The “Cienfuegos Affair” and the Proposal for a New Regional Transnational Criminal Court in Latin America (COPLA)

[Javier S Eskauriatza is a Lecturer at Birmingham Law School.]

Introduction

In October 2020, it was a surprise when the U.S. arrested the former Mexican Defence Secretary, General Salvador Cienfuegos Zepeda, on drug-trafficking and corruption charges, at an airport in Los Angeles, California. The indictment accused Cienfuegos of participating in an international conspiracy to manufacture heroin, cocaine, methamphetamine, and marijuana, to import and distribute them in the U.S., and to launder the proceeds. It also accused Cienfuegos of accepting bribes and colluding with a (previously) little-known criminal organization (H-2) in the Pacific state of Nayarit.

It was surprising not least for the Mexican government who, not without reason, expected to be consulted on criminal investigations against any Mexican nationals, let alone a four-star general that received the Legion of Merit from the U.S. Defence Department as recently as 2018. After all, the México-US security relationship is (or, was) supposedly founded on the principle of ‘shared responsibility’ in the fight against transnational organised crime, as established in the Merida Initiative 2008.

As might have been expected, the military in México was incensed. It lobbied the Mexican President, Andrés Manuel López Obrador, (known as, AMLO) to kick up a diplomatic storm and to secure Cienfuegos’ extradition. The Mexican President obliged, and, after negotiations, the U.S. dropped the case against Cienfuegos, and agreed to send him back to México, along with a file containing the evidence against him to aid in the criminal investigation. On 17 November 2020, A Joint Statement by former U.S. Attorney General William Barr and Mexican Attorney General Alejandro Gertz Manero announced:

In recognition of the strong law enforcement partnership between México and the United States, and in the interests of demonstrating our united front against all forms of criminality, the U.S. Department of Justice has made the decision to seek dismissal of the U.S. criminal charges against former Secretary Cienfuegos, so that he may be investigated and, if appropriate, charged, under Mexican law.

At the request of the Fiscalía General de la República, the U.S. Department of Justice, under the Treaty that governs the sharing of evidence, has provided México evidence in this case and commits to continued cooperation, within that framework, to support the investigation by Mexican authorities.

Unsurprisingly, in January 2021, Cienfuegos was exonerated by México who claimed its own review of the “essential evidence” demonstrated that U.S. allegations were fabricated and possibly “politically motivated”. Then, to the dismay of U.S. officials, México decided to make public the U.S. investigative file on Cienfuegos, claiming, essentially, that this was a victory for transparency in the fight against transnational organised crime. In response, the U.S. Justice Department released a statement (on Twitter):

The United States Department of Justice is […] deeply disappointed by México’s decision to publicize information shared with México in confidence. Publicizing such information violates the Treaty on Mutual Legal Assistance between México and the United States, and calls into question whether the United States can continue to share information to support México’s own criminal investigations.

The Cienfuegos case has drawn commentary on what this all means for the bilateral security relationship (see here, here) and this post does not seek to add to this important question. Instead, I am interested in how the Cienfuegos case sheds light on the desirability, and viability, of a new regional initiative for a transnational criminal court to combat transnational organised crime.

The Caribbean History of an Idea

It is well-known that several Caribbean States reinvigorated the proposal for a permanent international criminal court via Agenda Item 152 at the 44^th Session of the Sixth Committee of the UN General Assembly in 1989. In that meeting, Ms Thorpe (Trinidad and Tobago) argued that drug-trafficking posed a grave threat to the ‘integrity of States’ and could undermine their ‘stability, security and development’.

At least, as far as the Mexican situation is concerned, this was not mere hyperbole. México is the terrifying telenovela that shows, periodically, across the international news media; shocking events are reported, and the gaze of the international community settles, briefly, on the Mexican situation – but, in time, nothing seems to change – the focus moves elsewhere, and the violence directed against Mexican citizens continues. In the last fifteen years, especially, the violence in México has become more frequent, more serious, and more difficult to control. According to the official figures, the war on drugs has resulted in, approximately, 350,000 homicides in México (since 2006). There are also an estimated 80,000 people that have simply disappeared. On average, 95% of these murders and disappearances remain unsolved.

Back in the late 1980s, many Caribbean States agreed with Ms Thorpe’s position (Jamaica, Barbados, Costa Rica, and Guyana). However, in the end, Western States, led by the U.S., succeeded in removing so-called “treaty crimes” from the ICC’s jurisdiction rationae materiae. This much, as I say, is well-known.

