MEXICO AND THE ROME STATUTE*
Sergio GARCÍA RAMÍREZ**Original Text (Spanish) PDF
SUMMARY
I. The Options. II. A Jurisdictional Precedent. III. The Debate. IV. Alternatives for Constitutional Reform. V. Outline of Reforms to Article 21 of the Constitution. VI. Conclusions.
I. THE OPTIONS
The entry into force of the Statute of the International Criminal Court, adopted in Rome on July 17, 1998 is imminent. It has the number of ratifications necessary to do so.1 Under this instrument, international criminal jurisdiction —and even more so international criminal law— will be formalized. Its creation has faced multiple changes in the course of the various stations fulfilled along this long path.2 It was necessary for four years to pass, from 1998 to 2002, in order to attain the concurrent consent of sixty States, a considerably lower number than the 139 who signed originally the statute. This jurisdiction supposes —or it embodies— the existence of a criminal order of an international scope that fulfills certain fundamental conditions in the inevitable relation with national criminal laws.3 Therefore, the option chosen is to confront delinquency and to suppress impunity throughout the international organization, and not only that of extended national jurisdiction.4
Thus, the internal debate grows —which until now has not been truly intense—5 on the possibility and expediency of Mexico, a subscriber of the instrument —at the last minute, after understandable reservations—6, to ratify it and therefore form part of the agreement —that is, to participate in the international system of criminal justice—, intervene with full rights in the Assembly of member States,7 and assume the obligations and responsibilities, as well as the corresponding powers, that such a jurisdictions brings about.
From my point of view, Mexico must enter the International Criminal Court system. There are many arguments supporting my claim. In this article, I will make reference to some of them, but at this point I would like to allude to one that should be examined with objectivity and detail by those who have the historical obligation of adopting the final decision in this matter —though it is not necessarily irrevocable and the last one—.8 It is necessary to consider, as in the case of the afore-mentioned article, the options that we have in sight and on hand. On the one hand, we have the option to continue with the state of things as has prevailed; on the other, the existence and operation of the international court.
Let us look into the first option. It is obvious that in the international order too, as in local order, crime will be "the shadow that accompanies the body". I am afraid that serious crimes of an international scope or magnitude will continue to be committed and that it will be necessary to react to them. The history of recent years —and even of recent days— illustrates the persistence of crime. Until now we have had two modes for said response. On one hand, there is the possibility —that perhaps will continue to do so— of the strongest one making use of his power and extending his arm in reprisal, based on either good or bad motives, on all borders. We would have a hegemonic judging power endowed with the faculty to effectively adopt unilateral decisions in this area and which would apply its version of national or international law. It would unfold a justice system on its own and would arrive at the punitive consequences it considers pertinent.9
The remaining alternative, within the same option that I now examine, lies in the creation of special legal organs for judging certain delinquents or groups of delinquents, for certain crimes perpetrated in particular circumstances or periods. Such was the formula employed in the forties and in the nineties, with variations of greater or lesser significance. Thus it was used after the Second World War,10 through the courts of Nuremberg and Tokyo. The creation of such courts took into account the enormous dissatisfaction attempts of providing justice against crimes at the end of the First World War.11 It has later been done like this in the cases of the former Yugoslavia and Rwanda: each of these courts has its corresponding statute and has been given powers —ratione temporis, personae and materiae jurisdiction—.
If the Nuremberg and Tokyo courts were created by orders of the winning forces, those of the former Yugoslavia and Rwanda were created by resolution of the United Nations Security Council, the powerful body of fifteen members on which weighs, with irresistible influence, the veto of the permanent members.12 This body, which is in charge of safeguarding international peace and safety, has established the founding of those two courts within the attributions conferred to them by Chapter VII of the Charter of the United Nations. Nevertheless, this argument has not been received unanimously or peacefully.13 Various States —including Mexico— have expressed not only their views opposed to the traits of the legal bodies constituted in such a manner but also the possibility that they are created according to an individual interpretation of the charter.
The mere statement of the mentioned alternatives under what I have been called the first option —and of course the worst of all is left: the simple resort to armed force— holds the need to rely on the second option to overcome the serious shortcomings of the first one. This is the purpose held by the forceful school of thought that supports setting up a permanent, truly international court working under ex ante —and not under ex post— criteria in order to resolve over committed crimes. It should neither be an ad hoc court for winners, nor a court integrated by "a club of countries" or by a single one. The International Criminal Court moves towards this, as set forth in the Rome Statute and created in according to the procedure deemed preferable after analyzing diverse practical possibilities.14 Providing for both the existence and management of such a court, there would be at least one body of a jurisdictional nature, agreed upon through wide international consensus, acting under the directive of appropriately issued and widely known regulatory, statutory, procedural and executive criminal norms.15
On the horizon two "possible worlds" are foreseeable, though one of them seems to be situated, in fact and by right, on a level nearer to our object and to our hopes. On one hand, a world without an international criminal court, subject to individual decisions, which can be abrupt, inadequate, insufficient, biased, and on the other an International Criminal Court built upon a far ranging, sufficient and reasonable consensus and that establishes the domination of norms in solving controversies of this nature. Soon the second venue will be consolidated, based on the validity of the Rome Statute,16 and Mexico will have to choose between the two options given: the participation in a court system or the prevailing status quo. Remaining silent, persistently or permanently, can be interpreted as a choice already made.
Certainly —and I want to mention it as soon as possible— I do not fall under the illusion that the validity of the Rome Statute and the existence of an International Criminal Court, integrated by elected members, which has a seat of authority and handles certain cases, will completely eliminate the option tied in with unilateral measures. It is probable that the Security Council will no longer use its hypothetical powers of creating special or ad hoc courts. However, it is also probable that some States will not easily give up the power, as recognized by international law, of remaining at the sidelines of the Rome Statute. Nor will they desist from the self-allocated power of setting themselves up as the sole judges of certain international crimes, excepting those —by force— under a different jurisdiction, no matter how international they may be. Let us remember the dismissal the statute received on behalf of certain States at the end of the Rome Conference,17 as well as the tenacious opposition that now directs itself against the court in certain powerful parliaments. In summary, the establishment of the International Criminal Court does not mean, a fortiori, the elimination of other more or less jurisdictional resources —let us say— aimed at confronting delinquency in the world order.
Those opposing the ratification of the Statute have stressed a somber fact: the Court will not go very far if it does not have the full and decisive participation of the United States of America; and even less than that if such a great power expresses —as many U.S. officials have already done— its open opposition to the Court. Nonetheless, it is important to ponder about to participate in the International Criminal Court system in a serious way. It will continue being a practical alternative, at least as a concept, a manifestation of a "starting point": the rule of international justice opposed to the rule of unilateral force, which are both means —with different characteristics from an axiological point of view— to fight against very serious crimes and to prevent impunity.
II. A JURISDICTIONAL PRECEDENT
With respect to the critical moment Mexico is going through and since a solution might take some time to come, I believe it important to bear in mind Mexico’s experience with other international jurisdiction it has lately subscribed to, even though a full enforcement of such a jurisdiction —it is worth saying— is not yet sufficiently assured on an internal scale. I am referring to Inter-American jurisdiction on human rights. However, to discuss this point, it is worth pointing out that Mexico has been a responsible and active member of the international community. It has had noteworthy presence in various forums. It has defended principles and values against assaults from more powerful countries. It has established those principles within its own Constitution,18 and has enforced them —since they are national and State issues— in face of the circumstantial variability that might exacerbate them. In summary, Mexican international policy is a source of pride and defense against unfair claims.
Mexico has accumulated harsh secular experience with respect to the things force can do when it is mobilized against reason. This painful experience, along with the collapse of arbitral methods to solve international conflicts,19 —methods traditionally used in these circumstances, without prejudice to the International Court of Justice— has compelled Mexico to keep a certain distance from international agreements that establish decision-making instruments that go beyond national proceedings. It is necessary to re-examine history to understand this attitude, which is not the result of irrational isolationism, but one of a rational defense of the aforementioned values and principles in the case of Mexico, as well as in other cases that have been discussed worldwide.
However, things have changed. The wave of globalization has reached these shores and Mexico is now part of many treaties of the most diverse kind. In this sense, the country enforces, but does not lose, its sovereignty. Furthermore, Mexico has agreed to apply conflict solving proceedings which are not national ones. Proceedings used to resolve conflicts within the framework of free trade are one example, but there are others that I will mention below. In this scope, there is an "avoidance" of national legal proceedings in favor of other bodies and procedures.20
When, after a long period of planning, the Inter-American Specialized Conference on Human Rights was held on 1969, Mexico had already carefully put together a formal declaration against the existence of a court with jurisdiction over such affairs.21 Such a move was supported by Mexico’s international experience,22 and was evidently not a rejection of the recognition and protection of human rights which is, from my point of view, a Mexican basic political decision, if we adhere to the content and spirit of the Constitution, which in its turn receives copious constitutional tradition.23 The aforementioned rejection was stressed by the general uneasiness derived from the fact of having supranational bodies whose marks and performance were yet to be known in practice and not on paper.
Mexico participated thoroughly in formulating the American Convention on Human Rights. It energetically outlined its concerns, and by the end of the conference, it chose to join to the general school of thought shared by the State parties and to accept the existence of an international court in the understanding that such a court’s jurisdiction on the States should be an optional choice. In other words, there was an optional clause24 establishing a difference between the entry into force of the convention, on one hand, and the performance of the court, on the other.25 The sovereign States were empowered to make a choice.
Mexico did not sign the convention or the San Jose Pact, as such a remarkable document is also known. Several years went by before Mexico signed to it, which is another way to endorse an international document according to international law on treaties: having signed the Convention in 1969, Mexico acceded in 1981. The accession entered into force in 1982. Twelve years went by and many more would go by before the next step was taken. It was not until the end of 1998 —that is seventeen years after its accession— that the Senate finally approved it. Long periods of time before a final approval were also the case in other countries, from some with small populations such as Haiti and the Dominican Republic, to the most populated of all: Brazil.
In summary —and as a result of this long analysis—, it took Mexico thirty years to acknowledge the jurisdiction of an international court of human rights. The country has also delayed other accessions as will be mentioned below. But it finally entered into such an international system. Its entry, fully justified from my point of view, is due to various factors that I will not attempt to analyze this time.26 The same thing will probably happen in the case of the International Criminal Court, by means of adhering to the Rome Statue. I naturally neither expect nor wish for a wait of thirty years long. National and international circumstances are different from those that existed then, and now they help out events which did not before, even when a complex environment —specifically in the field of international relations and the corresponding policies— can place new obstacles along the way towards accepting the court. I believe that Mexico will form part of the Rome Statute sooner or later. It would be in its best interests for it to be sooner, but not by a hurried process and hasty decisions that can undermine the strength of the decision and the approval of the participants. If things need time, time should be granted to them.
III. THE DEBATE
There are two opposite positions on this issue, as well as some opinions midway between such extremes. Party reasons and opposing ones are respectable and can be dealt with. There can be even some other proposals that also insert interesting elements into the general debate.27 The views that some have expressed about national sovereignty and constitutional supremacy, which imply the superiority of the institutions assembled by the Constitution28 deserve special attention. Other arguments should not be disregarded, such as those according to which there must be no haven for mass murderers, torturers or human rights violators; both the loftiest legal interests of humankind must be well protected and a single rule of justice for all men and for all peoples must be enforced and managed by a court that embodies, as I said before, the highest possible consensus in an international group.
