NUMBER 8 JULY - DECEMBER 2007
ON THE MEXICAN SUPREME COURT OF JUSTICE RULING ON THE HALCONES CASE*
Manuel BECERRA RAMÍREZ**
Original Text (Spanish) PDF
I. Introduction. II. Background. III. Issues subject to discussion. IV. A rule of law that did not exist before and the significance of the student movement. V. The subjection of the State to the international law on human rights and international public policy. VI. The customary nature of the crime of genocide. VII. Reservations and interpretative declarations treaties. VIII. Retroactive application of the non-applicability of statutory limitations. IX. The non-applicability of the statutory limitations is a provision of customary law. X. Conclusions.
The decision pronounced by the Mexican Supreme Court of Justice (SCJN) in the Halcones case, stating that the crime of genocide cannot be tried retroactively because our country has recently ratified the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, is totally insubstantial since it does not help anyone within the framework of the attempted transition from a single-party regime that lasted more than seventy years to a democratic regime. It does not help the Executive, who arrived to the government with a “democratic bonus”, giving him international presence; nor does it help the Judiciary Branch, which is fighting to rid itself of the stigma of being a power that essentially favors the Executive’s dictates during the single-party system and, besides, the Mexican political movement has given it the leading role to decide on essential issues.
Indeed, the SCJN has been in great demand for being a modern body with full knowledge of rules and regulations. We generally speak of globalization when dealing with financial or business matters, but we often forget about the universalization of human rights, which started a long time ago. The Court forgets that international law has different sources, not only treaties, but also international established practices. With regard to genocide, the International Court of Justice (ICJ) has declared —in connection with the Convention on the Prevention and Punishment of the Crime of Genocide— that “the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation”.1 That is to say, even if there is no international treaty.
This work presents a series of comments on the ruling pronounced by the Court in the “Halcones Case”, essentially from the perspective of international law, which was something the Justices of our highest Court failed to consider.
On June 10, 1971, a student demonstration was called to depart from the facilities of the Instituto Politecnico Nacional (the National Polytechnic Institute). When the demonstration was arriving to the student suburb of San Cosme, it was attacked by a paramilitary group called “Halcones” (falcons) in an apparently coordinated action by various Mexican police and military forces (the preventive police, the secret service, the Federal Judicial Police, the military police, the presidential staff, and the Presidential Guard elite force). Demonstrators were harshly repressed. The repressive action followed a preconceived plan that used the government infrastructure, such as transportation and the use of firearms for the exclusive use of the army. The repression lead to the slaughter of many students, some of which were also injured (the exact number is unknown). Claiming that it was a clash or confrontation between groups of students (as though that discharged them from any responsibility), the case dealing with the repression at the hands of the “Halcones” (or the June 10th Massacre, as the public opinion has termed it) was neither investigated, nor were the offenders punished, and this repressive act has remained unpunished.
It was not until June 2002 that the Comité 68 Pro-Libertades Democráticas A. C. filed a complaint with the Fiscalía Especializada para Movimientos Sociales y Políticos del Pasado (Special Prosecutor’s Office for Past Social and Political Movements, FEMOSPP). Having exhausted the preliminary investigation, the Federal Public Prosecutor (MPF) filed an indictment against Luis Echeverria, Mario Augusto Jose Moya y Palencia, the President of Mexico and the Internal Affairs Minister, respectively, at the time of the events, as well as against important police heads and various members of the repressive group called “Los Halcones”, accused of being criminally liable for the crime of genocide, provided for under Section 149 bis of the Federal Criminal Code. At this stage of the procedure, the “Halcones Case” was heard at the Second District Court for Federal Criminal Actions in the Federal District.2 It was not necessary to wait long for a ruling: on June 24, 2004, the federal judge decided to dismiss the criminal action, arguing that the statutory limitations had already elapsed.
The Federal Public Prosecutor appealed this court ruling before the Firth Unitary Court in Criminal Matters of the First Circuit.3 However, at the behest of the Attorney General, the First Chamber of the Supreme Court of Justice decided to exercise its right to be assigned this case, which is why the case was later assigned to the First Chamber.4
On February 23, 2005, the Supreme Court of Justice pronounced a partial decision on the appeal (since only one of the issues included in the appellant’s brief was analyzed). After discussing the preliminary draft prepared by Justice Juan Silva Meza, who essentially stated, with very elaborate and interesting arguments on the grounds of international law, that the “crime of genocide is not subject to statutory limitations, regardless of the date it was perpetrated”. Justice Silva Meza’s draft was rejected by a majority of 4 negative votes against one affirmative vote at that first session. In my opinion, this was a lost historic opportunity to acknowledge the application of the international law on human rights in Mexico. This would have had unusual consequences, but in the end these consequences would have tended towards strengthening law enforcement in Mexico. We will analyze in detail what was discussed in the First Chamber below.
In order to pronounce a decision regarding the remaining issues of the appellant’s brief, the First Chamber was in session on June 15, 2005, to hear and discuss Justice Jose Ramon Cossio’s preliminary opinion, and the following was decided:
The statutory limitations for the criminal action for the crime of genocide exclusively regarding the defendants Luis Echeverria Alvarez and Mario Augusto Jose Moya y Palencia have not elapsed.
