Request for Extradition of Miguel Cavallo from Mexico to Spain for Alleged Torture in Argentina

For the third time in the past two years, a former government official accused of serious human rights violations in his home country faces possible prosecution elsewhere. According to news reports, Miguel Cavallo, an Argentine official during the reign of the military junta in that country from 1976 to 1983, has been arrested in Mexico under a warrant and extradition request from the same judge in Spain who in 1998 requested the United Kingdom to extradite Augusto Pinochet, the former Chilean head of state, to Spain on charges of torture and other human rights violations. Cavallo allegedly participated in the torture of Spanish citizens in Argentina while the junta was in power.

 

In the other two recent cases (involving Augusto Pinochet of Chile and Hissène Habré of Chad), the person accused was a former head of state. Thus, questions were raised as to possible head-of-state immunity from extradition and prosecution. No such questions are raised here.

 

As in those two cases, though, there are possible questions under the international Convention against Torture, which recognizes the penal jurisdiction of any state whose citizens were the victims of the alleged torture, and also recognizes the jurisdiction of any state that has custody of the accused in its territory even though the alleged torture occurred elsewhere. The Convention (a multilateral treaty) allows the parties to it to consider it as an extradition treaty. Argentina, Mexico and Spain are all parties to the Convention.

 

The Convention was opened for signature in December 1984 and entered into force in 1987. Since the military junta in Argentina fell from power in 1983, a question could arise--as it did in the Pinochet case--regarding the Convention's applicability to acts that occurred before it entered into force. But international law contains certain peremptory norms that apply independently of any treaty and that are enforceable universally (i.e., by any state that has custody over the accused). The prohibition of torture is recognized as one of those peremptory norms. A Mexican or Spanish tribunal might consider whether Cavallo's acts, if proven, would be criminal under international law even though the alleged torture occurred before the Convention was signed or entered into force. The request for extradition to Spain has come long after the Convention entered into force, so Mexico would be justified in honoring it under the Convention so long as the acts were illegal and subject to universal jurisdiction when committed.

 

For further discussion of these issues, please see the previous ASIL Insights, "The Pinochet Arrest and Possible Extradition to Spain," Oct. 1998; "The Indictment in Senegal of the Former Chad Head of State," Feb. 2000; and "Possible Indictment of Pinochet in the United States," March 2000.

 

About the Author: 

Frederic L. Kirgis is Law School Association Alumni Professor at Washington and Lee University School of Law. He has written a book and several articles on United Nations law, and is a member of the Board of Editors of the American Journal of International Law.