complementarity (i.e. to assist the ICC in its petitions). On the other hand, a procedure should be established allowing Mexico to act as a third state in order to start investigations or precautionary measures against those responsible who might happen to be on Mexican territory. This could facilitate and speed up the prosecution of the crimes, since the procedures of capture, arrest and first investigations would be carried out more quickly and expediently, so that suspects of a particular crime could be surrendered to the ICC. A draft law on international cooperation could also encompass a legal framework that facilitates cooperation and mutual legal assistance with respect to crimes against humanity.122

118 Also,

Additional Protocol I, Article 88 para 1 of the Geneva Conventions provides for mutual legal assistance when prosecuting war crimes. 119 The instrument of ratification of the RS was deposited with a notification regarding requests for cooperation via the Foreign Ministry (SRE). On this point, see Chap. 3. 120 See the second report of the GIEI, Grupo Interdisciplinario de Expertos Independientes 2016, pp. 597–598. Diario Animal Político (2015) No puedo permitir que interroguen a mis soldados, dice titular de la Sedena sobre caso Ayotzinapa. https://www.animalpolitico.com/2015/10/el-nom bre-de-un-normalista-coincide-con-el-de-un-militar-en-activo-tampoco-lo-encontramos-sedena/. Accessed 20 September 2020. 121 See Chap. 3 of this book. 122 In this sense the proposed legal framework given by the “Draft articles on Prevention and Punishment of Crimes against Humanity” could be adopted. See UN International Law Commission 2019, Article 14.

10.4 Other Legislative Measures

257

10.4.5 Law of National Security Article 3 section V of the “National Security Law”123 reads as follows: For the purposes of this Law, National Security means actions intended to maintain the integrity, stability and permanence of the Mexican state, which entail: (...) V. The legitimate defense of the Mexican state with respect to other states or subjects of international law (...)124

As can be seen, reference is made to the legitimate defense of the Mexican state, with respect to subjects of international law. In this case, it is suggested to clarify which subjects of international law are concerned, since the ICC is a subject of international law (Article 4, para 1 RS).125 What is more, under international humanitarian law, belligerents are also considered subjects of international law, making it even more necessary that Mexican law defines its notion of “subjects of international law”.

10.4.6 Extrajudicial Executions Given the allegations of extrajudicial executions committed in Mexico,126 there should be a specific crime that punishes the carrying out of executions without previous judgment pronounced by a tribunal. The ordinary crime of murder does not cover the unlawfulness of the deprivation of life by agents of the state who are legitimated to use force, whether police or military forces. Likewise, the crime of murder should also be added to the list of offenses contained in the “Federal Law Against Organized Crime”.127 After all, the Special Rapporteur on extrajudicial executions of the United Nations has pointed out,128 there is a high incidence of deprivation of life by members of organized crime. It should be noted that extrajudicial executions are prohibited by IHL in Articles 50 CG I, 51 CG II, 130 CG III and 147 CG IV and Common Article 3 GC for the context of war. As a result, it is necessary that this conduct is criminalized in times of peace as well as in times of an armed conflict as a measure to protect the right to life. 123 DOF,

31 January 2005.

124 Artículo 3.- Para efectos de esta Ley, por Seguridad Nacional se entienden las acciones destinadas

de manera inmediata y directa a mantener la integridad, estabilidad y permanencia del Estado Mexicano, que conlleven a: V. La defensa legítima del Estado Mexicano respecto de otros Estados o sujetos de derecho internacional, (...). 125 See also Lüder 2002, pp. 79–92. 126 See UN Council of Human Rights 2014, 2016. On a specific case of extrajudicial killing, see CNDH 2016. 127 Ley federal contra la delincuencia organizada, DOF, 7 November 1996. 128 UN Council of Human Rights 2014, para 35.

258

10 Proposed Legal Framework

10.4.7 Law of the Official Gazette of the Federation It is recommended to amend Article 3 of the “Law of the Official Gazette of the Federation”, so that the judgments and resolutions of the ICC in relation to events in Mexico with Mexican victims, or that involve Mexican citizens, are published in the Official Gazette of the Federation. The publication would contribute to the dissemination of ICL principles, so that the branches of government as well as the population, in general, are aware of ICL matters. This could also be extended to all cases of genocide, war crimes and crimes against humanity sentenced in Mexico, bringing the additional advantage that citizens could learn about the legal version of facts of national interest, consequently, creating wider awareness of the right to the truth.129

10.5 Urgency of Domestic Legislation The Open Society Report of 2016130 and the communications to the ICC made by the International Federation of Human Rights in the years 2014131 and 2017132 bear witness to the seriousness of the situation of violence and non-rule of law in Mexico. Legislation on international crimes allows for compliance with the objectives of preventing and deterring crime and, above all, combating impunity, which has been a permanent feature of the Mexican legal system, as we have seen in previous chapters. In the military sphere, enacting the necessary legislative measures in order to criminalize violations of human rights law and of IHL,133 would also provide a legal framework that limits the actions of the military in law enforcement operations. Legislation on crimes against international law not only strengthens the domestic but also the international justice system, thus contributing to the objectives of peacekeeping and combating the most serious crimes. This is not only symbolic, since the greater the number of countries that punish these crimes, the less are the niches of impunity or refuge for those who commit these crimes.134 The problem remains, however, that as long as the executive’s constitutional mandate with respect to its limitations is not clarified, there is a higher probability of abuse of power and in the worst case that the most serious crimes are committed. 129 Regarding

the right to truth as a by-product of prosecution of international crimes, see Schabas 2012, pp. 160–162. 130 Open Society 2016. 131 Federación Internacional de Derechos Humanos 2014. 132 Federación Internacional de Derechos Humanos 2017. 133 On achieving criminalization of IHL violations see ICRC, Practice Relating to Rule 151. Individual Responsibility, Section A. Individual criminal responsibility. https://ihl-databases.icrc.org/ customary-ihl/eng/docs/v2_cha_chapter43_rule151. Accessed 20 September 2020. 134 In the past, Mexico was offered to Muammar al-Gadaffi as a place of refuge with a false identity, see Chicago Tribune (2011) Impiden la entrada del hijo de Gadafi a México.

10.5 Urgency of Domestic Legislation

259

The president of the republic is the supreme head of the armed forces and can make use of them with very few constraints. This is particularly so, since the notions of internal and external security within the constitutional text remain ambiguous. This ambiguity in the limitations to the powers of the president has led to the deployment of the armed forces against drug trafficking. The broad faculties of the president could be closely related to the issue of immunities during the exercise of its powers. That is, the Mexican legal order must provide that the head of the executive can be prosecuted for crimes of war, crimes against humanity or genocide—even when he is in office. Regarding immunities, this is an issue135 to which Mexican authorities have also shown discrepancies. Even though they have declared their support for the development of the ICL, President Calderón in 2012 asked the US government to grant immunity to former president Zedillo, in the Acteal case,136 which was filed before a US court invoking the Aliens Tort Act.

10.6 Universal Jurisdiction According to Articles 1-5 of the CPF, Mexico follows the territorial principle of jurisdiction, being the code applicable throughout the territory of the republic for crimes of the federal order Article 1 CPF.137 If a crime is committed outside Mexican territory, it follows the principle of passive or active personality, by requiring that the victim or the perpetrator be of Mexican nationality (Article 4 CPF) and that the accused be found in the republic, without previously being tried in the country where she/he has committed the offense. Finally, the accusation involved must be a crime under Mexican law (Article 4 CPF).138 From the above provisions it can be concluded that the Mexican legal order does not provide for universal jurisdiction, since for this principle, the location of the crime or the nationality of the active or passive subject of the crime is irrelevant.139 In accordance with the seriousness of crimes under international law, it is in the interest of the entire international community as a whole 135 In

this vein, see Duffy 2000, pp. 40–42; Duffy 2001, pp. 26–32. Diario Digital Sin Embargo (2012) El gobierno de Calderón pide inmunidad para Zedillo por la matanza de Acteal. https://www.sinembargo.mx/10-01-2012/116187. Accessed 20 September 2020. 137 Extending the national territory to the consulates and embassies, among others. See Articles 4-5 CPF. 138 Artículo 4o.- Los delitos cometidos en territorio extranjero por un mexicano contra mexicanos o contra extranjeros, o por un extranjero contra mexicanos, serán penados en la República, con arreglo a las leyes federales, si concurren los requisitos siguientes: I.- Que el acusado se encuentre en la República; II.- Que el reo no haya sido definitivamente juzgado en el país en que delinquió, y III.- Que la infracción de que se le acuse tenga el carácter de delito en el país en que se ejecutó y en la República. 139 Germany’s position in this regard admits universal jurisdiction with restrictions, since they have determined that it will only apply provided that a relevant point of connection exists. The victim or the accused must be on German territory. If this is not the case, §1 of the VStGB may not be invoked. On the concept of universal jurisdiction, see Philippe 2006, pp. 375–398. 136 See

260

10 Proposed Legal Framework

that these crimes are prosecuted and punished.140 As a result, and as core principle of ICL, the sovereignty principle is not violated. In addition, it should be added that states themselves have agreed that these offenses shall be prosecuted and punished regardless of the nationality of the perpetrator or where the crime is committed and, by these means, they have, therefore, given up part of their sovereignty. Universal jurisdiction can also be justified when countries have set themselves the goal to pursue crimes contrary to international law, making universal jurisdiction a means to fulfilling that goal. In other words, universal jurisdiction is a practical and effective way to implement the principles of ICL. It could also be considered as a way to “materialize” ICL principles. Without the tool of universal jurisdiction it would be impossible for the ICC to prosecute and judge all international crimes.141 Article 85, para 1 of Additional Protocol I of the GC also refers to the prosecution of crimes when the offender is within the territory of the state party (without the need for a classic jurisdictional connection point). It should also be recalled that universal jurisdiction is not compulsory but optional and a state party may desist of triggering it.142 Thus, it remains open whether Mexico will exercise universal jurisdiction for international crimes. Adopting universal jurisdiction could be useful and would be a contribution to the international justice system since this prevents an ICL offender from finding refugee in a third state. However, this would be advisable at a later date, until the Mexican state is familiar with the prosecution and judgment of crimes against international law committed in its own territory. The inclusion of universal jurisdiction into Mexican law for crimes against international law could be counterproductive within the public opinion, since, as this study proves, the Mexican state is skeptical when it comes to intervening in matters that are outside its sovereign territory, as would be the case of prosecution of crimes. Additionally, Mexico has always been a great supporter of the principle of “non-intervention,” even though in 2016 the former Secretary of Foreign Affairs (SRE), Claudia Ruiz Massieu, stated that allegiance to the principle had come to an end.143 The adoption of universal jurisdiction could also provoke different debates that would harm the process of creating a typology of crimes that is harmonious with ICL principles. Finally, as current national events show, the urgency of combating impunity is clear. Therefore, this study suggests that priority should be the criminalization and prosecution of crimes and to postpone the adoption of universal jurisdiction until a later date.144 140 Werle

2000, p. 1233; Cassese 2008, pp. 439. so, the nature of the crimes is so complex and so many factors and actors have to be considered that the few judgments handed down by the ICC are understandable. 142 §153 (f) of the German Criminal Procedure Code (VStGB), above n 7, provides for cases in which the prosecutor desists from initiating investigations, prosecuting or even dismissing proceedings. 143 SRE–Prensa 2016. 144 As Carrillo and Nelson’s study shows, universal jurisdiction is a pending task to be implemented globally, since only 21 countries out of a sample of 83 have adopted universal jurisdiction. Of the countries analyzed, 34 have fully adopted crimes against humanity in their domestic criminal legislation. See Carrillo and Nelson 2014, pp. 515–517. 141 Even

10.6 Universal Jurisdiction

261

The Draft articles on Prevention and Punishment of Crimes Against Humanity, states a special clause for the exercise of universal jurisdiction when the offender is in the territory of a state party.145 Mexico could consider this clause and thus contribute to a more agile cooperation. However, as has been pointed out, due to numerous cases of internal violence, it is a priority to concentrate on prosecuting and bringing to justice, crimes committed within the national borders.

