Case Western Reserve University School of Law
11075 East Blvd.
Cleveland, Ohio 44106
Supreme Court of Mexico: Decision On The Extradition Of Miguel Cavallo
DECISION ON THE EXTRADITION OF MIGUEL CAVALLO
In 1999, Judge Baltasar Garzón initiated judicial proceedings against Cavallo in Spain. Judge Garzón formally requested Cavallo's extradition on charges of genocide, terrorism, and torture. Cavallo then was living under a false name in Mexico. A Mexican newspaper reported that former Argentinean political prisoners had identified him as their torturer. He tried to escape, but was captured on August 24, 2000.
Cavallo challenged the extradition request in the Mexican courts. On June 10, 2003 the Supreme Court of Mexico1 ruled that the 1978 Mexico-Spain Extradition Treaty and its Protocol had been duly ratified by the Mexican authorities and did not violate any provision of the Mexican Constitution. Furthermore, the Supreme Court held that the ratification by Mexico of the Genocide Convention did not constitute a violation of the principles of self-determination of peoples or non-intervention in internal affairs as embodied in the Mexican Constitution.
The Mexican Supreme Court granted Cavallo's extradition on the counts of terrorism and genocide. It did not grant the request for the count of torture owing to the fact that, under Mexican law, the statute of limitations for prosecuting crimes of torture had expired. On June 28, 2003, Cavallo was extradited to Spain.
The Cavallo decision elicited great enthusiasm from many international human rights activists. That said, Cavallo was not based on the principle of universal jurisdiction. In fact, the Court expressly refused to address this issue, holding that it could not analyze the jurisdictional basis of the Spanish courts. For the Mexican court it was, strictly speaking, a case of extradition.
Cavallo needs to be considered within the context of two recent decisions by the Tribunal Supremo (Spain's Supreme Court), namely the Guatemalan Genocide case2 and the Peruvian Genocide case3. These two decisions effectively narrowed the principle of universality. Cavallo might be the third decision necessary to form biding jurisprudence according to Spanish law.
After Cavallo was extradited to Spain, Judge Garzón requested the extradition of 46 other Argentineans to face similar charges for their participation in the "dirty war." In an apparent move to avert these extraditions, in mid-August 2003 both Chambers of the Argentina Parliament approved the ratification of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. Both Chambers also declared the pre-existing amnesty laws, which would inure to the benefit of the alleged perpetrators, to be null and void. As a result of these legislative changes, the Spanish Government decided on September 1, 2003 not to request the extradition of these alleged perpetrators.
Argentinean authorities have freed those individuals whose extradition Spain had requested (with the exception of those with pending cases in court). At the same time, Argentinean judicial authorities opened investigations against 70 former members of the Armed Forces for crimes committed during the military period. It seems that those under investigation will avail themselves of the Argentinean court system to challenge the legality of the suspension of the amnesty laws. The future of all these cases therefore remains uncertain.
Luis Benavides is a Ph.D. candidate at the Institut Universitaire de Hautes Études Internationales; Geneva, Switzerland and the ILM Corresponding Editor for International Criminal Law. He has prepared a lengthier note on the Cavallo case which will appear at 42 ILM 884 (2003).
1Extradición Ricardo Miguel Cavallo, Suprema Corte de Justicia de la Nación, Amparo en Revisión 140/2002, 10 Junio 2003, http://www.scjn.gob.mx/Asuntos/2003/CAVALLOENGROSE(X)2.pdf.
2Benavides, Luis, Introductory Note to the Supreme Court of Spain: Judgment on the Guatemalan Genocide Case, 42 ILM 683 (2003).
3Sentencia del Tribunal Supremo sobre el caso Perú por genocidio. 20 de Mayo de 2003, http://www.derechos.org/nizkor/peru/doc/tsperu.html.