The statutory limitations for the criminal action for the crime of genocide filed against the rest of the codefendants have already elapsed.
The records must be sent back to the Fifth Unitary Court in Criminal Matters of the First Circuit, for the purposes mentioned in the eighth paragraph of the Whereas section; that is, to analyze whether the requirements under Article 16 of the Mexican Constitution have been satisfied as to the corpus delicti and the defendant’s alleged liability.
This ruling tried to lessen the opinion saying that the statutory limitations for the crime of genocide had already elapsed, with the argument that the action was partially barred by the statutory limitations. In compliance with the court ruling, the case was submitted to the Fifth Unitary Court in Criminal Matters of the First Circuit,5 which pronounced its final decision,6 quoted below:
The group of students attacked by “Los Halcones” does not have the capacity of victim of the crime of genocide; that is, it was not a national group protected under the crime in question.
The crime that was indeed proved in the records of the case is that of manslaughter.
However, criminal action for the crime of manslaughter is barred by statutory limitations and thus its dismissal is pronounced.
Therefore, it is ordered that this criminal case be filed as totally and finally concluded.
III. ISSUES SUBJECT TO DISCUSSION
From Justice Juan Silva Meza’s preliminary opinion and his participation in the session of February 23, 2005, we can outline the following issues subject to discussion:
Subjection to the Rule of Law; that is, the existence of a Rule of Law that did not exist before (“currently the State has to abide by the Law, which was unimaginable some time ago, and this seems to correspond with the legal reality of the present time”).7
The State is also subject to the law, particularly to international law on human rights.8
The international established practices also provide for obligations regarding human rights: “In truly exceptional cases, it has been recognized that international established practices may give rise to the existence of obligations for individuals. These obligations are aimed at protecting human rights”.9
In compliance with Article 1(b) of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (the Convention on Non-Applicability), no statutory limitation applies to crimes against humanity, as defined in the Charter of the International Military Tribunal of Nuremberg.10
Even though Mexico filed an interpretative statement, it is not binding because of its nature, and even less so when it goes against the purpose of the Convention on Non-Applicability. In compliance with Articles 11 and 18 of the Vienna Convention, the Mexican State is obliged to refrain from any act which would defeat the object and purpose of the Convention on Non-Applicability.11
The principle of non-retroactivity, under Article 14 of the Constitution,
…Regardless of the nature the statutory limitations might have, they do not apply to the Convention on Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity as traditionally done with regard to domestic laws. Even though many international instruments also provide for the principle of non-retroactivity of the law, in the case of an international instrument, such as this Convention, this privilege is not applicable based on the sovereign will of the States.12
The crime of genocide does not have statutory limitations, regardless of the date on which it was perpetrated.13
These are the hypotheses stated by Justice Silva and discussed at the February 2005 session, which virtually changed the course of the Halcones case. We will now analyze them from the perspective of the international law.
IV. A RULE OF LAW THAT DID NOT EXIST BEFORE
AND THE SIGNIFICANCE OF THE STUDENT MOVEMENT
One point Justice Silva brought out for discussion and which did not call the attention of others, at least in the February 2005 session, was the creation of a Rule of Law that did not exist before. Both the 1968 and June 10th cases were exceptionally important because they implied a citizens’ fight (we would now call it civil society) to create a Sate of Law and the repression of a Mexican State with a merely democratic façade, judging from its violent response, as will be seen below.
On June 10, 1971, a student demonstration was organized (it was the first demonstration to take place on the streets after the 1968 student movement). The importance of the 1968 student movement and its aftermath, clearly seen in the 1971 massacre perpetrated by the Halcones —ruffians and assassins hired by the government—, lies in the fact that this movement’s main demand was “to enforce the Rule of Law under which we were supposed to live”.14
The Mexican government’s violent response, in both the Diaz Ordaz and Luis Echeverria administrations, provides evidence of an authoritarian system that, in violation of the Constitution, denied the constitutional rights it provided. At that time, the Mexican political system was characterized by an authoritarian presidency under a veneer of legality (the concept of a perfect dictatorship coined by the writer Vargas Llosa is fitting), backed by a dominant party and government branches essentially subjected to the Executive. This is why a president from a party other than the PRI (Revolutionary Institutional Party) is seen as a transition, a concept generally used to name a change from a non-democratic system to a democratic one.
That is important because the cases brought before the Court refer precisely to the performance of an authoritarian government in a system in which the administration of justice was denied or depended on the Executive’s plans. Unfortunately, this is not a new phenomenon; it has appeared in different States; so much so that the Inter-American Court has made comments on this regard, pursuant to the Advisory Opinion 9/87, which textually reads:
…the nonexistence of an effective resource against violations of the rights recognized by the convention constitutes its violation by the Member State in which such violation takes place. In this regard, it should be pointed out that, for that resource to exist, it is not enough to state it in a Constitution or statutes or that it is formally admissible; it also requires being really suitable to decide whether there has been a violation of human rights and to provide whatever it is necessary to redress it. Thus, we cannot consider effective any resources that are false, because of the general conditions prevailing in the country or even the particular circumstances of a specific case. This might happen, for instance, when their uselessness has been proved in the practice, either because the Judiciary is not independent to decide impartially or because the means to put into practice its decisions are not given, or any other situation denying justice, as it happens when there is an unwarranted delay in the delivery of a decision, or whenever for any other reason the injured party is denied access to a legal resource (emphasis added).
