III. A Pattern of Impunity

Military investigations into grave human rights abuses committed by the military over the past few decades have routinely failed to hold perpetrators accountable, contributing to a culture of impunity. When, in January 2009, Human Rights Watch asked senior SEDENA officials for examples of cases of serious human rights violations committed by the military that were dealt with by military courts and led to convictions, they said there were “many.” However, they were only able to recall one case from 1998.[58] Despite repeated requests from Human Rights Watch, SEDENA has failed to provide a list of such cases. It also has yet to provide a copy of the decision in the 1998 case.

The Mexican military is responsible for the vast majority of the abuses committed during the country’s “dirty war” in the 1960’s and 1970’s, including the torture and enforced disappearance of hundreds of civilians. But no member of the military has ever been convicted for these crimes.

An important reason for this impunity is that the Mexican military stonewalled civilian investigators and interfered with prosecutions by pressing charges in military courts against members of the military for the same crimes that federal prosecutors were handling. If the defendants were acquitted in military courts, they became immune from prosecution in civilian courts. Also, while SEDENA has declassified important documents from the “dirty war” era, it has done virtually nothing to help civilian investigators understand or locate evidence within the released files, or obtain information that appears to be absent from those files.[59]

A similar pattern is evident in military investigations into abuses committed during other major public security operations in the Mexican countryside. These include the use of the army to respond to the 1994 armed uprising of the Zapatista National Liberation Army (Ejército Zapatista de Liberación Nacional, EZLN), a guerrilla organization in the southern state of Chiapas, and government attempts to combat drug trafficking in Guerrero since the 1980’s. Military prosecutors investigating abuses committed in these two states—including torture, arbitrary detentions, and rapes—relied heavily on soldiers’ version of events, and failed to seriously consider the victims’ testimonies and other independent sources documenting the abuses. The result, not surprisingly, was closed investigations and impunity.

Enforced Disappearances during the “Dirty War”

The “Disappearance” of Rosendo Radilla

Rosendo Radilla Pacheco was detained by soldiers on August 25, 1974, when he was traveling by bus with his 11-year-old son in the state of Guerrero. When the bus stopped for a second time at a military checkpoint, soldiers ordered passengers to get off. After three members of the military checked the bus and the passengers’ belongings, they allowed everyone to return to their seats but told Rosendo that he was being detained for “composing corridos,” a type of popular Mexican music. Rosendo asked his son, who was allowed to go, to inform his family that he had been detained by the military.

Rosendo was last seen in military installations in Atoyac de Álvarez, Guerrero, in 1974. According to witnesses, soldiers blindfolded him and tied his hands, tortured and threatened him, telling him he would be “thrown to the water as food for the fish.”[60]

Rosendo’s whereabouts remain unknown.

The Military Investigation

“It has been [over] 30 years without an answer… I need to know what happened to him,” said Tita Radilla Martínez, one of Rosendo’s daughters, with tears in her eyes. Her experience with the Mexican military justice system has led her to conclude that “so long as these cases remain with military prosecutors, nothing will be done ... We should not have to go to a military court.”[61]

The first official recognition that Rosendo had been “disappeared” came in 2001, more than 10 years after the Radilla family had asked the CNDH to look into the case.[62] The CNDH examined 532 cases and issued a non-binding report in 2001 concluding that there was sufficient evidence to establish that at least 275 individuals—including Rosendo Radilla—had been arrested, tortured, and “disappeared” by state forces during the “dirty war.” (It did not rule out the possibility that the other 257 individuals had also been “disappeared” during that time.)[63]

Civilian prosecutors only began investigating Rosendo’s case when, following the CNDH’s intervention, in November 2001 the government created a federal special prosecutor’s office to investigate and prosecute the “dirty war” crimes Follow.[64]Until the commission’s report, there had been no serious criminal investigations, despite the Radilla family’s repeated requests that authorities initiate them.[65]

