18TH SESSION OF THE ASSEMBLY OF STATES PARTIES TO THE ROME STATUTE
Day 1 (2 December 2019)
Name of the Event: Should the ICC open a preliminary examination in Mexico? Discussion about allegations of crimes against humanity in Mexico (co-hosted by the Coalition for the International Criminal Court (CICC), International Federation for Human Rights (FIDH) and the Open Society Justice Initiative (OSJI)).
Overview by: Leonore ten Hulsen, Junior Research Associate PILPG-NL
Main Highlights:
Various panelists pointed out the problematic situation in Mexico and the lack of options for prosecuting crimes against humanity in the Mexican judicial system. Therefore, the panelists asked for a preliminary examination in Mexico.
The Ambassador of Mexico to the Netherlands pointed out that the government and civil society actors are fighting for the same cause and are on the same side. Moreover, he nuanced that most of the homicides discussed today are taking place within the context of conflict between organized crime actors.
Mr. Antoine Bernard responded to the ambassador’s statements by saying that a preliminary examination into allegations of crimes against humanity in Mexico would be in the common interest of both civil society actors and the government alike.
Summary of the Event:
The first panelist, mr. Cesar Contreras Leon (FIDH) commented on the current state of affairs in Mexico concerning criminal prosecutions. He pointed out that little financial resources are available for the prosecution of cases involving torture, enforced disappearment, and murder, which amounts to approximately 8 euro’s per case per year. Moreover, there are currently only 143 human rights lawyers in Mexico, while there are over 16.000 cases involving potential human rights violations. This would boil down to each lawyer having the impossible task to take care of over 110 cases per year. Moreover, Mexico has a very high impunity rate, around 90%. Especially the lack of financial resources and human rights lawyers amount to a situation in which redress for human rights violations is increasingly difficult.
The second panelist, ms. Jimena Reyes (FIDH) explained that a clear pattern of crimes against humanity arises, as FIDH researched the various crimes on both the national and regional level in order to find patterns between the various types of crimes. Ms. Jimena Reyes explained that in Mexico, torture is widespread and refered to comments made by the Special Reporteur of the Inter-American Court. She mentioned that the state of Baja California was one of the first states where armed forces were registered. Detainees were found to be transferred to military bases under the exclusive control of militaries, and 95 cases were documented of heavy torture and/or forced disappearance. Medical professionals were included to downplay the amount of harm that was done, covering up torture cases. These crimes have gone unpunished until now. In 2019, one of the perpetrators of these crimes ran for mayor in the same city and victims tried to organize to draw attention to the crimes he committed, resulting in one civilian being shot.
In Kwawila, through a collaboration of 100 NGOs, an analysis of over 500 cases on enforced disappearance and torture - amongst other human right violations - was presented to the office of the public prosecutor. Ms. Jimena Reyesr argued that these cases constituted proof that crimes against humanity had been committed. Investigations focusing on the macro-level, and going beyond the individual case-level is necessary. In Mexican (case) law, the concept of crimes against humanity has not yet been acknowledged. Therefore, she invited the Mexican government to a constructive dialogue and to submit this case for preliminary examination by the ICC, as it can constitute an important sign and change of the current state of being.
The third panelist, ms. Olga Guzman Vergara (Comisión Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH)), discussed the problems with the state of Chihuahua, as it is a key point for drug trafficking organizations as a result of its geographical location. Since 2008, the Calderón president created a joined strategy between civil and military forces in Chihuahua to combat distribution and consumption of drugs. However, since 2008 local NGOs have documented an increase in violence, (sexual) torture, and forced disapparences. These NGOs found that crimes were mainly committed by the security forces. For example, in the year 2005 there were 517 violent killings in the state. After 3 months of the implemented new strategy to combat the drugs violence, 2600 people were violently killed and by 2010, this was 4000 violent killings. The high number of victims and forced disappearances even created types of ‘ghost towns’, as many families and other people fled the violence.
Because of the joined strategy between civil and military forces in Chihuahua, the alleged crimes against humanity were committed by both actors. The University of Leiden found that the situation could amount to an international conflict situation, because of the drug trafficking organizations. Out of the nine drug trafficking organizations that are active in the region, eight fulfilled the requirements for international law. The War Academy of Geneva had similar findings, because drug trafficking organizations are armed groups with structures of command and control, and have weapons and capacity to carry out military operations. The drug organizations have the option to get into contact with governmental officials to bribe them. Furthermore, they control many important economic regions, mainly in the north and they operate military-like in the country.
