Op-ed: Fact-finding needs in Mexico

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The need for systematic fact-finding of serious human rights violations in Mexico

by Zara Snapp

MEXICOINVESTIGATION AND FACT-FINDING TOOLKIT

The process of determining criminal liability for international crimes is complex and consists of several steps. Central to this process are fact-finding and investigation of the crimes. Without an accurate and objective examination at this stage of proceedings, it is impossible to deliver justice –this is the primary obstacle in Mexico. The CMN Investigation and Fact-Finding Toolkit for Mexico provides tools and services to better equip national actors to overcome the challenges faced.

It has been estimated that the “war on drugs” initiated during the administration of President Felipe Calderón (2006-2012) left a toll of 100,000 killed, more than 150,000 people displaced because of related violence [1], and more than 25,000 missing persons [2]. Although the discourse has changed under the administration of current President Enrique Peña Nieto, there has been neither a substantial change in security strategy nor an agreement for the withdrawal of the military from public security tasks. There are no official figures available on the number of victims of enforced disappearance, while different authorities continue to issue conflicting data. Recently, Secretary of the Interior, Miguel Ángel Osorio Chong, declared – specifying neither the type of research nor the methodology employed – that the figure of nearly 27,000 people, issued at the beginning of the current presidential period (2012), had been investigated and that the actual number of missing people was 8,000 [3]. It was neither clarified in which States the missing persons were located nor under what circumstances they had disappeared. A few days before the declaration by the Interior Secretary, the President of the National Human Rights Commission (CNDH) reported that this body has calculated that there are 24,800 people missing [4]. There is no national registry of disappeared persons that would allow accurate statistics to be collated and Mexico remains without a law to regulate the matter at the federal level. The paucity of precise information and data demonstrates a lack of will on the part of the authorities to recognise and address the problem.

The state of impunity prevails with regard to serious human rights violations: less than 1% of the preliminary investigations initiated by the prosecution for the crime of torture between 2006 and November 2013 have been consigned to a judge, 2013 being the year with the highest number of preliminary investigations opened, but also with the fewest cases consigned [5]. Moreover, only 5% of medical reviews conducted by the Attorney General’s Office in accordance with the Istanbul Protocol [6] between January and November 2013 have tested positive [7]. Torture in Mexico is rarely punished and the perpetrators enjoy almost complete impunity. In addition, impunity prevails not only in relation to prosecutions and sentences, but also regarding the ombudsman mechanism at different levels throughout the country. For example, recommendations were issued for only 3% of the 815 complaints of human rights violations related to torture reported to the Mexico City Human Rights Commission (CDHDF) between 2005 and November 2013 [8]. Similarly, the CNDH only issued recommendations to the Ministry of Defense (SEDENA) for 1.5% of the total complaints for torture received against this institution between 2006 and 2012.

Despite the limited figures released by the authorities, the CNDH and civil society have argued that human rights are violated in a systematic and comprehensive way in Mexico. The lack of official figures, political will and autonomy within the ombudsman system hamper the documentation of crimes affecting human rights in the country. Impunity leads to victims and their representatives seeking justice before the Inter-American System of Human Rights (IASHR), which reveals Mexico to be the country with the highest number of complaints before the Inter-American Commission on Human Rights (IACHR) [9]. This process usually takes many years and there are even cases in which the Inter-American Court of Human Rights (IACoHR) has issued rulings against the Mexican state, which have not been adequately met, as in the case of Rosendo Radilla.

Mr. Radilla was arrested in 1974 at a military checkpoint in the State of Guerrero. His detention and subsequent enforced disappearance was publicly denounced by his family who, after a long journey in search of justice, achieved a judgment before the IACoHR in 2009. Following the criteria established by the IACoHR, the Mexican Supreme Court held that all Mexican judges, within their jurisdiction, are entitled to carry out a ‘control of conventionality’, that is, to apply international human rights treaties and conventions in the cases before them, even to the detriment of Mexican law. This was an important step, but further action is needed on the issue of military jurisdiction.

Although the Mexican State recently amended Article 57 of the Code of Military Justice, CMDPDH has observed that the reforms do not fully comply with the provisions of the IACoHR judgments on the matter. These rulings indicate that the State should explicitly limit the competence of military courts to rule on human rights violations, especially when dealing with crimes such as enforced disappearance allegedly committed by military officials. The Inter-American Court has also noted that military jurisdiction in democratic States tends to diminish or even disappear, particularly in times of peace, so that countries that choose to retain such jurisdiction should consider applying it minimally, only with regard to violations that impact upon the legal interests of military discipline, and, in all cases, with respect for the principles and guarantees of due process [10].

There is an urgent need for cooperation among human rights organisations in order to exchange methodologies, experiences and data, and to combine efforts so as to be better able to document violations, demonstrate patterns thereof and to obtain justice for victims.

In order to create a tool to diagnose patterns of human rights violations in specific countries, Case Matrix Network has developed the System of Investigation Documentation (SID, I-DOC), which supports the creation of a database to facilitate the structuring of cases, as well as the deduction and analysis of patterns within the system. I-DOC is also useful to support the work of research, analysis, preparation and presentation of claims of international crimes before the International Criminal Court (ICC) and the procedures related to this process. In the Mexican context, the I-DOC system will help to identify/reveal patterns, allow for the mapping of violations, analyse cases and distinguish between criminal cases and human rights cases. As a result, it will offer the opportunity to seek criminal responsibility and thereby ensure justice for all the victims of such crimes, as well as their families, who have been re-victimised by the impunity enjoyed by their perpetrators.

We believe that the Investigation and Fact-Finding Toolkit for Mexico will support organizations and human rights institutions with tools and training to facilitate the documentation of high-impact crimes in Mexico in order to establish criminal responsibility for the crimes.

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Zara Snapp is former Director of Advocacy at the NGO Mexican Commission for the Defense and Promotion of Human Rights; and consultant on drug policy, strategic management and movement building.

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[1] Report of the Observer on Internal Displacement of the Norwegian Council for Refugees on forced displacement in Mexico due to the violence stemming from drug cartels.

[2] Steinberg, Nik. “Vanished: The disappeared of Mexico’s Drug War”.Human Rights Watch.New York, 2013.

[3] “Mexico recalculates number of missing to 8000” Mail Online. 23.05.2014.[4] De 2005 a la fecha hay 24 mil 800 personas desaparecidas: CNDH”. La Jornada. 21.05.2014. 

[4] “Mexico recalculates number of missing to 8000” Daily Mail. 23.05.2014

[5] Information requested by the Mexican Commission for the Defense and Promotion of Human Rights on the basis of the Federal Law on Transparency and Access to Public Information, record no. 0000700000514 and 0000700000914

.[6] Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[7] Information requested by the Mexican Commission for the Defense and Promotion of Human Rights on the basis of the Federal Law on Transparency and Access to Public Information, record no. 0001700000614.

[8] Information requested by the Mexican Commission for the Defense and Promotion of Human Rights on the basis of the Federal Law on Transparency and Access to Public Information, record no. Información solicitada por la Comisión Mexicana de Defensa y Promoción de los Derechos Humanos con base en la Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental Folios3200000013014 y 32000000012814.

[9] El Economista: “México, país de OEA que más denuncias presenta ante CIDH” 20.08.14. 

[10] IACoHR. Case of Radilla Pacheco Vs. México. Sentence of 23 November 2009. Series C No. 209, para. 272.

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