| 书目名称 | International Criminal Law in Mexico | | 副标题 | National Legislation | | 编辑 | Tania Ixchel Atilano | | 视频video | | | 概述 | First monograph on international criminal law in Mexico.Proposes a legal framework for the prosecution of core crimes according to Mexico’s historical and political context.Identifies patterns in Mexi | | 图书封面 |  | | 描述 | .This book puts forward proposals for solutions to the current gaps between the Mexican legal order and the norms and principles of international criminal law. Adequate legislative measures are suggested for compliance with international obligations. ..The author approaches the book‘s subject matter by tracing all norms related to the prosecution of core crimes and contextualizing each of the findings with a brief historical and political account. Additionally, state practice is analyzed, identifying patterns and inconsistencies. This approach is new in offering a wide perspective on international criminal law in Mexico. Relevant legal documents are analyzed and annexed in the book, providing the reader with a useful guide to the topics analyzed. ..Issues including the following are examined: the incorporation of core crimes in the Mexican legal order, military jurisdiction, the war crimes definition under Mexican law, unaddressed atrocities, state practice and future challenges to combat impunity. ..The book will be of relevance to legal scholars, students, practitioners of law and human rights advocates. It also offers interesting insights to political scientists, historians an | | 出版日期 | Book 2021 | | 关键词 | Implementation Rome Statute in Mexico; Prosecution of core crimes in Mexico; Crimes against humanity i | | 版次 | 1 | | doi | https://doi.org/10.1007/978-94-6265-455-6 | | isbn_softcover | 978-94-6265-457-0 | | isbn_ebook | 978-94-6265-455-6 | | copyright | T.M.C. Asser Press and the author 2021 |
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Front Matter |
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Abstract
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,Introduction, |
Tania Ixchel Atilano |
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Abstract
This chapter outlines the general importance of writing a study about how international criminal law has so far been incorporated and implemented in the Mexican legal order. It provides general background information on the urgency of enabling domestic prosecution in Mexico, evidenced by the rising violence since 2006. Major aspects that intersect with international criminal law in the case study of Mexico are presented. The former is followed by defining the obstacles that domestic prosecution faces as well as a general description of the contents of each chapter. The major findings and sequence of the questions posed in this book are presented and organized in four parts: (I) General features of the Mexican state and its relationship to international law; (II) Incorporation of major sources of ICL: The Rome Statute and the laws of war; (III) Interpretation and application of ICL; and (IV) Towards an adequate incorporation of international criminal law.
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The Mexican Legal System |
Tania Ixchel Atilano |
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Abstract
This chapter aims to describe the historical and political context of the Mexican legal system, while also presenting the organization of the Mexican state and the competencies of the three powers of government. The first result from the historical contextualization suggests that the defense of sovereignty relies on its colonial past and on the struggle to be as independent as possible from the US. The second result shows how the building of the corporate state under the PRI rule permeated into the Constitution and its numerous reforms. Both results reveal how the historical developments intertwine with the reception of international law. The political stability achieved from the one-party rule also led to a civil-military pact, which crystallized in the prerogatives that the military enjoyed—such as autonomy—while fighting back the armed opposition during the 1970s. In terms of the organization of the Mexican state, federalism and presidentialism also play a role in the issuance of laws and the managing of foreign policy. Lastly, dividing the different competencies between the federal, local and municipal levels raises important elements that must be considered when designing the
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Peculiarities of the Mexican Legal System that Could Potentially Prevent Prosecution of Internationa |
Tania Ixchel Atilano |
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This chapter examines potential obstacles to the prosecution of international crimes. The main obstacles identified were: (a) Article 21 (8) of the Mexican constitution (CPEUM) and (b)the expansive character of military jurisdiction in Mexican domestic law. Due to its historical and political background, Mexico opted for an amendment in the constitution in order to ratify the Rome Statute (RS). Due to the content of Article 21 (8) CPEUM, it could be regarded as a disguised reservation. A thorough assessment is made of this provision in light of the Vienna Convention on Treaties as well as the RS in order to define its scope vis-à-vis the ICC jurisdiction. In terms of the expansive character of military jurisdiction, this chapter describes how the close link between the military and the executive has led to the military enjoying privileges. One of these privileges is autonomy, with the military able to hold its own trials whenever a member of the military is involved. Even though the provisions related to the military jurisdiction were domestically challenged and even though international advocates showed concern, it was not until the IACtHR’s ruling in the Radilla case, that the Me
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The Status of International Law in the Mexican Constitution |
Tania Ixchel Atilano |
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Abstract
This chapter explores the incorporation and implementation mechanisms of ICL in Mexico as well as the rank of international law within the Mexican constitution. A review will be made of the different rulings of the Supreme Court, which have evolved into the present interpretation of the footing of international treaties within the domestic legal order as part of the “supreme law of the land”. The review suggests that the different stages of interpretation went par in par with the political developments. Special constitutional clauses related to international law are also examined. The constitutional and interpretative background will provide an interesting insight into the high value given to written law and the bare recognition given to international customary law. The result of this analysis will support the view that the Mexican state has a tendency towards a “statist” approach, rather than an “internationalist” one, bearing in mind the above identified features can lead to the most adequate legal measures for the prosecution of international crimes in the domestic legal order. Additionally, the description of Mexico’s stance on international law can lead to a better understandi
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Mexico and the Rome Statute |
Tania Ixchel Atilano |
