I. Executive Summary

“When one judges oneself, one always tries to find a justification. [Military officers] simply try to cover for one another.” —Widow of a young man killed by soldiers explaining her doubts about the impartiality of the military justice system

Since taking office, President Felipe Calderón has relied heavily on the armed forces to fight serious drug-related violence and organized crime. The need to improve public security is clear. Mexico is facing powerful drug cartels that are engaged in violent turf battles, an influx of sophisticated weapons, a large number of kidnappings and executions in several Mexican states, and shocking forms of violence including beheadings. The competition and fighting among powerful cartels, as well as shootouts between cartel members and law enforcement agents, have resulted in the deaths of thousands of civilians, police, and members of the military. The numbers of victims have risen significantly since 2006, with the death toll reaching an estimated 6,000 in 2008.

Mexico has used its armed forces in counternarcotics and counterinsurgency operations for decades. But the visibility of the armed forces in law enforcement operations has increased dramatically under the Calderón administration, which has portrayed the deployment of the army as one of its key strategies to combat drug trafficking and increase public security. Thousands of members of the military have been incorporated into the federal police force, and more than 40,000 military and police officers have been deployed throughout the country. In very violent cities, such as Ciudad Juárez and Tijuana, local governments have appointed high ranking military officers to head the police forces. The Calderón administration has stated that the use of the army is temporary, but has yet to present even a provisional plan for withdrawal of the troops.

While engaging in law enforcement activities, Mexico’s armed forces have committed serious human rights violations, including enforced disappearances, killings, torture, rapes, and arbitrary detentions. The abuses detailed in this report include an enforced disappearance, the rape of indigenous women during counterinsurgency and counternarcotics operations in Southern Mexico, the torture and arbitrary detention of environmental activists during counternarcotics operations, and several cases of torture, rape, killings, and arbitrary detentions of dozens of people during public security operations in various Mexican states in 2007 and 2008. Many victims of the abuses documented in this report had no connection to the drug trade or insurgencies.

Such horrific abuses directly undermine the goal of stopping drug-related violence and improving public security. The army is currently deployed in the areas of the country most torn by drug-related violence. It would be in the military’s best interest to act and be seen to act in a manner that is professional and respectful of civilians and human rights. When soldiers commit serious human rights crimes, they damage that image, alienating civilians and generating distrust and fear of the army in populations that otherwise are best placed to assist law enforcement efforts. The abuses also run counter to one of the main purposes that the armed forces are charged with serving in public security operations: enforcing the law and protecting members of the public—not harming them.

An important reason such abuses continue is that they go unpunished. And they go unpunished in significant part because most cases end up being investigated and prosecuted by the military itself. By allowing the military to investigate itself through a system that lacks basic safeguards to ensure independence and impartiality, Mexico is, in practice, allowing military officers involved in law enforcement activities to commit egregious human rights violations with impunity.

The Mexican military court system is failing miserably to provide justice in cases involving military abuses against civilians.  Although the opaque nature of the system and the fact that the authorities do not publicly report on the outcome of most cases obscures a complete picture of what happens in all cases, it is still evident that very few cases lead to convictions for the crimes committed.

When, in January 2009, Human Rights Watch asked senior Ministry of Defense officials for examples of serious human rights violations prosecuted by the military resulting in the conviction and imprisonment of military personnel, they said there were “many.” However, they were only able to recall one case from 1998.Despite repeated requests from Human Rights Watch, the Ministry of Defense has failed to provide a list of such cases. It also has yet to provide a copy of the decision in the 1998 case.

This report details 17 cases involving egregious crimes by soldiers against more than 70 victims, including several cases from 2007 and 2008. None of the military investigations of army abuses analyzed here has led to a criminal conviction of even a single soldier for human rights violations. A civilian investigation was conducted in one of the cases and led to the conviction of four soldiers. Something is terribly amiss in how Mexico deals with allegations of serious human rights violations by the military.

Because the military justice system is failing to hold perpetrators accountable, it is essential that such cases be moved to the civilian justice system. This conclusion is fully supported by international law. International law is clear that serious human rights abuses must be subject to effective, independent investigation and prosecution, standards that the Mexican military justice system is manifestly not meeting. Authoritative commentary on international law, including decisions by the Inter-American Court of Human Rights, frowns upon military exercise of jurisdiction in such cases because military justice systems are often opaque and rife with potential conflicts of interest, the military sitting in judgment on itself. The Mexican system is no exception: it is not structured to ensure fair outcomes and, as the record to date amply illustrates, it is not providing such outcomes.

In Mexico, the secretary of defense wields both executive and judicial power over the armed forces. Military judges have little job security and may reasonably fear that the secretary could remove them or otherwise sideline their careers for issuing decisions that he dislikes. Civilian review of military court decisions is very limited. To make matters worse, there is virtually no public scrutiny of, or access to information about, what actually happens during military investigations, prosecutions, and trials, which can take years.