But the civilian investigations ended up in military courts. The special prosecutor filed “abduction” charges against General Francisco Quirós Hermosillo in August 2005. A civilian judge issued an arrest warrant, but then turned the case over to the military justice system, arguing Quirós Hermosillo was a military official and was accused of an act that he committed while on duty. The military judge that received the case accepted jurisdiction, but the military prosecutor who had to investigate it actually sought to return it to civilian authorities, arguing that he did not have jurisdiction to evaluate the retired general for these acts.[66] But in October 2005 a federal civilian court ruled once again that the case did in fact belong within the military justice system.[67]

The Radilla family unsuccessfully challenged the use of the military justice system to investigate and prosecute Rosendo’s enforced disappearance. In September 2005 they presented an injunction (amparo) requesting that the case not be sent to military courts. The first instance judge rejected the request, arguing that Mexican law only gives victims of abuse standing to present injunctions in very specific circumstances, which do not include challenging the decision regarding which justice system should hear a case. A higher court confirmed this ruling in November 2005.[68]

Quirós Hermosillo was never tried nor convicted. In January 2006 a military judge determined there was no evidence to start investigating his criminal responsibility and set him free. Military prosecutors appealed the decision, which was upheld by the Supreme Military Tribunal. After the military prosecutors presented new evidence, another military judge issued a second arrest warrant, and in October 2006 Quirós Hermosillo was formally accused of illegally detaining Rosendo Radilla. However, the military judge closed the case in November 2006, after Quirós Hermosillo had died.[69]

This case is now pending before the Inter-American Court on Human Rights (IACHR), which has the power to issue a binding decision regarding Mexico’s international responsibility for the detention, torture, and subsequent “disappearance” of Rosendo Radilla, as well as on the state’s failure to hold those responsible accountable.[70]

Undermining Accountability

When the military insists on carrying out these investigations, it effectively blocks any possibility that members of the military will be held accountable in civilian courts. If the military trials end in acquittals, a subsequent prosecution of these officers by civilians is barred under the principle of non bis in idem—the principle, known as “double jeopardy” in Anglo-American jurisdictions, according to which a person cannot be tried twice for the same crime.

The likelihood of such an outcome is increased by the fact that very few of the relatives and surviving victims in Guerrero have been willing to testify before the PGJM. As a result, the PGJM is unable to obtain evidence that may be necessary to secure convictions. The main reason for the victims’ refusal appears to be fear of the military. Several Atoyac residents told Human Rights Watch that they disregarded the request for testimony from the PGJM because they were scared of the army,and the one person Human Rights Watch spoke with who had provided testimony confirmed that most victims’ relatives she knew were too scared to do so.[71] Another woman who refused to testify explained that she could not believe that the military had any intention of conducting a serious investigation. “They ignored us back then,” she said, “why would it be different now?”[72] One man who reported having been tortured by soldiers, who also forcibly “disappeared” his son, said he would never go to the PGJM since it was the military that had harmed him.[73] Another woman asked rhetorically, “How am I going to go to the PGJM when I’m denouncing an army general?”[74]

The Conflict in Chiapas

The Detention, Torture, and Rape of the González Pérez Sisters

On June 4, 1994, approximately 10 members of the military arbitrarily detained Ana, Beatriz, and Celia Pérez—who were then respectively 20, 18, and 16 years old—and their mother, Delia Pérez de González, in the municipality of Altamirano, Chiapas, as they were returning from a nearby town where they sold their agricultural products.

The three sisters, who were members of the Tzeltal ethnic group and spoke little Spanish, were taken to a windowless one-room house where soldiers beat and repeatedly raped them while attempting to force them to confess they were members of the EZLN. A thorough medical examination showed that the three women had been sexually abused and had suffered severe physical and psychological harm as a consequence of these acts.[75] Their mother was forced to stay outside the house during the rapes.

