09 Jul Judge Dismisses Echeverria Genocide Charges
I noted last week that the special prosecutor investigating past government abuses in Mexico, Ignacio Carrillo Prieto, had finally succeeding in indicting former president Luis Echeverria on genocide charges. His success was short-lived: a judge dismissed the charges yesterday on the ground that they violated Mexico’s statute of limitations for genocide.
This latest setback for the special prosecutor is rather unexpected, given that the court of appeals specifically approved trying Echeverria for genocide last week. I don’t understand how Mexico’s statute of limitations works — readers? — but it seems likely that the court of appeals would have taken it into account in its ruling. Interestingly, although Art. V of the Genocide Convention would seem to require States to eliminate statutes of limitations on the crime of genocide, Julian has noted that the Mexican Supreme Court has held that “the ‘interpretation’ attached by Mexico upon acceding to the convention allows Mexico to continue to apply its statute of limitations.”
Professor Heller,
It is it your opinion that genocide charges were in any case appropriate here? What is the legally relevant ‘group?’
And this seems to be a case where ‘intent’ would be well-nigh impossible to prove, in part because this massacre was relatively isolated, that is, unless one can show how this fits in with the ‘dirty war on leftists’ that is said to have taken place from 1964-1982, in which case this incident still seems to stand apart in several ways. And without getting into a sorites-type problem, the actual number killed is contested, the lower estimate seemingly not one typically associated with the crime of genocide as we’ve come to understand it.
Far be it from me to want to absolve the guilty parties, but I would appreciate clarification here with respect to the charge of genocide, which seems rather loosely applied in this instance.
While we’re at it, I’m also curious if you concur with “Nonliquet’s” response to the questions I addressed to you in the post below….
Sorry “Is it your opinion….’
Seamus,
I share your substantive concern with whether the massacre qualifies as genocide. I don’t think the numbers are dispositive — international tribunals have clearly held that genocide could (theoretically) be proven even where there was only one victim. As you note, though, proving the specific intent necessary for genocide when such small numbers of victims are involved is, from an evidentiary perspective, extremely difficult. I’m skeptical such an intent on Echeverria’s part could every be proven; his actions, despicable though they may be, appear to have been directed at the students because of their politics, not because of their nationality, ethnicity, etc.
I will say, though, that I find Mexico’s statute of limitations troubling in light of the Genocide Convention, which seems to clearly prohibit such barriers to effective prosecution. I’m not a treaty expert like Julian, so I won’t comment on Mexico’s “reservation” argument. But the rights and obligations imposed by the Convention are clearly ergo omnes, so I don’t see how Mexico’s derogation of them is possible.
This whole issue of Mexico’s “interpretation” of Article V would go something like this:
1. Is it a “real” reservation or not
2. If it is, it is in principle permitted by the treaty, unless it runs contrary to its object and purpose, which is the test the ICJ developed in its Reservations to the Genocide Convention Advisory Opinion, and which was later adopted in the Vienna Convention on the Law of Treaties
3. Who gets to decide whether the reservation is valid or not (e.g. can an international or domestic court do so, or is it a matter for states alone)
4. What are the consequences of invalidity – e.g. is the reservation severable (which is the approach to such matters adopted by the Human Rights Committee and the European Court of Human Rights), or does it obviate the consent by Mexico to be bound by the treaty
The topic of reservations to human rights treaties has been before the International Law Commission for some time now, with Prof. Alain Pellet serving as Special Rapporteur. You can find his reports here, and it’s always interesting to see how his thinking evolves.
Marko,
Does the approach you outline here make international obligations erga omnes (and by implication jus cogens norms) irrelevant?