These structural flaws are borne out in practice. The Mexican Ministry of Defense limits excessively and without reasonable justification information the public’s access to basic information on the status of army abuse cases still pending before the military justice system, making it extremely difficult to know with certainty to what extent members of the armed forces are, in fact, being held accountable. In many cases, witnesses and victims are reluctant to testify or participate, afraid of the future consequences of speaking about military abuses in front of military officials. Available information indicates that the likelihood of obtaining justice in such cases in the military justice system is very slim.

As noted above, none of the military investigations of army abuses analyzed in this report have led to a criminal conviction on human rights charges. In older cases, military investigations led to impunity. And in more recent cases of 2007 and 2008, the military criminal investigations have either been closed, or are being conducted in a manner that is likely to lead to impunity. Military prosecutors have, in several cases, closed investigations for lack of evidence in reliance on soldiers’ testimony, ignoring independent, credible evidence that abuses in fact occurred. While the military has at times provided monetary compensation to victims, such compensation does not make up for the lack of accountability in these cases.

Despite these compelling facts, the military has persisted in invoking the Code of Military Justice and a strained constitutional interpretation to justify continuing to investigate the cases. Civilian prosecutors have routinely accepted the military’s jurisdiction grab with hardly a fight. This must end or impunity will continue to prevail, ultimately undercutting the success of the effort to curb drug violence and protect public security.

As detailed below, the military’s main argument as to why it has jurisdiction in cases involving serious human rights violations against civilian victims is a constitutional provision that allows for military jurisdiction for “crimes and faults against military discipline.” A key problem is that the Code of Military Justice, purporting to interpret the Constitution, establishes a very expansive notion of such offenses that includes “faults under common or federal law… when committed by military personnel in active service or in connection with acts of service.” The military has interpreted this to mean that even egregious crimes such as rape and torture should be heard before military courts so long as the crimes are connected to a breach of military discipline.

But Mexico’s Constitution and the Mexican Supreme Court do not prescribe this outcome. On the contrary, the text of the Constitution, its interpretation by constitutional law experts, and a recent Supreme Court decision favor civilian jurisdiction in such cases. Indeed, the military’s practice should have been brought to an end by a 2005 Supreme Court ruling that is binding on all judicial authorities, including military ones. In its decision, the court limited the scope of the provision in the Code of Military Justice by defining “service” as “performing the inherent activities of the position that [he or she] is carrying out.” While the court did not explicitly state that all military abuses against civilians should be sent to civilian prosecutors and courts, serious abuses such as rape and torture clearly cannot be considered “inherent activities” of the military.

The issue in Mexico is not the Constitution. It is the political will to ensure that cases of army abuses against civilians are heard where they belong: in civilian courts where the requisite of independence and public scrutiny help secure justice for the victims. 

Note on Methodology

This report’s findings are based on extensive interviews conducted during four research missions to Mexico City and Coahuila state in September 2008, November 2008, and January 2009, as well as prior and subsequent interviews by phone and email. Human Rights Watch carried out interviews and meetings with Supreme Court justices, representatives from local nongovernmental organizations, lawyers, journalists, scholars, state attorney generals, and leading members of Mexican civil society. In January 2009, the Ministry of Foreign Affairs organized a series of meetings for Human Rights Watch with senior government officials, including the military’s attorney general, the head of the human rights office at the Ministry of Defense, and representatives from the federal Attorney General’s Office, the Ministry of Foreign Affairs, the Ministry of Public Security, and the Ministry of the Interior.

The findings are also based on official responses to over 40 formal information requests that Human Rights Watch sent to the Ministry of Defense and the National Human Rights Commission (Comisión Nacional de los Derechos Humanos, CNDH) through Mexico’s federal access to information law and its implementing regulations. Human Rights Watch requested information on the status of military investigations into army abuses documented by the CNDH, as well as copies of important documents that the CNDH cited as evidence in its reports documenting human rights violations.

The findings also draw upon the testimony of victims and relatives of victims of military abuses. Given the difficulty of gaining access to victims and the fact that many are understandably reluctant to testify repeatedly to what were often traumatic experiences, Human Rights Watch has also relied on official documentation that includes direct victim testimony. For example, Human Rights Watch reviewed documentation submitted by nongovernmental organizations representing victims to the Inter-American Commission on Human Rights (IACHR), listened to audio testimony given by victims before the commission, and analyzed the testimony that victims gave before prosecutors, which the CNDH cited in its reports. For this report, Human Rights Watch directly interviewed four victims of army abuse or members of their families, working closely with their legal representatives, and also drew on interviews we conducted with several Atoyac de Álvarez residents for a previous Human Rights Watch report.