According to the oldest sister’s testimony, a soldier threw the three women onto the floor and hit them until “they could no longer defend themselves.” While one soldier held her and took her clothes and underwear off, another man raped her. She testified she “felt great pain and felt as though [she] was dying and then passed out.” When she regained consciousness, another soldier was on top of her. She tried to scream but the man pushed a handkerchief into her mouth and covered her eyes with a piece of cloth. She recalled that throughout the two hours in that room, the soldiers were laughing and saying that the Zapatistas were “delicious.”[76] After the rapes, a military official threatened the four women saying that if they reported the incident they would be detained again, imprisoned, and maybe killed.[77]

As a consequence of the humiliation and the stigmatization created by these abuses, the González Pérez sisters and their mother left their community.[78]

The Military Investigation

Three days after the González Pérez sisters reported the rapes to the PGR, the PGR turned the investigation over to military prosecutors, arguing it did not have jurisdiction to investigate it.[79]

A year later, the military closed the case. The military case file includes statements provided by several individuals who attest to the “good conduct” of the soldiers and deny that the rapes occurred, but it completely ignores the gynecological exam submitted by the González Pérez sisters to the PGR, as well as their testimonies. In fact, military prosecutors ordered another gynecological exam. When the sisters refused, the prosecutors closed the case in September 1995, arguing that there was “lack of interest of the victims and their representatives.”[80]

The González Pérez sisters took their case to the IACHR, which ruled in April 2001 that the Mexican government was responsible for the arbitrary detention, torture, and rape of the sisters, as well as for not conducting a thorough, prompt, and impartial investigation into what had happened.[81]

The Mexican government initially tried to justify using the military justice system to investigate and prosecute this case. Government representatives argued before the IACHR that this case had to be investigated by military prosecutors because the armed forces were carrying out public security activities in Chiapas and the soldiers were “on duty and never left the location, since the place where the alleged victims were taken for interrogation was within the radius of the area assigned for the performance of the activities.”[82]

In 2008 government officials and the Comisión Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH), representing the victims, signed an agreement before the IACHR in which the CMDPDH agreed to work with military prosecutors to help them carry out three necessary steps within the military investigation, with the purpose of sending the case to civilian prosecutors.[83] Fourteen years after the rapes, the case appears finally to be heading to a civilian court.

Militarization of Guerrero

Illegal Detention and Torture of Environmentalist Peasants

On May 2, 1999, following a raid in Pizotla—a small village 10 hours by foot from the nearest road in the mountains of western Guerrero—soldiers detained Rodolfo Montiel and Teodoro Cabrera, two peasant leaders involved in environmental activism.[84]

The military held them illegally for two days. On the morning of May 4 a helicopter took them to a military base in the town of Ciudad Altamirano, Guerrero, where they were kept for at least the rest of that day, before being turned over to the civilian authorities.[85]

When the soldiers finally presented them before civilian authorities, Montiel and Cabrera confessed to having been caught “in fraganti” with the illegal drugs and weapons that the soldiers claimed to have found on them. However, they later recanted these confessions before a judge, claiming they had been subjected to torture both in Pizotla and at the army base. The torture, they alleged, included beatings, electrical shocks, pulling their testicles, and shining a light into their eyes. The CNDH eventually found that the soldiers had planted at least some of the evidence that the two men later confessed to possessing, and concluded that both Montiel and Cabrera had been subjected to arbitrary detention and torture.[86]

A judge issued a guilty verdict against both men on drugs and weapons charges in August 2000.[87] Despite highly questionable assertions in the testimony provided by the soldiers who detained the two men, their version of events was granted the “presumption of good faith.”[88] Despite serious contradictions in the self-incriminating statements by the defendants, these initial confessions were given greater weight than their later statements. And despite evidence of torture documented by Physicians for Human Rights-Denmark, the judge chose to rely on initial findings by the prosecutor’s office, which reported finding no signs of recent physical abuse.[89]

The Military Investigation

A federal prosecutor initiated an investigation into the torture allegations in October 1999, but the following month ceded jurisdiction to the PGJM.[90]