Ms. Olga Guzman Vergara continued by pointing out that the violence in Mexico has not seized. She discusses some of the most recent news in the country of Mexico, which includes the headline: ‘After Soldiers Surrender El Chapo’s Son, a Shocked Mexican City Sighs with Relief’.
The fourth panelist, mr. Antoine Bernard (Deputy Director General at Reporters sans rontières/Reporters Without Borders (RSF)), focused on the vital role of journalists in a democratic society. He explained that 116 cases of crimes against journalists were analyzed, of which 101 were murders and 14 were disappearances. The data showed that journalists were targeted specifically in order to create terror and stop them from reporting on matters of public interests, like the drug cartels. Moreover, he pointed out that Mexico is currently the deadliest country in the world for journalists. The fact that journalists are still being killed, shows a deliberate failure of the federal authorities to research, prosecute, and protect journalists and their work, according to Mr. Bernard. Lastly, mr. Bernard asked whether we can afford another year of not acting, as so many journalists have died already.
All panelists called for an international investigation of the ICC in order to show that justice will be done and redress will be made available for victims.
Before the audience was given the opportunity to ask questions, Ambassador of Mexico to the Netherlands shared some comments, starting with a few disclaimers. The role that NGOs play in the effort of the Mexican state - which includes both the government and the society as a whole - to overcome the difficult situation Mexico is essential and fundamental, he stated. Moreover, he argued to not focus on a government and a society, but to see them as a whole: the government is not the enemy, the drugs are. The true enemies are the organized criminals that are challenging the state authorities and law enforcement and that are corrupting and endangering civilians. He expressed his hope for NGOs to see the government as an alley. Thirdly, he confirmed the serious situation in Mexico as a result of organized crime. However, he also spoke of positive situations that exist, like the government's commitment to combat corruption. Moreover, he spoke of the inclusion of human rights defenders in the current government, showing progress in the situation in Mexico. Furthermore, he spoke of the construction of a national guard that protects civilians and provides more law enforcement on both national and local level. Moreover, laws are being changed to protect human rights advocates and journalists. Lastly, he pointed out that around 90% of homicides are committed by criminal organizations against each other. Around 70% of the violence is committed in only 10 of all municipalities in Mexico. The ambassador stated that he does not want to diminish the seriousness of the issue as every innocent death is one too many, but he underlined that most problems are at the local level. He disagreed with the idea that there is a political motivation to this violence, as it is simply illegal criminal profit making according to him. This can therefore not be seen as a conflict situation, nor as a terrorist act, because violence’s motivation is not political.
Mr. Antoine Bernard responded to the ambassador’s statements that collusion and corruption on the local level are evident, but that special protection mechanisms that the ambassador referred to were created nearly 10 years ago. The special prosecutor of freedom of expression in Mexico states its inability, having opened more than 800 proceedings, and not once having been able to condemn the ones who ordered the murders. Mr. Antoine Bernard concluded that it will be in the common interest to start an ICC investigation and would send a clear message to local judges and prosecutors. Moreover, it would send a message of support to local law enforcement, instead of people having to listen to the temptation of corruption and bribery, according to mr. Bernard.
Afterwards, mr. Cesar Contreras Leon added that opening a preliminary examination into the situation in Mexico could also be important in light of the widespread corruption that Mexico faces.
Someone from the audience asked why the NGOs present consider it important that the ICC opens a preliminary examination, considering the fact that this might take years. Ms. Jimena Reyes answered that it could possibly trigger change in the legal system to include crimes against humanity. Moreover, a preliminary examination could encourage change in the way crimes are registered and prosecuted. Furthermore, a preliminary examination would mean some recognition for the victims.
Finally, a participant referred to a similar situation in Colombia, on the failure of the judicial system and that the biggest challenge is to look at the macro-level of the violence. It is not simply the drug cartels that act as third actors, but they are also infiltrated in the government and therefore it involves corrupted state practice. If a state does not address this as a federal problem, this amounts to a lack of will to prosecute those who are responsible for the violence.