Side Event –“From Impunity to Accountability? A New Transitional Justice Policy for Mexico

(co-hosted by Centro Diocesano de Derechos Humanos “Fray Juan de Larios”, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Familias Unidas en la Búsqueda y Localización de Personas Desaparecidas - Piedras Negras/Coahuila, Fundación para la Justicia y el Estado Democrático de Derecho, I(dh)eas - Litigio Estratégico en Derechos Humanos, Instituto Mexicano de Derechos Humanos y Democracia, and Open Society Justice Initiative)  

Overview by Abby Roberts, Research Associate PILPG NL

Main Highlights: 

  • Mexico is a unique case with regards to transitional justice as it is neither a strictly post-authoritarian situation nor a post-conflict situation. 

  • The new government of Mexico has expressed a commitment to pursuing transitional justice, but it will require the support of the international community as a whole.

Descriptive Summary of the Event: 

This panel was moderated by James Goldston - Executive Director of the Open Society Justice Initiative.  The panelists were José Antonio Guevara - Executive Director of the Mexican Commission for the Defense and Promotion of Human Rights, Deborah Ruiz Verduzco - Head of Civil Society Initiatives for the International Commission on Missing Persons, and Pablo De Greiff - United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence.

The discussion began with Deborah Ruiz Verduzco providing the historical context for the violence currently occurring in Mexico. She noted that Mexico was under a one-party rule for many decades with no space for opposite or civil society, a weak judicial system, and military control of the country. These circumstances resulted in many high-profile atrocities and have provided for the strengthening of organized crime and violence. After the transition of there were promises regarding peace that were not completely fulfilled.  However, there have been progressive reforms for human rights with the transition, especially relinquishing the hold the military has on the country and allowing more room for civil society.  Between 2006 and 2015, in two administrations, there were 150,000 killings related to organized crime after the Mexican government decided to have a confrontation with certain groups in organized crime which gave a carte blanche to the military and police.  There were also a multitude of extrajudicial killings, which generally are not recorded.  As of April 2018, there are 38,414 people on the Official Registry of the Disappeared. These numbers do not take into account the 150,000 kidnappings that have occurred or any human trafficking victims. As torture is being used as an ordinary method of criminal investigation, since the launch of the 2007 National Security Strategy the complaints regarding torture have quadrupled, with only 5 convictions.  

José Antonio Guevara was then asked to speak on who is perpetrating the violence and how is it taking place.  He began by noting that in 2016 then President Calderon declared war on narco-trafficking.  This was thought to be a figure of speech, but the reality is over 600,000 armed forces have been deployed throughout this conflict. Some think this situation is marked by crimes against humanity committed by both sides.  Hundreds of thousands have been killed and others tortured, and we know a large number of these people have been killed in a confrontation with the armed forces. There is also a public information register which shows the armed forces have detained over 70,000 people.  The armed forces do not have the mandate to detain them, but they say they have caught them in the act.  In Mexico, people can be arrested and detained for 80 days to prove a link with a crime, which is not in accordance with international law.  

Guevara explained that there is a high intensity of armed forces perpetrating the violence.  He went on to discuss why there has been so little accountability for these acts.  One of the factors is that there is a lack of independence for district attorneys.  Those acting in certain districts are not held responsible by the overarching state even though they knew crimes were being committed. The state did nothing to install competent bodies, and when there were functioning bodies the state ensured investigations were not carried out.  The official investigations are not independent which is why we see the lack of impunity and why the international community is demanding an independent investigation.  

Pablo De Greiff then spoke on whether or not Mexico is in transition, and, if so, what it is transitioning from/to.  He began by discussing the models of modern transitional justice, which was originally shaped by the post-authoritarian southern cone and now often occurs in post-conflict situations.  Mexico is unique, as it is not undergoing a strictly post-authoritarian transition nor a post-conflict transition. It is a mixture of conflict and organized crime, which does not fit in the usual phenomena of transitional justice.  He believes that the semantics of transitional justice are not important, but what is important is that it invites a comprehensive response to issues of redress.  His recommendation is that under the transitional justice agenda, rather than fixating on particular measures, we start by considering the importance of the relevant types of ‘rights’ that are at issue in Mexico. The fundamental question is then which institutional forms are most conducive under the peculiarities of the Mexican situation. De Greiff believes the rhetoric of transitional justice might be useful, as long as there is not a complete repetition of past circumstances that might not harmonize with the Mexican situation.  This will require creativity not only on the part of Mexico but on the part of the international community as a whole, as Mexico is not experiencing these problems in a vacuum and should not be left alone to deal with them. 

Next, José Antonio Guevara was asked to speak on the promises made by the new government.  The new president has met with victims’ organizations to promise a mechanism to tackle impunity, justice for victims, independence for public prosecutors, backing the United Nations as they support Mexico.  There have already been meetings by a working group to discuss the conflict and there has been little determined by it with regards to what happened and who are the victims, which is why it would be helpful to have a truth commission.  This way there could be a common narrative about what happened and what could be done to prevent this in the future.  This group has received notice that there had been some progress in implementing the needed measures, and they are hopeful for the future. 

He then spoke on the question of what Mexico can do by itself and if there a need for international assistance. He believes that Mexico has elements of the political will necessary to remedy what has happened, but it will need international support from civil society to keep this will going.  Without involvement and funding, there will not be a sustained effort. Mexico is also a major international actor, and there no way to sustain this political will without a commitment by other states to express support for these endeavors. He outlined two challenges: making rapid progress on individual cases that need attention and taking a long-term view of structural changes and reforms.  

Pablo was then asked what an international mechanism on accountability was going to accomplish.  He noted that there is no country with a normal judiciary that could take on the number of cases that Mexico will face. Law schools, when they train investigators, teach them how to prosecute murder and similar crimes as stand-alone cases. There are very few instances of broad prosecutorial cases that do not deal with isolated instances but rather patterns, so as to disarticulate networks of criminality.  There are some instances of states that have this capacity, like Bosnia, Argentina, and Colombia.  This is not a spontaneously developed capacity, and this is where the mechanism can help.  Having the government as a partner to the agreement would signal a deeper commitment to this mechanism - or at least the potential would be much greater.  This would have to be a mixed endeavor of both international and national actors which would facilitate ownership of the outcome and actions.  Pablo spoke in favor of implementing this type of mechanism in addition to an ICJ investigation. 

Pablo then spoke on the concept of amnesty in this situation.  He explained that amnesty is a unique concept in situations involving organized crime rather than a more typical armed conflict.  He believes the fundamental limitations of amnesty ought to be respected; there should be no amnesty for crimes against humanity and international crimes, and this should not preclude other avenues for people accused of these crimes receiving reduced sentences for collaboration to combat organized crime. 

Guevara also spoke on the topic of amnesty.  He discussed an article written by a close friend of the President which claimed that the possibility of crimes against humanity receiving amnesty is excluded.  In the security policy, aspects of the idea of amnesty, pardon, or cooperation were discussed.  Children, women, and similar categories may be offered amnesty.  Guevara believes there are benefits to this type of cooperation. This can help find the disappeared, and in return, the cooperators could get reduced sentences.  He believes that amnesty may also have to apply to corruption, as it is endemic in the government and, at this point in time, you cannot completely flush it out.  

The last topic of discussion was with regards to what the role of the ICC could be in Mexico. José has always believed the role of the ICC is important in the fight against impunity.  He believes independent public prosecutors could focus on the smaller crimes and the ICC can focus on the higher level atrocities and actors.  Deborah noted that there has already been a specific case referred to the ICC by the senate, which signals a willingness to involve the ICC more in the future.