Senador Sadot Sánchez Carreño
Presidente de la Comisión de Derechos Humanos
Reforma 10, Col. Tabacalera. C.P. 06030
Torre de Caballito, piso 15, oficina 2
México DF
Vía fax: 5 345 3000 ext 5315

I am writing to express our deep concern about the lack of progress that Mexico has made toward ratifying the Rome Statute establishing the International Criminal Court (ICC). As the President of the Senate's Human Rights Commission, you are surely aware that the ICC represents the most important international human rights institution to have been created since the formation of the United Nations. The Court constitutes the first permanent mechanism designed to deny impunity to perpetrators of the most egregious human rights violations, while at the same time respecting the sovereignty of nations and the rights of the accused. By delaying ratification of the Statute, Mexico risks being relegated to the sidelines as its allies in the region proceed with this historic endeavor.

We are of course familiar with the objections that have been raised to ratification in Mexico, some of which were brought to my attention by your PRI colleagues at a meeting they convened for me last month. As I pointed out to them then, the Rome Statute was very carefully designed by representatives of numerous states, with the advice of distinguished jurists to ensure that the functioning of the Court would be consistent with the protections existing in national constitutions throughout the world.

One objection your colleagues raised, for example, was that the Court might seek to try Mexicans for past crimes that had already prescribed under Mexican law. Yet the Statute addresses that concern explicitly. Article 11 establishes that "the Court has jurisdiction only with respect to crimes committed after the entry into force" of the Statute. Article 22 states that "a person shall not be criminally responsible under this Statute unless the conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court." Article 24 states that "no person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute." These provisions clearly prevent the Court from claiming jurisdiction for acts that occurred prior to entry into force. The non-applicability of the statute of limitations established in Article 29 does not alter this jurisdictional rule in any way, since it only applies to crimes committed after the treaty enters into force on July 1, 2002.

Mexico certainly is not alone in finding that the ratification of the ICC raises serious juridical questions regarding state sovereignty and constitutional protections relating to immunities, extradition, and the prohibition of life imprisonment. Over the past several years, we have seen similar debates in dozens of countries around the world. What does set Mexico apart, however, is its failure thus far to resolve these questions and move forward with ratification.

In the majority of countries where the constitutionality of the Rome Statute has been debated, the relevant authorities have ultimately determined that ratification would not, in fact, contravene their national constitutions. In Spain, for instance, the debate focused on the Rome Statute's provisions relating to immunities, life imprisonment and surrender of nationals. The Consejo de Estado concluded, through a series of interpretations, that the ratification could proceed without a constitutional amendment and Spain ratified the treaty on October 24, 2000. Other countries that debated the need for constitutional reforms and then chose to ratify without them include Argentina and South Africa.

Some countries have found that specific aspects of the Rome Statute do in fact conflict with provisions in their national constitutions. In France, for example, the Conseil Constitucional identified several points of conflict relating to immunities, statutes of limitations and other issues. Rather than drafting an amendment to address each specific point, the French chose to adopt a general reform that said "The Republic may recognize the jurisdiction of the International Criminal Court as provided in the treaty signed on 18 July 1998." This clause preserves the integrity of the Constitution by specifically recognizing the jurisdiction of the Court in accordance with the terms contained in the Statute. It does not attempt to serve as a reservation of course, since, Article 120 of the Statute prohibits reservations. France ratified the Rome Statute on June 9, 2000.

In Brazil, the constitutionality of the Rome Statute was subject to intense debate in which distinguished jurists held divergent positions on whether a reform was needed. At the end of this debate, rather than reform each and every article arguably affected by the Rome Statute, a general reform like the French one was drafted, stating: "The Federal Republic of Brazil may recognize the jurisdiction of the International Criminal Court as provided in the Statute approved 17 July 1998." This reform is currently under consideration by the Brazilian Congress. In October 2001, the President of Brazil, aware that the ratification process was accelerating around the world, sent the ratification law to the Congress so that it could ratify the Statute without first completing the reform process. The lower house approved the ratification last month and the Senate is likely to do so by the end of May. After ratification, Congress will presumably turn its attention once again to the constitutional reform.

Germany has taken a different route. There the point of contention was a constitutional provision that prohibits the extradition of German nationals. Germany decided that it should amend that provision to allow specifically for surrender to the ICC (as opposed to extradition to other states). To our knowledge, this is the only case in which a country has decided to amend a specific provision of its constitution rather than to proceed with a general "French-style" amendment. Germany ratified on December 11, 2000.

In all these cases, distinguished jurists and legislators engaged in serious debate about the constitutional ramifications of the ICC for their countries. Yet, despite differing interpretations, they were all able to find mutually acceptable ways to reconcile the Rome Statute with the provisions of their respective constitutions and so proceed with ratification. We strongly believe that Mexico could do the same. And given the important role that you yourself have played on this issue within your party-studying the Statute's compatibility with the Mexican Constitution-we respectfully urge you to take the lead in seeing that this happens in the near future.