It is clear, however, that the threat that transnational organised crime presents to the States of the region has only grown. Therefore, some of the arguments that were raised in support of an international court focusing on drug-trafficking, corruption, and related issues (i.e., human-trafficking and money laundering) remain pertinent. In particular, Neil Boister has argued that the current ‘extradite or prosecute’ system can fail in several ways. States may be too weak to arrest powerful international criminals. They may not have the expertise, (technical or human) to run a complex trial against a powerful international criminal. Alternatively, they may also be broadly ‘sympathetic’ with the criminals, or, be implicated in the crimes themselves. Thus, the general impetus behind the idea that there is ‘a third way’ beyond ‘extradite or prosecute’ has not completely disappeared.

Today, these regional efforts are centred around the creation of a new regional transnational criminal court: the ‘Corte Penal de Latinoaméricana y del Caribe contra el Crimen Transnacional Organizado’ (known as ‘COPLA’). The COPLA has been proposed and promoted by a coalition of governments and NGOs (Coalición COPLA) as a permanent transnational criminal court established by treaty between all Caribbean and Latin American signatories of the United Nations Convention on Transnational Organized Crime 2000 (and its protocols). A Draft Statute has been produced and circulated which provides for a permanent independent court modelled, somewhat, along the same lines of the International Criminal Court (ICC). In other words, a permanent, independent organisation with international legal personality, that boasts an independent Prosecutor, and which is founded on the principle of complementary (for an overview, see Rob Currie and Jacob Leon).

It is not clear, yet, whether this Mexican administration (or those that follow) would sign up to a(nother) international criminal court, this time with jurisdiction over Mexican nationals for their involvement in transnational crimes. It is also, probably, the case that the U.S. would oppose the creation of such a court. Nevertheless, the Cienfuegos case might be used as a case-study through which to understand the COPLA proposal, and the desirability of a move towards regional courts more generally (see, e.g., the so-called ‘Malabo Protocol’). In relation to Cienfuegos, Art 5(1) COPLA Draft Statute provides that jurisdiction of the Court is reserved for those who ‘direct, administer, organize or promote a transnational organised group’. Article 5 also provides the jurisdiction rationae materiae of the Court (again, drug-trafficking, and transnational bribery appear to cover the alleged activities). Thus, there is a neat fit between the proposed jurisdiction rationae personae of the COPLA and a Cienfuegos-type suspect.

Would México be more likely to send Cienfuegos to the COPLA (as opposed to letting the U.S. prosecute as it has with other persons of interest including Joaquín Guzman Loera (aka “El Chapo”) and Genaro García Luna? Perhaps, not. In a case like Cienfuegos, it is more likely that México and the COPLA would be on a collision course. As such, it is very likely that the creation of the COPLA would reproduce a whole host of issues (and scholarship) that arise in relation to the nature of international courts founded on the principle of complementary (as opposed to those which have jurisdictional primacy, such as the ICTY and ICTR).

 The Complementarity Conundrum

Art 2 COPLA provides that the court will be ‘complementary to the national systems of criminal justice’ and that it will be ‘authorized to exercise its jurisdiction over individuals … in cases that the national systems of justice are unwilling or unable to try’.

How are these difficult issues of inability and willingness to be understood? In Cienfuegos’ case, the Mexican government simply announced that there is no case to answer. This may be the case, although, the U.S. Justice Department, for one, does not agree (the Department has said that it stands by its investigation). How would the COPLA proceed in such a situation?

The details are not all worked out, but, hypothetically, the debate would centre around Art 10 COPLA Draft Statute. The regime envisaged is like that which is established in Art 17(1)(b) Rome Statute. However, unlike the Rome Statute, the COPLA Draft Statute sets out the reasons where the COPLA will have jurisdiction (i.e. the situations where a case will be admissible) as opposed to the Rome system which sets out the conditions of inadmissibility.  

Thus, unlike the Rome Statute, the Draft Statute simply says that the Court will have jurisdiction in a set number of situations. Most relevant for present purposes are (my Spanish translations):

Art 10 (1)(a) ‘…the case has not, or is not, an object of investigation or judgment by a State that has jurisdiction over the matter, either because it has been unwilling or unable to do so’

Art 10(1)(c) ‘…the State party that exercised jurisdiction over the case has sent down an absolving judgment which the Court understand as res judicata irrata’.

It is plausible that in a Cienfuegos-type case and given that a Cienfuegos-type suspect would satisfy Art 1 COPLA Draft Statute (the COPLA is focused on leadership, not ‘small-fry’) the COPLA would seek to assert jurisdiction. Again, this is all hypothetical. However, even so, it is likely that this would be the end of the matter.  COPLA, like the ICC, and other international courts, cannot function without state cooperation. There is nothing in the Draft Statute that suggests that COPLA would have its own independent enforcement division. As such, it may be the case that well-known problems are simply reproduced in a regional setting.

