IJCentral: International Justice Central

By Isabel Erreguerena*

As stated on a previous post on this same blog, on November 21, 2011 a group of Mexican activists filed a request to the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) to investigate alleged crimes committed in Mexico since 2006, during the so-called “war on drugs.”  The request- which was not a lawsuit strictu sensu- was supported by a little over 20, 000 petitioners.

War Crimes

The communication argues that since 2006, government officials of President Felipe Calderon and members of the Drug Cartels have committed crimes that fall under the ICC jurisdiction, such as alleged war crimes and crimes against humanity.  According to those who drafted the communication, the following war crimes have been committed by the different actors:

- By the Mexican Army
1) Willful killing civilians at military checkpoints and during operations. (Articles 8.2.c.i. and 8.2.e.i.)
2) Torture of civilians. (Article 8.2.c.i.)
3) Extrajudicial executions. (Article 8.2.c.iv.)
4) Covering up the rape of women perpetrated by soldiers during search operations of criminals. (Article 8.2.e.vi.)

- By the Drug Cartels
1) Mutilation of civilians, as part of an intimidation campaign (Article 8.2.c.i)
2) Intentional directed attacks against rehabilitation centers, which can be considered medical units.  (Article 8.2.e.iv)
3) Conscription and enlisting children under the age of 15 years, using them to participate actively in hostilities. (Article 8.2.e.vii.)

All the crimes mentioned in the previous paragraph are established in the context of a non-international armed conflict. Article 3, common to the four Geneva Conventions, states that “certain minimum rules of war apply to armed conflicts that are not of an international character”. However, this article does not establish the requirements that are needed to determine which situations are considered within this category.

International jurisprudence has established that non-international armed conflicts are protracted armed clashes that occur between government armed forces and the forces of one or more armed groups or between such groups, arising in the territory of a State of the Geneva Conventions. Case law has also mentioned that to categorize a situation as a non-international armed conflict it must reach a minimum level of intensity and the parties involved in the conflict must have a minimum organization.

Assuming that neither the Rome Statute nor case law have established clear requirements on what is meant by the concept of international armed conflict, I believe there are grounds to believe the current situation in Mexico is a non- international armed conflict since:

1. The conflict fulfills the requirement of the minimum level of intensity because:

a. The Mexican Army has participated actively in hostilities replacing civilian authorities for a long period of time.

b. NGOs believe that the drug war has caused around 150, 000 deaths (almost 4 times the deaths caused by the Iraq war) over 120, 000 displaced and 225, 000 “desaparecidos”.  15 mass graves have been found over the country with more than 300 bodies…. and counting. We wake up mostly ever day with news on more killings and desaparecidos.. Just yesterday 14 bodies were found in an abandoned van in San Luis Potosi, a city in the northeast of Mexico. The discovery of the bodies was followed by clashes between the authorities and the criminals in which 7 more people were killed, leaving a final toll of 21 deaths and at least 4 wounded.

2. The minimum organization requisite is fulfilled armed since there is sufficient evidence to prove that the drug cartels have a sophisticated organization.

The Mexican government has tried to distort the above considerations with a set of unfounded and weak arguments such as that the army action is “temporary,” pointing out the situation in Mexico is not an armed conflict but a national matter of common violence that is being dealt by the government.

Crimes against humanity

Finally, the drafters of the communication remonstrated that President Calderon has “ordered systematic attacks against Central American immigrants, who come to Mexico seeking to enter the US”- a crime that falls under the normative hypothesis of Article 7 of the Rome Statute.

The Answer

The response from the Mexican government to this accusation was made in the form of a weak statement, stating that the allegations were “unfounded and improper”.  It added that the petition was “not admissible” because of the Principle of Complementarity.,. one of the cornerstone of the ICC system established by the Rome Statute, by which the ICC can act only if the national system is unable or unwilling to investigate the crimes.  In a nutshell: the government argued that if crimes were committed, they should go to national courts first, instead of calling for ICC action.

The reaction from the petitioners came instantly. According to them, there are no national instances in place in Mexico to try President Calderon, because Article 108 of the Mexican Constitution provides that “The President of the Republic during his term of office may be impeached only for treason and serious common crimes.”  Apart from that legal provision, they added that due to the lack of independence of the General Solicitor of Mexico, no senior official were being prosecuted in the last years.
Lastly, they mentioned the difficulty in achieving justice for crimes perpetrated by the military because crimes committed by them fall compulsory under military courts.

On the one hand, I believe there exist national instances to try government officials, officers of the army, navy and members of the Drug cartels for the crimes mentioned above.  On the other hand, and now applying the Complementary Principle and of the Rome Statute, a suit against President Calderon would be admissible, as he cannot be tried under the Mexican judicial system.

Importance of the topic

It is very concerning that the ICC OTP has not yet issued any official response to this request, as it conveys the idea that Latin America is not a priority for the ICC and it is Africa-focused. It is also undeniable that the situation in Mexico has not improved and seems to worsen day by day: human rights defenders are being threaten and killed, same with journalists and sometimes, politicians. But mostly, civilian population.

The lack of response by the ICC has a twofold effect: on one hand, it contributes to the perception of many that the ICC is an only African matter and it discourages any attempts of citizens of Latin America to bring cases before the Court just,  as it happened with the crimes committed in the aftermath of the coup in Honduras and the gender crimes committed in Colombia.

*Isabel Erreguerena was awarded with the International Legal Studies Program Alumni Fund Scholarship of the Washington College of Law, American University, where she is currently studying an LLM on International Legal Studies. Isabel has worked on various research projects regarding the National Human Rights Commission in Mexico. She also worked in the legal area of the Permanent Mission of Mexico to the United Nations in New York. Twitter: @isaerre