To judge a President: Felipe Caldéron and the ICC
Tuesday, 29 November 2011 00:00
While the information has been burried by the headlines, on Friday 25 November 2011, a delegation of Mexican lawyers has presented, with the support ‘of the signatures of over 20 thousand Mexican citizens’ (18,000 according to the BBC, a petition for the International Criminal Court (ICC) to investigate the Mexican president, Felipe Calderón Hinojosa, for crimes against humanity, genocide and war crimes.
The International Criminal Court is one of the institutions created to address the worst violations of the 1949 Geneva Conventions, which are in themselves a reaction to protect those most vulnerable in armed conflict, and the backbone of International Humanitarian Law. In the Rome Statute it is established that the jurisdiction of the Court is limited to “the most serious crimes of concern to the international community as a whole”, namely: the crime of genocide, crimes against humanity, war crimes and the crime of aggression, as they are defined in the statute itself. Mexico ratified this international instrument on 28 October 2005 and therefore its citizens can be subjected to an investigation by the Court.
The petition has not been made public beyond a manifest and a couple of short reports on Mexican, and now international, newspapers. But as the BBC points out, any decision to begin an investigation into alleged crimes in Mexico could take months or even years. In the petition/manifest circulating on internet—not the actual document presented to the Court—it is explained that over 20,000 Mexicans have signed a civil lawsuit, “the largest that the International Court of Justice has received in its history”. Perhaps even the only one, as the Court can only exercise its competence under three specific circumstances: a) when a State Party refers a situation to the Prosecutor in accordance with Article 14 of the Rome Statute; b) when the Security Council acts under Chapter VII of the UN Charter and refers a situation to the Prosecutor or c) when the Office of the Prosecutor itself initiates an investigation in accordance with Article 15. This means that regardless of whether it is one citizen or 20,000, a civil lawsuit cannot be presented before the Court, and that’s leaving aside the ‘civil’ qualification. They could very well ask for an investigation by the Office of the Prosecutor, which then has to examine the merits of the petition and decide whether there are sufficient elements for an investigation. However, not one and not 20,000 signatures are a guarantee.
The first thing that calls attention is that the Mexican president is accused of crimes against humanity, which would imply that his government has begun a “widespread or systematic attack directed against any civilian population, with knowledge of the attack”. As far as it has been reported, the current activities of the police and military forces in Mexico are directed against people who are considered to be involved in criminal and illegal activities by the Mexican state, which is not outside its scope of action under its obligation to protect the population, and with legitimate use of force. There have been abuses and those incidents should be looked into, there is no denying, but that alone does not amount to crimes against humanity. The following charge against the government of Mexico is that they should be held accountable for genocide. However, the Mexican government is not trying to destroy a national, ethnic, racial or religious group and it is patent to see that drug cartels certainly do not fall under this description.
Moreover, in the petition it is said that there is an armed conflict in Mexico, which would immediately triggers the Geneva Conventions. This would mean that not only Human Rights Law but International Humanitarian Law would apply. This means the petitioners seem to consider that currently Mexico is involved in a non-international armed conflict. For this to be the case an armed conflict should be of a non-international character and should take place in the territory of one of the High Contracting Parties. However, Additional Protocol II, which deals with the protection of rights during armed conflict not of an international character, can only apply when there is a conflict between the armed forces of a High Contracting Party “and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. In other words, the other party must have an effective control of a given territory. This is not the case yet in the country. In spite of all the violence, it cannot be said that the Mexican government has stopped functioning or that the drug cartels have created a parallel government with the ability to enforce (international) law within the areas that they control. In Mexico there is no armed conflict as defined in the Geneva Conventions, which makes Article 8 of the Rome Statute inapplicable.
Further, it is important to recognise that the jurisdiction of the ICC is complementary. The lawyers who have been to the Court as part of the Mexican delegation say that the Supreme Court of Justice in Mexico has not pronounced itself on the matter and that in Mexico there do not exist legal instruments nor the conditions to begin a trial against Felipe Calderón, other civilian authorities and the drug dealers themselves. Upon examination, this argument fails the test. Article 17-3 of the Rome Statute establishes that “in order to determine inability in a particular case, the Court shall consider whether, due to a total or substantial collapse or unavailability of its national judicial system, the State is …unable to carry out its proceedings”. While Mexico is mired in a situation of pervasive violence, and the judicial system is perceived as corrupt to some extent, it cannot yet be said that in the country there are no conditions to try criminals and corrupt officials, as evidenced by the fact that police forces have been subject to investigation, tried, some have been found to be guilty of collaborating with drug cartels, and punished accordingly. Whether the punishments are sufficient or fair is matter for other discussions.
The fact that International Humanitarian Law is perhaps not the applicable regime for the situation in which the country is immerse, does not mean the Mexican government can violate human rights and it certainly does not exempt it from protecting the lives, property and other basic rights of those citizens who are caught in the crossfire of the drug violence. For that, International Law recognises the Human Rights regime, which regulates the interactions between states and individuals and applies in times of war and times for peace. It is important therefore to clearly establish that these are two distinct and at times complementary regimes in International Law and to apply them accordingly. It cannot be denied that abuses have been committed and that in the current practices to combat organised crime in Mexico there are many examples of people on the street getting killed, detentions that are not always based on solid intelligence, and human rights abuses. Those excesses have to be documented and punished, but currently they cannot be considered a matter for the ICC.
International Law instruments such as the Geneva Conventions and the ICC are some of the options the International Community has found to help protect those most vulnerable who are affected by international and internal conflict. Yet, in order for them to work they must be credible, impartial and this is to some extent dependent on how they are used. Perhaps the problem is that International Humanitarian Law has not evolved as fast as new conflicts, new weapons and new criminal networks. Perhaps that is why it is so difficult to define international responsibility in situations such as Mexico currently. However, these instruments, as imperfect as they are, are our current option to bring justice to those affected by the worst situations of armed conflict. They should not be devaluated by being misapplied and characterised as something they are not. As a Mexican, I do agree that in the country there is urgent need to impart justice in light of the –ever increasing—episodes of Human Rights violations. What I do not agree with is the manipulation of the hopes of those victims who signed a petition which is not founded in solid International Law and will most likely not prosper.