Evidently, this makes the case special. On the one hand, this case deals with a political system that is now headed towards democracy and the establishment of a full Rule of Law and, on the other, it is seeking to redress the damages caused by an abusive, authoritarian, exercise of power.
With regard to human rights, this has already been studied. There is the obligation to prosecute the human rights violators of an older regime.15 This is understandable considering that if such a political regime did not have checks and balances in government duties, defense is not possible in the case of crimes perpetrated by an authority and thus, impunity becomes the rule. Therefore, the arrival of a democratic government results in a political, moral and legal duty to judge the crimes committed by the previous administration. Hence, the decision taken by the administration of President Vicente Fox, who entered office with a “democratic bonus”, is a good decision; even though it is not enough since the Judiciary and the Legislative branches must do their part.
A question arises: Should the Judiciary branch take into account these exceptional political circumstances or should it simply limit itself to applying regulations as they are? Undoubtedly, these kinds of cases are extremely important as said above and because this is a case involving serious human rights violations in which international law on human rights is particularly important, in addition to the creation of a Rule of Law that is the cornerstone of its democratic system. As Argentinean legal scholar Bidart Campos said, “a system of rights in a democratic State must be interpreted in such a way that it achieves completion and is closed through two sources: the domestic one and the international one”.
V. THE SUBJECTION OF THE STATE TO THE INTERNATIONAL LAW ON HUMAN RIGHTS AND INTERNATIONAL PUBLIC POLICY
In order to properly interpret the problem in question, another important issue to discuss is the quite solid and widespread network of international law on human rights to which international humanitarian right and the regulations of the international criminal law were added basically after the end of the Second World War. This has constituted a type of international public policy made up of regulations of a higher hierarchy because they include obligations erga omnes, binding all States —some of them compulsorily— jus cogen. In the Barcelona Traction affair, for instance, the ICJ stated that outlawing acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, are ius cogens statutes, since they represent obligations of the States with the international community as a whole.16 That is to say, there is a regulatory hierarchy at an international level, in which human rights hold special meaning.
In this regard, Justice Silva lets us see that in the case in question in his argument:
The State is specially bound by the compulsory regulations of the international law, with regard to principles that are vital to the existence of society. The unlawful nature of genocide does not depend on an international treaty signed by the State, because it is part of the vital principles to the existence of international society. Criminal liability for the crime of genocide and crimes against humanity has a collective scale because the offender’s conduct was perpetrated to the harm of the human race. All the regulations and measures aimed at punishing or preventing acts such as genocide in the future have a special position and a preferential place in the legal system; thus, their efficiency cannot depend on restrictive rules and interpretations of domestic law, based on the ones that are trying to protect the existence of international society and, consequently, human dignity in opposition to institutional or factual systems of abuse and concentration of power.17
This issue was not discussed in depth by the remaining justices, despite its importance and significance, because this stance fits in with the demands of contemporary modern law, which are in agreement with international law. It does not mean that this stance could threaten individual rights; on the contrary, it strengthens them in the face of the force of the State.18 Besides, this stance serves to verify the evolution of the human rights at an international level.
Furthermore, the superior or special nature of this global public policy derives from the fact that these regulations are not based on norms within the framework of a reciprocal interchange between States, but that “their object and purpose is the protection of the basic rights of individual human beings irrespective of their nationality, both against the State of their nationality and all other contracting States”, as stated by the Inter-American Court of Human Rights.19 This idea is also consolidated in the prevalent school of thought observed in modern constitutionalism, in which the human rights recognized by international law have a superior rank in the domestic Rule of Law (see the new Constitutions of Russia, Argentina or Colombia, for instance).20 Besides, we must take into account the pro homine principle that proposes the flexible application of the rules on human rights in favor of individuals21 and strengthens the tendency that human rights both in their substantive or procedural aspects are a fundamental part of the international Rule of Law, as asserted by scholars in this matter: “the pro homine principle, having as its guiding criteria the broadest protection to human being”.22
But, regardless of creating an international Rule of Law or a sort of legal double-decker, it is significant because it “forces legal scholars to interpret rulings with international grounds”.23 This is a practical consequence of great importance, often forgotten by our judges, especially traditional judges absorbed in domestic law. Thus, domestic judges are obligated to update the international law with their decisions.
VI. THE CUSTOMARY NATURE OF THE CRIME OF GENOCIDE
Customary law was an aspect that, while mentioned in Justice Silva’s opinion (“In truly exceptional cases, it has been acknowledged that international established practices may give rise to the existence of obligations for individuals. These obligations are aimed at protecting human rights”), it was done quite timorously (since it mentions “truly exceptional cases”, when it should be common practice), and the rest of the justices avoided discussing this, despite its importance.