The considerations of those who have detected numerous mistakes in the Rome Statute are also worth studying. I count myself among those bona fide observers. It is clear that the criminal system and the international system do not yet have good lines of communication linking their aims and their governing formulas. Because of its twofold source, it has been said that international criminal law has a "split personality"29 or, in other words, that it is to a certain degree "tormented". The statute can hardly be exhibited as a perfect piece of criminal law from a technical point of view —because it is a criminal law instrument and it should be examined and regarded as such— which withstands the most demanding judgment of contemporary criminal law, and is committed to a long and risky evolution of ideas, laws and customs since the 18th century.
Amid regressions and slips, criminal law left behind the age of authoritarianism that used the concept of the State and entered into the era of democratic criminal law, based on a different class of reasons. I am not simply referring to the technical terms that are implied by the development of norms within any field of study,30 but to principles —the dogmas supporting criminal law from a liberal perspective, verbi gratia—. I believe this could be recognized, objectively and with intellectual humility, by ardent supporters of the statute, in order to determine the future position of the State, when the time comes to reform such an instrument.31 Explicit acknowledgment of voids or deviations can contribute, even now, to build-up an opinion according to which necessary changes will be carried out.
On the other hand, there are also other issues that should be acknowledged in this same light. If the Rome Statute is flawed, it is worth asking: could something better have been attained at this stage? On asking and responding such a question —a response with legal and political consequences— we separate the assessment of the analytical instrument neither from its precedents nor from the circumstances that brought it about. Let us recall the widespread flow of the work leading to the recognition of international jurisdiction. The extraordinary amount of obstacles, distrust, discrepant positions, suspicions and suspicions that existed throughout such a process, from both Nuremberg and Tokyo onwards —aside from the efforts that led to frustration and abandonment— should not escape us. The task of writing the principles of international criminal law that the United Nations General Assembly entrusted to the International Law Commission was long, almost an endless one. It was not until Trinidad and Tobago delineated again the international fight against certain crimes —understood as a jurisdictional fight— that the effort leading to the Rome Conference could be set in motion once more.
In Rome —the last station on the way: there were others, very difficult ones, immediately before— a large number of States confronted their corresponding visions for the court —or against the court— and were able to reach certain concurrence founded on innumerable concessions. The results obtained are the product, to a large extent, of a common front established by important figures at the conference: the "Group of Like-Minded States" and numerous non-governmental organizations.32 There are plenty of testimonies about the prolonged, complex and difficult process of developing the statute. The variety of elements at stake, to gather and reconcile could hardly turn out a better result.33 This was well known by the Mexican delegation, which engaged in an arduous battle with solid arguments.34 With such precedents and in face of such immediate circumstances, it would have been extremely difficult, not to say impossible, to arrive at more fortunate formulas.
The previous recount does not absolve the statue. It simply understands what could be done and what could not be done. Maybe it would have been better to open some space to formulate reservations, according to the tradition in this field. However, it is likely that the collection of reserves and their characteristics would have radically altered the system and even have destroyed it.35 Bearing in mind how things are, we have what could be had aiming at the central purpose of instituting a system of international criminal justice. As I suggested above, it will be necessary to wait the seven-year period established to review the statute from there on, begin the complex task of perfecting the system and place it above reproaches —many of which are justified— that are aimed at it today.
I already referred to Mexico’s experience in adopting the American Convention and the admission of the contentious jurisdiction of the empowered court. I will not insist on this, since it leads me away from my real topic. However, it is important to note, as a reference for the concerns presented below, that when the latter has happened —the acknowledgment of an international body’s jurisdiction— Mexico took on or assumed certain decisions —expressly or implicitly— that contribute to set the course and fate of our steps in the case of the International Criminal Court. Indeed, in 1998 —the year of full incorporation into the international human rights protection regime— Mexico placed itself within the best modern school of thought on international law: the one that offers more protection to the human being and which happens to be more consistent with both the text and the spirit of the Charter of the United Nations and the Charter of the Organization of American States. At the same time, Mexico agreed to become a member of the world legal community, in general, and of the Inter-American one, in particular.
In this situation, a clear agreement was reached with respect to the State’s international accountability derived from the illicit behavior of its agents. Such an accountability does not exclude, furthermore, the one which could be derived from the actions of specific individuals. Moreover, individual actions —which set on what has been called the State’s "duty of criminal justice"—,36 is a condition for the existence of State accountability. The important principle of the primary or principal jurisdictional authority of national bodies and the subsidiary, complementary authority of international ones —which do not supplant the former— was also accepted. The possibility of international judicial control —as it exists for solving national legal matters— over the acts of any State agency was also admitted. International commitment —and the ensuing responsibility— gravitates towards the State as a whole, not just towards some of its agencies —such as the Executive Branch— or any of its levels —such as the federal State if there is a regime of that nature—. Finally, the Mexican State’s act, which I now invoke as a reference and suggestion, accepted the rule of redress of the damages caused by said unlawful behavior.37
It is obvious that within the framework of its own laws, the Mexican State acquired all these commitments or obligations through Article 133 of the Constitution, which endows treaties with the quality of supreme law of the nation. However, the country’s need to assume the consequences produced by the recognition of the international level within other norms in the legal system —strictly domestic law— is also evident. An attempt would be made to fulfill the acquired obligations in the light of the American Convention, for example, when the State Party undertakes the duty of protecting the rights and freedoms of individuals under its jurisdiction established in such an instrument and to remove the obstacles that may exist for the enforcement of such rights, providing all measures deemed to be necessary: either legislative in nature or of any other kind in order to give effect to such rights.38
The previous considerations directly lead to note how convenient would be to have several definitions at the highest regulatory level, that is, on constitutional level with respect to affairs as follows: a) the hierarchy of international treaties, as has already been done in some constitutions that even assign a privileged rank to human rights instruments; and b) the effectiveness of jurisdictional rulings by international bodies in the various scopes they may encompass, which naturally implies an immediate enforcement of such rulings understood jurisdictional decisions.39 All this appears again as an essential subject in the proposal to amend Article 21 of the Constitution in 2001, which I will analyze below.
Let us once more return specifically to the topic of international criminal jurisdiction. I will not repeat what it has been said before: precedents and justifications. Both are well known in Mexico, which largely agrees with respect to the justifications. Legitimate and accurate punishment against the most serious crimes which affect humankind’s basic rights have been desired. On deciding on historical and existing jurisdictions —the latter created by the United Nations’ Security Council— Mexico has reasonably insisted, and rightly so, on adopting certain premises of international criminal justice, which were wielded by Mexican representatives during the preliminary work for the Rome Statute. We can summarize these premises as follows:
a) The national jurisdiction, as a "natural judge" —a traditional principle of due process— which does not relinquish its functions and which cannot transfer them shall be privileged;40 b) admitting the international criminal accountability of individual actions, without diminishing any other which can be demanded from the State; c) the crimes brought before international jurisdiction, shall be clearly defined before the respective trial takes place. It must be clear also that such crimes are particularly serious and transcendental; d) the definition of a conclusive proceeding, according to a system based on immunities, to assert such an accountability, in other words, to follow due process of law formalities; e) the creation of a professional, independent and impartial permanent jurisdictional body with worldwide jurisdiction; and f) the aforementioned classification, definitions, and due process formalities must be set down in a treaty built upon an agreement reached by nations and not on the decisions of either a single State or of a single agency of the international community.
Thus, when the Statute of the International Criminal Court was formalized in Rome, Mexico abstained from voting and explained the reasons behind such an abstention.41 This issue has been widely discussed. Constitutional issues were among Mexico’s motives — which, later on, at the time of signing the agreement, encouraged objections from an important sector of public opinion. I have dealt with them in other works.42 However, at this time it is convenient to recall some points in which there is a difference or open discrepancy with constitutional provisions —which for we the Mexicans are at the highest level in the pyramid of norms, statutory law,43 and the stipulations of the Rome Statute.
Within a broad list of possible disagreements some can be found as follows: a) flawed formulation of crimes; b) probable operation of criteria by analogy to consolidate crimes; c) International Court capacity to grasp the seriousness of the crimes and, therefore, the provenance of its own jurisdictional knowledge; d) characteristics of the so-called "elements of crimes", the nature of which is still controversial44 and of those that depend on the solution of some of the most delicate points in the system;45 e) the regulation of punishments, especially those concerning the regulatory scope of the stipulations that prescribe them, their suitability to punishable behaviors —normative before judicial individualization— and imprisonment, in the form of life imprisonment, on which the Supreme Court of Justice has already ruled;46 f) more than one trial for the same acts and against the same person: the exclusion of the ne bis in idem principle (a problem that might be solved or mitigated if a "precautionary review" is created before the highest national jurisdiction for those cases in which international criminal court jurisdiction could be involved); g) the beginning of the procedure by an ex officio decision made by the public prosecutor or previous accusation; h) an extensive use of the principle demanding swift trials to prevail, to the detriment of the rule of lawfulness; i) the traveling around of local authorities while the investigation, prosecution and proceedings take place; j) the violation of the local system of constitutional immunities; k) the confidentiality about the accuser’s identity; l) the modification of the principle of necessary defense; m) the reservation on the elements of proof; n) a special regime on release on bail; o) the delivery of defendants or convicted felons as a common practice; p) the problem of prosecuting crimes beyond legal deadlines; q) the probable custody of the person arrested when the detention exceeds the time established to be served in jail; and r) an optional increase of the resolution’s extension by adding the time served in preventive custody to the total amount of time to be served
Of course, it is necessary to examine all of the previous considerations in a thorough way. It is also necessary to analyze other critical observations formulated under the circumstances of Mexico’s abstention in Rome, which are supported by Mexico’s traditional points of view —and which I share— with respect to the desirable performance of the United Nation’s agencies, the interference of the Security Council for the duration of the processing,47 the fear of the "politicizing" of the court48 and the topic of nuclear weapons.49 Without entering into this analysis, let us state that there is a contradiction between constitutional norms and statutory provisions.
The Constitution is not a fossilized, unyielding law. Mexico’s constitutional history —applauded or attacked— validates precisely the opposite: several hundreds of modifications show the changing nature of the Constitution, not only in the light of the norms that clearly allow to do so, but also under the pressure of new circumstances. Thus, it has been seen that the Constitution is not nor should be an obstacle to progress, freedom, or justice, but a protective device of justice, freedom and progress within the framework of fundamental political decisions that precisely proclaim and secure the attainment of such objectives. This should be considered based on the conditions of social life, which are subject to constant development. Of course, I agree that there are —and have always been— different versions of the specific meaning of the aforementioned values in each circumstance. It would be necessary to examine the compatibility of the Statute’s provisions with Mexico’s fundamental political decisions in each particular case, especially those related to of the so-called "ironclad clauses".
In other words, what should be done is not to define whether the statute contradicts the Constitution or not —which it obviously does— but to define how such a contradiction can be solved. We know without a doubt that we should enforce to constitutional norms. But we also know that the Constitutional dictum can be modified and has been modified hundreds of times. The constitutional text as we know it is different to the one published on 1917. It is different to the one in force thirty, twenty or even ten years ago. As a result, what truly matters is to define through intense deliberation and painstaking consensus the preferred solution —the one that best serves the higher interests of the nation and the values it upholds— for certain controversial issues. If today’s constitutional dictum should prevail, let it prevail. If it should be changed, let’s change it. Finally, the condition for the latter is that any change must not undermine the essential principles supporting the Mexican constitutionalism, but strengthen them.
If we reach the conclusion —which is the foremost contributing factor for any later development— that there should be an international criminal jurisdiction and that the Rome Statute, despite its defects, is an admissible formula to achieve such a state of affairs, it would be necessary to tackle a second issue, which is much less complex in spite of all its irregularities: how to receive the innovations entailed by the new international regime in the constitutional text. On the other hand, if we conclude that such a jurisdiction should not exist or that the draft of the statute is unacceptable, it would be of no use whatsoever to enter into the stage of constitutional reform. We would get out of this problem —in exchange for others to come— and we will have to face the consequences.