Montiel and Cabrera attempted—unsuccessfully—to cooperate with the PGJM. They repeatedly requested authorization to cooperate with prosecutors in the investigation (as “coadyuvantes”), and offered evidence for military authorities to take into consideration.[91] The two men also asked military prosecutors to send the case to civilian courts, arguing that the military courts lacked independence and impartiality to resolve the case.[92] According to the Centro Prodh, the nongovernmental organization that legally represented Montiel and Cabrera, they were never allowed to cooperate with the PGJM. In fact, they only learned what had happened with the military investigation in 2007 through information obtained from the IACHR.[93]

The PGJM closed the investigation and ordered that it be archived in November 2001, with a decision that arbitrarilydismissed the claims that Montiel and Cabrera’s rights were violated. The PGJM said it did not find evidence that Montiel and Cabrera had been arbitrarily detained, held illegally for two days, or tortured.[94] The decision sticks to the military’s version of the events and uses it to rebut the CNDH’s findings and dismiss the validity of the Physicians for Human Rights report. It completely fails to consider evidence offered by Montiel and Cabrera.

The case is now pending before the IACHR, which issued a report on the merits in November 2008.[95]At this writing, the report is not yet public.

The Rape of Inés Fernandez Ortega [96]

On March 22, 2002, 11 soldiers arrived at the house of Inés Fernandez Ortega, an indigenous woman of the Tlapanec Me'paa people in Guerrero, who was at home with her four children aged three, five, seven, and nine. Three soldiers arbitrarily entered the house, asking Inés: “Where is your husband? From where did he steal the meat that you have on your patio?” The soldiers pointed their guns at her chest, grabbed her hands and threw her violently onto the floor, shouting at her, “Are you going to talk or not?” The children fled the house in fear and went to their grandfather to ask for help.

Inés could not answer the soldiers’ questions because she does not speak Spanish, which infuriated the men. One of the soldiers grabbed her hands with his right hand, and with the other hand he removed Inés’ underwear, pulled down his pants, and raped her for approximately ten minutes. When he finished, the soldiers left, stealing the meat Inés and her family had on their patio.

After the rape, Inés has been stigmatized by members of her community. Inés continues to be afraid of the military and constantly fears that she or her children could suffer similar abuses again.

The Military Investigation

Two days after the rape, Inés lodged a formal complaint before the civilian state prosecutor’s office in Ayutla de los Libres, Guerrero, asking state prosecutors to investigate the rape and illegal entry into her home. The state prosecutor determined he was not competent to investigate the rape, the robbery, or the illegal entry into Inés’ home because “the individuals who are probably responsible [for the crimes] belong to the Mexican army.” In May 2002 he sent the case to military prosecutors.[97]

Inés unsuccessfully challenged the use of military jurisdiction in her case before Mexican courts.[98] After military prosecutors rejected her request to refrain from asserting their jurisdiction over the case, she presented an injunction (amparo) before federal courts.[99]Both a first instance judge and a higher court rejected her appeal, arguing that Inés did not have standing to challenge a decision regarding which government authority was competent to investigate a case.[100]

The PGJM formally closed the case in March 2006, arguing that there was no evidence that members of the military were responsible for the rape or the illegal entry into Inés’s home. The prosecutors based their decision on the testimony of the accused soldiers, who denied the accusations, and on testimonies of other individuals who were not present at the time that the events took place.[101]They also argued that Inés had not provided enough information to identify the person responsible for the crime and that she had not participated in the military investigation, even though the CNDH documented how military prosecutors had not adequately notified Inés of the proceedings.[102]

According to government officials, the military investigation had been limited to analyzing if soldiers had committed a breach of military discipline, and civilians are investigating the rape.[103] However, the military decision in fact goes far beyond reviewing whether there was a breach of military discipline by, for example, analyzing whether the gynecological exam performed on Inés after the rape constitutes valid evidence. In any case, the civilian investigation is not likely to yield justice for Inés because, even though Inés had reported that she had been raped by soldiers, the PGJM sent the military file to civilian authorities so they could investigate “the possible participation of civilians in the case in which Inés Fernandez Ortega was a victim of abuse.”[104]

The case is now pending before the IACHR, which issued a report on the merits in November 2008.[105]At this writing, the report is not yet public.[106]

The Rape of Valentina Rosendo Cantú [107]

On February 16, 2002, Valentina Rosendo Cantú, a 16-year-old member of the Tlapanec indigenous community in Caxitepec, Guerrero, was washing clothes in a stream near her house when eight soldiers showed up.

