BY MARCO APPEL
Through an appeal that is not usual, ie through a letter dated October 22, 2015, the Prosecutor of the International Criminal Court (ICC) of The Hague refused to open a preliminary examination for alleged crimes of lese humanity committed by agents of the State in Baja California between 2006 and 2012, during the mandate of President Felipe Calderón Hinojosa.
For the first time, it is publicly known that the ICC prosecutor's office has officially refused to advance a request to intervene in Mexico. But, above all, the importance of the fact lies in the fact that the argument used by the international body to dismiss this possibility can be applied to other requests.
The Court affirms that the serious human rights violations committed by the security forces in Mexico since 2006, within the framework of the war against drug trafficking, can not legally be considered as war crimes or crimes against humanity. that the ICC does not have the powers to intervene.
The two-page letter and reference number OTP-CR-325/12 - to which this columnist had access - points out in its substantial parts that, "on the basis of the information received, the evaluation of the Office of the Prosecutor is that There are broader elements of context, such as the structural weakness of the administration of justice, a high level of impunity and the increase in organized crime that may have contributed to the widespread violations of human rights reported in recent years "in Mexico.
It states that this set of factors "does not diminish the seriousness of the human rights situation in Mexico," but, far from reinforcing the need for Court intervention, "creates additional obstacles to the preliminary juridical qualification of such conduct as crimes of war or crimes against humanity, as defined in the Rome Statute "on which the ICC operates.
"It should be noted," he says, "that extensive violations of human rights do not necessarily constitute crimes under the jurisdiction of the Court. In particular, the Rome Statute requires that the alleged conduct be committed as part of a generalized or systematic attack against a civilian population to constitute a crime against humanity, or to have been committed in the context of, and in connection with, a armed conflict, to be a war crime. "
Therefore, "the letter states," after "carefully analyzing" the information received, "the Prosecutor has concluded that the allegations described in her communication do not appear to fall within the material competence of the Court and, as a result, have determined that there is a legal basis at this time to advance the analysis ".
This letter was sent to the International Federation of Human Rights (FIDH), based in France, which together with the Mexican Commission for the Defense and Promotion of Human Rights (CMDPDH) and the North American Commission for Human Rights (CCDH) -and with the support of the Ministry of Foreign Affairs of Finland, presented in November 2012 and September 2014 a couple of "communications" in which he requested to investigate possible crimes against humanity that occurred in Mexico, mainly in Baja California, attributable to military and federal, state and municipal police.
These NGOs claim that there are sufficient elements for the ICC to open a preliminary examination in Mexico, which could lead to the identification, prosecution and prosecution of those responsible for possible crimes against humanity that the Mexican State can not or will not bring before the courts. Justice.
In the 2014 "communication", NGOs documented cases of alleged "serious crimes" against human rights, in particular cases of torture and forced disappearances, which, they claim, "could constitute crimes against humanity due to their systematic nature and to be carried out. as part of a criminal policy that is evidenced by the use of defined patterns and by the organized nature of its actions ".
The information they presented offers, in their view, "a reasonable basis to believe that in Baja California, Mexico, between 2006 and 2012, crimes of murder, torture and serious deprivation of liberty have been committed as part of a systematic attack, and very probably widespread, against the civilian population as part of a strategy of the armed forces and state security ".
"Because of these facts," they continue, "no military or police high command has been investigated or tried criminally, so that a possible case could be admissible before the ICC. Finally, the facts meet the criteria of gravity established by the Office of the Prosecutor in its policy on preliminary examinations. "
The negative response of the ICC Prosecutor occurred after the Peña Nieto government decided to exert strong pressure on it to protect its predecessor. A note from reporter Jorge Carrasco ( Proceso No. 1996) reports that a delegation of officials from the Ministry of the Interior (Segob) and the Attorney General's Office (PGR) traveled to The Hague at the end of 2014, and then once more at the beginning of 2015, to meet with personnel of the ICC in order to "prevent that court even analyze the various petitions against the Mexican State"
The lobbying lobby, adds Carrasco, included discussions with Prosecutor Bensouda within the framework of the General Assembly of the States Parties to the Rome Statute of the ICC, as well as in private meetings.
On December 10, 2014, during the thirteenth session of the aforementioned assembly in New York, the then undersecretary for Multilateral Affairs and Human Rights of the Ministry of Foreign Affairs -and currently ambassador to France-, Juan Manuel Gómez Robledo, warned that Mexico it does not require the help of that court because it has the capacity to investigate and sanction the violations of individual guarantees for itself.
The fact is that in November 2016 representatives of FIDH and Mexican NGOs held a meeting with staff of the ICC Prosecutor's Office, which confirmed their negative position.
In the Belgian documentary titled Mexico: Justice for the Disappeared , transmitted last November 27 by the Franco-German Art Network, Emeric Rogier, head of the Situation Analysis Section of the Bensouda prosecutor's office, took up the justification for the letter sent one year before:
"From a legal point of view, one can speak of war or war against drugs, (but) when one hears war, one thinks of armed conflict, and armed conflict is the resort to force between a State and at least one organized group , or eventually between two States. The notion of 'war on drugs' for the prosecutor's office means nothing; it can evoke a context or a situation, but it does not correspond to a legal qualification ".
Consulted by this columnist, Jimena Reyes, head of the FIDH office for Latin America, questioned that reasoning: "In international criminal law there is no need for a conflict to exist for crimes against humanity. One of the important achievements of the Rome Statute is precisely that it separates war crimes from crimes against humanity. "
He adds: "It is true that the ICC has been very concerned about crimes against humanity committed in a context of war, but Rogier knows that what he says about Mexico is inaccurate and we have already had that discussion with him. And the fact is that the ICC, for example, opened a preliminary examination and an investigation in Kenya based on a case of repression against demonstrations in the context of an election; It has nothing to do with a conflict. "
On July 5, FIDH and the Mexican organizations Familias Unidas in Search and Location of Missing Persons, United Forces for Our Disappeared in Mexico, and the Diocesan Center for Human Rights Fray Juan de Larios, presented to the Prosecutor's Office of the ICC new request or "communication" to conduct a preliminary examination on Mexico from specific cases of alleged crimes against humanity - including arbitrary arrests, torture and disappearances - committed by police and military in the state of Coahuila between 2009 and 2016.
In the presentation, the NGOs indicated that their investigation "provides key information and first-hand information on more than 500 concrete cases, testimonies, and conclusive inquiries that make it possible to prove that they are crimes against humanity. That communication includes two particularly violent episodes: the killing by the Los Zetas cartel of between 60 and 300 people in Allende, in March 2011, and the criminal control of the Piedras Negras prison, where at least 150 people were murdered and their bodies burned or dissolved in cubes with acid.
FIDH expects a response from the ICC prosecutor's office by the end of 2018.
Reyes believes that "it would be absolutely scandalous if the ICC does not open a preliminary examination of Mexico with the Coahuila case", since, he says, "it would put at stake the very legitimacy of the Prosecutor's Office. It is so obvious that crimes against humanity are being committed in Mexico that there is no room for doubt. "
Asked by this columnist, the Prosecutor's Office Bensouda responded that, "as we do with all communications, we will analyze the materials delivered, as appropriate, in accordance with the Rome Statute and with full independence and impartiality."
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