IV. ALTERNATIVES FOR CONSTITUTIONAL REFORM
When the study of this issue began, and even before —from the moment in which both the appropriateness of reforming the Constitution and ratifying the statute onwards— some inherent implications were left in plain view. One of them involved taking on the Rome Statute as a whole, as France did, with a debatable statement, in the new Article 53.2 of its Constitution.50 Another possibility lies in reforming each and every one of the articles of the Constitution that could present an obstacle for the ratification of the agreement. Such an implication, would lead to an extensive array of modifications and would unleash even more problems.
We can reach the aim following a different way, that is, without attempting that the Constitution compile an "abbreviated catalog" of the critical issues of the Rome Statute —which is because it its neither necessary nor recommended—. More than once we have abandoned the Constitution’s "normative" style. There are historical reasons —which powerfully arose in the 1916-1917 Congress— supporting the use of this technique.51 However, to use such a technique is not always necessary and it may not be in this case. We can now leave for the Constitution what is, characteristically, constitutional material, as well as for statutory law what corresponds to it, which is also characteristic of the regulations derived from the constitutional text. This leads us to a third possibility which has some support. It has to do with reducing the reforms into a single precept —the most appropriate one to accommodate them— or even to distribute it in a very small number of articles, if it is deemed indispensable to do so. In face of a truly exceptional point: crimes that fall under international criminal jurisdiction as a supplement to national jurisdiction (but there are other cases known internationally that, mutatis mutandi, could be included under the same logic), it follows to provide for an equally extraordinary solution: a single norm and not the "comprehensive review of the Constitution" to adjust it to the Rome Statute.
Before entering into the project proposed by the Congress, it is necessary to tackle an additional topic derived from the reform. This is an issue of supreme importance, which was not included in the initial considerations, but will have weight in final considerations. I have already mentioned it in this essay. I am referring to the appropriateness of updating the Constitution of the Republic, not only in what might correspond to the international criminal jurisdiction, but also —and above all— in which concerns entering into different jurisdictions of which Mexico is already a part. The huge effort that a constitutional reform in this sensitive topic represents will also serve to solve the problems that we are already facing. The complete panorama goes beyond the International Criminal Court. It includes, for example, the International Court of Justice and the Inter-American Court of Human Rights. For us, the first is still in the future —at the moment— but the latter are already here. This concern is reflected in the proposal to reform Article 21.
From my point of view, the ratification of the Rome Statute —which will only be feasible when there is a constitutional norm that allows us to do so, a topic that I will discuss below— should have a widespread national consensus. I am neither referring to consensus among the powers of the Union, which is a "dialog of the powerful for the distribution of power", as can be seen in the reform of the State already planned, nor to the agreement reached by the political powers represented in the Congress and in the state congresses —an integrant part of the Congress itself—, but to a real, widespread consensus that includes other figures of social life, with the possibility and right to speak out and be heard.
It is true that the Mexican Constitution sets forth a procedure for reforms that does not imply unanimity, as it commonly happens within texts of such a nature. A majority vote in the Congress and the absolute majority of the state congresses can change the Constitution. However, not only a numeric composition is needed, even though I do not deny its democratic virtues. It is necessary also, for instance, a more widespread will, beyond parliamentary numbers, so that all points of view agree on which statements truly reflect the national interests. One central interest is the one related to international politics. Once the votes have been cast, a result causing friction and division, would damage the reform. I do not wish that in the future some Mexicans blame others for "protecting those accountable for the most serious crimes" nor do I want these incriminations to be argued from the opposite trench, for "having disrespect the nation’s sovereignty".
V. OUTLINE OF REFORMS TO ARTICLE 21 OF THE CONSTITUTION
On November 30, 2001, the Senate of the Republic submitted a bill of reform of Article 21 of the Constitution to the Permanent Commission. I aim at analyzing the main aspects of such a proposal as it was discussed in the respective statement of legislative intent, and to add some comments on the circumstances surrounding the project. I will also discuss the characteristics and consequences of the texts presented to the Congress. Such texts are currently under. Let us examine first the statement of legislative intent.
This document, which is endowed with remarkable importance and is sufficiently explicit with respect to the different topics related to the proposal —but not with all of them— tackles on the constitutional principles of Mexican foreign policy. It then states that "within the framework (of these principles), Mexico is committed to reconcile its internal normative order with that of international law that promote those principles by means of the instruments ratified by Mexico". The statement is grounded. However, it also implicitly brings about an issue that has yet to be solved in some way by the prevailing opinion. I am referring to the prevalence of international law over internal law. Along the train of thought that prevails in such a document, the State should establish in its Constitution the innovations the innovations of international law as well as participate unconditionally in such an instrument, whatever the constitutional provisions of the Constitution might be.
It would have been better to examine this topic in the light of a different concept: What measurement is better for the protection of human beings and consequently for the fundamental political decision with respect to such a protection? If it is better served by admitting international order, then internal laws must be modified. If the opposite happens, it is necessary to preserve the national regulations in force. This enforces the principle of comprehensive, extensive and unalterable protection for human rights.
The dilemma which I refer to is clearly reflected in the Constitution of Venezuela, which solves this issue as follows:
The treaties, pacts and conventions related to human rights which have been executed and ratified by Venezuela have a constitutional rank, and will prevail over internal legislation, insofar as they contain provisions concerning the enjoyment and enforcement of such rights that are more favorable than those established by this Constitution and the laws of the Republic (let us interpret this a contrario sensu: if the national legislation is better, it shall prevail over international law), and shall be immediately and directly applied by the courts and other organs of the Public Power (Article 23).
Likewise, such a notion and such a solution are both found within the rules of interpretation of the American Convention on Human Rights —which in its turn coincides with the international school of thought and assumes the consequences of the pro homine principle— especially when such an instrument points out that its provisions cannot be interpreted in the sense of "restricting the enjoyment or enforcement of any right or freedom recognized by the laws of any State Party…" (Article 29, b) or even more in, "precluding other rights or immunities that are inherent in the human personality or derived from representative democracy as a form of government" (idem, c).
Further ahead it states that "in accordance with the above" Mexico has accepted the compulsory competence of certain jurisdictional agencies. In the first place, the text includes the acceptance of the jurisdiction of the International Court of Justice, which began in 1947, that is, before the principles of Mexican foreign policy were admitted in Article 89, Section X, which only took place with the 1988 reform. It is necessary to admit that such an admission does not imply that internal law instruments providing for complete efficiency are already at hand. If there were, it would not seem necessary to promote any constitutional reform at all.
On the other hand, it is important to consider that Mexico accepted the international jurisdiction of the Court of The Hague with a statement of certain modalities that limit —or can limit— the scope of material jurisdiction. In such a case, we are dealing with the problem of solving conflicts between States, not between States and individuals. This limitation is similar to the one previously claimed by the United States of America. Mexico observed that the mentioned acknowledgment was being made under the condition of strict reciprocity and without entering into issues related to the scope of internal jurisdiction.52 This argument of course has neither inspired the 2001 proposal of reforms nor been accepted in recent Inter-American precedents.53
Along this line of reasoning, Mexico’s acceptance of the contentious jurisdiction of the Inter-American Court of Human Rights, approved by the Senate in 1998 —even though the doubts derived from submitting the approval of the discretionary clause to such legislative Chamber—54 and in force since 1999, is mentioned as a secondary point. Mexico’s acceptance, the consequences of which have not been sufficiently studied, was made unconditionally and indefinitely.55 According to Court’s precedents, established by resolving landmark cases related to Peru,56 the State’s affiliation to the contentious jurisdiction by means of a singular, unilateral and agreed action, cannot be revoked unless it denounces the whole Convention. From the Inter-American Court’s point of view, such an act produces more effects by itself than a mere withdrawal.
The statement of legislative intent recalls that at 1990, seventeen States had joined the number of those which had already accepted the jurisdiction of the International Court of Justice, and twenty-one recognized the Inter-American Court. The number of those accepting the jurisdiction of the International Court of Justice still does not include most of the States in the international legal community. The number of those acknowledging the jurisdiction of the Inter-American Court, however, includes the majority of the American States. There are remarkable exceptions, which have no a detrimental effect upon the necessary universal nature —or regional in this case— of the human rights protection system.57
The mentioned document adds that Mexico has submitted appeals to both courts to request advisory opinions. Our country’s opinions have been upheld, as they were when the country was in trial before the Court of The Hague in order to back the United Nations General Assembly motion aimed at get the Court’s advisory opinion regarding the lawfulness of the threat or use of nuclear weapons. The Court ruled, by a wide margin of votes, on the illegality of such a behavior, but it also left open the possibility of using nuclear weapons in extreme cases for self-defense purposes.58 Such an exception has brought about conflicting commentaries.
On December 9, 1997, Mexico also sought an advisory opinion of the Inter-American Court of Human Rights on consular assistance as a due process formality to be fulfilled in those cases involving death penalty. The Inter-American Court issued the Advisory Opinion OC/16 on October 1, 1999 as a response.59 In such a document, the requesting party’s considerations were well received and were almost identical to the points of view expressed throughout the hearings held for receiving the commentaries and reasons of both governments and amici curiae.
After citing these facts and reasons, the aforementioned statement of legislative intent holds that if the international community has accepted the jurisdiction of international courts to apply norms of the international legal system, it is essential, on one hand, to acknowledge the courts’ jurisdiction to allow the fulfillment of its rulings and judgments, on the other. The third paragraph of the proposed reforms —which will be analyzed below— in the document submitted by the Executive Branch of Federal Government, observes that a "recognition of the jurisdiction of international courts will be negligible if it does not involve the adoption of measures that allow it to effectively implement its decisions". Such are grounded observations. At this point it is important to highlight once again an essential trait of the proposal: it is not limited to the International Criminal Court, as the mentioned reform to the French Constitution was, for instance.60 On the contrary, it is directed at any court in the international system.
The statement of legislative intent later states that progress has been made and perfected in the area of human rights "as a result of the growing awareness that such an area belongs no longer to the internal jurisdiction of States in an exclusive way". It is true —and in this sense the prevalent school of thought of modern international law is expressed— that individuals are now subjects to international law and the topic of human rights has become an extraordinary chapter in international law. All this has mainly, but not exclusively, taken place after the Second World War, and has been spurred by the Charter of the United Nation and the Universal Declaration of Human Rights. The transfer of the unquestionable importance of human rights from domestic level to the international system takes place according to the norms incorporated to it as a result of an effort undertaken by conventions, which, by the way, has gained much ground.61
Along this line of reasoning, the aforementioned document includes new instruments which help out in trying individuals for serious human rights violations, without prejudice to the international accountability of States. As a matter of fact, there is difference to be highlighted, however: on one hand, there is the international responsibility of the States for the behavior of its bodies or agents —and even of other persons connected to them— and on the other hand, there is the accountability of every individual for performing the harming behavior. The first one comes up before the human rights courts, which are not criminal proceedings, although they are endowed with the authority to punish wrongdoings. The second one appears in the sphere of international criminal courts, which put individuals on trial, as domestic criminal justice do by evaluating the attributed crimes and deciding which punishment —specifically criminal in nature— has to be imposed. Such are the courts established by the Security Council —and always objected by Mexico— used to trial crimes committed in the former Yugoslavia and Rwanda.
The statement explains that by signing the Rome Statute —an event that took place on September 7, 2000, in New York, two years after the Rome Conference, in which Mexico abstained from voting— Mexico also present its reasons supporting the country’s signature of the instrument:
The principles that this proposal upholds —that of its international nature— are vital beliefs of Mexico. It also does so —it then pointed out— as an acknowledgment to the culmination of an international effort that ensures the protection of human rights protection and the fight against impunity in the case of violations to human rights.