10.7 Extradition The possibility of extradition is another factor to be considered. According to Article 6 (I) of the “International Extradition Act”,146 extradition may not be granted for offenses that are not criminalized in both jurisdictions (requesting and requested state). In this respect, Dondé Matute points out how the modern trend does not necessarily require that legal provisions in both countries define exactly the same behavior, since it is enough that the core elements of the punishable conduct are contained in law, regardless of the denomination.147 However, as Tables 5.2 and 6.3 showed, there are a number of behaviors both in crimes against humanity and in war crimes that are not criminalized as such. That is the case of extrajudicial executions, torture by subjects who are not public servants, as well as the contextual elements of crimes against humanity. For example, if the Mexican government had received a request to extradite someone for the crime of apartheid, extradition could not be granted. Altogether, considerations on extradition should be made if crimes against international law are to be punished under Mexican law. In addition, all these implementation measures could pave the way towards what the Draft articles on Prevention and Punishment of Crimes Against Humanity calls “inter-state cooperation”.148

10.8 Non-application of Statutory Limitations and Exceptions to the Nullum Crimen Sine Lege Principle If crimes against humanity and war crimes are to be punished under Mexican law, they must provide that statutory limitations are not applicable, and that retroactive prosecution of these crimes is made possible. The prosecution of crimes committed prior to the issuance of the norm should contribute to fighting impunity. As clarified 145 See

UN International Law Commission 2015, pp. 86–87. de Extradición Internacional, above n 109. 147 Dondé 2017, pp. 73–74. 148 UN International Law Commission 2015, para 22, p. 1. 146 Ley

262

10 Proposed Legal Framework

throughout this work, there are many chapters in the history of Mexico that show characteristics of crimes commissioned by the state and resemble the contextual elements of crimes against humanity. In order to revive confidence in the state, as well as to provide society with certainty, it is necessary that—with the help of the tools provided by the ICL—these actions end up before a court. Thus, reservations made to the Convention on Statutory Limitations149 and to the Inter-American Convention on Forced Disappearance of Persons should be withdrawn.150 This can be achieved if the Senate exercises its powers established in Article 76 f. I CPEUM. Finally, as proved in this thesis, the judiciary does not apply customary international law, given the high value to written law; therefore, when suppressing crimes against humanity and war crimes, it needs to be specified that they are not subject to statutory limitations and always subject to prosecution regardless of the date of their commission. In this regard, and as described in more detail in Chap. 7, Naucke and Jaspers have argued why statutory limitations as well as the principle of non-retroactivity do not apply to cases where the structure of the state has been used to commit a crime. Under Mexican law, there is already a clause on non-application of statutory limitations (Article 205 bis CPF) for crimes described in Articles 200, 201 and 204 of the CPF, which refer to the corruption of minors. Under Article 8 of the General Law Against Torture, statutory limitations are not applicable. The crime of enforced disappearance is also exempt from statutory limitations under the Criminal Code of the Federal District CPDF (Article 168) and Article 14 of the General Law on Enforced Disappearance.151 Additionally, in an Amparo case, the SCJN resolved that “(...) there are some cases to which statutory limitations should not be applied as established internationally for war crimes and crimes against humanity”.152 However, in the absence of national suppression of crimes against humanity and war crimes as such, I find it unlikely that such a consideration could be enforced.

149 See

Chap. 7.

150 The interpretative declaration made to the Inter-American Convention on Forced Disappearance

of Persons states: “Based on Article 14 of the Political Constitution of the United Mexican States, the Government of Mexico declares, upon ratifying the Inter-American Convention on Forced Disappearance of Persons, adopted in the City of Belém, Brazil, on 9 June 1994. It shall be understood that the provisions of that Convention shall apply to acts constituting the forced disappearance of persons, that are ordered, executed or committed after the entry into force of this Convention.” See the document in Appendix B. 151 However, for the crimes committed during the “dirty war”, it is not settled if the new provision would apply retroactively. In this regard the former law, the Law Against Torture, had a statutory limitation of 7.5 years (with a penalty of 3–12 years). 152 See SCJN, Amparo directo en revisión 2597/2015, Tesis Aislada, 21 October 2015, 2597/2015, p. 1131.

10.9 Penalties

263

10.9 Penalties In Mexican criminal law, the gravest crime in terms of its punishment is the crime of kidnapping. As far as penalties are concerned, they must be proportional to the nature and gravity of the crime. Thus, regarding the legal interest that crimes against humanity and genocide protect, the penalty could not be less than the penalty of kidnapping.153 If we look carefully at the legal interests that ICL protects, we can observe that they surpass the protected legal interest of freedom, as they even protect the human race (genocide) or human dignity as a whole (crimes against humanity). Likewise, it is considered that if the rules of war are not respected or if their offenders are not held responsible, world peace as a whole is put at risk.154 Under Mexican law, genocide has a penalty of 20–40 years’ imprisonment and, in the case of not destroying the national or ethnic group, the penalty ranges from 5 to 20 years’ imprisonment. In contrast, the crime of kidnapping has a penalty of 40–80 years’ imprisonment, and in its aggravated form, carries a sentence of 50–90 years in prison. As we can see, there is a considerable difference between the penalty of genocide and kidnapping, with the minimum penalty of kidnapping being the highest penalty in the case of genocide (40 years). Regardless that genocide is considered the most serious crime by the international community.155 Moreover, if the crime of kidnapping is committed by organized crime, the penalty is aggravated by 4–8 years of imprisonment (Article 2 Federal Law Against Organized Crime). In comparative terms, the German International Criminal Code sanctions genocide with the highest penalty, namely, a life sentence (§ 6 VStGB). Preventive measures should also be introduced in addition to the repression of war crimes, genocide and crimes against humanity. Crime prevention should focus on ensuring that crimes against international law are not committed within the government apparatus. This could be done through the elaboration of detailed protocols of action for the case of the operational activities of the army and police, as well as specific penalties directed to civil servants. Repression and prevention of state criminality should, at this point, be a top priority, due to the fact that the state has the greatest means to inflict harm (including the legitimate use of force and arms). Hence, the ways to minimize the possibility of state criminality requires limiting the state’s action and applying sanctions when limits are exceeded. Regarding the powers granted to authorities, these should be accompanied by a clear description of the administrative sanctions as well as the criminal repression in case there is abuse of power. The latter point is a priority in Mexico, since it is far behind in punishing state criminality. Hence, a first step to accomplish the prevention and deterrence of core crimes is the criminalization of these behaviors. A second step is granting effectiveness to these rules and translating them into actual investigations and prosecutions. This requires political will (as we saw in the cases of the 1968 massacre 153 In

the case of war crimes, the conduct varies and, therefore, the gravity of these will not always be the same as the gravity of crimes against humanity or genocide. 154 See, in general, Schabas 2012, pp. 25–46. 155 See, generally, Vesper-Gräske 2016.

264

10 Proposed Legal Framework

and the Halconazo case). However, by enforcing the principle that all humanity is a victim of international crimes, it could enable anyone to initiate a criminal complaint when a notorious atrocity (such as in Ayotzinapa or Tlatlaya) is committed. In any case, state crimes must be prosecuted ex officio and following the principle of notitita criminis. Also relevant to this discussion is the gravity of the punishments under the CJM. As we saw in Chap. 6 of this book, the main legal interest protected by the CJM is “military discipline”. For this reason, an instigator of a crime receives greater punishment than a perpetrator, since an instigator disrupts the military order by convincing others to disobey. However, proportional punishments should be given according to the harm inflicted by the conduct. In this sense, disrupting military discipline is less harmful than perpetrating an international crime. Therefore, at least related to core international crimes, the CJM should adopt the protected legal interest principle, combined with the harm principle in order to pursue proportional penalties.156 By dismissing military discipline, the legal interest protected by ICL will not be overridden by it.

10.10 Transitional Justice The proposed measures described above would be part of what is called a transitional justice process, since they provide “(...) recognition for victims, promote civic trust, and contribute to the strengthening of the rule of democratic law.”157 With regard to transitional justice, the adoption of ICL principles in domestic law, the non-application of statutory limitations as well as retroactive application of the law will allow cases to be resolved from the contemporary history of Mexico that have anchored in the collective memory of Mexicans. The promise of a democratic transition in 2000, consisting of the prosecution and judgment of those responsible of the crimes committed during the so-called “dirty war”, was not accomplished, leaving Mexican society clearly unsatisfied.158 The change of regime led to various measures that promised to clarify abuses of the past. However, as discussed in previous chapters, these measures were rhetorical measures only.159 The continuous abuse of power has been clearly reflected in paradigmatic events such as the Tlatelolco massacre (1968), the Halconazo massacre (1971), the Aguas Blancas massacre (1995), Acteal (1997) and Charco160 (1998) massacres. Added to these events are the countless civilian casualties as a result of the war against drug trafficking. Some scholars, 156 On the transfer to international criminal law of the “Rechtsgut” (protected legal interest) principle

and the harm principle, see Ambos 2015, pp. 301–329. Greiff 2012, p. 405. 158 See, in general, Trevino 2012. 159 In this respect, see HRW 2006. 160 “El Charco” is a village inhabited by the na’saavi indigenous community, located in the municipality of Ayutla, Guerrero, and where allegedly, on 7 June 1998, 11 civilians, including a minor of 13 years, were executed at the hands of the Mexican Army. The official version of the Army is that 157 De

10.10 Transitional Justice

265

prima facie, estimate that both the war against drug trafficking and the chapters of extreme violence are not war crimes161 nor crimes against humanity and considered remote that the ICC exercise jurisdiction for crimes committed in Mexican territory.162 From the survey and analysis elaborated upon in this work, it can be concluded that this diagnosis is precipitated, since the Mexican legal order does not even have the appropriate legal framework to evidence the subsumption of such acts in their respective criminal categories. That is why it is urgent to provide the prosecutorial authority with the respective legal tools so that it is able to clarify the unknowns around the events of extreme violence. This, in turn, will allow the victims of these crimes to enjoy a right to the truth. Investigation and prosecution of these crimes will also contribute to a real political transition.163 It is possible that the civil organizations that defend victims might exert enough pressure when it comes to preventing impunity. Combatting impunity also involves changes in customs and behaviors in the military, police, judicial and legislative branches. It is also clear from the analysis in this work that ratifying a treaty is not enough, just as a constitutional reform in human rights was not enough, since it has transferred responsibility for compliance to the judiciary. As the doctrine in international law and the VCT establishes, responsibility in matters of public international law rests within the entire state, so ratification of an international instrument implies obligations for the executive also. Complying with mandates from international law is actual (performative) and not post facto; the legislative must comply with the contents of treaties by issuing laws that do not contradict their object and purpose; and the judiciary should consider in its judgments the contents of international instruments. On the other hand, an advantage provided by transitional justice and the clarification of the facts is that it can lead to the dismantling of structures that allow and/or facilitate the commission of crimes, thereby fulfilling the preventive function of law enforcement vis-à-vis criminality.164 Transitional justice also re-establishes the rule of law. It restores the validity of the legal order and strengthens the awareness of the content of its rules. The virtue of public hearings, central to the transitional justice process, is that they help in a pedagogical manner to create a new order and raise awareness of unlawfulness.165 In this sense, state criminality should also be perceived in terms of the tolerance or inability to prevent human rights violations from happening. If committed with a systematic or widespread character, they would the 11 people died because of a clash between the Army and members of the Revolutionary Army of the Insurgent People (ERPI). 161 Dondé 2014, pp. 151–158. 162 “(...) En fin de cuentas, la modificación al artículo 21, que condiciona la colaboración de nuestro país con la Corte Penal Internacional a las aprobaciones del Ejecutivo y del Senado, casuísticamente, lo que ha hecho es colocar en el camino una piedra que difícilmente aprobará el Tribunal internacional, si llegara el caso – que queremos suponer muy lejano e improbable- de que tuviese ante sí un “caso mexicano” (...)”. See García and Morales 2013, p. 55. 163 For the lack of political will as an obstacle to transitional justice, see Open Society 2016. On international justice and the right to truth, see Schabas 2012, pp. 166–177. 164 See Safferling 2009, p. 149. 165 As for the pedagogical nature of this type of trials, see Douglas 2005.

266

10 Proposed Legal Framework

be then fall under crimes against humanity.166 The prosecution of these crimes can also lead to them being “de-normalized” since they are no longer considered habitual, and this would imply breaking the continuities of violence and impunity, most clearly observed in states such as Guerrero.167 In another vein, prosecution of crimes in the context of transitional justice, according to Nino,168 prevents private revenge. In the specific case of crimes committed during the so-called “dirty war”, the suspension of statutory limitations for the entirety of the PRI government could be invoked, as well as the inapplicability of the military jurisdiction, the latter in order to carry out the investigation and prosecution of crimes against international law in the civil jurisdiction. The RS is not simply a diplomatic instrument, since it establishes a jurisdictional body whose aim is, among other things, to pressure national courts to investigate and prosecute within their jurisdiction.169 Moreover, obligations derived from the RS are not only directed at the individuals (in order to prevent the commission of crimes), but also to state parties. However, if one of the aims of ICL is to prosecute the highest commanders,170 Mexico is evidently evading that imperative. To this point, no high-ranking member of the Mexican government has been prosecuted.171 Of the cases described in this research, there has been no judicial prosecutions, which is also evidence of the contradictions between the executive, legislative and judicial powers of the state. The reconciliation between the victims and those responsible should also contribute to the reconstruction of social trust of the Mexican state and its institutions. In this vein, Bassiouni speaks of the resistance of states to put an end to the ambiguities of international criminal law, especially for political reasons, since they seldom want their highest military or civilian leaders to be punished.172 The CNDH recommendation 26/2001 reported 532 cases of alleged disappearances in the 1970s and early 1980s that, to this date, have not been resolved. As described in Chap. 4, the Radilla case itself has not led to adjudication of criminal responsibility.173

166 See

Open Society 2016.

