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Merlina Magobet
As the above correspondence claimed, the US Army had a problem with the conduct of their volunteers with respect to the Mexican population. The volunteers were undisciplined and had been known to have attacked civilians and church property.19
The law was also published in Spanish and probably had some influence on how, twenty years later, the drafters of the 1871 MCC conceived of war and its conduct. This was especially so regarding the jurisdictional problem, since it surely diminished Mexican sovereignty if a foreign power was to prosecute nationals within Mexican territory. Finally, one could presuppose that the experience with the American Army somehow pushed the Mexican liberal jurists to look for solutions that could protect them against the excesses of foreign armies.
The MCC took ten years to draft and, as this section will show, the provisions concerned with the regulation of warfare, especially Article 1139 of the MCC, pursued very specific aims. Overall, we will see how the drafters mastered the art of using law as a device to solve, at least formally, urgent problems and needs of the newly established Mexican Republic.
Article 1139 of the Criminal Code of 1871 does not define what amounts to duties of humanity, but it does set the frame of protected persons and objects during wartime as including: prisoners of war, hostages, the wounded (without specifying whether civilian or not) and field hospitals. Important to note is that individual criminal responsibility is not based on the status of belligerents (e.g. with punishment just for being a member of an irregular army), but based on acts. As we can see, the scope of protected persons and objects scarcely deviates from the ones established in the Geneva Conventions of 1949.
If, however, the nuisance (molesta) produced a harm of any of the legal interests protected by the MCC, a separate punishment would be applicable and the accused would be subject to accumulative charges (concurso de delitos). This open clause gives room to punish all kinds of conduct committed against prisoners of war, hostages or the wounded. Most importantly, through this legal technique the drafters achieved what Bluntschli years later (1895) would advocate, i.e. that the right to liberty, honour and individual security should be unalienable and protected, even in times of war.48 Through Article 1139, the MCC was also guaranteeing vis--vis foreign powers the protection of legal interests even during a war.
Without a doubt, the most interesting feature is that by transforming violations of the laws of war into crimes, individuals would be accountable before Mexican law, and those protected by the norm (prisoners, hostages or the injured) could also theoretically file an accusation.50
Since Article 13 of the 1857 Mexican Constitution prohibited the death penalty for political crimes; rebels were spared from this penalty. However, if rebels killed prisoners of war, they would then be punished with the death penalty as the act was equivalent to aggravated homicide (this is another expression of how, in the understanding of the MCC drafters, violations of the laws of war were grave offences to the law of nations).
Regarding superior orders, it is telling that a nineteenth-century code already banned the application of the respondeat superior principle as a defence, especially since it was widely applied by States in the mid-nineteenth century. Major discussions of its abrogation followed until 1943 when allied powers sought to prosecute German war criminals.57
Article 186 of the MCC (see Table 4) provided the jurisdiction for prosecution of crimes committed against Mexican nationals by foreigners in Mexican and foreign territories. In a sense, this extraterritorial principle resembles the idea of General Winfield Scott, since with his General Order No. 20 he provided for prosecution of Mexican nationals for infringements against American persons or property.
Most criminal codes of the nineteenth century accepted only territorial jurisdiction as valid for the prosecution of crimes. Jurisdiction based on the passive personality principle was not spared from debate. In 1886 an American with the name Cutting printed a libel in the USA against a Mexican citizen. As soon as Cutting was on Mexican soil, he was arrested for prosecution as, according to Article 186 of the MCC, foreigners outside Mexican territory that committed crimes under the MCC were also punishable. The USA claimed an attack on its sovereignty and ordered the release of Cutting. Lassa Oppenheim refers in the second edition of his treaty that the USA even demanded that Article 186 of the MCC be altered.65 However, Mexicans refused to comply. Oppenheim added in 1912 that the practice was not settled if States could extend their jurisdiction for acts of foreigners committed in foreign territories. In a sense, however, the provision of the MCC stands for what Argentinian jurist Calvo argued as a condition against intervention, being the equality of States. As such, aliens in Mexican territory and abroad would be subject to local laws and institutions in the case of harming a Mexican national. In this vein Article 186 of the MCC could also be read as an indirect message to foreign powers, since several causes for their reparations claims were the harm done to their nationals on Mexican soil. In a sense, the MCC was offering an alternative model of criminal punishment instead of claims and intervention.