In order to analyze the application of customary law, first, it is necessary to start by taking into account that the Convention on the Prevention and Punishment of the Crime of Genocide (Convention on Genocide) was adopted on December 9, 1948, and entered in force on January 12, 1951. Mexico ratified the Convention on July 22, 1952, which was published in the Federal Official Gazette on October 11, 1952, and entered in force on October 22, 1952, that is, more than a decade before the terrible events of 1968 and 1971 took place. In other words, the crime of genocide perpetrated in 1968 was already punishable according to Mexican law, not only from its conventional perspective but also from a customary perspective, as will be seen below.
It should be taken into account that in 1948, the Convention on Genocide compiled the customary law that had existed beforehand. In fact, since this Convention was drafted in 1946 when through a Resolution,24 the United Nations Assembly General stated that “genocide is a crime under international law which the civilized world condemns, and for the commission of which principals and accomplices are punishable”.25
With regard to genocide, the ICJ has declared, in connection with the Convention on the Prevention and Punishment of the Crime of Genocide that “the principles underlying the Convention are principles which are recognized by civilized nations as binding on States, even without any conventional obligation”.26 That is, even though there was no international treaty.
International law doctrine recognizes the existence of a close relationship between international established practices and conventional law, because they give feedback to each other. Besides, they can coexist on parallel lines, and the State has the obligation to comply with the regulations derived from both sources recognized by international law and local courts or tribunals from different States have generally applied international established practices.27 However, the SCJN emphasized the application of international treaties, but it never discussed the customary nature of the crime of genocide. Consequently, it is not subject to statutory limitations, as will be seen in another section.
In other words, it was not even necessary to resort to the Convention on the Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (Convention on the Non-Applicability)28 because this Convention, as will be seen below, takes a norm from customary law, such as the non-applicability of statutory limitations to genocide and codifies it.
VII. RESERVATIONS AND INTERPRETATIVE
DECLARATIONS OF TREATIES
A point of great discussion in the February session was related to the interpretative declaration filed by Mexico on the Convention on the Non-Applicability and it textually reads: “In accordance with Article 14 of the Constitution of the United Mexican States, the Government of Mexico, when ratifying the Convention… will do so on the understanding that it will consider statutory limitations non-applicable only to crimes dealt with the Convention which are committed after the entry into effect of the Convention with respect to Mexico”.
Reservations in international treaties have been often discussed by jus internationalist doctrine.29 The starting point is its conception in the 1969 Vienna Convention on the Law of Treaties (Vienna 69), which partially, and this is the case of the definition of reservation, takes it from customary law: “A unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”.30
Various elements of this definition have a special meaning. For the purpose of this work we would like to highlight two. The first one has to do with the unilateral declaration, “however phrased or named”. This phrase was not included in the original draft prepared by the International Law Commission (ILC) and was added at the Vienna Conference on the Law of Treaties in 1968. This change is, in fact, an inclusion of the ideas expressed during the discussions held within the ILC. Its purpose was to differentiate them from the common practice of States to include “declarations” in the treaties that depending on their contents may constitute reservations, in the strict sense.31 That is, the current text of Vienna 69 refers to the qualitative analysis of the expression “of the State”, as is common in this Convention. Another example can be found in the concept of international treaty. International courts have already applied the definition of Vienna 69 in two important cases. In the case United Kingdom vs. France, Continental Shelf, the Court of Arbitration stated that a reservation was such even if it was named differently.32
The other is the Belitos case,33 in which it was decided that Switzerland’s reference to an interpretative declaration was, in fact, a reservation. With this, it is clear that even though the definition a State gives to its statement is important, it is not final. A judge has to analyze whether the name is consistent with its substance.
The second element of the definition is that the purpose of the reservation is “to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”. This element clearly limits the purpose of the reservation and clearly serves to clarify the essence of the State’s expression. Besides, a basic concept of the reservation is that it excludes or modifies the legal effects of certain provisions in the treaty, but it should not impose new contractual obligations to the other parties.34 Thus, there is an obvious difference between a reservation and a reform to the treaty.
Another important aspect is the difference between a reservation and an interpretative declaration. An interpretative declaration plays an important role in the process of interpretation and assists the parties to create an atmosphere of mutual understanding with regard to the scope of the commitments derived from the treaty, as well as their involvement.35 On the other hand, an interpretative declaration does not modify the effects of the obligations imposed under a treaty. Furthermore, they do not normally bind the other parties. The most conclusive and clearest expression of what these interpretative declarations are can be found in the Third Conference on the Law of the Sea that prohibits reservations (Article 309) but allows “Declarations and statements” in Article 310, as seen below:
Article 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.
Here we can clearly see the difference between a reservation and an interpretative declaration. It does not go beyond “the harmonization of its laws and regulations with the provisions of this Convention…”, whoever makes it cannot, in any case, “exclude or… modify the legal effect of the provisions of this Convention in their application to the State”, which is possible with reservations. With this, the difference from a reservation is now clarified.