The statement was based on the idea according to which to allude to the authority of certain internal political documents was a convenient idea. First, the 2001-2006 National Development Plan, as well as the Political Agreement for National Development signed on October 7, 2001, "which has been ratified by the Managing Committees of both Chambers of Congress". It is not pointless to say that the National Development Plan is an Executive act, with no binding force on its own; beyond the jurisdiction of the public administration, such a plan does not even commit itself to promoting constitutional reforms.62 In its turn, the Political Agreement for National Development is also affected by such limitations that it cannot be used as a source of a legal commitment —political or ethical intentions are a different matter— that necessarily turns into a new constitutional text. The mentioned "ratification" agreement of the managing committees of both chambers can hardly be seen as part of a defined legislative agreement that brings about specific changes in constitutional norms.
Based on the facts and reasons gathered so far, it can be said that the statement of legislative intent points out a couple consequences. First of all, Mexico has the power to ratify instruments that already have been submitted to the Senate and secondly, constitutional reforms are needed "to ensure the full application of certain instruments and the possibility of ratifying others". It is true that Mexico has the power to ratify such instruments —as has indeed been done in several cases at the end of 2001—,63 and it is also true that constitutional reforms are needed to reach the objectives mentioned in the second statement. On doing the latter, it seems that all the weaknesses or inadequacies of certain juridical acts that have already been carried out —or, in other words, the obstacles with which they could stumble or the lacunae faced by a full implementation of the international instruments to which Mexico is bound— are clear.
Let us now go on to some normative texts which include the constitutional reforms proposed on November 30, 2001. On reaching this point, the respective statement of legislative intent adds that if approved, the Executive shall send the Statue of the International Criminal Court to the Senate for ratification. An obvious progression can be considered as follows: first of all, the constitutional basis; second, the incorporation of the international instrument into national law. However, it is still possible from both a legal and a political points of view that such a sequence is established, taking into account proposals for constitutional changes as well as the Bill containing the regulatory legislation for the undertaken of such changes which has been submitted to the Congress.64
In the same circumstances, the explanation argues that the "ratification (of the statute) would establish a clear show of support international law and an absolute opposition to serious crimes under the Court’s jurisdiction". This final phase is undoubtedly true. It could be read in a sharper way:, probably someone will consider that there will be not only a "clear show of support to the legal effect of international law", but also a clear demonstration of its weight: the Constitution has not been reformed unnecessarily to incorporate the statute under the terms of Article 133 of the Constitution has taken place and in spite of other precepts which are not compatible with such an instrument. Therefore, international law will determine internal law. With respect to such a claim, I insist: the matter is solved in the light of the concepts that enlighten the legal system as a whole, without the need to go into the arguable topic of determining the hierarchy between constitutional and international laws. It is also clear that the normative hierarchy, according to Mexican law, will continue established under Article 133 of the Constitution: the Constitution will prevail.
As I have mentioned, the November proposal puts forward changes —in the form of amendments— to Article 21 of the Constitution. This precept has been modified on three occasions: 1982, 1994 and 1996.65 This time the reform follows "the fact that the approval it proposes leads towards strengthening the protection of individuals and therefore brings about a regime that complements and increases the one which is contained in Title I of the Constitution". In my opinion, such a claim is not strong enough to justify the location selected to establish the constitutional changes within the text. The author’s has the power to change —if admissible— Title I of the Constitution, but not necessarily Article 21.
Article 21 does indeed contain a regulatory system for the Public Prosecutor and criminal courts’ investigations as well as for prosecution and punishment of crimes, according to the respective agencies powers. Article 21 also regulates government and police regulations, and the public security system. If it were attempted to open the door to International Criminal Court jurisdiction, the constitutional changes would fit in Article 21, since it precisely deals with a specific form —that excludes the single, generic one that exists today— to undertake the investigation, prosecution and criminal procedure. However such an inclusion would be an inadequate one if directed at including the entire international jurisdictional system into the framework of the Constitution, which deals with much more than criminal matters.
Neither the work of the International Court of Justice nor the performance of the Inter-American Court for Human Rights are related to the matter dealt with by Article 21. Thus, the set would be better installed in another or other precepts: 17, 104 or even 133, or even in a brand new one. All of them would provide for a better arrangement to the whole. With respect to this, as I have mentioned, the reform can and maybe should be condensed into a single precept. I insist: it seems unnecessary —and would be disturbing— to gather it into the Constitution, under reasons of clarity. The basis should be clearly established in the Constitution; its implications, without relevant doubts, can be incorporated into the related federal and local laws —which will always be internally subject to constitutional control, by the way— with or without a specific statutory law regulating the incorporation of international jurisdictional norms and rulings, in general, into the national law.
The project containing a brand new article of the decree of reforms states: "Paragraphs fifth and sixth shall be added to Article 21 of the Political Constitution of the United Mexican States, changing the order of current paragraphs and turning current paragraphs fifth and sixth into paragraphs eighth and ninth. Paragraphs seventh to night will be added to remain as follows". In truth, what is being proposed is less complex and could be formulated in an easier way: new paragraphs fifth, sixth and seventh will be added, and the numbers of the remaining paragraphs will be changed consistently until reaching the end of Article 21.
The new first paragraph would state: "The jurisdiction of the international courts established in the treaties of which the Mexican United States is a party, shall be recognized under the conditions and according to the procedures established in such treaties". The statement of legislative intent has held that the recognition of procedures "is fundamental, since it would prevent deficiencies of a procedural nature from attacking the fulfillment of the commitments which Mexico has acquired". Bearing in mind what has been said before, it is now useful to recall that such a recognition has already been made in two cases —regarding the above-mentioned International Court of Justice and the Inter-American Court of Human Rights— and it is at least disturbing that a commitment has been endorsed without having the instruments needed to give it a complete and reliable fulfillment or without later providing the legal means needed to achieve such a purpose.
Besides, let us say that for the present moment the aforementioned paragraph would only refer to the international and Inter-American courts, whose authority Mexico has endosed. Later, and grounded on the same paragraph, the International Criminal Court would be included. Non-jurisdictional international bodies would be left out: various committees and commissions that Mexico has expressly acknowledged or whose intervention in Mexican conflicts stems from far ranging international instruments, such as the Inter-American Commission for Human Rights. I do not mean that the actions performed by such agencies have to receive the same treatment as the one directed at jurisdictional rulings, for there is a difference between reports or recommendations and sentences. However, their real value could be defined within the new framework of international law incorporated into the Mexican Constitution. Such a move would remove doubts and would prevent or solve problems. The relevance of complying with such highlighted point is even more evident if the current trend favoring such agencies’ performance, which is established by various international treaties, is taken into account.
Another effect of the analyzed paragraph would be the establishment of a hierarchy between national and international norms.66 This would solve the question when both kinds of norms enter into conflict with each other. The fact that there are precedents issued by the Supreme Court of Justice —which is not yet defined and mandatory— does not resolve the issue once and for all, as a constitutional provision would be expected to do.67 At the end, the problem is solved in favor of the treaty, whether by reforming the conflicting law (without revoking the effectiveness of international jurisdiction) or by a tacit partial repeal, which can bring about the prevalence or succession of norms in time. However, the solution provided by a brand new paragraph for Article 21 would only apply to international provisions linked to the jurisdictional issues which have to be analyzed below and not with other matters, which are closer to Mexico’s international relations.
The second paragraph proposed in the November 30th Bill proposes: "In criminal cases, the procedures carried out in the respective courts, as well as the enforcement of their judgments and resolutions, shall be recognized and executed by the Mexican State according to the related international treaty". The statement of legislative intent shows that this text excludes the special courts established by the United Nations Security Council, "which —the drafter of the proposal points out— Mexico has expressed reservations to".
In the same paragraph, the statement highlights what seems obvious: "the State shall recognize and implement the rulings and sentences decided by international courts, as long as they are made under the legal instruments which stipulate them". This comment is misleading. It could take the text it endorses further because it apparently endows the State with the authority to assess the basis of judgments and sentences. In practice, such an assessment would lead to discrepancies between the court that issued the order and the State that must comply with it. All these are familiar debates, especially in dealing with the jurisdiction of the resolving judge. The Inter-American system, which held —like other international law courts— that the international legal body has the so-called compétence de la compétence, that is, the only and definite ruling on its own competency, has experienced such a discussion.68
It would be worthy to re-consider the paragraph in question —the second one in the proposal— to find a more concise and absolute expression which embraces all that is deemed necessary to be covered. Besides, such a review would prevent the inconvenience of referring to international criminal "courts". Both Mexico’s opinion position and a more convenient international agreement point towards a single court. That is why the Rome Statute came into being in the first place.
The third and last paragraph of the reforming proposal states: "Judgments, as well as the irrevocable sentences issued by such courts, shall enjoy mandatory force. Administrative and judiciary officials under federal, common and military jurisdiction shall guarantee its implementation according to the law". Of course, this paragraph should be the second one, not the third one. It should be even incorporated into the second part of the —general— first paragraph because it refers to all courts, and not criminal courts only. In addition to this flawed drafting, the statement suggests some considerations as follows.
There is no doubt about the need to care for the full enforcement of all the resolutions made by international courts, and not only of those that have the quality of a sentence. However, to lack such a quality will not affect all procedures: requirements of collaboration, detentions, investigative procedures, delivery of the accused, etc. It is convenient to bear in mind that court rulings are a general category which comprises both judgments and definitive judicial resolutions. Evidently, sentences —challengeable and definitive ones, interlocutory or detailed ones— all belong to the general category of rulings. If only these were mentioned all resolutions issued by a judicial would be covered under the general category.
The intention is to provide for judgments with mandatory force. In doing so, it would be right to look for a more precise and direct explanation. For example, it could be stated that International Court decisions shall be implemented immediately, in the same terms as judgments on national jurisdiction are —following the course adopted by the Headquarters Agreement between the Government of Costa Rica and the Inter-American Court of Human Rights—.69
From my point of view, the expression "ensure fulfillment —of rulings and sentences— according to the law" is a wrong one. Such an insurance will form a specific obligation for the authorities. This way of presenting the point excludes the possibility of incorporating internal requirements or conditions in the laws that make international jurisdiction possible.
The paragraph in question refers to the administrative and judicial authorities under federal, local and military jurisdiction as in charge of fulfilling of international rulings. It is understood that such a reference equally corresponds to all the authorities of that kind, regardless of their position in the hierarchy of power or service. Thus, the humblest court is as powerful as the Supreme Court of Justice (a possibility that has brought up interesting viewpoints),70 the police officer is as powerful as the president of the nation. Even then, such a provision does not take into account the wide field that should be considered. Indeed, there is no reference whatsoever to their powers over autonomous State bodies, established outside the three traditional branches of government, nor over legislative authorities. It is possible that the point is not presented in the groundwork of criminal courts, but it can be presented in the postulates of the International Court of Justice or the Inter-American Court of Human Rights. In some cases, violations to the Pact of San Jose happen to come from a general norm, and not only from an executive order or a legal decision.71
It will be said that the International Court’s resolutions could hardly compel a deliberative and plural legislative body to implement norms in the way it proposes. This objection should be analyzed from its different aspects. If it is about a domestic norm that goes against an international convention, a judicial resolution could result in the invalidation of such a norm with erga omnes effects, just as it happens with constitutional conflicts and lawsuits of unconstitutionality unleashed by the corresponding action,72 and as should happen in the amparo against general norms when we finally admit or reject the principle of relative effects of the resolution in such cases.73 The solution is more complex if it deals with the lack of crucial norms to guarantee the fulfillment of international commitments. It would be necessary to come up with the formula that solves the issue. In doing so, parallel figures in comparative law could be explored, such as the remedies for unconstitutionality by omission in the Portuguese and Brazilian systems.