167 For a contextual account of violence in the state of Guerrero, see Schatz 2011, pp. 143–176; Karl

2014, pp. 87–191. On an actual account on impunity, see Open Society 2015. Impunity in the state of Guerrero has also to led to displaced persons, see Diario Bajo Palabra (2018) Violencia expulsa a 100 habitantes de cinco pueblos de Guerrero. https://bajopalabra.com.mx/violencia-expulsa-a-100-hab itantes-de-cinco-pueblos-de-guerrero. Enfoque Informativo (2018) En 7 meses, violencia desplazó a 530 familias en Chilapa y Zitlala. https://www.enfoqueinformativo.mx/en-7-meses-violencia-des plazo-a-530-familias-en-chilapa-y-zitlala/. (link no longer active). All accessed 22 September 2020. 168 Nino 1996. 169 Jessberger and Geneuss 2012, p. 1087. 170 On the investigation of senior officials as a way of clarifying great injustices of the past, see Muñoz Conde 2013. 171 Also considering that in Mexico only 7 of every 100 crimes are reported, with 4.46% leading to convictions. See Universidad de las Américas-Puebla 2016, p. 13. 172 Bassiouni 1998, p. 495. 173 See Mendez 2012.

10.10 Transitional Justice

267

The war against drug trafficking is another phenomenon in which investigations must be carried out. There are well-known cases that exemplify vastly the crudeness of this policy, including, to mention just some of these cases, the massacre of Villas de Salvárcar in Ciudad de Juárez (2010), the massacre of Allende Coahuila (2011), the San Fernando Massacre (2011), Tlatlaya (2014) and Tanhuato (2015). The Open Society report of 2016, suggests that these were committed by state and non-state actors within the scope of crimes against humanity.174 As far as whether they amount to war crimes, this, too, remains unknown. However, the main thing that must not be lost sight of is that, regardless of the classification of the crimes as war crimes or crimes against humanity, all the cases mentioned above are characterized by the considerable number of victims and by the atrocity of the acts. After all, both IHL and ICL seek the protection of civilians. Thus, beyond the debate on whether or not we are facing an armed conflict, the important thing is to recognize the large-scale onslaught on the rights to life, freedom, physical, psychological and even patrimonial integrity. Violations on such a scale of protected legal interests have to be investigated with the help of tools provided by ICL and IHL. If transitional justice is taken as a tool, it undoubtedly gives us valuable insights into the phenomenon of the continuity of PRI’s political power and its relation to impunity in Mexico. In this sense, the clarification of truth plays a key role, as well as criminal punishment, which then leads to the removal from power of those who bear responsibility for past wrongdoing. The adoption of ICL principles in Mexican legislation can be a decisive step that could initiate a break from the status quo. The design of these measures should, as Greiff suggests, be coherent in terms of criminal justice, in clarifying the facts, and providing reparation to victims and institutional reforms.175 The importance of teaching law in this area should not be overlooked either. When analyzing the cases presented in this work, it seems that the study of law is abstracted from the Mexican reality and not actually applied to meaningful real life scenarios in Mexico’s history. When approaching the historical and political continuity of the PRI, it must be related to the legal order, not only in the field of ICL but also in the field of legal history. Undoubtedly, the events of violence categorized as “post-revolutionary” and those that occurred during the “dirty war” must be studied from the perspective of the legal sciences and not only from the point of view of the social sciences and historical studies. Law students should be aware of what happened in the past and relate it to the current legal order. By doing so, they will be able to know the causes of the state of affairs of the current Mexican reality. At the same time, teaching these cases from a legal point of view will contribute to the process of producing information and knowledge about human rights abuses committed in the past and, at the same time, pave the way to certainty of what happened. 174 Open 175 De

Society 2016, pp. 94–102. Greiff 2012, p. 397.

268

10 Proposed Legal Framework

In conclusion, in the recent history of Mexico, the episodes of violence that should be brought to justice can be categorized as: (a) those that have occurred since 1968; and (b) those that have occurred since the so-called war against drug trafficking. The incorporation of the principles and rules of IHL and ICL into domestic law will give rise to the recognition of rights (e.g. of civilians during a confrontation), not only between individuals, but more importantly to the recognition of the rights of individuals against authorities that abuse power. The implementation and enforcement of these rules would bring to light and publicize who the instigators of serious violations of international law were, reaffirming the rules that have been violated, and would reveal those who have exploited public institutions for their own ends.

References Ambos K (2015) The Overall Function of International Criminal Law: Striking the Right Balance Between the Rechtsgut and the Harm Principles. A Second Contribution Towards a Consistent Theory of ICL. Criminal Law and Philosophy 9 (2): 301–329 Atilano T (2018) El derecho penal económico y el Antropoceno. Aproximaciones y retos. In: Ontiveros M (ed) Anuario Mexicano de Derecho Penal Economico. Editorial Ubijus, Mexico Bassiouni C (1996a) International crimes: jus cogens, and obligatio erga omnes. Law and Contemporary Problems 59: 63–74 Bassiouni C (1996b) States of Emergency and States of Exception: Human Rights Abuses and Impunity under Color of Law. In: Prémont D (ed) Non-derogable rights and states of emergency. Bruylant, Brussels Bassiouni C (1998) International Criminal Law -The Normative Framework of International Humanitarian Law, vol. 8. Martinus Nijhoff Publishers, Leiden Bergal C (2011) The Mexican drug war: the case for a non- international armed conflict classification. Fordham International Law Journal 34: 1042–1088 Carrillo A, Nelson A (2014) Comparative Law Study and Analysis of National Legislation Relating to Crimes Against Humanity and Extraterritorial Jurisdiction. The George Washington International Law Review 46: 481–530 Cassese A (2008) International Criminal Law. Oxford University Press, Oxford Chirino A (2012) La Reforma Penal y los Delitos Competencia de la Corte Penal Internacional. In: Boeglin N et al (eds) La Corte Penal Internacional: una perspectiva latinoamericana. Universidad para la paz de las Naciones Unidas, San José, Costa Rica CNDH (2016) Caso Tanhuato, Recomendación No. 4VG/2016, 18 August 2016. https://www.cndh. org.mx/doctr/2016/CGSRAJ/RECO/a74/02a/CGSRyAJ-20170424-cnn-3-4VG.pdf. Accessed 23 September 2020 Comer CA, Mburu DM (2016) Humanitarian Law at Wits’ End: Does the Violence Arising from the “War on Drugs” in Mexico Meet the International Criminal Court’s Non-International Armed Conflict Threshold? In: Gill T et al (eds) Yearbook of International Humanitarian Law Volume 18, 2015. T.M.C. Asser Press, The Hague Conferencia continental de comisiones nacionales de derecho Internacional humanitario (2013) Informe de la comisión intersecretarial de derecho internacional humanitario de México. https://www.icrcproject.org/app/2013-09-dih-conferencia/video/pdf/02modulo-1/Inf orme%20CIDIH-Mexico%20agosto%202013.pdf. Accessed 19 September 2020 Cossío J (2017) Constitución de los Estados Unidos Mexicanos comentada. Editorial Tirant lo Blanch, Mexico

References

269

De Greiff P (2012) Algunas reflexiones acerca de la justicia transicional. In: La justicia y las atrocidades del pasado. Porrúa, Mexico Dondé J (2011) Problemas y posibles soluciones para la aplicación de la categoría de delitos de lesa humanidad en México. Revista de derechos humanos defensor 7:18–21 Dondé J (2014) ¿Por qué no considero que hay crímenes de guerra en México? In: Guevara J, Dondé J (eds) México y la Corte Penal Internacional. Tirant lo Blanch monografías, Mexico Dondé J (2017) Extradición y debido proceso. Instituto Nacional de Ciencias Penales, Mexico Dondé J, Montoya I (2006) La Constitución y la Corte Penal Internacional. Iter Criminis, pp. 47–66 Douglas L (2005) The memory of judgment: Making law and history in the trials of the Holocaust. Yale University Press, New Haven, Connecticut Duffy H (2000) International Considerations and Constitutional Considerations. In: Kreß C, Lattanzi F (eds) The Rome Statute and domestic legal orders. Nomos Verlagsgesellschaft, Baden-Baden Duffy H (2001) The International Criminal Court and national constitutional compatibility. Duke Journal of Comparative and International Law 11: 5–38 Eser [initial(s)?] et al (2003) Nationale Strafverfolgung völkerrechtlicher Verbrechen, vol. 1. Iuscrim, Freiburg im Breisgau Fassino P (2000) Introduction. In: Kreß C, Lattanzi F (eds) The Rome Statute and domestic legal orders. Nomos Verlagsgesellschaft, Baden-Baden Federación Internacional de Derechos Humanos (2014) Comunicación de acuerdo con el artículo 15 del Estatuto de Roma de la Corte Penal Internacional sobre la presunta comisión de crímenes de lesa humanidad, en México entre 2006 y 2012. https://www.fidh.org/IMG/pdf/informe_mexico_ cpi.pdf. Accessed 20 September 2020 Federación Internacional de Derechos Humanos (2017) Mexico Coahuila: ongoing crimes against humanity. Communication to the International Criminal Court. https://www.fidh.org/IMG/pdf/ angmexico_coahuila_ongoing_crimes_against_humanity_fidh-final_a_revisar-1.pdf. Accessed 20 September 2020 Fierro A (2017) Artículo 108. In: Cossío J (ed) Constitución de los Estados Unidos Mexicanos comentada. Editorial Tirant lo Blanch, Mexico, pp. 1773–1793 Forrest F et al (2006) International Human Rights and Humanitarian Law: Treaties, Cases, and Analysis. Cambridge University Press, Cambridge García E (2013) Globalización y derecho internacional en la primera década del siglo XXI. UNAM, Mexico García S (2004) La Corte Penal Internacional. Instituto Nacional de Ciencias Penales, 2nd edn. Mexico García S, Morales J (2013) La reforma constitucional sobre derechos humanos (2009-2011), 3rd edn. Porrúa, Mexico Hathaway O (2002) Do Human Rights Treaties Make a Difference? The Yale Law Journal 111: 1935-2042 Hiéramente M (2019) Article 88. In: Klamberg M, Nilsson J (eds) Commentary on the Law of the International Criminal Court-The Rome Statute. https://cilrap-lexsitus.org/clicc/88/88. Accessed 23 September 2020 Human Rights Watch (2006) Mexico: Lost in transition. Bold ambitions, limited results for human rights under Fox. https://www.hrw.org/report/2006/05/16/mexico-lost-transition/bold-ambitionslimited-results-human-rights-under-fox. Accessed 23 September 2020 ICC Assembly of States Parties (2014) Intervención de México en el debate general de la 13a sesión de la AEP del Estatuto de Roma de la Corte Penal Internacional. https://asp.icc-cpi.int/iccdocs/ asp_docs/ASP13/GenDeba/ICC-ASP13-GenDeba-Mexico-SPA.PDF. Accessed 19 September 2020 ICJ Advisory Opinion (1951) Reservations to the Convention on the prevention and punishment of the Crime of Genocide. A.W. Sijthoff’s Publishing Company, Leyden ICRC (1996) National democratic front of the Philippines, Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol I of 1977. https://casebook.icrc.org/case-study/phi lippines-application-ihl-national-democratic-front-philippines. Accessed 19 September 2020