We can understand the problem with COPLA’s complementarity system, in practical terms, by focusing on an example: the issue of witness protection. The COPLA Prosecutor, presumably, would seek to rely on witness evidence to build a case against Cienfuegos, or anyone else. As the late Robert Cryer rightly noted, in a case where the State apparatus is suspected of crimes,

the power of international tribunals […] to issue effective orders or attempt to operationalize a witness protection system comes up against the simple issue that the relevant government has no incentive to implement the order […] Indeed, to ask for protective measures of such a government is to identify those very witnesses to officials who may have an interest in affecting their testimony.

Thus, the COPLA, in some situations, could end up being counterproductive. In terms of the history of U.S.-México security relations, there is a tragic precedent of sorts in 2011, involving non-State actors, i.e., the Zeta Cartel in North-East México (Coahuila), the Drug Enforcement Administration (D.E.A), and other unnamed officials, including in the ‘D.E.A. Sensitive Investigations Units’ in México City. As Ginger Thompson explained,

…the Drug Enforcement Administration scored an unexpected coup. An agent persuaded a high-level Zetas operative to hand over the trackable cellphone identification numbers for two of the cartel’s most wanted kingpins, Miguel Ángel Treviño and his ​brother Omar. Then the DEA took a gamble. It shared the intelligence with a Mexican federal police unit that has long had problems with leaks — even though its members had been trained and vetted by the DEA. Almost immediately, the Treviños learned they’d been betrayed.

The Zeta Cartel unleashed a wave of attacks on several towns in Coahuila and used a prison in Piedras Negras (just the other side of Eagle Pass, Texas) to disappear those they judged to have betrayed them. It is still unclear how many people were disappeared in the Zeta ‘kitchens’. These attacks has been investigated and written about by Mexican academics (see Sergio Aguayo and Jacobo Dayán) and it forms a part of Article 15 Rome Statute communications to the International Criminal Court (prepared by the International Federation for Human Rights).

It is, for the moment, unlikely that any administration in México would offer Cienfuegos-type suspects to any future COPLA. To put it bluntly, the military is too powerful. Thus, it may be, then, that COPLA would only succeed in pursuing non-State actors, the ‘real bad guys’, i.e., cartel leaders like Joaquín Guzman, (aka “el Chapo”), Nemesio Oseguera Cervantes (aka, “el Mencho”), or Ismael Zambada (aka “el Mayo”). Here, however, issues that are needed to build cases do not disappear. Again, in relation to witnesses, they still need to be identified and protected. This is hardly a simple task, especially for a State in México’s situation, where groups like the Cartel de Jalisco Nueva Generación and the Sinaloa Cartel control significant portions of the national territory, where their leaders exert considerable influence with local enforcement, and where these armed gangs intimidate local populations as part of their modus operandi.

Conclusion

As Sara Wharton has argued, what is ‘core’ in the notion of ‘core crimes’ is an artefact of history. Things change and evolve. Since the Rome Statute was adopted, the war on drugs, and the growth of transnational organised crime in Latin American and the Caribbean should be considered as giving rise to “the most serious crimes of concern to the international community as a whole.” In México, powerful criminal organisations have weakened and replaced legitimate governance structures and the social order is now characterized by violence as a kind of ‘language of disputes’ (see Romaine Le Cour). Other States across the region have similar issues; but as the dictator Porfirio Díaz once said, ‘Poor México, so far from God, so close to the United States’.

In thinking about the ‘Cienfuegos Affair’, this short note has raised some doubts about whether a new court is really ‘the answer’ to the toxic mix of violence, organised crime, and impunity, in México and in other Latin American and Caribbean States. The very tentative conclusion is that the reality of the COPLA, imagined as a court with complementary jurisdiction, would generate many of the same issues that have plagued the ICC, especially in Cienfuegos-type cases, where State forces are suspected.

However, this, in and of itself, should not be the end of the matter. It should be remembered that the ICC has built cases and succeeded in prosecuting individuals accused of egregious crimes. Criminal prosecutions, international, regional, or domestic, may find their ultimate legitimacy in the spaces that they create, for dialogue, storytelling, and norm regeneration. They should aid in the rebuilding of civic trust and the rule of law in conflict and post-conflict settings. Furthermore, the deterrence-value of international prosecutions should not easily be conceded. Thus, COPLA too, could be ‘successful’ in some situations. For México, however, the answers to the myriad issues around the rule of law, public security, widespread violence, deteriorating human rights standards, and ever-present impunity, will not disappear overnight with the creation of a new regional criminal court.