A special kind of problem, within this same category of issues, would arise if the Legislative branch of government do not enact, swiftly and thoroughly, the provisions needed for the internal fulfillment of international judicial rulings. If such a guarantee leans towards administrative and judicial authorities, but not towards legislative ones, they too could see themselves stripped of the possibility of achieving their aim. In order to do so in a regime of regulated powers, it would be necessary to have an ideal procedure, which can only be established —in a good number of cases— by a legislative authority.
The project contains only one transitory provision that regulates on the entry into force of the reform on the day after its publication in the Diario Oficial de la Federación. I think it should be prepared with a reasonable vacatio legis that helps out the Legislative Branch in preparing the legal mechanism to be received, and to a secondary degree, the consequences of the constitutional reforms. During such a period of time, all necessary steps should be take deliver the relevant information derived from the final text of the reforms and their implications of various natures in forums and law schools, as well as in the corresponding public service offices.
VI. CONCLUSIONS
I think that to enter into the International Criminal Court system is good for Mexico, not because this is an unquestionable or exemplary solution to the old problem of criminal justice in international law, but because it is a better alternative than the opposite one. I shall not repeat the considerations I used to begin this analysis. There, I present my reasons endorsing the ratification of the Statute and hence the constitutional reforms that make it possible. What is needed is a judicial-political decision that analyzes this issue, seriously ponders its implications, studies the options at hand and decides, openly and on adequate grounds, what would be best for the nation, safeguarding its values and principles and caring for the vital issue of human rights, which are still and should always be —as proclaimed in the Constitution of Apatzingán way back in 1814— the substance of government and the purpose of political association.
I also believe it right to solve once and for all the topic of international jurisdiction from the perspective of the Mexican State, but without limiting itself to it. Current precepts are pointedly insufficient. This insufficiency can create sensitive problems not only in that which deals with international criminal justice, which Mexico has yet to recognize, but also in that regarding application of the jurisdictions that we have already accepted. If the former forms part of our future —a future that is closer each day, although at the moment it might not be immediate— the others are part of our present. Mexico has taken the steps that affiliate the country to such jurisdictions, but has yet to determine all the measures inherent to Mexico’s express commitment which will be applied.
Constitutional foresight in this matter can be reached through various formulas. Between the alternative of reforming a single precept to place the truly essential regulation there —as a basis and not as a regulation— and that of modifying several precepts to cover the various specific issues in which Statute norms differ from those in the Constitution, I lean toward the first solution. It has an important reason on its side: it is sufficient. If the issue of various international jurisdictions conflicting with each other is attempted to be dealt with as a group, and not only that of criminal justice, it will be necessary to consider positioning the reform. Maybe it should not be placed in Article 21, which is too bound to criminal issues, but in a different way. As examples, I have already mentioned Articles 17, 104 and 133, as well as the possibility of a specific article on this issue.
I refer to the consideration which I used to open this essay. It is convenient for Mexico to incorporate itself into the best school of contemporary international law thought. This inclusion would be consistent with the humanistic and fairness related convictions it has championed throughout the long and laborious evolutionary process of Mexican law. International crime will obviously not disappear when the court is instated. We can not aspire to such a miraculous effect. But it is possible that the certainty of no impunity for those responsible for very serious crimes could be enough to decrease the occurrence of such crimes.
In an address to the General Assembly of the United Nations, the president of the International Criminal Court for the former Yugoslavia, Antonio Cassese, recalled that in 1932, the great scientist Albert Einstein invited Sigmund Freud to give his opinion on the possibility of delivering mankind from the menace of war. The Austrian psychoanalyst responded that the chances of suppressing humanity’s aggressive tendencies were rather slim. However, it would be possible to resort to "palliative measures", which might stem them. For Judge Cassese, the Tribunal for the former Yugoslavia can be looked as such palliative device.74 Such is the value we can place on the International Criminal Court. It is not a small thing: as a palliative device, as a moderator of violence, it could save many lives. Just one of them justifies its existence.
Notes
* This presentation, entitled "Las implicaciones dogmáticas y político-criminales del proceso de globalización y de la internacionalización del derecho penal", was given at the Third International Congress of Criminal Law in Mexico on April 22-26, 2002. The description made here corresponds to the status of said issue until April 23, 2002. This work was contributed by the author of the collective work in honor of the distinguished Judge Rodolfo E. Piza E., former president of the Inter-American Court of Human Rights, which was prepared under the sponsorship of the Supreme Court of Costa Rica —of which Dr. Piza was a member until his death—, the Inter-American Institute of Human Rights and the aforementioned Inter-American Court.
Translated by Carmen Valderrama. Technical revision by Carlos Pérez.
** Researcher at the Legal Research Institute, and Inter-American Court of Human Rights judge.
1 Under the terms of Article 126.1, the statute "shall enter into force on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations". Since this condition was fulfilled on April 11, 2002, the instrument shall enter into force on July 1st of said year. Before that date, there were 56 ratifications. On April 11th, Cambodia, Romania, Bulgaria, Slovakia and Mongolia were added. Cfr. El Universal, Mexico, April 11, 2002, p. A17. If a state ratifies, accepts, approves or accedes to it after said April 11th, the statute shall enter into force "on the first day of the month after the 60th day following the deposit by such State of its instrument of ratification, acceptance, approval or accession".
2 This path has notable reference points. One of them was the non-application of the Treaty of Versailles (Articles 227-230) pertaining to the legal proceeding against the ex-Kaiser William II, a refugee in The Netherlands, under the charges of "supreme offence against international morality and the sanctity of treaties". Another is the defeat of the intent (Geneva, 1937) to have international treaties on the suppression of terrorism and the establishment of the corresponding international court in view of the assassination attempt that took the life of the King of Yugoslavia and French Minister Barthou, in Marseilles (October 9, 1937).
3 According to Hans-Heinrich Jescheck, these conditions, that come from the theses held in the Nüremberg trials, focus on three principles: a) direct criminal responsibility of the individual according to international law; b) supremacy of international criminal law over state law, and c) exclusion of the "act of sovereignty" theory. Jescheck, Hans-Heinrich, Tratado de derecho penal. Parte general, trans. by S. Mir Puig and F. Muñoz Conde, Barcelona, Bosch, Vol. I, 1981, pp. 166 and 167.
4 To achieve the intended "civilizing objective" there are two paths in international law, according to Juan Antonio Carrillo Salcedo: "the expansion of the scope of criminal jurisdiction of the States, regarding crimes against the international community and the International Law and on the other hand, the creation of International Criminal Courts". Carrillo Salcedo, Juan Antonio, "Presentación" in id. (coord.), La criminalización de la barberie: la Corte Penal Internacional, Madrid, Consejo General del Poder Judicial [General Council of the Judiciary], 2000, pp. 19 and 20. As to extended national jurisdiction, by means of the principle of universal jurisdiction, cfr. the recent article by Toro Huerta, Mauricio Iván del and Barrena, Guadalupe, Cauces, Mexico, UNAM, Law School, Year I, No. 2, April-June 2002, pp. 20 et seq.
5 Even then, there have of course been numerous debates on this issue, with national and international participation, and certain deliberation in parliamentary circles and public opinion. In the Senate, the discussion gained ground as of the appearance of a bill to reform Article 21 of the Constitution. I deal with this in an article published in El Universal and on the night before the sixty ratifications needed for the statute to enter into force were secured. Cfr. El Universal, Mexico, April 11, p. A-16.
6 Mexico signed the statute in New York, ad referendum, on September 7, 2000. In the deliberation on this point, opposing opinions were expressed. Against the signing, it was held that: a) it goes against Article 133 of the Constitution, because "entering into" a treaty (Executive power by virtue of Article 89, Section X, of the Constitution) is inadmissible if at the time of doing so there are problems of legality; b) it violates Article 1 of the Constitution, under the terms of which the guarantees granted in the Constitution "shall not be restricted or suspended except in the cases and with the conditions under which the same is established"; c) it ignores Article 15, which prohibits entering into treaties by virtue of those which alter the constitutional guarantees of man and the citizen; and d) signing generates obligations derived from the Vienna Convention on the Law of Treaties: to abstain from acts that defeat the object and purpose of a treaty. In favor of the signing, it was argued that: a) it is necessary to dispel the idea that Mexico’s abstention in Rome means a lack of commitment to the objectives of the court; b) it is not expedient for Mexico to remain at the sidelines of a reasonable international school of thought and in accordance with the principles of the Rule of Law and the eradication of impunity; c) entering into the treaty does not end when the Executive Branch of Federal Government signs it, but when the ratification instrument is deposited: only then the State’s commitment to the subject of the convention enters into force; and d) the signing would be ad referendum.
7 Regulated by Part 11 of the Statute (Article 112), which has significant prerogatives, among which are those pertaining to approving the recommendations of the Preparatory Commission and considering and deciding on amendments to the Rome Statute (which can also be entrusted to a Review Conference, according to Article 121. A conference of this nature can be convened seven years after the entry into force of the statute takes place and will examine the proposed amendments to date, under the terms of Article 123).
8 Since there is always the possibility of withdrawing from the treaty by means of written notification to the Secretary-General of the United Nations, and the withdrawal will take into effect (but the State shall not be discharged from the obligations arising from the Statute while it was a Party to the Statute) one year after the date of receipt of the notification, unless the notification specifies a later date.
9 The example is a straightforward one: the September 11th terrorist attacks in Washington and New York set in movement a defensive-offensive response which was put forth in a specific legal order. The most important aspects of this order are found in the President of the United States of America’s Military Order of November 13, 2001 (Detention, treatment and trial of certain non-citizens in the war against terrorism).
10 At the end of World War I, the international consensus of William II of Hohenzollern, Formerly German Emperor, was unsuccessfully attempted. It was thus set forth in the Treaty of Versailles (Article 227).
11 Sheldon Glueck wrote: "The history of the action taken against the German war criminals under the Treaty of Versailles serves as an example of what should not be done again as a basis for a fair and realistic United Nations program". Criminales de guerra. Su proceso y castigo, trans. by Carlos Liacho, Buenos Aires, Ed. Anaquel, 1946, p. 27. The detailed critique that the US professor poses clearly goes beyond the ex-Kaiser’s impunity. In the so-called "Leipzig trials", it covers the cases of others individuals accountable.
12 The court corresponding to the former Yugoslavia was created by resolution of the United Nations Security Council on February 22, 1993; the one for Rwanda, was created by resolution of the same council on November 8, 1994.
13 In favor of the special courts it has been argued that they have become viable international judicial institutions. They have significantly contributed to enforce peace in postwar societies, as well as to introduce criminal accountability into the culture of international relations. Cfr. Akhavan, Payam, "Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?", American Journal of International Law, Vol. 95, No. 1, January 2001.
14 The United Nations International Law Commission took into account four alternatives for setting up the court: a General Assembly resolution, a Security Council resolution, reforms to the San Francisco charter or an international treaty that would allow the court to be later affiliated with the United Nations. For practical reasons, this last alternative was accepted, as it would give rise to fewer objections and would face fewer obstacles. Cfr. Zafra Espinosa de los Monteros, Rafael, "El establecimiento convencional de la Corte Penal Internacional: grandeza y servidumbre", in Carrillo Salcedo, Juan Antonio, La criminalización..., cit., note 4, pp. 159 and 160.