Making individuals criminally responsible for violations of the laws of war offered a substitute for other enforcement measures that were in force at least until the last quarter of the nineteenth century. These measures were: retaliation, reprisals and outlawry.82 Compared to retaliation and reprisals, criminal sanctions had a humane character, since they were not collective punishments, but specifically targeted ones.83 Retaliation and reprisals, by contrast, were not only suffered by armies but also by populations.84 In a sense, the whole population of an enemy State held a collective responsibility in war.85 Retaliation was seen as a justified response to an enemy's unjustifiable attack, usually consisting of the same or harsher treatment to the enemy's army and civilians.86
In the case of outlawry, those who disobeyed the laws of war were stripped of their rights, they were put outside the law and could be executed.87 The fact that Article 1139 of the MCC replaced these enforcement methods signified a giant leap, since retaliation and outlawry depended on the subjective perception of the counterpart and, as a party to the conflict, it lacked impartiality.88
The adoption of individual criminal responsibility by the Mexican drafters is fairly logical if we recall the liberal ideals that they represented. In this sense, the conduct of warfare would follow the liberal paradigm that individuals are free and should be responsible for their actions, and this responsibility had to be proven at trial. At this point, it is worth recalling that by 1871, the laws of war were understood as a body of law only applicable to States. As such, Article 8 of the Geneva Convention of 1864 left it to governments to instruct their militaries to implement the content of the Convention.90
Within this framework, it is also worth recalling that as early as 1844, Andrs Bello, in his Principios de Derecho de Gentes, made an effort to systematize the conduct of war as a legal doctrine. He divided the conduct of hostilities into two major groups: those against persons and those against the objects of the enemy. Most importantly, as Bello stresses in the introduction of his work, his objective was to make available for the new independent nations the laws and doctrine of the law of nations, especially since, for some works, there was no translation available.107
There are at least three features by which the Lieber Code and the MCC differ substantially: the applicability of domestic law in the case of an occupation; the severity of punishments; and the granting of combatant immunity to rebels.
Finally, the Lieber Code does not systematize cases in which an offender would suffer a summary execution or the benefit of a trial, whether under martial court or a military commission.124 In this regard, the sanctions of the MCC are more humane, as potential punishments can be foreseen by the offender at trial.
As a final remark, the comparison between the MCC and the Lieber Code delivers an interesting ideological representation, since both parties saw themselves as representatives of different traditions: the former a Hispanic American Catholic project, while the latter was an Anglo Protestant project.
In the overall framework of the development of IHL, it can be concluded that Article 1139 of the MCC contributed to its development by: (a) transforming into written law the consensus of not causing unnecessary harm to certain actors and objects during war; (b) contributing to the uniformity and universality of customary international law; (c) unifying and systematizing the laws of war as a part of the law of nations, and with it contributing to the developing doctrine of international law;141 (d) defining the subjects and objects of protection during warfare; (e) enforcing the rules by criminalizing them; (f) elevating humanity as a legal interest to protect; (g) resolving a jurisdictional problem in the case Mexico was again at war with a Western power, or in the event it was invaded.
Further research is needed to explore the exchange of juridical knowledge between the emerging Latin American countries of the nineteenth century and Europe.142 Additionally, the Mexican case might just be an example of a wider pattern in the Latin American region that needs to be explored. Most importantly, it shows how criminalizing violations of the laws of war as early as 1871 was a novel intent to remediate through law the asymmetries of conducting warfare against powerful States. So, maybe with the Mexican case we could begin to draw an arc between 1871 and 1977 when anti-colonial struggle tried to make its way through the signing of the Geneva Additional Protocols I and II.143 These historical legal findings might be of great interest for the history of international law, IHL and international criminal law.
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