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In this chapter, the discussion of the Rome Statute within the legislative power will be reviewed. The discussions and arguments made were not entirely new compared to the concerns raised vis à vis the International Court of Justice or the Inter-American Court of Human Rights. In this regard, a preference to argue in favor of national sovereignty could be identified. The deficiencies in how Mexico addressed the different concerns and implications of the Rome Statute can be also translated as a failure to see complementarity as a bridge between international obligations and domestic law. This approach, added to the defense of national sovereignty, led to Article 21(8) CPEUM. Additionally, if we take into account that Mexico was going through a “democratic transition”, the amendment of the Constitution was rather unfortunate. The political momentum was lost and, as a consequence, there are numerous tasks pending in order to comply fully with the RS. Some of these tasks relate to the obligation to cooperate and to prevent and punish core crimes. Finally, this chapter takes a close look at the definition of genocide under Mexican law in order to assess the way in which it deviates from
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Incorporation of the Laws of War in the Mexican Legal Order |
Tania Ixchel Atilano |
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This chapter will briefly summarize the origin of the category of war crimes, as well as the branch of law from which they derive: International Humanitarian Law (IHL). A review will be made of the legal instruments that characterize IHL and the categories that derive from them, such as international armed conflict, non-international armed conflict or grave breaches. This chapter will also examine the IHL treaties to which Mexico is party and what the actual legal framework is. In order to conduct a thorough review of the legal framework, various codes of the 19th century were examined, as they relate directly to current criminal and military criminal codes. An achievement of this review was the realization that the 1871 Mexican Criminal Code already criminalized the violations during the conduction of war. Additionally, the review of the various military codes reveals how military discipline is the highest legal interest to be protected within the military order, superseding other legal interests like life or freedom. Lastly, the 1871 Mexican Criminal Code already granted combatant immunity and excluded superior orders as an exclusion of responsibility. This chapter will conclude,
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Interpretation of International Criminal Law Principles by the Mexican Judiciary |
Tania Ixchel Atilano |
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This chapter will review how the Mexican judiciary—especially the Supreme Court—has applied and interpreted international criminal law (ICL) principles. The review of these interpretations will intertwine with the positions of the legislative and executive powers. Overall, the analysis will also provide the pathway of transitional justice at the political moment when it was expected, but which was not delivered. The intricate arguments of the Supreme Court in all three cases will be identified. Also their inconsistencies vis-à-vis international law and international customary law will be confronted. This chapter will also show that there is no foreseeable criterion when it comes to certain ICL principles, since it can be deduced that the Supreme Court’s arguments were more political than legal. Finally, these inconsistencies have paved the way for even more impunity, regardless of the IACtHR judgment on the Radilla case.
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Implementation of Humanitarian Law During the Armed Conflict in Chiapas |
Tania Ixchel Atilano |
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This chapter examines the armed conflict in Chiapas. The Chiapas conflict is a good example of the following: (a) state denial of an internal armed conflict on its territory; (b) the participation of non-state actors in the application of IHL (the EZLN); and (c) the recognition of an armed conflict by a third party, in this case, by the ICRC. The EZLN directly applied IHL and declared itself a belligerent force, meaning that intervention of the ICRC in Chiapas is also a good example of non-judicial enforcement of humanitarian law. The government issued amnesty laws and signed “peace agreements” and, by doing so, acknowledged, not explicitly, but implicitly, the nature of the armed conflict. In addition, the implications of the Acteal Massacre will be analyzed, since it could amount to a war crime. As the Mexican state has not yet punished those responsible for the crime, this omission could amount to a violation of IHL. Finally, this chapter will deliver strong arguments to fully incorporate the provisions of the Rome Statute and IHL, based on the way the Mexican state reacted to the conflict. Otherwise, civilians will remain unprotected against the violence that derives from an ar
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Application of Provisions of the Rome Statute in Resolutions of Domestic Law |
Tania Ixchel Atilano |
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This chapter analyzes cases in which provisions of the Rome Statute have been directly applied for the right to information and for the prosecution of crimes committed during the so-called “dirty war”. The several laws on the right to freedom of information provide for an exception for the classification of information regarding crimes against humanity. As the Mexican legal order has not yet incorporated this crime, the Supreme Court has resorted directly to Article 7 of the RS in order to declassify criminal prosecutions. The latter brings inconsistencies, as under criminal law an act can be framed as an ordinary crime and, at the same time, a crime against humanity according to the law on information. This chapter will show that these inconsistencies are not only present in practice but also within the normative framework. Finally, the case related to the “dirty war” exemplifies well how the principles and concepts of ICL have permeated into the arguments of defense lawyers as well as prosecutors.
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Proposed Legal Framework |
Tania Ixchel Atilano |
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This chapter delivers solutions in order to incorporate adequately international criminal law in the Mexican legal system. Amendments to the existing laws and selective adaptation of specific provisions are suggested. The major objective of these suggestions is to avoid gaps between international and domestic law. Legislative measures are suggested to the Mexican Constitution, Federal Criminal Code, Code of Military Justice and other secondary bodies of law which relate to international criminal law. Historical, Political and factual considerations are made when drawing upon these suggestions. Legislative steering also needs granting effectiveness to these rules and translating them into actual investigations and prosecutions. This requires political will, however the measures suggested would bring recognition for victims, promote civic trust, and contribute to the strengthening of the rule of democratic law. A transitional justice approach is also suggested as it provides clarification of facts, which in turn leads to the dismantling of corrupt structures, thereby fulfilling the preventive function of law enforcement vis-à-vis criminality.
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Conclusions |
Tania Ixchel Atilano |
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Abstract
This work has posed as its key question the adequate incorporation of international criminal law in the Mexican legal order. The findings can be divided in three categories: (1) general features of the Mexican state and its relation to international law; (2) implementation and application of international criminal law principles and (3) suggested legal measures towards an adequate incorporation.
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Back Matter |
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发表于 2025-3-21 16:14:11