15 The characteristics of the jurisdictional body appear in the Preamble of the Rome Statute, along with Article 1 of said instrument: "… an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole" and shall be "complementary to national criminal jurisdictions". Descriptions on the jurisdiction and the running of the court are many. In more recent Mexican doctrine, cfr. Guevara, José Antonio, "La suplementariedad del estatuto de Roma respecto de la protección de los derechos humanos y de la responsabilidad internacional de los Estados", in Corcuera Cabezut, Santiago and Guevara Bermúdez, José Antonio (comps.), Justicia penal internacional, Mexico, Universidad Iberoamericana, 2001, pp. 129 et seq.
16 Although various States that comprise a good part of humankind will find themselves out of said regime, such as China, India and the United States of America.
17 Those voting against it were: the United States of America (which signed the treaty on December 31, 2000), China, India, Israel (which signed on December 31, 2000), Turkey, the Philippines and Sri Lanka. Mexico and twenty other countries abstained. As to the position of a significant part of the United States Congress, the article published by Senator Jesse Helms, the president of the Senate Foreign Relations Committee, in the London daily Financial Times on July 31, 1998, under the eloquent title of "We Must Slay this Monster", has special importance. Helms’ article was written under the assumption that the "monster" is the International Criminal Court. Such a court, Helms points out, "proposes to sit in judgment on US national security policy". He added that: "And so long as there is breath in me, the US will never —I repeat, never— allow its national security decisions to be judged by an International Criminal Court". Carrillo Salcedo, Juan Antonio, "Presentación", cit., note 4, pp. 25 and 26. Along the same lines, he opposes international jurisdictions, cfr. Kissinger, Henry, "Las trampas de la jurisdicción universal", Foreign Affairs en español, Mexico, ITAM, Vol. 1, No. 3, Fall-Winter 2001, pp. 87 and et seq. This article is an abridged version of the book entitled Does America needs a foreign policy? Toward a diplomacy for the 21st Century. When the United States of America signed the treaty, President Clinton made it clear that the US could influence the evolution of the court. This would not happen if the United States abstained from signing. Cfr. International Human Rights Law Institute, DePaul University, Progress report on the ratification and national implementing legislation of the Statute for the establishment of an International Criminal Court, February 19, 2001, p. 8. Naturally, the US position has brought about criticism from supporters of the court. Cfr. Garzón Real, Baltasar, "Corte Penal Internacional: una iniciativa de paz", El Universal, Mexico, April 12, 2002, p. A22.
18 It was so done in Article 89, Section X, of the Constitution. See the reform process in this article in 1987 and 1988 in Derechos del pueblo mexicano. México a través de sus Constituciones, 4th ed., Mexico, Chamber of Deputies of the H. Congress of the Union, LV Legislature, 1994, Vol. IX, pp. 551 et seq., annotated by Manuel González Oropeza. Also cfr. Sepúlveda, Bernardo, "Los valores éticos y el orden jurídico mexicano. La perspectiva del derecho internacional", in García Ramírez, Sergio (coord.), Los valores en el derecho mexicano. Una aproximación, Mexico, UNAM, Instituto de Investigaciones Jurídicas-Fondo de Cultura Económica, 1997, pp. 393 et seq; Gómez-Robledo Verduzco, Alonso, "Elevación a rango constitucional de los principios de política exterior", Boletín Mexicano de Derecho Comparado, new series, Mexico, Year XXI, No. 63, September-December 1998, pp. 1165 et seq.; Becerra Ramírez, Manuel, Derecho internacional público, Mexico, UNAM, Instituto de Investigaciones Jurídicas, McGraw-Hill, 1997, pp. 66 and 67.
19 Cfr. González Avelar, Miguel, Clipperton, isla mexicana, Mexico, Fondo de Cultura Económica, 1992, especially pp. 137 et seq. On the other hand, cfr. Martínez Báez, Antonio, "Informe sobre las investigaciones realizadas en varios archivos y bibliotecas sobre el descubrimiento de la Isla de la Pasión o de Clipperton, en el Océano Pacífico", Obras. Ensayos históricos, Mexico, Universidad Nacional Autónoma de México, Coordinación de Humanidades, Vol. II, 1996, pp. 191 et seq.
20 Cfr. Fix-Fierro, Héctor and López-Ayllón, Sergio, "El Tratado de Libre Comercio de América del Norte y la globalización del derecho. Una visión desde la sociología y la política del derecho", in Witker, Jorge (coord.), El Tratado de Libre Comercio de América del Norte. Análisis, diagnóstico y propuestas jurídicas, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 1993, Vol. I, pp. 49 and 50. Also cfr. Witker, Jorge and Hernández, Susana, "Resolución de controversias en materia de antidumping y cuotas compensatorias en el TLCAN", and Serrano Migallón, Fernando, "El capítulo XX: Disposiciones institucionales y procedimientos para la resolución de controversias", op. cit., in this same footnote, Vol. II, pp. 231 et seq., and pp. 271 et seq., respectively. One critical point of view can be found in Sepúlveda, Bernardo, "Los valores éticos...", cit., note 18, pp. 405 and 406. As to Mexico-European Union relations, cfr. Ortiz Ahlf, Loretta, "La solución de controversias en los acuerdos celebrados entre la Unión Europea y México", Jurídica, Mexico, No. 30, 2000, pp. 285 et seq.
21 In addition to prior planning, Mexico made a general declaration at the opening of the Conference. Cfr. Inter-American Specialized Conference on Human Rights, San Jose, Costa Rica, November 7-22, 1969. Actas y Documentos (OEA/Ser. K/XVI/1.2), Washington, D. C., Secretary General, Organization of American States, p. 152.
22 As to Mexico’s progressive caution on this issue, cfr. Sepúlveda, César, Estudios sobre derecho internacional y derechos humanos, Mexico, Comisión Nacional de Derechos Humanos [National Human Rights Comission], 1991, p. 141.
23 Since the Apatzingán Constitution, an offspring of the US and French Declarations. In such Constitution —followed by the 1917 Constitution— Article 24 stated: "People’s happiness and that of each citizen consists of the right to equality, safety, property and freedom. Comprehensive protection of these rights is the object of government institution and the only end of political associations". As to the relevance of human rights in said Constitution, cfr. Díaz Ballesteros, Enrique, Visión y herencia de una Constitución. Decreto constitucional para la libertad de la América Mexicana. 22 de octubre de 1814, Morelia, Government of the State of Michoacán de Ocampo-Universidad Latina de América, 2001, pp. 137-139.
24 This clause is found in Article 62 of the Convention: A State Party may, upon depositing its instrument of ratification or adherence to this Convention, or at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of this Convention. Such declaration may be made unconditionally, on the condition of reciprocity, for a specified period, or for specific cases.
25 Cfr. Inter-American Specialized Conference…, Actas y documentos, cit., p. 244 (sic).
26 I stand by that which is stated in García Ramírez and Toro Huerta, "México y la Corte Interamericana de Derechos Humanos", in García Ramírez, Sergio (coord.), La jurisprudencia de la Corte Interamericana de Derechos Humanos, Mexico, UNAM, Instituto de Investigaciones Jurídicas, 2001, pp. 21 et seq.
27 For a general analysis of the arguments for and against Mexico’s incorporation to the Rome Statute, cfr. Canchola, Ulises, "Análisis de compatibilidad entre el Rome Statute y las Constituciones. El caso mexicano y la experiencia comparada", in Corcuera and Guevara (comps.), Justicia penal..., cit., note 15, pp. 225 et seq.
28 Among the most recent views is that of the distinguished legal scholar Juventino V. Castro, justice of Mexico’s Supreme Court of Justice, as published in the La Jornada newspaper on Monday, April 15, 2002, under the eloquent title: "La International Criminal Court, «trampa a la soberanía»".
29 The common denominator in international criminal law is that of "the protection of certain interests that represent values that are commonly shared by global society". Doctrinal differences between criminal law and international law "have determined that international criminal law be configure as a ‘split personality’, a trait that has made its development difficult". Bassiouni, M. Cherif, Derecho penal internacional. Proyecto de Código Penal internacional, trans. by José L. de la Cuesta Arzamendi, Madrid, Tecnos, 1983, p. 77.
30 But the theory is the bridge between establishing the principles and their suitable acceptance in legal texts. Therefore, it implies an important factor of individual guarantees. Cfr. my article "Criminología, dogmática y política penal", in various authors, Política criminal, derechos humanos y sistemas jurídicos en el siglo XXI. Volumen en homenaje al profesor y doctor Pedro R. David, Buenos Aires, Depalma, 2001, pp. 309 et seq., as well as the opinions cited in the work by Muñoz Conde, Francisco and García Arán, Mercedes, Derecho penal. Parte general, Valencia, Tirant lo Blanch, 1996, p. 201; and Bunster, Álvaro, "Consideraciones en torno de la dogmática penal", Boletín Mexicano de Derecho Comparado, new series, Year XXX, No. 90, 1997, p. 949.
31 The amendment process is governed by Article 121. It covers various premises, with their respective implications. The first paragraph states: "After the expiry of seven years from the entry into force of this Statute, any State Party may propose amendments thereto...".
32 Juan Antonio Yáñez-Barnuevo, the head of the Spanish delegation to the Rome Conference, points out that "the factor that had the most weight in the success of the work of the conference... lay in the unwritten alliance between two very different groups that were united by the will to have the world have a truly international criminal court at the dawn of the 21st century. I refer to the Coalition of Non-Governmental Organizations for the International Criminal Court... and, on the other, the Group of Like-Minded States". Yáñez-Barnuevo, Juan Antonio, "The Role of the Group of Like-Minded States in Creating and Developing the Rome Statute of the International Criminal Court", in Corcuera and Guevara (comps.), Justicia penal..., cit., note 15, p. 166. In the same work, there are articles (pp. 235 et seq.) on "El rol y la agenda de la sociedad civil organizada en el proceso de establecimiento de la Corte Penal Internacional", by Mariclaire Acosta (Mexico), Alda Facio (Costa Rica) and Francisco Soberón (Peru), respectively.
33 Ambos Kai, a member of the German delegation to the Rome Conference, has written: "The structure of the statute does not follow the logical-objective criteria, but represents the result of a process of political-legal discussion that took many years, marked by the search for solutions susceptible of consensus and of maximum predisposition of commitment. It was attempted, but it was not possible, to reach mature solutions on a dogmatic level that were legally free from contradiction. It was only possible to re-cast the different political-criminal interests of the State delegations in a way that was acceptable to all. The risky venture between an efficient criminal prosecution and suitable considerations to the interests of state sovereignty is found precisely in the most significant parts of the statute from a political perspective, especially in provisions on jurisdiction, the crimes and cooperation with the court. On the other hand, it is also evident that the peculiarities of the object the negotiations —the legal-material and procedural dominion of the injustice in international criminal law— make it necessary to have solutions that overcome simple knowledge of compared law". Kai, Ambos, "Sobre el fundamento jurídico de la Corte Penal Internacional. Un análisis del Estatuto de Roma", trans. by Miguel Ángel Iglesias Río and Lucía Martínez Garay, in id. y Guerrero, Óscar Julián (comps.), El Rome Statute de la Corte Penal Internacional, Bogota, Universidad Externado de Colombia, 1999, p. 102.
34 Cfr. González Gálvez, Sergio, "La Corte Penal Internacional", in Corcuera and Guevara (comps.), Justicia penal..., cit., note 15, pp. 11 et seq.; and La Corte Penal Internacional, el uso de las armas convencionales en caso de conflicto armado y la injerencia con fines humanitarios. Tres temas básicos del derecho internacional humanitario, Mexico, Secretaría de la Defensa Nacional, 2000, pp. 4 et seq. Also, cfr. Fernández Doblado, Luis, "Tribunal Penal Internacional", Criminalia, Mexico, Year LXIV, No. 3, September-December 1998, pp. 226-228.