270

10 Proposed Legal Framework

ICRC (2008) Elements to render sanctions more effective, Advisor service on international humanitarian law. https://www.icrc.org/en/document/elements-render-sanctions-more-effectivefactsheet. Accessed 19 September 2020 ICRC (2015) Violencia y uso de la Fuerza. https://www.icrc.org/spa/assets/files/other/violencia-yuso-de-la-fuerza_(web).pdf. Accessed 19 September 2020 Insight Crime (2018) Investigation and analysis of organized crime, Zetas Profile. https://www.ins ightcrime.org/mexico-organized-crime-news/zetas-profile. Accessed 20 September 2020 Instituto de Investigaciones Jurídicas (2016) Evolución de la Constitución Política de los Estados Unidos Mexicanos, por Artículo. https://historico.juridicas.unam.mx/infjur/leg/con stmex. Accessed 19 September 2020 Inter-American Commission on Human Rights (2014) Situation of Human Rights in Mexico, OEA/Ser.L/V/II./Doc.44/15, 2015 Jessberger F, Geneuss J (2012) The many faces of the International Criminal Court. Journal of International Criminal Justice 10:1081-1094 Karl S (2014) Kampf um Rehumanisierung. Die Verschwundenen des Schmutzigen Krieges in Mexiko. Transcript Global Studies, Bielefeld Karsten N (2010) Die strafrechtliche Verantwortlichkeit des nicht-militärischen Vorgesetzten. Duncker & Humblot, Berlin Kleffner J (2008) Complementarity in the Rome Statute and national criminal jurisdictions. Oxford University Press, Oxford Knoops A (2007) The Transposition of Superior Responsibility onto Guerrilla Warfare under the Laws of the International Criminal Tribunals. International Criminal Law Review 7: 505-529 Kortfällt L (2017) Article 28, “The Rome Statute”. In: Klamberg M (ed) The Commentary on the Law of the International Criminal Court. www.casematrixnetwork.org/cmn-knowledge-hub/icccommentary-clicc. Accessed 19 September 2020 Koster A (2012) On the Instrumental Role of Excessive violence in los Zetas’ Emergence as a Drug Cartel. Bachelor Thesis, Utrecht University. https://dspace.library.uu.nl. Accessed 19 September 2020 Kreß C, Prost K (2016) Art. 98. In: Triffterer O, Ambos K (eds) Commentary on the Rome Statute of the International Criminal Court, 3rd edn. C.H. Beck, Munich/Oxford/Baden-Baden Kreβ C, Megret F (2015) The regulation of non-international armed conflicts: Can a privilege of belligerency be envisioned in the law of non-international armed conflicts? International Review of the Red Cross 96: 29–66 Lehnhardt C (2008) Individual Liability of Private Military Personnel under International Criminal Law. European Journal of International Law 19: 1015–1034 Leiden University (2018) The situation of drug related violence in Mexico from 2006-2017: A non-international armed conflict? Leiden IHL Clinic Report Series no. 28, Leiden L¨uder S R (2002) The legal nature of the International Criminal Court and the emergence of supranational elements in international criminal justice. ICRC, Vol. 84, 845: 79–92 Mendez S (2012) La investigación de desapariciones forzadas en México: discordancias con la justicia internacional mostradas frente al caso Rosendo Radilla. https://hastaencontrarlos.org/ spip.php?article666. Accessed 22 September 2020 Muñoz Conde F (2013) Die mittelbare Täterschaft kraft organisatorischer Machtapparate als Instrumente der juristischen Aufarbeitung der Vergangenheit. In: Zoller M et al (eds) Festschrift für Jürgen Wolter zum 70. Geburtstag am 7. September 2013. Duncker & Humblot, Berlin Muro A (2015) Control de Convencionalidad La Suprema Corte y los costos de su decisión sobre el Arraigo. El juego de la Suprema Corte. https://eljuegodelacorte.nexos.com.mx/?tag=controlde-convencionalidad. Accessed 19 September 2020 Nehrlich V (2007) Superior Responsibility under Article 28 ICC Statute. For what exactly is the superior held responsible? Journal of International Criminal Justice 5: 665–682 Nill A (2013) Mexico´s Drug “War”: drawing a line between rhetoric and reality. The Yale Journal of International Law 38: 467-509 Nino C (1996) Radical Evil on Trial. Yale University Press, New Haven

References

271

OAS-Grupo Interdisciplinario de Expertos Independientes (2016) Informe Ayotzinapa II. Avances y nuevas conclusiones sobre la investigación, búsqueda y atención a las víctimas. https://www. oas.org/es/cidh/actividades/giei/GIEI-InformeAyotzinapa2.pdf. Accessed 20 September 2020 Open Society Foundations (2016) Atrocidades innegables. https://www.opensocietyfoundations. org/sites/default/files/undeniable-atrocities-esp-20160602.pdf. Accessed 20 September 2020 Open Society Justice Initiative Report (2015) Broken justice in Mexico’s Guerrero state. https:// www.opensocietyfoundations.org/sites/default/files/broken-justice-mexicos-guerrero-state-eng20150826.pdf. Accessed 22 September 2020 Pariona A (2011) El posicionamiento de la teoría de la autoría mediata por organización en la jurisprudencia peruana. Análisis de la fundamentación dogmática de la Sentencia de la Corte Suprema contra Alberto Fujimori. Revista Oficial del Poder Judicial: Año 4-5, No. 6 y 7, pp. 291– 302 Pedretti R (2013) Immunity of heads of State and State Officials for international crimes. Brill Nijhoff, Leiden Pereira R (2020) After the ICC Office of the Prosecutor’s 2016 Policy Paper on Case Selection and Prioritisation: Towards an International Crime of Ecocide? Crim Law Forum 31: 179–224 Perez Nieto L (1995) El artículo 133 constitucional: una relectura. Jurídica- Anuario del departamento de la Universidad Iberoamericana 25: 265–292 Perez C, Silva C, Gutiérrez R (2019) Use of lethal force by Mexican security forces 2007-2015. In: Anaya A, Frey B (eds) Mexico’s human rights crisis. University of Pennsylvania, Philadelphia Philippe X (2006) The principles of universal jurisdiction and complementarity: how do the two principles intermesh? International Review of the Red Cross, Vol. 88, 862: 375–398 Renaut C (2008) The impact of military disciplinary sanctions on compliance with international humanitarian law. International Review of the Red Cross, Vol. 90, 870: 319–326 Roxin C (2019) Täterschaft und Tatherrschaft, 10th edn. De Gruyter, Berlin Safferling C (2009) Lernen von Nürnberg-die Relevanz des Nürnberger Hauptkriegsverbrecherprozess für das moderne Völkerstrafrecht. Zeitschrift des Max Plancks Instituts für europäische Rechtsgeschichte 14: 148–167 Salazar M (2014) The work of Mexico´s Interministerial Committee on International Humanitarian Law. International Review of the Red Cross 96: 1049-1059 Sandoz Y et al (eds) (1987) Commentary on the additional protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949. ICRC, Geneva Sassoli M, Lubell N (2018) Do the Laws of Armed Conflict Apply to Drug-Related Violence? https://www.hr-dp.org/contents/206. Accessed 19 September 2020 Schabas W (2012) Unimaginable atrocities. Justice, politics and rights at the war crimes tribunals. Oxford University Press, Oxford Schatz S (2011) Murder and politics in Mexico: political killings in the Partido de la Revolución Democrática and its consequences. Springer, New York Secretaría de Relaciones Exteriores (2016) Acciones y Programas: Comisión Intersecretarial de Derecho Internacional Humanitario. https://perma.cc/EGA8-NLZ3 Semanario Judicial de la Federación y su Gaceta (2008) Privación ilegal de la libertad, cuando el sujeto activo pertenezca o haya formado parte del ejército, no se actualiza la calificativa de que haya sido integrante de alguna corporación de seguridad pública. No registro: 169648, Tomo XXVII, Tesis: I.2o.P.160 P, p. 1115 Sivakumaran S (2012) The Law of non-international armed conflict. Oxford University Press, Oxford SRE–Prensa (2016) Mensaje de la Canciller Claudia Ruiz Massieu en la inauguración: “México Global Intereses y Principios de Política Exterior”. https://www.gob.mx/sre/prensa/mensaje-dela-canciller-claudia-ruiz-massieu-en-la-inauguracion-mexico-global-intereses-y-principios-depolitica-exterior. Accessed 20 September 2020 Stratford Worldview (2012) Mexico Security Memo: Narcomantas and Body Dumps. https://wor ldview.stratfor.com/article/mexico-security-memo-narcomantas-and-body-dumps. Accessed 19 September 2020

272

10 Proposed Legal Framework

Trevino J (2012) Policing the Past: Transitional Justice and the Special Prosecutor’s Office in Mexico, 2000-2006. The London School of Economics and Political Science, Doctor of Philosophy Thesis, London Triffterer O (2000) Implication of ratification and implementation process. In: Kreß C, Lattanzi F (eds) The Rome Statute and domestic legal orders. Nomos Verlagsgesellschaft, Baden-Baden Triffterer O (2008) Preliminary Remarks: The permanent ICC-Ideal and reality. In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court, C.H. Beck, Munich/Oxford/ Baden-Baden UN Council of Human Rights (2014) Informe del Relator Especial sobre las ejecuciones extrajudiciales, sumarias o arbitrarias, Christof Heyns, misión a México, A/HRC/26/36/Add.1. UN Council of Human Rights (2016) Report of the Special Rapporteur on extrajudicial, summary, or arbitrary executions in follow-up to his mission to Mexico CNDH, A/HRC/32/39/Add.2. UN General Assembly, Human Rights Council (2013) Informe del Grupo de Trabajo sobre el Examen Periódico Universal, Consejo de Derechos Humanos, A/HRC/25/7 UN General Assembly, Human Rights Council (2014) Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment by Juan E. Méndez, A/HRC/28/68/Add.3 UN Human Rights Committee (2001) CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, CCPR/C/21/Rev.1/Add.11. https://www.refworld.org/docid/453 883fd1f.html. Accessed 19 September 2020 UN Human Rights Council (2017) Informe de seguimiento del Relator Especial sobre la tortura y otros tratos o penas crueles, inhumanos o degradantes -México, A/HRC/34/54/Add.4 UN International Law Commission (2015) First report on crimes against humanity by Sean D. Murphy, Special Rapporteur, A/CN.4/680 https://www.un.org/ga/search/view_doc.asp?symbol= A/CN.4/680&Lang=E. Accessed 19 September 2020 UN International Law Commission (2019) Draft articles on Prevention and Punishment of Crimes Against Humanity, with commentaries, A/74/10. https://legal.un.org/ilc/texts/instruments/eng lish/commentaries/7_7_2019.pdf. Accessed 19 September 2020 Universidad de las Américas-Puebla (2016) Índice global de impunidad en México-2016. https:// imco.org.mx/indice-global-de-impunidad-de-mexico-2016-via-udlap/. Accessed 22 September 2020 Vesper-Gräske M (2016) Zur Hierarchie der Völkerrechstverbrechen nach dem Statut des Internationalen Strafgerichtshofs. Nomos, Baden-Baden Villarreal A (2017) Los crímenes de genocidio, lesa humanidad y de guerra. Notas para su incorporación en la legislación mexicana. Anuario Mexicano de Derecho Internacional 17: 187-218 Weigend T (2009) §2, §4 VStGB. In: Lagodny O (ed) Münchener Kommentar zum Strafgesetzgesetzbuch-Band 6/2: Nebenstrafrecht III, Völkerstrafrecht. Beck, Munich Weigend T (2011) Perpetration through an Organization: The Unexpected Career of a German Legal Concept. Journal of International Criminal Justice 9: 91–111 Werle G (2000) Die Zukunft des Völkerstrafrechts. In: Grundmann S et al (eds) Festschrift 200 Jahre Humboldt-Universität. Walter de Gruyter, Berlin, pp. 1219–1240 Werle G, Jessberger F (2014) Principles of International Criminal Law. Oxford University Press, Oxford Wessels J (2012) Strafrecht allgemeiner Teil, 42nd edn. Müller Verlag, Heidelberg

Chapter 11

Conclusions

Contents 11.1 Preliminary Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 General Features of the Mexican State and Its Relation to International Law . . . . . . . . . 11.3 Incorporation of International Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Application of International Criminal Law Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5 Suggested Legal Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.6 Future Research . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.7 Final Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

273 273 275 277 278 280 281 283

11.1 Preliminary Considerations This work has posed as its key question the adequate incorporation of international criminal law in the Mexican legal order. The findings can be divided in three categories: (1) general features of the Mexican state and its relation to international law; (2) implementation and application of international criminal law principles and (3) suggested legal measures towards an adequate incorporation.