When she was unable to respond to the soldiers’ questions, two of them raped her. The soldiers surrounded Valentina and two of them walked up to her, asking angrily, “Where are the hooded [people]?” When she said she did not know, one soldier threatened to shoot her and, pointing his gun at her, asked her if she was from Barranca Bejuco, a nearby community. She was not. Another soldier showed her a picture and a list of names, asking her if she recognized anyone. She did not. A soldier hit Valentina in the stomach; she fell and passed out for a few minutes. When she regained consciousness, she sat down and one of the soldiers pulled her hair and violently asked her: “How come you don’t know, aren’t you from Barranca Bejuco?” Valentina explained she had only recently moved to Barranca Bejuco, after getting married. Two soldiers scratched her face, took her skirt and underwear off, and raped her, one after the other, while the other six men witnessed the rapes.

It took Valentina months to obtain adequate medical care. After the rape she got up and, practically naked, ran home. She went to a local hospital, where doctors refused to treat her saying they did not want “trouble” with the military and did not have adequate equipment. She then traveled eight hours by foot to another hospital in Ayutla, where a doctor determined she had been beaten in her abdomen, but did not provide any medicine or order the necessary lab exams. Only several months later, after her legal representatives intervened, did Valentina obtain adequate gynecological healthcare, including an operation.

After the rape, Valentina’s husband left her and she lost the support of her community as a result of the stigmatization she suffered.

The Military Investigation

On March 8, 2002, Valentina presented a formal complaint before state prosecutors in Ayutla de los Libres, Guerrero, stating she had been raped by soldiers. Two months later, the state prosecutor’s office sent the case to military prosecutors, arguing they had jurisdiction to investigate the case because the accused were members of the military.[108] (The military had already initiated an investigation into the case, based on a news article accusing soldiers of raping and beating an indigenous woman).[109]

Valentina repeatedly—and unsuccessfully—challenged the use of military jurisdiction to investigate her case. She first refused to cooperate with the military investigation, and requested that the military prosecutor refrain from asserting jurisdiction in her case.[110] Subsequently, she filed several requests for injunctions (amparos) before federal courts challenging the assertion of military jurisdiction in her case, but civilian courts rejected her claims, arguing the accused were soldiers who were “on duty” when they committed the alleged crime, which made it a case of an alleged breach of military discipline.[111]

Valentina learned in October 2007—after a public hearing before the IACHR—that the military had closed its investigation more than three years earlier, in March 2004. The military argued that it had found no evidence to prove that Valentina had been raped by soldiers.[112]

The Mexican government says it is conducting a thorough investigation at the state level. At the international hearing—and more than five years after Valentina asked state authorities to investigate the rape—the Mexican government agreed to request that military prosecutors submit the information in their files to state prosecutors so they could investigate the rape.[113] The military sent the files in January 2008, and the state prosecutors’ office reopened the investigation in May.[114] Mexican officials say that the PGR then attempted to carry out procedural steps on behalf of the state prosecutors’ office but Valentina repeatedly refused to cooperate with federal officials. They say that it is Valentina’s failure to cooperate that is impeding justice in this case.[115]

However, Tlachinollan, the nongovernmental organization representing Valentina before the IACHR, told Human Rights Watch that they believe the 2008 investigation by the state prosecutors’ office, which was reopened after years, is focused on the possible responsibility of civilians in Valentina’s rape and is not seriously investigating the soldiers. At a minimum, this case demonstrates how the military’s exercise of jurisdiction, and the lengthy delays that have accompanied it, have undermined the victim’s trust, and thus, prospects for justice.[116]

The case is now pending before the IACHR.[117]