Besides, a reservation has limits as to its significance in terms of time36 and formalities. It also has to approve the examination of the “object and purpose” reintroduced by the International Court of Justice in its famous Advisory Opinion on the Reservations to the Convention on Genocide pronounced in 1951, which has been mentioned above.
To conclude, I think that the statement made by Mexico was not a reservation, but a simple interpretative declaration with the effects which it entails. However, this was not the main issue on which the justices had to focus. It is a pseudo-problem because the main discussion lay in the application of the Convention on Genocide of 1948, which, in accordance with Mexico’s constitutional system, is part of Mexican domestic law, and that was something the justices avoided.
VIII. RETROACTIVE APPLICATION OF THE NON-APPLICABILITY
OF STATUTORY LIMITATIONS
The issue under discussion is not new. It is and has been debated in doctrine and in international practice. This issue displays tension between penal legal tradition and the concept of human rights and its very novel categories. This debate might appear, for instance, in Europe, because Article 7(2) of the European Convention on Human Rights states exclusions in favor of the non-applicability of the statutory limitations in the penal law:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations.
As can be observed, the first paragraph of this article does recognize the strict application of criminal law, but in the second there is an exception to that principle by recognizing that the types of crimes can be given by the international law.
That is, the principle of non-retroactivity is included in various treaties and even in Article 28 of Vienna 69 (as Justice Cossio rightly mentioned during his participation at the February session), which states that: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party”.
However, this principle should be judged fairly. To begin, if should be noted, as the said article states (“unless a different intention appears from the treaty or is otherwise established…”) that non-retroactivity is not an absolute concept, so much so that the parties can agree otherwise. The international doctrine recognizes it as such with regard to reservations.37 Undoubtedly, it is not an imperative international principle and that is understandable because it attempting to be a dike in the hands of the Judiciary branch against the Legislative branch in the creation of the laws or against the Executive in its application, and in the interests of the citizens, even though this principle does not specifically affect citizens’ rights. Besides, the principle of the statutory limitations has limitations, as will be seen below.
In its Decision No. 88-250, December 29, 1988, the Constitutional Council of France has asserted in this regard, in what seems to be a corollary of the principle of non-retroactivity, “le principle qui interdit de faire renaître en matière repressive une prescription legalment axquise”.38 This position of the Constitutional Council has been vehemently criticized by Paul Coste-Floret, who cites the decision of the French Cour de Cassation (Supreme Court) dated January 26, 1984, in the case of Klaus Barbie, in which it was finally acknowledged that statutory limitations of a public action cannot benefit a person prosecuted for crimes against humanity, regardless of the date the crime was committed. This Court stance is in complete agreement with the decision of the Chambre de Accussation of Lyon, dated October 28, 1983.39
In order to judge this problem fairly, we have to take into account and insist that nowadays, at the dawn of the 21st century, international regulations have been put in order of importance, and the provisions of certain crimes, such as genocide, crimes against humanity and war crimes, hold a very important place in the legal hierarchy. This is understandable because otherwise, the balance between the individual and the authority or whoever perpetrates these crimes would be totally unbalanced. What law tries to do is to promote protecting rules and mechanisms that individuals can make use of against the ruling power that can have at hand all it needs to repress an individual, if not controlled.
In other words, in a totalitarian system it would be absurd to demand or request that an individual go to the corresponding legal authority to defend himself/herself. That is why it is a totalitarian system, because of a total lack of checks. In this regard, it is illogical to entitle an authoritarian government that has perpetrated acts against its citizens with the same rights of a constitutional regime that respects human rights. Judge Nicholls’ opinion in the Pinochet case is consistent with this. When the defense was claiming the dictator’s diplomatic immunity, pursuant to the Vienna Convention on Diplomatic Relations, his opinion was totally sound and very profound:
International law recognizes that the functions of a Head of State may include activities that are wrong, even unlawful, pursuant to the federal laws, but the international law has clearly stated that certain types of behavior, such as kidnapping or torture, are not acceptable, although its perpetrator is a Head of State. To expect otherwise would be a mockery of international law.40
It is logical that an authority’s duty has never been to kill its citizens and repressing them goes against any sense of Rule of Law and democracy. Consequently, the perpetrator of such a felony cannot be granted normal treatment for perpetrating such kind of activity. This same idea has been expressed by the Inter-American Court of Human Rights as follows: “…the power of the state is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality. Disrespect for human dignity cannot serve as the basis for any State action”.41
This leads us to an interesting issue to be analyzed: Is the principle of non-applicability absolute?
Let us remember the provisions of Article 14 of the Constitution: “No law shall be given a retroactive effect to the prejudice of any person”. At first, we see it is not absolute because a law can be applied retroactively if it is in the interests of a person, according to a contrario sensu interpretation. Following this line of thought, in the case of crimes against humanity, genocide and war crimes, where there are two parts in the relationship: on the one hand, there is the alleged perpetrator of crimes considered serious by international law, such as the ones in question, and, on the other, there is the victim or the victim’s family. If we take into this account with regard to Pinochet, the balance evidently should incline in favor the victims or the victims’ family members. In other words, it would be irrational and illegal to prohibit retroactive application in favor of a defendant accused of crimes against humanity, leaving the victim or the victim’s family members unprotected.