11.2 General Features of the Mexican State and Its Relation to International Law The organization of the Mexican legal order is based on the Constitution of 1917, which can be considered as an “extended version” of the 1857 Constitution. The legacy of the Mexican Revolution can be traced in the following constitutional articles: 3 (education), 123 (syndicalism) and 27 (ejido). These articles contain basic rights such as: free education, workers’ rights and collective property. © t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6_11

273

274

11 Conclusions

The Constitution divides the State in 31 federal states and Mexico City. The federal states and Mexico City have competencies that are not solely reserved to the Federation. Legislative powers are not exclusive of the Federation and that is why there are 32 criminal codes and one federal criminal code. Mexico can be defined as a presidential regime and the competencies regarding international law are given by Article 89 CPEUM. Article 133 CPEUM gives the footing to international treaties and establishes the major sources of law, which are: Constitution, laws and international treaties. From the 2007 SCJN jurisprudence resulted that international treaties have a rank below the constitution. A constitutional amendment to Article 1 CPEUM in 2011 granted human rights treaties the same footing as the constitution. The said amendment also obliges the Mexican state to prevent, investigate, prosecute and punish human rights violations. According to Article 133 CPEUM, Mexico is a monist state, since international treaties, which are signed by the executive and approved by the Senate, constitute “the supreme law of the union”. International treaties do not need a special incorporation act in order to be part of the national legal system. Important to note is that Article 133 CPEUM does not refer to general principles of international law or international customary law, which is also a good reason why international criminal law should be fully implemented. From my analysis of the Mexican state and its legal order resulted three features that could potentially hinder the prosecution of international crimes: (1) Article 21 (8) CPEUM; (2) the expansive character of military jurisdiction; (3) crimes against humanity and the majority of war crimes do not constitute offenses under Mexican law. Along with these obstacles, the PRI regime and the failed transition should be considered. As we recall, the amendment of 2005 incorporated paragraph 8 into Article 21 CPEUM, conditioning the ICC’s jurisdiction on a case by case basis. The legislative had in mind that through this condition, constitutional rights would be protected. After the analysis made, such an amendment results redundant as the constitution already foresees three procedures that control the constitutionality of international treaties. These being: • According to Article 15 CPEUM the President of the Republic cannot enter into treaties that infringe human rights. • The unconstitutionality of a treaty can be contested by 33% of the Senate before the SCJN within 30 days of publishing the treaty (Article 105 II). • Article 103 CPEUM in connection with Article 107 I a. of the Amparo law grants citizens the right to file an amparo if the treaty violates their rights. Regarding Article 21 (8) CPEUM, the question was posed whether it constitutes a reservation under the Vienna Convention on Treaties and if indeed it is an obstacle to the ICC’s jurisdiction. The analysis made in Chap. 3 reveals that according to Articles 19–23 VCT, Article 21 (8) CPEUM is not a reservation. However, if the Mexican authority decides to trigger Article 21 (8) CPEUM and does not accept the jurisdiction of the ICC, effects at the domestic legal order and

11.2 General Features of the Mexican State and Its Relation to International Law

275

in terms of the RS would follow. At the domestic level not accepting the ICC’s jurisdiction can result in the following infringements: • Violation of Article 133 CPEUM as the Rome Statute has entered into force domestically from the date it was published in the official gazette • Violation of Article 1 CPEUM, as it obliges the Mexican authorities to investigate and prosecute human rights violations In terms of criminal prosecution, Article 21 (8) CPEUM would only be applicable to the crime of genocide, as this is the only crime incorporated in the Mexican criminal code and, therefore, the only crime for which the Mexican authorities are competent. At the international level, the lack of cooperation would trigger Article 87 (7) RS, which provides for findings of non-compliance. In case a state cannot comply with a request made by the ICC due to a fundamental legal principle, Article 93 (3) RS provides that the state party should consult the Court to solve the matter. In case the request for assistance is denied, the requested state party should inform of the denial provided by Article 93 (6) RS. Additionally, Article 119 (1) RS provides that any dispute concerning the judicial functions of the Court shall be settled by decision of the Court. In conclusion, if Article 21 (8) CPEUM is applied; the Mexican state would fail in its duty to cooperate with the Court. The Court would have to be notified about the obstacles to implement a request for cooperation and in any way remediate the causes of non cooperation. Regarding military jurisdiction, it could potentially pose an obstacle to the ICC’s jurisdiction since the state practice reveals that military authorities only recognize Mexican tribunals. Additionally, since all crimes committed by members of the military are subject to criminal jurisdiction, a clash between competencies could occur. If the Mexican state denies a request of assistance due to military jurisdiction, it would have to promptly inform the ICC, which would assess the validity of the denial according to Article 93 (6) RS. Even though there is no consensus on whether military tribunals are partial per se, I suggest that given the civil-military pact described in Chap. 2 and the subordinated relation between the executive and the military, it is advisable that all core international crimes are excluded from military jurisdiction.

11.3 Incorporation of International Crimes The crime of genocide was incorporated in the Federal Criminal Code in 1967 and anchored in article 149bis. The definition under Mexican law differs slightly from the definition set forth in the Genocide Convention. For example, article 149bis CPF punishes government officials and excludes private individuals. Additionally, the prohibition of genocide is not anchored as “non-derogable” in Article 29 CPEUM (state of emergency).

276

11 Conclusions

As for crimes against humanity, Mexican criminal law fails to criminalize all acts contained in “crimes against humanity” (such as apartheid). The individually criminalized acts also fail to capture the “widespread” and “systematic” character, and, lastly, the punishments of the individual acts do not reflect the gravity of the offense. Regarding the name of title three of the Federal Criminal Code, Crimes Against Humanity, I also found that this designation was a notion drafted by the legislator in 1967 with the purpose of incorporating the crime of genocide in the penal code. The legislators who wrote the draft considered that the crime of genocide was a crime committed against all of humanity. Therefore, the title “crimes against humanity” is just a category in which genocide is classified and not a crime in itself. Thus, it would be inaccurate to suggest that the Mexican state has adopted legislative measures to incorporate “crimes against humanity”. In terms of the right to public information, the Supreme Court considered that it was valid to directly invoke the RS when declassifying information related to “crimes against humanity”; however, in terms of national criminal law, it is not criminally prosecutable as such, due to the nullum crimen sine lege principle. Probably one of the most interesting findings of this work concerns the legacy of the Mexican Criminal Code of 1871. Legislators in charge of drafting the criminal code of 1871, responded to the efforts to codify the usages of the laws of war and criminalized attacks on prisoners of war, the wounded and hospital inmates, these acts were punished under the definition: “crimes against the duties of humanity”. The “avant garde” character of this provision is given by punishing attacks on the “duties of humanity” as a crime of their own. The legacy of nineteenth century codification is also reflected in the provisions regarding superior orders. The “Martinez de Castro Code of 1871” considered that excluding criminal responsibility of the subordinates for following superior orders would equal considering the subordinate as an automaton.1 Regarding superior orders, it is telling that a nineteenth century code already banned the application of the respondeat superior principle as a defense, especially since it was widely applied by states in the mid-19th century. After surveying the acts punished under the Code of Military Justice, I concluded that under Mexican criminal law: (a) crimes against persons are punished in Arts. 213, 214 and 215 with punishments from 5 to 60 years imprisonment; (b) crimes against property and other rights are punished in Arts. 209, 325, 363 with punishments from 11 to 60 years imprisonment; (c) employing prohibited methods of warfare and the usage of prohibited means of warfare are punished in Arts. 208 and 334 with punishments from 7 to 60 years imprisonment. I identified that punishments to those who promote criminal acts reach as high as 60 years imprisonment. The rationale behind these punishments is that the CJM protects military discipline as a main legal interest. Therefore, if a member of the military disrupts discipline, as is the case in inciting a crime, he would receive higher punishment as a perpetrator. I found a clear example of this rationale in the crime of insubordination (Article 305), which is punished with 60 years imprisonment. I also found that, before the reform of 2005,

1 See

Chap. 6, Sect. 6.3 of this book.

11.3 Incorporation of International Crimes

277

these offenses were punished with the death penalty. As a result of this reform, the death penalty was replaced with 60 years’ imprisonment. Regarding the crime of rebellion, Articles 218–227 CJM, grant “combatant immunity”.2 According to Article 222 CJM, rebels that engage in combat will not be subject to prosecution for acts committed during combat, such as murder, injuries and destruction of property. It could be said that, under Mexican law, rebels have the right to combat but not to rebel as rebellion is punished by Article 218. The CJM, also indirectly protects the civilian population under Article 222 CJM, since the attacks outside of combat would be punished under criminal law. Article 222 CJM also creates a category between a “common criminal” and combatant, which is also in line with interpretations of common article 3 GC, arguing that members of insurgent forces should not be treated as common criminals. In this sense the Code of Military Justice, complies with the doctrine of recognition of belligerency.3 Thus, it can be concluded that the provisions on “superior orders”, “crimes against the duties of humanity” and “combatant immunity” are not the result of incorporating IHL, but rather a product of Mexico’s own legislative history. It is also a reflection of the preference of the Mexican legislator to codify over applying customary law. Regarding the Hague Convention, the Geneva Conventions and their protocols, Mexico has signed all major instruments except for AP II of the GCs and the "Convention on the Prohibition of the Use of Environmental Modification Techniques for Military Purposes or Other Hostile Purposes". From the wording of Arts. 47, 50, 51 and 130 of the Geneva Conventions derives the obligation of state parties to enact effective penal sanctions for persons committing grave breaches. As a result, legislative measures should be taken in order to comply IHL obligations contracted by the Mexican state.

11.4 Application of International Criminal Law Principles To examine how Mexican authorities have applied ICL principles, the Halconazo, Radilla and Cavallo Cases were reviewed. From the first case addressed, Halconazo, it is clear that the arguments and reasoning of the SCJN were inconsistent and that they at no time invoked ICL principles, international customary law or resolutions of the ICTY or ICTR. Additionally, the SCJN considered the Convention on Statutory limitations was not applicable for the alleged genocide, since it inferred sacrificing individual rights (those of the accused) in favor of collective rights (the victims’ rights). The Rosendo Radilla judgment issued by the IACtHR is testimony to impunity of officials during the so-called “dirty war”, since it left victims without justice. It also gives an account of how the Mexican judiciary has failed to apply customary international law. The Rosendo Radilla case proved to be relevant for ICL, as it is 2 See 3 See

Chap. 6. Crawford 2010, pp. 69–73.

278

11 Conclusions

an example in which international human rights law and international criminal law intertwine, and where the role of international human rights courts in promoting the prosecution of international crimes is evidenced. It is also a clear example in which state responsibility should develop into criminal responsibility; however, to this day this has not been accomplished as no successful convictions have resulted in this case.4 However, the Rosendo Radilla case also proves the limited reach of international human rights courts,5 as the Mexican state has not been sufficiently compelled to efficiently investigate and prosecute the crime against Mr. Rosendo Radilla and other crimes committed in the context of the “dirty war”. Of relevance to the ICC’s jurisdiction, the deliberation on the implementation of the IACtHR judgment before the SCJN, brought insights into what were the Justices considerations towards international tribunals. The Justices reasoned that the CPEUM foresees explicitly jurisdiction for two courts: the SCJN and the ICC. However, according to their interpretation just one tribunal is the highest, namely the SCJN. Unfortunately, in these considerations the Justices left aside the obligation to cooperate fully with the ICC in its investigation and prosecution of crimes (Article 86 RS). Finally, when contrasting the Cavallo case with the Halconazo case, it was evident how, in the former, the SCJN argued that the crime of genocide affected all humanity (as a collectivity). However, in the Halconazo case, this argument was rejected. Concerning the application of IHL in Mexico, Chap. 8 described the role of the ICRC during the armed conflict in Chiapas. The question of whether the armed conflict in Chiapas falls under the category of internal armed conflict remains unresolved. The Chiapas conflict is also a good example of state denial of the recognition of an internal armed conflict, the participation of non-state actors in the application of IHL, and the recognition of an armed conflict by a third party, in this case the ICRC. Additionally, the massacre that took place in Acteal in 1997 remains, to this day, unpunished. The case is of relevance for ICL since it could be framed as war crimes or crimes against humanity. The way the Mexican state has reacted to this conflict delivers strong arguments for the full incorporation of the provisions of the RS and IHL; otherwise civilians will remain unprotected against the violence that derives from an armed conflict.

11.5 Suggested Legal Measures This study suggests the following reforms at the constitutional level: • Reform or repeal of Article 21, paragraph 8. 4 See

La Jornada San Luis (2018) Aún en trámite, 244 casos encargados a la Femospp. https:// lajornadasanluis.com.mx/nacional/aun-en-tramite-244-casos-encargados-a-la-femospp/. Accessed 26 September 2020. 5 In favor of the IACtHR as an adequate response against the cycle of violence, see Wirken and Bosdriesz 2017, p. 254.

11.5 Suggested Legal Measures

279

• Reform of Article 13: replacement of the word “war jurisdiction” (fuero de guerra) with military jurisdiction and definition of faults, and crimes of the military order. • Repeal of Article 37, fr. V: this fraction refers to the loss of Mexican nationality when assistance is rendered to an international tribunal. • Reform of Article 29: this article refers to the declaration of a “state of emergency”, the prohibition of genocide should be added as “non-derogable” when a state of emergency is declared. • Reform to Article 76, fr. I: a provision could be added to this article that establishes a constitutional review ex-ante the Senate’s ratification of a treaty. • Reform to Article 89, fr. VI: the provision should clarify which cases and under what specific conditions and temporality the head of the executive can deploy the totality of the armed forces. • Reform to Art 108, fr. VI: it is suggested to replace the term “ordinary crimes” with “federal crimes”. That would allow the president to be charged for crimes against international law during the time of his administration. The criminal trial against the president should be carried out by a court and not by the Chambers of Congress. At the level of the Federal Criminal Code, it is suggested to create a framework that can also assign responsibility to the superior as perpetrator under the conditions developed in Chap. 10. Crimes against humanity must also be punished in a way that take into account the Mexican context, such as the excess of cruelty displayed by drug cartels, as well as the excessive use of force by police and military personnel. Adopting crimes against humanity in the Mexican penal code would allow for effectiveness and coherency regarding the application of the Laws of Transparency and Information. Likewise, it should be clarified in the elements of the crime, that a complaint can be filed by any person, since these crimes harm human dignity. In view of the national reality, it would also be advisable to include the crime of extrajudicial execution. It should also be defined by law what an internal armed conflict is. The historical cases and the war against drugs give ample reasons for its specific configuration. Any conduct prohibited by Common Article 3 GCs should be penalized, which would lead to the partial fulfillment of the Mexican state’s obligation to repress war crimes. Concerning war crimes as a whole, it should be stipulated that they are not military offenses even though they are committed by the military. Continuing with military matters, it is recommended to reform Articles 35, 36 and 100 CJM.6 With regard to the various laws that are linked to ICL, reforms are recommended in the following laws: (a) Article 4: Law of Victims (b) Article 24: General Law to Prevent and Punish Torture (c) Article 3, para V: National Security Law (d) Article 3: Law of the Official Gazette of the Federation

6 See

Chap. 10.