Given the opaqueness of the military justice system, it is impossible to obtain complete information on the number, status, and outcomes of cases of human rights violations committed by the military against civilians that were investigated and tried by military courts. This report focuses on 17 cases that were either presented before the Inter-American Commission on Human Rights or documented by the CNDH and “accepted” by the Ministry of Defense. When the Ministry of Defense “accepted” the CNDH reports, it committed itself to, among other things, investigating the abuses and sanctioning those responsible.[1] We have documented the cases and the military investigations through the interviews described above, as well as through a variety of official documents that were part of the IACHR or CNDH files, judicial rulings, sections of civilian and military judicial files, and reports by the IACHR and the CNDH. Human Rights Watch also interviewed senior government officials, who described their policies on the use of military jurisdiction to investigate and prosecute cases alleging military abuses against civilians. The officials, however, refused to discuss any of the cases documented in this report.

Recommendations

To President Calderón

When the Calderón administration adopted its “National Human Rights Program 2008-2012” in August 2008, it said it would promote reforms to ensure that the military justice system complied with Mexico’s international human rights obligations. Two months earlier, the Congress had passed a comprehensive constitutional reform aimed at overhauling Mexico’s dysfunctional criminal justice system, including the military justice system. The reform included basic due process guarantees in the Constitution and required the adoption of an adversarial justice system with oral hearings.

To implement the constitutional requirements, as well as to follow through on his own stated commitment to strengthening the justice system and the rule of law in Mexico, President Calderón, as head of the armed forces, should present a proposal to Congress to amend the military justice system. Specifically, the proposal should:

• Modify article 57 (II) of the Code of Military Justice so that it explicitly states that at least cases of alleged serious human rights violations committed by members of the armed forces against civilians, including enforced disappearances, torture, killings, arbitrary detentions, and rapes, may not be prosecuted by the military justice system and must be immediately sent to civilian state or federal prosecutors.
• Instruct military authorities to cooperate fully with civilian prosecutors in the investigation and prosecution of military abuses against civilians.

• Ensure that military judges and magistrates have security of tenure by establishing a specific period of time during which they will serve in their posts and clear reasons and mechanisms for their removal.
• Ensure that decisions adopted by military tribunals are subject to comprehensive review by civilian authorities by, for example, appointing independent civilian judges to the Supreme Military Tribunal, or allowing for substantive review of military decisions by federal courts.

While the Congress discusses and adopts these legislative measures, President Calderón should instruct the Secretary of Defense to ensure that:

• Military prosecutors and judges do not assert jurisdiction over cases alleging serious human rights abuses. They should, as well, be directed to immediately send existing relevant case files to state and federal prosecutors who should conduct the investigations. Once the cases are under civilian jurisdiction, military authorities should fully cooperate with the investigations.
• The Ministry of Defense increases the transparency of proceedings within the military justice system, fully implementing the federal law on transparency and Mexico’s obligations under international law. Among other things, it should provide basic information to the public on the status of cases involving civilians; make it easy to obtain information on upcoming public hearings via the Ministry of Defense website; and facilitate public access to military installations where military cases are heard.

Finally, specifically in light of the crime of enforced disappearances, President Calderón should present a proposal to the Senate to withdraw the reservation the government of Mexico made when ratifying the Inter-American Convention on Forced Disappearance of Persons in 2002, and to immediately recognize the competence of the Committee on Enforced Disappearances established by the International Convention for the Protection of All Persons from Enforced Disappearance, which Mexico ratified in 2008.

Although the Inter-American Convention states that individuals accused of carrying out enforced disappearances should be tried by ordinary courts “to the exclusion of all other special jurisdictions, particularly military jurisdictions,” Mexico stated that its military justice system may prosecute and investigate crimes if members of the military commit them while on duty. Although the validity of this reservation has not yet been studied by international bodies, Human Rights Watch believes it contradicts the object and purpose of the treaty.

In relation to the International Convention for the Protection of All Persons from Enforced Disappearance, the Committee on Enforced Disappearances was established to receive and examine communications submitted by the victims of enforced disappearances or their families or representatives, but Mexico failed to recognize its competence at the time of ratification.

To the Federal Attorney General

The federal Attorney General’s Office facilitates military jurisdiction by “automatically” sending all cases in which an active-duty member of the military is accused of committing a crime to military prosecutors.

To promote accountability for army personnel who violate the rights of civilians, the federal attorney general should instruct federal prosecutors to only send military prosecutors cases involving breaches of military discipline. All cases of alleged serious human rights abuses against civilians should be either investigated by federal prosecutors (if they involve the alleged commission of a federal crime) or turned over to state authorities (if they involve the commission of a state crime).