This argument was also expressed by Justice Silva:
The principle of non-retroactivity of the law protects, in criminal law, the person that is charged with a crime, but this does not mean that the people, who have seriously harmed society, sullying its most valuable principles, can be disregarded from the action of justice through that principle.42
Besides, in this specific case, we are talking about procedural, not substantive, regulations. That is, we are questioning whether the crime of genocide or crimes against humanity survive the passage of time. We are not judging whether the defendant is really guilty of any crime. The difference is essential because in the event the principle of non-retroactivity is applied to a procedural rule, such as that of the non-applicability of statutory limitations for serious crimes, we would be protecting the defendant who (besides having immunity) benefited from the power of the State to the detriment of third parties or citizens lacking any State power. However, if we apply the principle of non-retroactivity in favor of the victims, we preserve all the rights the defendant has before a judicial authority (the right to defense, the right to have an audience, etcetera). In other words, by denying a trial on the grounds that the statutory limitations for a crime(s) have elapsed, we lose a historical opportunity to know the legal truth of the acts that have shaken Mexican society and that are part of Mexico’s contemporary history.
Basically, what we are stating is that this kind of decision leaves the crime unpunished. When we see that the international law on human rights has grown, creating a hierarchy to its favor, with a network of substantive rights (treaties and established practices) of a procedural nature (such as universal jurisdiction and the International Criminal Court), mainly aimed at preventing that crimes go unpunished, as frequently happens in these cases.
Evidently, not to judge the behavior of state agents, including that of the Head of the Executive Branch, means that the serious crimes perpetrated against the population will go unpunished, in addition to the fact that impunity in times of transition is not advisable.
There is another aspect of the debate that should not be forgotten, which is the customary nature of the principle of non-applicability of statutory limitations to crimes against humanity, which will be discussed below.
IX. THE NON-APPLICABILITY OF THE STATUTORY LIMITATIONS IS A PROVISION OF CUSTOMARY LAW
An essential and fundamental premise to understand the case in question is to remember that international law has different sources, not only treaties, but also international established practices, which is also binding for Mexico. In accordance with Article 38(I) of the Charters of the International Court of Justice, the sources of international law, that is, how regulations become apparent, are the treaties, established practices, the general principles of law and then auxiliary sources are included. In public law experts’ doctrines, it is widely acknowledged that these legal expressions have an equal value, that is, international treaties and established practices have the same value, and in case of contradiction or doubt as to which regulation should be applied (whether a customary or a conventional norm), the general principles of law are applied. These are legal rules that help create a closed and hermetic system, in which non liquit does not exist, that is, in which the situation of not being able to decide on a specific case because there is no applicable legal norm is prevented.
As stated in the abovementioned Article 38(I), the regulations derived from international established practices require two elements in order for them to be instituted: the objective element, which is the repeated practice by the States, and the subjective element, which is the opinio juris, that is, the opinion that any given repeated practice by the subjects of international law is legally binding.
More than one century has passed since we began to outline the crimes against humanity in the Charter of the Nuremberg Tribunal, which proposes a definition of crimes against humanity and also makes reference to not being subject to a statute of limitations. This stance was included in the legislation of different States, such as France, which in 1964, its Legislative Branch debated and unanimously adopted, in both chambers, the non-applicability of statutory limitations for crimes against humanity, in this sole article: “Les crimes contre l’humanité, tels qu’ils sont defines par la resolution des Nations Unies du 13 février 1946, prenant acte de la definition des crimes contre l’humanité, telle qu’elle figure dans la charte du tribunal international du 8 août 1945, sont imprescriptibles par leur nature”.43
This opinion, which states that statutory limitations do not apply to crimes against humanity due to their nature has been outlined since the 19th century with the 1808 Code de Instruction Criminelle that did not recognize statutory limitations for serious crimes, such as those punished by the death penalty. In other words, reference is made to a legal hierarchy in which there are certain crimes that are more serious than others.
The same tendency of considering serious crimes not subject to statutory limitations is observed in other countries, such as Austria, whose 1852 Criminal Code excludes statutory limitation for crimes punishable by the death penalty or a life sentence. Likewise, the idea that there are serious crimes with no statutory limitations is defended by authors such as Beccaria and Bentham.44 In his book entitled Dei delitti e delle pene (On Crime and Punishment), published in Italy in 1764, Beccaria distinguishes two types of crimes: the first category is for appalling crimes and the second for less serious crimes. He believes that the first ones should have a longer term so that statutory limitations can apply.
It is possible to assert that there is an opinio juris on statutory limitations for war crimes, by simply verifying international legal documents, such as the Charter of the International Court, dated 8 August, 1945, the United Nations Resolutions dated February 13, 1946, and the various laws adopted by the European States on the non-applicability of statutory limitations to war crimes and crimes against humanity.