280

11 Conclusions

(e) Elaborate a new draft of the “Law in International Cooperation”, specifying that the channel of communication between the ICC and the Mexican state will be the jurisdictional body. Finally, it is recommended that the penalties be proportional to the harmed legal interest, taking into account that, under Mexican law, the crime sanctioned with the highest penalty is kidnapping, with 50–90 years’ imprisonment. In contrast, genocide is punished with only 20–40 years of imprisonment. Additionally, punishing as perpetrators those who instigate a crime with 60 years’ imprisonment (Arts. 208, 209, 363 CJM), should be replaced with adequate sanctions. Thus the approach of regarding “military discipline” as the main legal interest to be protected should be abandoned. The incorporation of ICL rules will lead to explicit provisions that would oblige all authorities of the three branches of government, executive, legislative, and judiciary. Likewise, the recipients of these rules would not only be public servants, but also private individuals, who are then also accountable for crimes under international law. Fighting impunity through domestic prosecution should be at least pursued through legislative measures before triggering international mechanisms, such as international commissions.7 The findings of this work evidence that there is a lot to be done in terms of incorporating ICL in domestic law. In my view, prosecution of offenses as ordinary crimes is not an option, as they do not represent the interests protected by core international crimes. Additionally, as a deterrent, by having incorporated, for example, crimes against humanity, high officials might be aware that the systematic and generalized commission of crimes is severely punished under international law. Finally, I can conclude that the failure of Mexico to enact legislation on IHL and ICL might have contributed to the spiral of violence and impunity.8 Following all these considerations, I recommend modified incorporation by taking into account the state’s conceptions and interpretations of ICL. The amendment of existing laws and selective adaptation of specific provisions as stated in Chap. 10 should be adopted.

11.6 Future Research Future lines of investigation should focus on the events of violence in the postrevolutionary period, following 1968 and the “war against drugs”. The research should be based on a legal analysis of these events, in which the legal provisions, the facts and judicial processes are considered. It is also a matter for review to determine 7 In

this regard, the Open Society Organization has suggested the implementation of international mechanisms such as the International Commission Against Impunity in Guatemala. See Open Society Foundation 2018, pp. 51–56. 8 For example, the use of torture by security and military officers; see UN General Assembly 2017, paras 21–46.

11.6 Future Research

281

if the Acteal Massacre amounts to a violation of Common Article 3 of the Geneva Conventions, as well as to study the legal and social impacts of the acknowledgments of innocence granted to those who were originally accused of these crimes. Equally, it would be of interest to research the origins of the crime, “crimes against the duties of humanity”, included in the Code of 1871. Research of the sources and influences of the wording of these crimes would aim to determine if it is an original creation of the Mexican legislator or if it is an adaptation of another legal order. In this line of research, the “superior responsibility” and “superior orders” model could be added, as well as “combatant immunity”, which were all adopted in the Penal Code of 1871.9 This is not only of interest for Mexican law but also for the history of ICL and IHL. It is also necessary to examine whether the law has been instrumentalized for political motives during the so-called “dirty war” and the “war on drugs”. As for the “war on drugs”, it remains to be resolved whether crimes against humanity or war crimes apply. The classification of the drug cartels as a private organization under Article 7 RS, or as belligerents under IHL should also be further explored. Likewise, it is very important to explore the implications for the right to information set out in Chap. 9. The conclusions in that chapter show the existence of a gap between domestic criminal law and information access law. This gap consists of the reference to “crimes against humanity” in information access law and, at the same time, the lack of implementation of the crime in the Mexican Criminal Code. As a result, the same unlawful acts can be regarded as crimes against humanity for purposes of the right to information and as ordinary crimes under criminal law. The reader will appreciate that throughout the work, the crime of aggression is not mentioned. This is due to the fact that, until the writing of this work, Mexico had not ratified the Kampala amendments.10 Likewise, from the reading of the present work, the reader may note that in the case of Mexico, it is a matter of priority and contingency to concentrate at first on the full acceptance of the jurisdiction of the International Criminal Court, and on the criminalization of crimes against humanity and war crimes. Undoubtedly, the subject of the Kampala amendments is also a future line of research for the Mexican case.

11.7 Final Thoughts Unlike other countries in Latin America, Mexico has not had a military dictatorship, but instead a political continuity of a post-revolutionary party (1928) interrupted by a brief period of 12 years between 2000 and 2012, with the PRI party elected again and being in office until 2018. Additionally, the presidential character of the Mexican political system gives the executive extensive powers in shaping public

9 See

Chap. 9. amendment to Article 8 of the Rome Statute of the International Criminal Court, 38 Parties, opened for signature (10 June 2010), UN Treaty collection, entered into force (26 September 2012). 10 See

282

11 Conclusions

policy. Therefore, to avoid the “shielding”11 of perpetrators, all legal measures should be implemented, bearing in mind political and historical considerations. The victims in the Halconazo case alleged the shielding of perpetrators by the political system. However, for the Supreme Court, it was unfounded (notwithstanding the continuity of the PRI regime). It would be beyond the scope of this work to find out if the delay of procedures in the cases as well as their lack of prosecution could be interpreted as avoiding criminal responsibility or as the willingness of the state to shield its own policies and their effects. Nevertheless, these possibilities were considered in my proposals towards effective incorporation. Regarding injustices occurred in the past, efforts should be made to undertake criminal proceedings in order to rebuild trust in the rule of law. The legal measures suggested in Chap. 10 would provide for a legal framework to do so. However repetitive it may be, when approaching ratification or implementation of treaty law in the Mexican legal order, it must be under the lens of the political moment. Was it under the PRI rule? The PAN rule? The new transition moment after 2018? These contextual conditions cannot be underestimated when analyzing a national legal order, as these shape the way international criminal law has been implemented and so far incorporated. Mexican legal scholars should also be more aware of the political implications, otherwise what Treviño calls “cultural denial” will continue to be prevalent in the legal studies.12 Therefore, a central hypothesis of this work is that the historical and political developments have played a role in the absence of an adequate incorporation of ICL. Almost 20 years after the entry into force of the Rome Statute, it is undeniable that the domestic implementation of crimes under the jurisdiction of the ICC is the main engine for the prevention and punishment of crimes, since it is impossible for the ICC to solve all cases. Thus, the main role within the international criminal justice system is that of domestic legal orders, since international justice depends primarily on the jurisdiction of states. It has also been proven, how complicated and costly it can be to investigate crimes in different countries with very specific characteristics and with different socio-political contexts. Added to this are the multi-linguistic challenges which have led to complex legal terms being translated into languages rarely used in legal forums, as has been the case in the various languages of Africa.13 The problems outlined in this work are certainly not solved with criminalization; it will also be necessary to put in place all the institutional, ethical and even ideological changes necessary to combat these crimes. Hence, the usefulness of the principle of complementarity and subsidiarity emerges, since in any given case in which investigation and prosecution by the state with primary jurisdiction might seem unlikely, the ICC can fulfill its role as a complementary court and, ultimately, third party states through universal jurisdiction. We should also not overlook the pressure factor that could lead to the initiation of investigations at the ICC or by third states. One need only imagine the media impact which, for example, the initiation of a preliminary investigation 11 See

Kleffner 2008, pp. 134–139. Treviño-Rangel 2012, pp. 322–326. 13 See Leigh 2015, p. 578 et seq. 12 See

11.7 Final Thoughts

283

for crimes against humanity committed in Mexico would have, invoking §1 of the German Code of Crimes against International Law. It is possible that in both the academic and political spheres, triggering the ICC’s jurisdiction or applying domestically provisions of the RS was perceived unlikely at the time of drafting the statute.14 During the research for this book, it was possible to verify that within Mexican legal scholarship, studies have concentrated on the work of the ICC or the principle of complementarity, but not on the problem of the lack of domestic criminalization, the implications of the constitutional clause analyzed in this work or the failure of transitional justice efforts.15 Likewise, it can also be concluded that the more ambiguous the internal normative content related to norms of international law is, the more difficult it is for states to fulfill their obligations in this area. Due to all the above, it is of the utmost importance that Mexico fully comply with its international obligations, taking into account all questions of historical, political, social and normative relevance. Considering all these aspects may seem implausible; however, this study shows that this is a viable way for full compliance with international treaties and principles.

References Crawford E (2010) The treatment to combatant and insurgents under the law of armed conflict. Oxford University Press, Oxford Duffy H, Huston J (2000) Implementation of the ICC Statute: International obligations and constitutional considerations. In: Kress C, Lattanzi F (eds) The Rome Statute and domestic legal orders, Vol. I. Nomos Verlag, Baden-Baden Kleffner J (2008) Complementarity in the Rome Statute and National Criminal Jurisdictions. Oxford University Press, Oxford Leigh S (2015) African languages in international criminal justice: the international criminal tribunal for Rwanda and beyond. In: Jalloh C, Marong A (eds) Promoting accountability under international law for gross human rights violations in Africa: Essays in honor of prosecutor Hassan Bubacar Jallow. Brill Nijhoff, Leiden Open Society Foundation (2018) Corruption that kills: Why Mexico Needs an international mechanism to combat impunity. Open Society Foundation, New York Treviño-Rangel J (2012) Policing the Past: Transitional Justice and the Special Prosecutor’s Office in Mexico, 2000-2006. Doctoral Thesis, London School of Economics and Political Science UN General Assembly (2017) Informe de seguimiento del Relator Especial sobre la tortura y otros tratos o penas crueles, inhumanos o degradantes México. Nota de la Secretaría, A/HRC/34/54/Add.4. https://www.hchr.org.mx/images/doc_pub/InformeSeguimientoRel atorONUTortura2017.pdf. Accessed 26 September 2020 Wirken S, Bosdriesz H (2017) Privatisation and increasing complexity of mass violence in Mexico and Central America: exploring appropriate international responses. In: Van der Wilt H, Paulussen C (eds) Legal Responses to Transnational and International Crimes. Edward Elgar Publishing, pp. 245-271

14 See 15 In

Duffy and Huston 2000, pp. 41–42. Duffy calls this factor the probability ratio. this regard, much more interest has been shown in the political sciences.

List of International Treaties

Charter of the International Military Tribunal, Nuremberg (Nuremberg Statute) (London, 8 August 1945)

D. Schindler and J. Toman, The Laws of Armed Conflicts, Martinus Nijhoff, 1988, pp. 912–919

American Convention on Human Rights: “Pacto de San José” (San José, 22 November 1969)

Ibid., vol. 1144, no. 17955, p. 123

Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 10 December 1984)

Ibid., vol. 1465, no. 24841, p. 85

Vienna Convention on the Law of Treaties (Vienna, 23 May 1969)

United Nations, Treaty Series, vol. 1155, no. 18232, p. 331

Inter-American Convention to Prevent and Punish Torture (Cartagena de Indias, 9 December 1985)

Organización de los Estados Americanos, Treaty Series, no. 67

Inter-American Convention on the Forced Disappearance of Persons (Belém Do Pará, 9 June 1994)

Organización de los Estados Americanos, Treaty Series, no. 60

International Convention for the Protection of All Persons from Enforced Disappearances (New York, 20 December 2006)

United Nations, Treaty Series, vol. 2716, p. 3; Doc.A/61/448

Convention on the Prevention and Punishment of the Crime of Genocide (Paris, 9 December 1948)

United Nations, Treaty Series, vol. 78, num. 1021, p. 277

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (New York, 26 November 1968)

United Nations, Treaty Series, vol. 754, no. 10823, p. 73

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva, 12 August 1949)

United Nations, Treaty Series, no. 970, p. 31 et seq (continued)

© t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6

285

286

List of International Treaties

(continued) Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva, 12 August 1949)

United Nations, Treaty Series, no. 971, p. 85 et seq

Convention (III) relative to the Treatment of Prisoners of War (Geneva, 12 August 1949)

United Nations, Treaty Series, no. 972, p. 135 et seq

Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949)

United Nations, Treaty Series, no. 973, p. 287 et seq

European Convention on Human Rights (Rome, 4 November 1950)

United Nations, Treaty Series, no. 2889, vol. 213, p. 221

Rome Statute of the International Criminal Court (Rome, 17 July 1998)