35 The statute does not allow reservations (Article 120). Moreover, it should be taken into account that expressing any reservations would have faced difficult obstacles, taking into account the limits they have according to the International Law of Treaties: they cannot contradict or affect the most essential aspects of the convention. Still pending is the possibility of formulating interpretive statements, which can hardly satisfy the root explanations of many States.
36 Thus, for example, "Las reparaciones en el sistema interamericano de protección de los derechos humanos", in García Ramírez, Estudios jurídicos, México, UNAM, Instituto de Investigaciones Jurídicas, 2000, pp. 438 et seq. (This work also appears in: Jornadas J. M. Domínguez Escovar en homenaje a la memoria del R. P. Dr. Fernando Pérez-Llantada; S. J.: "Los derechos humanos y la agenda del tercer milenio", Caracas, 2000, pp. 601 et seq.); and "Cuestiones ante la jurisdicción internacional", Cuadernos Procesales, Mexico, Year V, September 2001, pp. 21 et seq.
37 I examine these issues, as well as other related and relevant ones, in my book Los derechos humanos y la jurisdicción interamericana, UNAM, Instituto de Investigaciones Jurídicas, 2002 (at the printers’).
38 Thus, according to Articles 1 and 2 of the American Convention. Article 1.1, under the heading of "Obligation to Respect Rights", states: "The States parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedom, without any discrimination...". Article 2, with the heading "Domestic Legal Effects", stipulates that: "Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms".
39 As to this, in general, cfr. my article entitled "El futuro del sistema interamericano de protección de los derechos humanos", in García Ramírez (coord.), La jurisprudencia..., cit., note 26, pp. 1127-1129 (an extended version of my presentation at the 2nd Inter-American Dialog "Sociedad civil y derechos humanos", San Jose, Costa Rica, Inter-American Institute of Human Rights, November 12, 2000).
40 The principle according to which the international jurisdiction complements or subsidizes the national one, which upholds its primary and singled out function, is in itself a distinguished trait of the Rome Statute, which contributes to get a justified endorsement for it from the States. The courts established for the former Yugoslavia and Rwanda face a different state of affairs; in such courts, international jurisdiction is privileged and excludes any other competing jurisdiction. The same principle governs the Inter-American Court of Human Rights System.
41 It is worth having a look at Mexico’s reasons in the various publications mentioned in this article that refer to Mexico’s position in Rome. Also cfr., the article dated immediately after the specialized conference entitled "México y la Corte Penal Internacional", by Sergio González Gálvez, published in the Reforma newspaper on August 12, 1998, p. 12; also by González Gálvez, "México y la Corte Penal Internacional", Revista Mexicana de Política Exterior, Mexico, new epoch, Nos. 55-56, February 1999, pp. 44 et seq.
42 Cfr. García Ramírez, "Justicia penal internacional (Comentario sobre la Corte Penal Internacional)", Criminalia, Mexico, Year LXXVI, No. 3, September-December 2000, pp. 183 et seq.; El Foro, Mexico, 12th Epoch, Vol. XIV, No. 1, 1st half of 2001, pp. 1 et seq.; and Ruptura, Quito, Ecuador, Vol. I, No. 43, 2000, pp. 27 et seq. The observations on issues of constitutionality can be reviewed in studies carried out by González Gálvez cited supra and infra in this article (Notes 34, 41, 42, 47-49 and 59), as well as in articles by Castro Villalobos, José Humberto and González Casanova, Joaquín, "Análisis de compatibilidad entre el Estatuto de Roma y las Constituciones. El caso mexicano y la experiencia comparada", in Corcuera and Guevara (comps.), Justicia penal..., cit., note 15, pp. 213 et seq.
43 In addition to regulatory disagreements, there are certain legislative gaps or holes that will have to be closed at the time of ratifying the statute. I will not deal with this in extenso, but it is convenient to mention the lack of various types of crimes in current Mexican legislation, types that are set forth —with debatable approaches, in many cases— in the Rome Statute. This problem is often stressed in terms of military criminal legislation, which has yet to incorporate the criminal offenses set forth in the Geneva Convention, even though Mexico is a State party in them: pact (I) to improve the fortune of the injured and sick in the armed forces while on campaign (Articles 49 and 50); pact (II) to improve the fortune of the injured, sick and armed forces on sea; pact (III) regarding the treatment of war prisoners (Articles 129 y 130), and the pact regarding the protection of civilians during wartime (Articles 146 y 147). If any of these crimes were committed without the appropriate national legislation for prosecuting them, the controversy would immediately be transferred to the International Criminal Court, without the opportunity for Mexican justice to be used. However, it is necessary to explore the possibility that the national trial judges directly apply human rights treaties, subject to that which is stipulated in Article 6 of the Federal Criminal Code: "When a crime that is not set forth in this Code is committed, but it is set forth in a special law or an international treaty of compulsory observance in Mexico, they shall be applied, taking into account the provisions of the first book of this Code and, if the case, the relevant ones in the second book". Within this possibility —which should be examined— issues on the jurisdiction of Mexican military justice bodies could also arise, subject to Article 57, Section II, of the Military Justice Code, which assigns a military character to crimes of a federal nature when military personnel take part in committing said crimes under the terms of clauses a) to e) of said section. The crimes set forth in an international treaty are of a federal nature, observing that which is set forth in Article 50, Section I, clause a) of the Organic Law of the Federal Judicial System.
44 Are they or are they not elements of crime? If they are, then the typical descriptions would come from the statute itself and from the mentioned elements, which do not have the same normative hierarchy that the former do. Cherif Bassiouni has held that they "do not suppose amendment to the Statute nor do they complement the category of the crimes that are currently contained in Articles 6, 7 and 8. They are merely elements of an indicative nature for the court pertaining to that which must be proven about the crimes". Bassiouni, Cherif, "Note explicative sur le Statut de la Cour Penale Internationale", Revue Internationale de Droit Penal, Pau, Francia, New Series, 71st year, Nos. 1-2, 2000, p. 13. Fernández Doblado comments that the clause on the elements of the crime has been "much criticized (and) will have the effect of delaying the entry into force of the Statute since there can hardly be a country that ratifies a statute when it has yet to define and approve additional elements to classify crimes, jurisdiction of a criminal court". Fernández Doblado, "Tribunal Penal...", Criminalia, cit., note 34, p. 228.
45 Such is, clearly, the hypothesis of enforced disappearance. Neither the text of the statutes nor the elements of the crime provide a solution desired by some for this crime. Thus, "footnote" number 24 would come to be added to the elements of crimes corresponding to the crime against humanity of enforced disappearance of persons was reached. This note, which aims at solving fundamental issues of the Court’s material and temporal jurisdiction on its own, stipulates: "This crime falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after the entry into force of the Statute".
46 Thus, in the Court´s Opinion P./J. 125/2001, 126/2001 and 127/2001, derived from the contradiction of Opinion 11/2001, among those upheld by the First Circuit First and Fourth Collegiate Court for Criminal Matters, October 2, 2001, a majority of six votes, Gaceta del Semanario Judicial Federal [Weekly Federal Court Report Gazette], October 2001. The heading of the first opinion mentioned appears as follows: "Extradition. The punishment of imprisonment for life is an uncommon punishment prohibited by Article 22 of the Political Constitution of the United Mexican States. Therefore, in order to process such a punishment, the requesting State should bind itself not to apply it or impose a lesser one according to its internal law".
47 The Council has the authority to promote trials and to stop them in such a way that they could turn out as final, or at least indefinite (Article 16). On the other hand, Mexico’s position and that which alludes to the "general game" among United Nations bodies has prevailed in the Resolution on Uniting for Peace, approved by the General Assembly in 1950, which entails a "new norm on collective security". In the words of Professor Jorge Castañeda de la Rosa: if the Security Council does not fulfill its essential role of keeping peace and security, due to a lack of agreement among its permanent members, the General Assembly should take on the issue, examine it and adopt the adequate recommendations to solve the case. Cfr. González Gálvez, "La Corte Penal...", in Corcuera and Guevara (coords.), Justicia penal..., cit., note 15, p. 18. The appropriateness of endowing the General Assembly with faculties, within the context of the Rome Statute, was emphatically outlined by the Mexican delegation at the Rome Conference. Cfr. "Intervención del Embajador Sergio González Gálvez, representante de México en la Conferencia Plenipotenciaria para crear una Corte Penal Internacional" [Statement by Ambassador Sergio González Gálvez, Mexican Representative at United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court], in González Gálvez, La Corte Penal Internacional, el uso de las armas convencionales y la injerencia..., cit., note 34, pp. 201-203.
48 Mexico’s interest, wrote González Gálvez, "is to design an International Criminal Court that ensures the enforcement of the Rule of Law without any discrimination. As a result, Mexico will resist any attempt to politicize criminal proceedings in order to prevent the Court from becoming that it becomes a court dependant on an extremely political body, such as the Security Council, or from judging individuals from developing countries". González Gálvez, "México y la Corte...", Revista Mexicana de Política Exterior, cit., note 41, p. 67.
49 This matter has been analyzed by reviewing both Resolution 1653 of the United Nations General Assembly, on the illegality of the use of nuclear weapons, and the International Court of Justice Advisory Opinion of July 8, 1996, against the threat or use of these weapons. Cfr. González Gálvez, "La Corte Penal...", en Corcuera and Guevara (coords.), Justicia penal..., cit., Note 15, pp. 19 and 20. However, it is worth remembering that the court left open the possibility for the threat or use of such weapons in extreme cases of self-defense, in which the very survival of a State is at stake. Thus, even "the threat or use of nuclear weapons would generally be contrary to the rules of international law which regulates an armed conflict, and in particular the principles and rules of humanitarian law. However, bearing in mind the current state of international law, and of the factual elements affecting it, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake". The votes on this point were 7-7, with the president’s deciding vote backing the quoted resolution. On ratifying the Convention, France pointed out that the prohibition contained in Article 8 of the Statute and in particular the one contained in paragraph 2b) do not imply a prohibition on the possible use of nuclear or other weapons necessary "to the exercise by France of its inherent right of self-defense..." (I. Interpretive Declarations from France, 2).
50 The new Article 53.2 of the Constitution states: "The Republic may recognize the jurisdiction of the International Criminal Court as provided by the treaty signed on 18 July 1998". This acknowledgment implies serious problems in the case that the Statute is modified. Indeed, such a move would honor no more the original conditions set forth in the treaty. The French Constitutional reforms adhered to Decision No. 98-408 DC, of January 22, 1999, issued by the Constitutional Council at the request of both the President of the Republic and the Prime Minister.
51 Cfr. García Ramírez, "Raíz y horizonte de los derechos ‘sociales’ en la Constitución mexicana", in various authors, Liber Amicorum Héctor Fix-Zamudio, San Jose, Costa Rica, Secretariat of the Inter-American Court of Human Rights, 1998, Vol. I, pp. 98 and 99.
52 Mexico’s statement was published in the Diario Oficial de la Federación on October 23, 1947. In it, it held that for the State "(international jurisdiction) does not apply to those conflicts that, in the opinion of the Mexican government, are under the internal jurisdiction of the United Mexican States". The United States of America’s declaration is dated August 26, 1946.
53 At the time of accession to the American Convention on April 3, 1991, (the instrument of accession was deposited on the following May 28th) Trinidad and Tobago made a reservation: "As regards Article 62 of the Convention, the Government of the Republic of Trinidad and Tobago recognizes the compulsory jurisdiction of the Inter-American Court of Human Rights as stated in said article only to such extent that recognition is consistent with the relevant sections of the Constitution of the Republic of Trinidad and Tobago; and provided that any judgment of the Court does not infringe, create or abolish any existing rights or duties of any private citizen". The Court considered this declaration or reservation ineffective, "because this limitation is incompatible with the object and purpose of the Convention", Hilaire, Constantine and Benjamin et al cases, Judgment on Preliminary Objections of September 1, 2001. Cfr. my concurring opinion on the judgment, in "Cuestiones ante la jurisdicción...", Cuadernos Procesales, cit., note 36, pp. 39-41.