In this regard, we should also mention the Declaration adopted by the 37th Inter-Parliamentary Conference held in Rome in September 1948 (that is, just before the Convention on Genocide was adopted). Its Article 10 states:
…the collectivity of the States must adopt, as expeditiously as possible, an International Criminal Code and create an International Criminal Court to punish... crimes against humanity, particularly, genocide. Mutual cooperation of the States to prosecute and punish… criminals who have perpetrated genocide or other crimes against humanity must be given without the limitations and delays of the statutory limitations, which would be contrary to the spirit mentioned above (emphasis added).45
Besides, it is fitting to mention the European Convention dated January 25, 1974, on the non-applicability of statutory limitations to these crimes, in addition to the well-known document of the United Nations Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity. It is also possible to cite court decisions in which the non-applicability of statutory limitations to crimes against humanity has been decided, such as in the Barbie case, heard by the Cour de Cassation in 1984, when, without further problems, it was acknowledged that such crimes were not subject to statutory limitations. All this leads us to assert that the non-applicability of statutory limitations to such crimes is part of an international established practice.
It is necessary to clarify that in this position there is reciprocal influence between established practices and international treaties. In some cases, international treaties have influenced international established practices and, in others, international established practices have influenced international treaties, such as in the case of the Vienna Convention on the Law of Treaties, which was drafted based on international established practices regarding treaties. This phenomenon is commonly known in international law.
Are there grounds for courts to base themselves on established practices? This matter could lead us to the Constitution. However, in an unfortunate drafting and a bad copy of United States Constitutionalism, Mexico’s Article 133 of the Constitution omits the reference to international established practices. However, this does not prevent the Mexican State from being subject to international regulations. Saying the contrary would be to assert that Mexico is an island with no regulations. Besides, Mexico is a member State of the San Francisco Charter, which includes the Charter of the ICJ, whose Article 38(I), as already seen, includes a reference to the sources of international law that include established practices, besides the fact that Mexico has invoked established practices in some cases.
Unfortunately, in the case in question, the SCJN did not properly focus the mater debated on what it should have, thus creating pseudo-problems related to the application of domestic law (which now is only part of the Mexican legal system) and precluding the international law which binds all States, and we must insist that in human rights matters Mexico is not an isolated island. Undoubtedly, international established practices apply in Mexico. For instance, it is interesting that in the framework of the North American Free Trade Agreement (NAFTA), member States, including Mexico, are obviously obligated to apply international established practices regarding foreign investment. This is a commitment that has not been rejected by any of the parties.46
Besides, if that were not enough, in a decision regarding international treaties on human rights pronounced in 1999, the Court has wisely acknowledged that “if the treaty makes it binding to broaden the sphere of liberties of the citizens or commits the State to perform certain actions to the interest of traditionally weak human groups, these actions must be considered constitutional”. This is a stance that can also apply to international established practices as well. It is very modern and consistent with the development of human rights worldwide and some recent Constitutions already include it in their provisions with no further problems and without any scandals.
The problem with the Halcones case was not strictly about the retroactive application of the Convention on the Non-applicability of Statutory Limitations to Crimes against Humanity or consequently whether Article 14 was violated, since this article provides for the non-applicability of statutory limitations as a people’s constitutional right that gives them legal certainty. Not at all, it was not even about trying to position a treaty over the Constitution. It was a matter of acknowledging a customary norm that was outlines a long time ago, and that states that crimes against humanity are not subject to statutory limitations and this norm forms part of international imperative law (jus cogens) and of course it applies to Mexico. It was just a matter of the justices admitting it.
In this case, the SCJN did not act in accordance with its historical responsibility. What we require nowadays, as part of the Rule of Law, is to end impunity including for past crimes committed with premeditation. This has happened in most transition phenomena; this is one of their most important features and what the Court is doing is delaying justice and making it transcend to international levels because instead of deciding this matter domestically, it will be open to foreign channels.
* Translated by Carmen Valderrama Ramos.
** Researcher of the UNAM Legal Research Institute.
1 Advisory Opinion of the ICJ dated May 28, 1951. See http://teaching.law.cornell.edu/facul ty/drwcasebook/docs/genocide%20convention%20decision.pdf.
2 Criminal Action No. 114/2004.
3 Appellate dossier number 415/2004.
4 Under the apellate dossier number 1/2004-P5.
5 Headed by Justice Herlinda Velasco.
6 On the appellate dossier number 415/2004.
7 De Silva Meza, stenographic version, February 23, 2005, p. 26.
8 Ibidem, p. 27.
9 Ibidem, p. 28.
10 Ibidem, p. 29.
11 Ibidem, pp. 29 and 30.
12 Ibidem, p. 31.
13 Ibidem, p. 32.
14 Estrada, Gerardo, 1968, Estado y Universidad. Orígenes de la transición política en México, Mexico, Plaza y Janes, 2004, p. 191.
15 Steiner Henry, J. and Alston, Philip, International Human Rights in Context. Law Politics Morals, Clarendon Press, Oxford, 1996, p. 1090.