United Nations, Treaty Series, no. 38544, vol. 2187, p. 3

International Covenant on Civil and Political Rights (New York, 16 December 1966)

United Nations, Treaty Series, no. 14668, vol. 999, p. 171

Protocol Additional to the Geneva Conventions United Nations, Treaty Series, no. 17513, vol. of 12 August 1949, and relating to the 1125, p. 609 Protection of Victims of International Armed Conflicts (Protocol I) (Geneva, 8 June 1977) Protocol Additional to the Geneva Conventions United Nations, Treaty Series, no. 17512, vol. of 12 August 1949, and relating to the 1125, p. 3 Protection of Victims of Non-International Armed Conflicts (Protocol II) (Geneva, 8 June 1977)

Appendix A

List of Documents and Sources

(1)

Extracto del Código Penal de 1871 Martínez de Castro: (Excerpt from the 1871 Criminal Code “Martínez de Castro”) • Título Décimoquinto—Delitos contra el Derecho de Gentes • (Title 15—Crimes against the law of nations) • Capítulo IV, Article 1139—Violación de los deberes de humanidad en prisioneros, rehenes, heridos u hospitales. • (Chapter IV, Article 1139—Violations to the duties of humanity against prisoners, hostages, the wounded and hospitals) • Responsabilidad por cumplimiento de una orden—Article 34 fr. XV • (Criminal responsibility for executing an order—Article 46 XV)

(2)

Extracto del Código Militar, expedido el 11 de junio de 1894 • Article 735—Responsabilidad del superior jerárquico • (Excerpt from the Military Code from 1894 • Article 735—Superior responsibility)

(3)

Extracto del Código Penal de 1931, DOF: 14 de agosto de 1931 (Excerpt from the Criminal Code from 1931, DOF, 14 August 1931) • Título Tercero—Delitos contra el Derecho Internacional • (Title Three—Crimes against international law) • Capítulo II, Article 149—Violaciones de los derechos de humanidad en prisioneros, rehenes, heridos u hospitales. • (Chapter II, Article 149—Violations to the duties of humanity against prisoners, hostages, the wounded and hospitals)

(4)

Decreto declarando que los Estados Unidos Mexicanos se encuentran en estado de guerra con Alemania, Italia y Japón, DOF: 2 de junio de 1942 (Presidential decree declaring war against Germany, Italy and Japan. DOF, 2 June 1942)

(5)

Decreto que aprueba la suspensión de las garantías individuales consignadas en varios artículos constitucionales, DOF: 2 de junio de 1942 (Presidential decree approving suspension of constitutional guarantees. DOF, 2 June 1942)

(6)

Decreto que dispone que el Ejecutivo de la Unión haga al Secretario General de las Naciones Unidas la declaración que indica, reconociendo la jurisdicción de la Corte Internacional de Justicia en las controversias que señala, 23 de octubre de 1947 (Decree that recognizes the jurisdiction of the International Court of Justice. DOF, 23 October 1947) (continued)

© t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6

287

288

Appendix A: List of Documents and Sources

(continued) (7)

Decreto por el que se aprueba el Convenio para la Prevención y la Sanción del delito de Genocidio, 25 de junio de 1952 (Decree that approves the Convention for the prevention and punishment of the crime of genocide. DOF, 25 June 1952)

(8)

Decreto que adiciona el Código Penal para el Distrito y Territorios Federales en materia del fuero común y para toda la República en materia del fuero federal con un Título Cuarto de su Libro Segundo, 20 de enero de 1967: (Decree that amends Title Four of the Criminal Code for the Federal District and Federal States. DOF, 20 January 1967): • Título Cuarto—Delitos contra la humanidad • (Title Four—Crimes against humanity) • Capítulo I, Article 149—Violación de los deberes de humanidad • (Chapter I, Article 149—Violation to the duties of humanity) • Capítulo II, Article 149 bis—Genocidio • (Chapter II, Article 149 bis—Genocide)

(9)

Decreto que reforma al el Código Penal para el Distrito y Territorios Federales en materia del fuero común y para toda la República en materia del fuero federal, DOF: 29 de julio de 1970 (Decree that amends arts. 123-145 of the Criminal Code for the Federal District and Federal States. DOF, 29 July 1970)

(10) Leyes de Amnistía: DOF: 28 de septiembre de 1978, DOF: 22 de enero de 1994 (Amnesty Laws. DOF, 28 September 1978 and DOF, 22 January 1994) (11) Decreto por el que se aprueba la Convención sobre la Imprescriptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad, adoptada por la Asamblea General de las Naciones Unidas el veintiséis de noviembre de 1968. DOF: 16 de enero del 2002 (Decree approving the Convention on Statutory Limitations for war crimes and crimes against humanity. DOF, 16 January 2002) (12) Decreto por el que se aprueba la Convención Interamericana sobre Desaparición Forzada de Personas, adoptada en la ciudad de Belém, en nueve de junio de 1994. DOF: 18 de enero del 2002 (Decree approving the Inter-American Convention on enforced disappearance. DOF, 18 January 2002) (13) FE de erratas al Decreto por el que se aprueba la Convención sobre la Imprescriptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad, adoptada por la Asamblea General de las Naciones Unidas el veintiséis de noviembre de 1968, publicado el 16 de enero del 2002 DOF: 11 de febrero del 2002 (Erratum of the Decree approving the Convention on Statutory Limitations for war crimes and crimes against humanity. DOF, 11 February 2002) (14) FE de erratas al Decreto por el que se aprueba la la Convención Interamericana sobre Desaparición Forzada de Personas, adoptada en la ciudad de Belém, en nueve de junio de 1994, publicado el 18 de enero del 2002. DOF: 27 de febrero del 2002 (Erratum of the Decree approving the Inter-American Convention on enforced disappearance. DOF, 27 February 2002) (15) Decreto por el que se adiciona el Artículo 21 de la Constitución Política de los Estados Unidos Mexicanos. DOF: 20 de junio del 2005 (Decree adding Article 21 of the Mexican Constitution. DOF, 20 June 2005). (continued)

Appendix A: List of Documents and Sources

289

(continued) (16) Decreto por el que se aprueba el Estatuto de Roma de la Corte Penal Internacional, adoptado en la ciudad de Roma, el 17 de julio de 1998. DOF: 7 de septiembre del 2005 (Decree approving the Rome Statute of the International Criminal Court. DOF, 7 September 2005)

Appendix B

Legal Documents (Documents and Sources)

© t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6

291

292

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

293

294

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

295

296

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

297

298

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

299

300

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

301

302

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

303

304

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

305

306

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

307

308

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

309

310

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

311

312

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

313

314

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

315

316

Appendix B: Legal Documents (Documents and Sources)

Appendix B: Legal Documents (Documents and Sources)

317

DOF: 16/01/2002

DECRETO por el que se aprueba la Convención sobre la Imprescriptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad, adoptada por la Asamblea General de las Naciones Unidas el veintiséis de noviembre de mil novecientos sesenta y ocho. Al margen un sello con el Escudo Nacional, que dice: Estados Unidos Mexicanos.- Presidencia de la República. VICENTE FOX QUESADA, Presidente de los Estados Unidos Mexicanos, a sus habitantes sabed: Que la Cámara de Senadores del Honorable Congreso de la Unión, se ha servido dirigirme el siguiente DECRETO LA CAMARA DE SENADORES DEL HONORABLE CONGRESO DE LA UNION, EN EJERCICIO DE LA FACULTAD QUE LE CONCEDE EL ARTICULO 76 FRACCION I DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS, DECRETA:

ARTICULO UNICO.- Se aprueba la CONVENCION SOBRE LA IMPRESCRIPTIBILIDAD DE LOS CRIMENES DE GUERRA Y DE LOS CRIMENES DE LESA HUMANIDAD, adoptada por la Asamblea General de las Naciones Unidas el veintiséis de noviembre de mil novecientos sesenta y ocho. México, D.F., a 10 de diciembre de 2001.- Sen. Diego Fernández de Cevallos Ramos, Presidente.- Sen. Ma. Lucero Saldaña Pérez, Secretaria.- Rúbricas. En cumplimiento de lo dispuesto por la fracción I del Artículo 89 de la Constitución Política de los Estados Unidos Mexicanos, y para su debida publicación y observancia, expido el presente Decreto en la Residencia del Poder Ejecutivo Federal, en la Ciudad de México, Distrito Federal, a los nueve días del mes de enero de dos mil dos.Vicente Fox Quesada.- Rúbrica.- El Secretario de Gobernación, Santiago Creel Miranda.- Rúbrica. (Primera Sección) DIARIO OFICIAL Miércoles 16 de enero de 2002 Miércoles 16 de enero de 2002 DIARIO OFICIAL (Primera Sección)

DOF: 18/01/2002

DECRETO por el que se aprueba la Convención Interamericana sobre Desaparición Forzada de Personas, adoptada en la ciudad de Belém, Brasil, el nueve de junio de mil novecientos noventa y cuatro. Al margen un sello con el Escudo Nacional, que dice: Estados Unidos Mexicanos.- Presidencia de la República. VICENTE FOX QUESADA, Presidente de los Estados Unidos Mexicanos, a sus habitantes sabed: Que la Cámara de Senadores del Honorable Congreso de la Unión, se ha servido dirigirme el siguiente DECRETO LA CAMARA DE SENADORES DEL HONORABLE CONGRESO DE LA UNION, EN EJERCICIO DE LA FACULTAD QUE LE CONCEDE EL ARTICULO 76 FRACCION I DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS, DECRETA:

ARTICULO UNICO.- Se aprueba la CONVENCION INTERAMERICANA SOBRE DESAPARICION FORZADA DE PERSONAS, adoptada en la ciudad de Belém, Brasil, el nueve de junio de mil novecientos noventa y cuatro, con la siguiente: RESERVA El Gobierno de los Estados Unidos Mexicanos al ratificar la Convención Interamericana sobre Desaparición Forzada de Personas, adoptada en la ciudad de Belém, Brasil, el 9 de junio de 1994, formula reserva expresa al Artículo IX, toda vez que la Constitución Política reconoce el fuero de guerra, cuando el militar haya cometido algún ilícito encontrándose en servicio. El fuero de guerra no constituye jurisdicción especial en el sentido de la Convención, toda vez que conforme al artículo 14 de la Constitución mexicana nadie podrá ser privado de la vida, de la libertad o de sus propiedades, posesiones o derechos, sino mediante juicio seguido ante los tribunales previamente establecidos, en el que se cumplan las formalidades esenciales del procedimiento y conforme a las leyes expedidas con anterioridad al hecho. México, D.F., a 10 de diciembre de 2001.- Sen. Diego Fernández de Cevallos Ramos, Presidente.- Sen. Ma. Lucero Saldaña Pérez, Secretaria.- Rúbricas. En cumplimiento de lo dispuesto por la fracción I del Artículo 89 de la Constitución Política de los Estados Unidos Mexicanos y para su debida publicación y observancia, expido el presente Decreto en la Residencia del Poder Ejecutivo Federal, en la Ciudad de México, Distrito Federal, a los nueve días del mes de enero de dos mil dos.Vicente Fox Quesada.- Rúbrica.- El Secretario de Gobernación, Santiago Creel Miranda.- Rúbrica. (Primera Sección) DIARIO OFICIAL Viernes 18 de enero de 2002 Viernes 18 de enero de 2002 DIARIO OFICIAL (Primera Sección)

318

Appendix B: Legal Documents (Documents and Sources)

DOF: 11/02/2002

PODER EJECUTIVO SECRETARIA DE RELACIONES EXTERIORES FE de erratas al Decreto por el que se aprueba la Convención sobre la Imprescriptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad, adoptada por la Asamblea General de las Naciones Unidas el veintiséis de noviembre de mil novecientos sesenta y ocho, publicado el 16 de enero de 2002. En la Primera Sección, en la página 4, donde dice: LA CAMARA DE SENADORES DEL HONORABLE CONGRESO DE LA UNION, EN EJERCICIO DE LA FACULTAD QUE LE CONCEDE EL ARTICULO 76 FRACCION I DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS, DECRETA:

ARTICULO UNICO.- Se aprueba la CONVENCION SOBRE LA IMPRESCRIPTIBILIDAD DE LOS CRIMENES DE GUERRA Y DE LOS CRIMENES DE LESA HUMANIDAD, adoptada por la Asamblea General de las Naciones Unidas el veintiséis de noviembre de mil novecientos sesenta y ocho. Debe decir: LA CAMARA DE SENADORES DEL HONORABLE CONGRESO DE LA UNION, EN EJERCICIO DE LA FACULTAD QUE LE CONCEDE EL ARTICULO 76 FRACCION I DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS, DECRETA:

ARTICULO UNICO.- Se aprueba la CONVENCION SOBRE LA IMPRESCRIPTIBILIDAD DE LOS CRIMENES DE GUERRA Y DE LOS CRIMENES DE LESA HUMANIDAD, adoptada por la Asamblea General de las Naciones Unidas el veintiséis de noviembre de mil novecientos sesenta y ocho, con la siguiente: DECLARACION INTERPRETATIVA Con fundamento en el artículo 14 de la Constitución Política de los Estados Unidos Mexicanos, el Gobierno de México, al ratificar la Convención sobre la Imprescriptibilidad de los Crímenes de Guerra y de los Crímenes de Lesa Humanidad, adoptada por la Asamblea General de las Naciones Unidas el 26 de noviembre de 1968, entenderá que únicamente considerará imprescriptibles los crímenes que consagra la Convención, cometidos con posterioridad a su entrada en vigor para México. DIARIO OFICIAL Lunes 11 de febrero de 2002 Lunes 11 de febrero de 2002 DIARIO OFICIAL

Appendix B: Legal Documents (Documents and Sources)

319

DOF: 27/02/2002

FE de erratas al Decreto por el que se aprueba la Convención Interamericana sobre Desaparición Forzada de Personas, adoptada en la ciudad de Belém, Brasil, el nueve de junio de mil novecientos noventa y cuatro, publicado el 18 de enero de 2002. En la Primera Sección, en la página 4, donde dice: LA CAMARA DE SENADORES DEL HONORABLE CONGRESO DE LA UNION, EN EJERCICIO DE LA FACULTAD QUE LE CONCEDE EL ARTICULO 76 FRACCION I DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS, DECRETA:

ARTICULO UNICO.- Se aprueba la CONVENCION INTERAMERICANA SOBRE DESAPARICION FORZADA DE PERSONAS, adoptada en la ciudad de Belém, Brasil, el nueve de junio de mil novecientos noventa y cuatro, con la siguiente: RESERVA El Gobierno de los Estados Unidos Mexicanos al ratificar la Convención Interamericana sobre Desaparición Forzada de Personas, adoptada en la ciudad de Belém, Brasil, el 9 de junio de 1994, formula reserva expresa al Artículo IX, toda vez que la Constitución Política reconoce el fuero de guerra, cuando el militar haya cometido algún ilícito encontrándose en servicio. El fuero de guerra no constituye jurisdicción especial en el sentido de la Convención, toda vez que conforme al artículo 14 de la Constitución mexicana nadie podrá ser privado de la vida, de la libertad o de sus propiedades, posesiones o derechos, sino mediante juicio seguido ante los tribunales previamente establecidos, en el que se cumplan las formalidades esenciales del procedimiento y conforme a las leyes expedidas con anterioridad al hecho. Debe decir: LA CAMARA DE SENADORES DEL HONORABLE CONGRESO DE LA UNION, EN EJERCICIO DE LA FACULTAD QUE LE CONCEDE EL ARTICULO 76 FRACCION I DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS, DECRETA:

ARTICULO UNICO.- Se aprueba la CONVENCION INTERAMERICANA SOBRE DESAPARICION FORZADA DE PERSONAS, adoptada en la ciudad de Belém, Brasil, el nueve de junio de mil novecientos noventa y cuatro, con la siguiente: RESERVA El Gobierno de los Estados Unidos Mexicanos al ratificar la Convención Interamericana sobre Desaparición Forzada de Personas, adoptada en la ciudad de Belém, Brasil, el 9 de junio de 1994, formula reserva expresa al Artículo IX, toda vez que la Constitución Política reconoce el fuero de guerra, cuando el militar haya cometido algún ilícito encontrándose en servicio. El fuero de guerra no constituye jurisdicción especial en el sentido de la Convención, toda vez que conforme al artículo 14 de la Constitución mexicana nadie podrá ser privado de la vida, de la libertad o de sus propiedades, posesiones o derechos, sino mediante juicio seguido ante los tribunales previamente establecidos, en el que se cumplan las formalidades esenciales del procedimiento y conforme a las leyes expedidas con anterioridad al hecho. DECLARACION INTERPRETATIVA Con fundamento en el artículo 14 de la Constitución Política de los Estados Unidos Mexicanos, el Gobierno de México, al ratificar la Convención Interamericana sobre Desaparición Forzada de Personas, adoptada en la ciudad de Belém, Brasil, el 9 de junio de 1994, se entenderá que las disposiciones de dicha Convención se aplicarán a los hechos que constituyan desaparición forzada de personas, se ordenen, ejecuten o cometan con posterioridad a la entrada en vigor de la presente Convención . (Primera Sección) DIARIO OFICIAL Miércoles 27 de febrero de 2002 Miércoles 27 de febrero de 2002 DIARIO OFICIAL (Primera Sección)

320

Appendix B: Legal Documents (Documents and Sources) 2

(Primera Secci

DIARIO OFICIAL

Lunes 20 de junio de 2005

PODER EJECUTIVO SECRETARIA DE GOBERNACION Al margen un sello con el Escudo Nacional, que dice: Estados Unidos Mexicanos.- Presidencia . VICENTE FOX QUESADA, Presidente de los Estados Unidos Mexicanos, a sus habitantes sabed:

DECRETO "

N, EN USO DE LA FACULTAD QUE LE

DE LAS LEGISLATURAS DE LOS ESTADOS, D E C R E T A :

DE LOS ESTADOS UNIDOS MEXICANOS -

para quedar como sigue:

... ... ...

Corte Penal Internacional. ... ... TRANSITORIO CO.-

Diario Oficial . - Sen. , Secretaria.-

del Poder Ejecutivo Federal, en l

ricas."

, Presidente.- Dip.

Appendix B: Legal Documents (Documents and Sources) Lunes 20 de junio de 2005 dos mil cinco.- Vicente Fox Quesada.Carranza

321

DIARIO OFICIAL -

3 ,

322

Appendix B: Legal Documents (Documents and Sources)

DOF: 07/09/2005

DECRETO por el que se aprueba el Estatuto de Roma de la Corte Penal Internacional, adoptado en la ciudad de Roma, el diecisiete de julio de mil novecientos noventa y ocho.

VICENTE FOX QUESADA, Presidente de los Estados Unidos Mexicanos, a sus habitantes sabed: DECRETO LA CAMARA DE SENADORES DEL HONORABLE CONGRESO DE LA UNION, EN EJERCICIO DE LA FACULTAD QUE LE CONFIERE EL ARTICULO 76 FRACCION I DE LA CONSTITUCION POLITICA DE LOS ESTADOS UNIDOS MEXICANOS, D E C R E T A:

Se aprueba el Estatuto de Roma de la Corte Penal Internacional, adoptado en la Ciudad de Roma, el diecisiete de julio de mil novecientos noventa y ocho. ESTATUTO DE ROMA DE LA CORTE PENAL INTERNACIONAL

Conscientes Teniendo presente Reconociendo humanidad, Afirmando

Decididos Recordando internacionales, Reafirmando

Destacando Estado, Decididos

internacional en su conjunto, Destacando jurisdicciones penales nacionales, Decididos Han convenido en lo siguiente: PARTE I. DEL ESTABLECIMIENTO DE LA CORTE

La Corte

Index

A Acteal Massacre, 205, 211–215, 281 Acting under orders, 247 Acuerdos de San Andres Larrainzar, 210 Aguas Blancas, 180, 181, 183, 184, 264 Amnesty, 16, 24, 141, 163, 205, 207, 208, 288 Amnesty law, 24, 163, 205, 207, 208 Amparo, 35, 38–41, 54, 57, 74, 84, 128, 156, 194, 198, 219–223, 233, 256, 262, 274 Ayotzinapa, 42, 85, 156, 192, 256, 264

C Classification of information, 96, 97, 156, 217, 218, 221 Combatant immunity, 103, 137–140, 208, 212, 277, 281 Complementarity principle, 2, 28, 32, 67, 83, 85 Constitutional reform, 3, 13, 20, 22–24, 51, 59, 62, 75, 80, 152, 159, 177, 178, 180, 192, 230, 239, 265 Constitutional supremacy, 53, 55–59, 63– 66, 128, 179 Covert reservation, 87, 232 Crimes against the duties of humanity, 5, 124, 276, 277, 281 Cristero War, 35, 118, 125 Customary international law, 4, 10, 33, 61, 62, 66, 67, 143, 153, 186, 192, 195, 198, 199, 211–213, 228, 230, 231, 262, 277 © t.m.c. asser press and the author 2021 T. I. Atilano, International Criminal Law in Mexico, https://doi.org/10.1007/978-94-6265-455-6

D Dirty war, 4, 5, 12, 14, 116–118, 154, 155, 157, 160, 176, 183, 187, 188, 191, 192, 198, 217, 218, 222, 229, 249, 262, 264, 266, 267, 277, 278, 281 Displaced persons, 210, 266 Due process, 82, 136, 137, 153, 159, 162, 173, 176, 189, 213, 214, 236, 238 E El Charco, 211, 264 Extradition, 5, 6, 51, 87, 154, 158, 186, 193–199, 253, 261 Extrajudicial execution, 42, 153, 167, 222, 257, 261, 279 EZLN, 117, 205–212 F Forced disappearance, 15, 25, 37, 38, 41, 52, 96, 117, 127, 153–155, 174, 178, 185–189, 191, 192, 197, 199, 219, 222, 223, 234, 248, 262, 285 G Guerrilla, 4, 12, 107, 154, 187, 188, 192, 251 H Halconazo, 5, 12, 152–163, 165, 166, 168– 185, 191, 192, 196, 198, 264, 277, 278, 282 Hierarchy of laws, 50, 57 Human rights violations, 2, 3, 12, 14, 67, 118, 129, 130, 156, 158, 183, 188, 192, 239, 265, 274, 275 323

324 I ICRC, 5, 33, 41, 43, 104, 105, 111, 117, 121, 138, 139, 205, 206, 209, 210, 212, 213, 215, 251, 278 Impeachment, 181, 236 International cooperation, 33, 197, 231, 232, 234, 235, 239, 256, 280 International customary law, 49, 65, 66, 123, 126, 131, 143, 151, 167, 179, 192, 197, 198, 274, 277 Investigative powers, 27, 81, 180, 181, 184

L Law on Extradition, 198 Legality principle, 52, 74, 97, 121, 160, 169, 218, 234, 238, 251

M Martínez de Castro Code, 141, 146, 240 Mauerschützfälle, 152 Maximato, 40 Mexican Revolution, 10, 34, 55, 118, 273 Military jurisdiction, 4, 12, 19, 33–45, 84, 125, 127–130, 137, 185, 186, 189, 196, 198, 233, 234, 238, 253, 254, 266, 274, 275, 279 Modified incorporation, 229, 280 Monism, 74

N NAFTA, 13, 14, 53, 54, 56, 76, 179 Narco cartels, 250 National security, 3, 15, 118, 257, 279 Non-international armed conflict, 2, 12, 42, 103–105, 109, 112–114, 138–140, 206, 209, 212, 242, 248, 249, 286 Non-retroactivity principle, 163, 166 Non-state actors, 15, 205, 206, 215, 267, 278 Nullum crimen sine lege, 160, 161, 164, 194, 223, 239, 261, 276

P Partido Revolucionario Institutional, 3 Political trial, 236 Presidential immunity, 236 Principle of non-intervention, 75, 76, 78, 84

Index Principle of non-retroactivity, 162–164, 166, 167, 172, 178, 186, 195, 262 Protected legal interest, 35, 38, 90, 92, 118, 124, 131, 196, 199, 238, 263, 264, 267

R Radilla, 5, 12, 19, 39, 42, 74, 82, 117, 127– 130, 151, 152, 154, 175, 186–192, 196, 197, 219, 223, 233, 266, 277, 278 Rank of international treaties, 50, 51 Rebellion, 137–140, 208, 212, 277 Reforma movement, 232 Reservations, 16, 19, 22–24, 30, 37, 38, 76, 87, 96, 160, 179, 185, 186, 189–191, 232, 262, 274 Right to disobey, the, 248 Right to freedom of information, 217–219 Right to truth, 43, 156, 160, 171, 173, 177, 180, 183, 184, 218, 258, 265

S San Fernando Massacre, 221, 267 Sedition, 137, 207 State crime, 156, 161, 162, 198, 264 Statutory limitations, 5, 6, 37, 65, 152, 153, 158–160, 163, 164, 166–172, 175, 177–179, 191, 192, 194, 195, 198, 218, 222, 223, 249, 261, 262, 264, 266, 277, 285, 288 Superior orders, 103, 141–143, 146, 147, 247, 248, 276, 277, 281 Supreme Law of the Union, 274

T Tlatelolco, 12, 35, 155–157, 159, 160, 170, 172, 191, 194, 198, 264 Tlatlaya, 97, 118, 264, 267 Transitional justice, 6, 20, 151, 184, 185, 188, 192, 228–230, 241, 264–267, 283

U Universal jurisdiction, 5, 81, 164, 193, 195, 199, 259–261, 282