Practice Relating to Rule 157. Jurisdiction over War Crimes
Mexico’s Penal Code (1931), as amended to 2000, provides that offences committed in a foreign territory and against foreigners or Mexicans by a Mexican national, or by a foreigner against Mexican nationals, shall be prosecuted in Mexico provided that the following conditions are met:
I. the accused is in the territory of the Republic;
II. the case was not finally judged in the country where the offence took place; and
III. the offence of which he is accused is an offence in the country where it took place and in the Republic.
Mexico’s Penal Code (1931), as amended to 2007, states:
Article 1. This Code applies in the entire Republic to federal crimes.
Article 2. This Code also applies:
I. To crimes which are initiated, prepared or committed abroad if effects are produced or are intended to be produced in the territory of the Republic; or to crimes which are initiated, prepared or committed abroad and for which a treaty binding on Mexico establishes an obligation to extradite or prosecute, if the requirements set out in Article 4 of the present Code are fulfilled and if the person allegedly responsible for such crimes is not extradited to the State which sought his or her extradition, and
II. To crimes committed in Mexican consulates or against their personnel if they have not been prosecuted in the countries were they were committed.
Article 4. The crimes committed abroad by a Mexican against Mexicans or against foreigners or by a foreigner against Mexicans, shall be punished in the Republic according to federal laws if the following requirements are fulfilled:
I. The accused is in the territory of the Republic;
II. The case was not finally judged in the country where the offence took place; and
III. The offence of which he is accused is an offence in the country where it took place and in the Republic.
In the Cavallo extradition case
in 2001, on the request of a Spanish judge, a Mexican court decided to allow the extradition of Ricardo Miguel Cavallo, a former Argentinean military officer, charged with genocide and acts of terrorism during the 1976–1983 “dirty war” in Argentina and based its decision on, inter alia
, the principle of universal jurisdiction.
In 2001, the Ministry of Foreign Affairs of Mexico issued a directive concerning the Cavallo extradition case stating:
Based on Article 28, part XI, of the Federal Public Administration Law and in conformity with articles 30 of the International Law of Extradition, and articles 1, 9, 14 and 25 of the Treaty of Extradition and Mutual Assistance on Criminal Matters between the United Mexican States and the Kingdom of Spain, it is resolved … to grant the extradition of the individual in question, Ricardo Miguel Cavallo, known as Miguel Angel Cavallo, requested by the government of Spain through its embassy in Mexico, to face charges of genocide.