16 ICJ 5/2/70, “ICJ Reports”, pp. 4 et seq.
17 Silva Meza, Juan, Stenographic version, op. cit., note 7, p. 28.
18 Justice Cossio also expressed concern that an interpretation based on this premise could be “contrary to the conception of an individual as a purpose itself, rather than as an entity that can be sacrificed for the greater good. I must emphasize that this justification has been used as grounds for many of the atrocities we know of. I believe that among them, we are beginning to create a society as an entity, so I do not see why the proletariat cannot do that, and then the race, and then the people and finally each one of you could add your own examples of what I am referring to here”. Silva Meza, Juan, Stenographic Version, op. cit., p. 45.
19 Advisory Opinion OC 2/82 of the Inter-American Court of Human Rights.
20 Goodman Ryan, “Human Rights Treaties, Invalid Reservations and State Consent”, American Journal of International Law, ASIL, Washington, Vol. 96, No. 3, July 2002, pp. 531-566.
21 This idea has been further developed in another work. See Becerra Ramírez, Manuel, “Las decisiones judiciales como fuente del derecho international en derechos humanos”, Liber Amicorum, Hector Fix-Zamudio, Inter-American Court of Human Rights Secretariat, San Jose, Costa Rica, 1998, Vol. 1, pp. 439 and 440.
22 García Ramírez, Sergio, La jurisprudencia de la Corte Interamericana de Derechos Humanos, Mexico, Inter-American Court of Human Rights, UNAM, Legal Research Institute, 2001, p. 25.
23 Travieso, Juan Antonio, Garantías fundamentales de los derechos humanos, Buenos Aires, Hammurabi, 1999, p. 35.
24 A. G. Res. 96, 1946.
25 Lippman, Matthew, “Genocide: the Crime of the Century. The Jurisprudence of Death at the Dawn of the New Millennium”, Houston Journal of International Law, Texas, vol. 23, 3, pp. 437-535.
26 Advisory Opinion dated May 28, 1951.
27 Daglish, Kristen, “The Crime of Genocide: Nulyarimmma vs. Thomson”, International & Comparative Law Quarterly, London, Vol. 50, part 2, BIIICL, April 2001, pp. 404-411.
28 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity was adopted on November 26, 1968, became effective on November 11, 1970. Mexico signed it on July 3, 1969 and did not ratify it until March 15, 2002.
29 See, for instance, Riquelme Cortado, Rosa, Las reservas a los tratados. Lagunas y ambigüedades del régimen de Viena, Murcia, Spain, Universidad de Murcia, 2004.
30 Article 2(d), Viena 69.
31 In fact, since 1962, in the heart of the Convention the following was set out: “States, when signing, ratifying, acceding to, accepting or approving a treaty, not infrequently make declarations… as to their interpretation of a particular provision. Such a declaration may be a mere clarification of a State’s position or it may amount to a reservation, according as it does or does not vary or exclude the application of the terms of the trey as adopted”. Commentary to Article 1(1)(f) of Draft Articles on the Law of Treaties, International Law Commission Report to the General Assembly Covering the Work of its 15th Session, 17 U. N. GAON supp. (No. 9) at 6, UN Doc. A/5209 (1962).
32 Delimitation of the Continental Shelf (United Kingdom vs. France) 54 ILR 6, 18 ILM 397 (Ad Hoc Court of Arbitration, June 30, 1977).
33 132 Eur. THR (ser.A) 10 eur. Human Rights Rep. 466 1988.
34 Edwards, Richard, W., “Reservations to treaties”, Michigan Journal of International Law”, Michigan, Vol. 19, No. 3, Spring 1989, p. 379.
35 Ibidem, p. 380.
36 Article 64 of Vienna 69.
37 “Malgré l’importance donnée au principe de la non-rétroactivité il faut rappeler qu’après tout la non-rétroactivité n’est pas une norme impérative de droit international; tout dépend de la volonté des parties”, in Do Nascimento e Silva, Geraldo Eulalio, «Le Facteur Temps et les traites», Academie de Droit International, Recueils des Cours, 1977-I, Sijthoff & Noordhoff, Holland, 1978, Vol. 154, p. 275.
38 Laquieze, Alain, “Le debat de 1964 sur l’imprescriptibilité des crimes contre l’humanité”, Droits. Revue Francaise de Théorie de Philosophie et de Culture Juridique, Paris, No. 31, 2000, p. 33.
39 Ibidem, p. 34.
40 See Remiro Brotons, Antonio, El caso Pinochet. Los límites de la impunidad, política exterior, Madrid, Biblioteca Nueva, 1999, p. 145.
41 IACHR, Velasquez Rodriguez Case. Decision dated July 29, 1988, Series C, No. 4, paragraph 154.
42 Silva Meza, Juan de, Stenographic version, op. cit., note 7, p. 31.
43 Laquiéze, Alain, op. cit., note 38, p. 23.
44 Ibidem, pp. 25 and 26.
45 Blac Altemir, Antonio, La violación de los derechos humanos fundamentales como crimen internacional, Spain, Bosch, 1990, p. 175.
46 One of NAFTA’s main objectives is to establish legal framework for foreign investment. In this regard, Article 1105-1 of said Treaty refers to a minimum level of treatment that must guarantee foreign investors in a very broad formulation that leaves room for ambiguity, which, in the end, has allowed the application of international established practices.