54 The Executive position on this issue can be found in "Memorándum de antecedentes (Declaración de Reconocimiento de la Jurisdicción Obligatoria de la Corte Interamericana de Derechos Humanos)", which can be seen in Fix-Zamudio, Héctor, México y la Corte Interamericana de Derechos Humanos, Mexico, Comisión Nacional de Derechos Humanos [National Human Rights Comission], 2nd ed., 1999, p. 42.
55 Nevertheless, there is a reservation and a declaration: a) the contentious jurisdiction of the Court is not admitted in cases derived from application of Article 33 of the Mexican Constitution, and b) acceptance shall only be applicable to facts or juridical acts subsequent to the date of deposit of this declaration, and shall not apply retroactively.
56 Cfr. the judgments on competency ruled in the Ivcher Bronstein and Constitutional Court cases, both of September 27, 1999, in the Annual Report of the Inter-American Court of Human Rights, 1999, San Jose, Costa Rica, 2000, pp. 25, 371 et seq.
57 As of April 2002, the following States have acknowledged the Court’s contentious jurisdiction: Argentina, Barbados, Bolivia, Brazil, Colombia, Costa Rica, Chile, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the Dominican Republic, Surinam, Uruguay and Venezuela.
58 See note 49 supra.
59 IA Court HR, The Right to Information on Consular Assistance in the Framework of the Guarantees of Due Process of Law, October 1, 1999, Series A, No. 16. There is a Mexican edition with a prologue by Fix-Zamudio and a transcript of the intervention of Ambassador Sergio González Gálvez (who analyzed the Mexican State’s position) at the June 12, 1998, hearing, as well as the Concurring Opinions of Judges Antônio Cançado Trindade and Sergio García Ramírez; Advisory Opinion OC-16 of the Inter-American Court of Human Rights of October 1, 1999, requested by the United Mexican States on "the right to information on consular assistance in the framework of the guarantees of due process of law", Mexico, Secretaría de Relaciones Exteriores [Foreign Relations Ministry], 2001.
60 See Note 51 supra.
61 On this particular point, plenty of bibliography is available. I stand by to the considerations I have made on this subject in Los derechos humanos..., cit., note 37.
62 Article 26 of the Constitution refers to the democratic planning system that has the corresponding regulatory legislation. The second paragraph in fine of said precept states that: "There will be a national plan of development to which the programs of the federal public administration will be subjected".
63 I’m referring to instruments as follows: a) American Convention on Forced Disappearance of Persons (1994), with an express reservation to Article IX, inasmuch as the Constitution recognizes military jurisdiction, not as a special jurisdiction according to the Convention (approved: Dec-10-2001); b) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (United Nations, 1968), with an interpretive declaration that is upheld by Article 14 of the Constitution: the State "shall only consider the crimes established by the Convention as always prosecutable from the moment in which the statute enters into force in Mexico" (approved: Dec-10-2001); c) Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts (United Nations, 2000), with an interpretative declaration: "the responsibility that could be derived for non-governmental armed groups for recruiting minors or using them in their hostilities corresponds exclusively to such groups and shall not be applicable to the State which shall have the obligation of applying the guidelines of international human rights law at all times" (approved: Dec-11-2001); d) Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (United Nations, 2000) (approved: Dec-10-2001); e) Amendments to Articles 17(7) and 18(5) to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations, 1984) (approved: Dec-10-2001); f) Optional Protocol to the International Covenant on Civil and Political Rights (United Nations, 1966), to enable the Human Rights Committee to receive communications from individuals (approved: Dec-4-2001); g) Declaration on the recognition of the jurisdiction of the Committee on the Elimination of Racial Discrimination (Article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination, United Nations, 1965), which recognizes the Committee’s jurisdiction to receive and analyze communications from individuals or groups of individuals (approved.: Dec-24-2001); Declaration on the recognition of the competency of the Committee Against Torture (Article 17 of the Convention Against Torture, United Nations, 1984); Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women (United Nations, 1999) (approved: Dec-14-2001); Partial withdrawal of the interpretive declarations and reservations that the Government of Mexico made to paragraph 3 of Article 12 and to paragraph 2 of Article 23, respectively, of the American Convention on Human Rights, related to voting of priests and to the public acts of religious worship outside places of public worship (approved: Dec-10-2001); Partial withdrawal of the reservations that the Government of Mexico made to Article 25, clause B), of the International Covenant on Civil and Political Rights (United Nations, 1966), related to the voting of priests (approved: Dec-4-2001; Protocol on the optional signature to the Vienna Convention on Consular Relations related to the compulsory settlement of disputes (1963) (approved: Dec-4-2001); and the Constitution of the International Organization for Migration (adopted on Dec-30-1954) (approved: Dec-29-2001).
64 This erroneous method was followed by an also erroneous implementation of norms on organized crime: the proposal for constitutional reforms and the corresponding Federal Law against Organized Crime were presented on the same date, March 18, 1996. As to this, cfr. my book entitled Delincuencia organizada. Antecedentes y regulación penal en México, 2nd. ed., Mexico, UNAM, Instituto de Investigaciones Jurídicas-Porrúa, 2000, p. 91.
65 In 1982, to modify —rationally and with benevolence— the system of administrative wrongdoings against police and government regulations; in 1994, on the judicial appeals against both the non-exercise and the ending of criminal action, and on the national system of public security; and in 1999 a truly unnecessary amendment was incorporated on the investigative and prosecuting role of the Public Prosecutor and of the police that collaborates within criminal investigations. I look into these issues in my book El nuevo procedimiento penal mexicano, 3rd ed., Mexico, Porrúa, pp. 144 et seq.
66 In the constitutions of several American States, the hierarchy of international treaties has been set forth in detail. Regarding this, the solutions provided by Argentina and Venezuela are important. Regarding Argentina’s Constitution, which distinguishes various categories of treaties, cfr. Vanossi, Jorge R., "Los tratados internacionales ante la reforma de 1994", in Abregú, Martín and Curtis, Christian (comps.), La aplicación de los tratados sobre derechos humanos por los tribunales locales, Buenos Aires, Centro de Estudios Legales y Sociales [Center of Legal and Social Studies], 1997, pp. 106 and 107. In the case of Venezuela, treaties are endowed with constitutional hierarchy, are applied immediately by the courts and other public agencies and prevail over internal laws when they have more favorable norms for human rights (Article 23).
67 The higher court considered federal laws as derived from the Constitution and the international treaties entered into by Mexico had the same normative rank (Opinion P. C/92, Weekly Federal Court Report, No. 60, 8th Epoch, December 1992, p. 27). The new opinion points out that international treaties "are hierarchically placed above federal laws and below the Federal Constitution". This criterion can be found in AR 1475/98, National Air Traffic Controllers Union, May 11, 1999, 9th Epoch, en banc, Weekly Federal Court Report and its Gazette, Vol. X, November 1999, Opinion P. LXXVII/99, p. 46. Matter: Constitution. Sole Opinion. There are essentially two reasons supporting the new criteria, which I quote literally: a) "these international commitments are assumed by the Mexican State as a whole and they commit all its authorities before the international community"; the president signs as Chief of State and the Senate is involved as "a representative of the will of the federal states"; and b) "in this matter there is no limitation of jurisdiction between the Federation and federal states". The President and the Senate "can obligate the Mexican State in any matter, regardless of the fact that in any other case, the states’ jurisdiction will prevail".
68 It was so in the cited judgments on jurisdiction in the Ivcher Bronstein and the Constitutional Court Cases (See note 56 supra). In both cases, of the same date, the Inter-American Court made it clear that "The Court must settle the question of Peru’s purported withdrawal of its declaration recognizing the contentious jurisdiction of the Court and of its legal effects. The Inter-American Court, as with any court or tribunal, has the inherent authority to determine the scope of its own jurisdiction (compétence de la compétence/Kompetenz-Kompetenz)". The Court later states: "The jurisdiction of the Court cannot be contingent upon events external to its own actions. The instruments consenting to the optional clause concerning recognition of the Court’s binding jurisdiction (Article 62(1) of the Convention) presuppose that the States submitting them accept the Court’s right to settle any controversy relative to its jurisdiction. An objection or any other action taken by the State aimed at affecting the Court’s jurisdiction in one way or another, has no consequence whatsoever, as the Court retains the compétence de la compétence, as it is master of its own jurisdiction" (Paragraphs 32 and 34 of the judgment corresponding to the Ivcher Bronstein Case, and 31 and 33 of that pertaining to the Constitutional Court Case).
69 In the Agreement defining the location of the Headquarters between the Government of the Republic of Costa Rica and the Inter-American Court of Human Rights, of September 10, 1981, Article 27, contained in Chapter X, under the heading "Effectiveness of Rulings", determines that "the rulings of the Court and, if it were the case, of its President, shall have the same executive and compulsory nature than those issued by Costa Rican courts, once they are communicated to the corresponding administrative or judicial authorities of the Republic". It is also worthy to bear in mind the stipulations of the Constitutions of Peru (Article 40) and Venezuela (Article 31).
70 For example, the questions —and implicit issues— that the Supreme Court justice of Mexico, Guillermo Ortiz Mayagoitia, in his article "La Suprema Corte de Justicia ante el derecho internacional", El mundo del abogado, Year 4, No. 33, January 2002, pp. 18-21.
71 The most notable case has been that one involving the The Last Temptation of Christ Case (Olmedo et. al. vs. Chile), Judgment of February 5, 2001. Series C, No. 73. Article 19, number 12, of the Constitution of Chile establishes a system of censorship for the exhibition and publicity of cinematographic productions, while Article 13.2 of the American Convention upholds the freedom of thought and expression, a right that "shall not be subjected to previous censorship" (paragraphs 60 and 63). Therefore, the Court held that the State had violated Article 13 of the Convention (paragraphs 62-63 and Court Ruling 2), and decided "that the State must amend its domestic law, within a reasonable period, in order to eliminate prior censorship to allow the exhibition of the film The Last Temptation of Christ…".
72 I am referring to the procedures on regulating actions of constitutionality instituted by Article 105 of the Constitution, according to the 1994 reforms, for those from Sections I and II of Article 115 of the Constitution provided for in a Regulating Law (published in the Diario Oficial de la Federación on May 11, 1995) and that have been widely examined by jurisprudence and doctrine. Cfr. my comments in García Ramírez, Poder Judicial y Ministerio Público, 2nd. ed., Mexico, UNAM, Instituto de Investigaciones Jurídicas-Porrúa, 1997, esp. pp. 73 et seq., 125 et seq., 171 et seq. and 214 et seq.
73 In this sense, the proposed reforms to Article 107 of the Constitution (Section II, second paragraph), as well as the proposal for the new Law of Amparo by the legal scholar commission appointed by the 2001 Supreme Court of Justice. In this last law, the matter appears in Article 232 under the heading "General Declaration of Unconstitutionality or of Adaptable Interpretation". Cfr. Proyecto de la Suprema Corte de Justicia de la Nación de la Ley de Amparo Reglamentaria de los Artículos 103 y 107 de la Constitución Política de los Estados Unidos Mexicanos [Supreme Court of Justice Regulatory Proposal on the Amparo Law of Articles 103 and 107 of the Political Constitution of the United Mexican States], Mexico, Supreme Court of Justice, 2001.
74 Zafra Espinosa de los Monteros, Rafael, "El establecimiento convencional...", cit., note 14, pp. 159 and 160.
