V. The Exception that Proves the Rule: The Castaños Case

On July 11, 2006, municipal police officers detained a soldier who, dressed as a civilian, was causing trouble in a nightclub in the “red light district” of Castaños in the state of Coahuila.  After, five other men who identified themselves as members of the 14th Motorized Regiment of the Mexican Army (14Regimiento Motorizado del Ejército Mexicano) requested their colleague’s release. When the policemen released him, the soldiers threatened to come back.  When they did, half an hour later, they insulted, threatened, beat, and sexually abused 14 women who worked in the nightclubs, and beat seven police officers.

Although far from perfect, the Castaños case stands out as an example of how criminal investigations into military abuses against civilians should be carried out in Mexico. The military investigated breaches of military discipline, sanctioning soldiers who abandoned their duties. And civilians investigated the crimes against civilians that soldiers carried out, obtaining convictions and substantial sentences against three members of the military who are now being held in state prisons (a fourth one was released on bail).

The military may have had no choice but to cede jurisdiction in this case because there was no possible argument that the abuses took place during the soldiers’ discharge of their duties. The incident occurred a few days after the controversial presidential elections of 2006, when the soldiers were supposed to be safeguarding electoral ballots held at a Federal Electoral Institute (Instituto Federal Electoral, IFE) office in Monclova, Coahuila. Instead, they were several kilometers away, drunk and abusing women in a nightclub in Castaños.

While the reasons for civilian jurisdiction in this case were unusually clear, the same approach is warranted wherever military personnel are alleged to have committed serious human rights violations. Acts of torture, rape, and unjustified use of lethal force against civilians should no more be considered part of soldiers’ discharge of their duties than should egregious criminal behavior in a nightclub.

A distinctive factor in the Castaños case is that all actors involved believed that these cases did not belong in military courts, and acted accordingly. The state prosecutor investigated the case, the lawyers representing the victims collaborated with the prosecutor’s office, and a civilian judge convicted four soldiers. The state human rights commission and civil society, including the Bishop of Saltillo, immediately called for civilian investigations into these cases. The local media covered the jurisdictional dispute extensively, publishing several articles favoring civilian prosecutions. And military authorities collaborated with civilian ones.

The events in Castaños offer several important lessons. The first is that Mexican law, as it stands, does allow civilian authorities to prosecute military abuses against civilians. A second lesson is that consensus between government officials and nongovernmental actors on how these cases should be dealt with, together with extensive coverage in the media, helps push forward civilian investigations and convictions. Finally, this case shows that victims of abuses can play a critical role by speaking up against military abuses. It is extremely unlikely that victims would be willing to challenge their aggressors in this way before military prosecutors and courts, because of the widely shared perception—confirmed by decades of experience—that they will not find justice in military courts.

The Abuses

At around 2 a.m., a group of 10 to 20 members of the military wearing uniforms arrived in official vehicles at “El Pérsico Dancing” and “Las Playas Cabaret,” two nightclubs in the “red light district” of Castaños. During the following three hours, soldiers subjected 14 women who worked at the clubs and seven policemen who were providing security in the area to intimidation and abuse.

The CNDH has documented that the soldiers verbally abused the women, forced them to dance at gunpoint, and forced them into rooms. The soldiers threatened the women, forced them to undress, raped them (on occasions, repeatedly), sexually abused them, made them masturbate in front of the soldiers, and/or forced them to perform oral sex. One woman became pregnant as a consequence of the rape, and another, who was already pregnant, had an abortion after that night.[209]

The Investigations

Military and civilian authorities carried out two parallel, distinct investigations into these cases. The military investigated breaches of military duties, sanctioning soldiers who abandoned their duties, and civilians investigated the crimes against civilians.

The day after the soldiers committed the abuses, the PGJM initiated an investigation into nine soldiers’ responsibility for “abandoning their service.”[210] The military judge issued arrest warrants for all of them, but three soldiers were never subject to this criminal investigation because two deserted and one was dismissed from the armed forces.[211] One soldier was sentenced to two years in prison for “abandoning service.”[212]

The civilian state attorney general, for his part, investigated the military abuses against civilians. Although military prosecutors initiated a criminal investigation into the abuses, they ceded jurisdiction to civilian authorities, arguing they had documented “conduct by members of the military outside their acts of service… which, since they are not typically military crimes, must be investigated by state authorities.”[213] By mid-August 2006, the state attorney general had asked a judge to issue arrest warrants for 12 different soldiers.[214] A week later, the civilian judge authorized the indictment of eight of the 12 (four are at large).[215]

In October 2007, a civilian judge convicted four soldiers of the rape or sexual abuse of nine women and injuries to six police officers.[216] The judge held that four other soldiers were not guilty, and did not rule on the criminal responsibility of the four men that the victims held were guilty but who were not indicted and are at large.[217] Three of the convicted soldiers are being held in the state prison, and one of them (who was convicted for beating five police officers, but not for rape or sexual abuse) was released on bail.[218]

Though the civilian investigation and the judicial ruling are important steps toward promoting accountability for military abuses, the CNDH noted several shortcomings in the prosecutor’s and judge’s work. It noted that the state prosecutor’s office did not make use of all available witnesses and did not press charges for torture.  Further, the CNDH emphasized that the judge’s ruling did not address all of the abuses the commission had documented.[219]

The state prosecutor appealed the judicial ruling, requesting a higher court to reverse the non-guilty verdicts and impose higher penalties on those found guilty.[220] At this writing, the appeal is pending before the state’s highest court.[221]

The Consensus

The principal reason for the civilian prosecution of members of the military is probably the fact that there was total consensus in Coahuila—including among government authorities and civil society—that the military should not prosecute these cases.

The Coahuila state attorney general told Human Rights Watch that he did not ask the military for permission to analyze the case because he has the authority, as well as the obligation, to investigate it. According to the state prosecutor, civilian authorities must analyze any case in which a military official commits a crime against a civilian. If the crime or offense was committed off duty against a civilian, the case should be investigated by state authorities; and if the crime is committed while the soldier is on duty, the case should be investigated by federal authorities, given that soldiers are federal employees.[222] The first instance criminal judge who convicted the soldiers upheld the view that this case belonged in civilian courts.[223]

Other actors also played important roles in pushing for civilian investigations. The Bishop of Saltillo openly spoke up about the case immediately after it took place.[224] The victims’ lawyers collaborated with state prosecutors to build the cases.[225] The Coahuila State Human Rights Commission asked the CNDH, and all other state human rights commissions, to support its request to the Mexican president and the secretary of defense to present the soldiers involved in the abuses before state judicial authorities.[226] And the local media covered the case extensively, giving visibility to several arguments favoring civilian prosecutions.[227]

Even the military collaborated with civilian authorities by determining it had no jurisdiction to investigate the sexual abuses and the beatings. According to both the state attorney general and the civilian judge, military authorities have fully collaborated with them throughout the investigation.[228]

The Lessons of Castaños

The horrific crimes committed by soldiers in Castaños offer several important lessons regarding the use of military jurisdiction to investigate and prosecute military abuses against civilians in Mexico.

The first lesson is that the Mexican Constitution does not require the military to prosecute these types of crimes committed by soldiers against civilians.

Secondly, a consensus between government officials and nongovernmental actors on how these cases should be dealt with helps push forward civilian investigations and prosecutions, which are more likely to ensure accountability. Although civilian criminal investigations are far from perfect, the civilian justice system has basic safeguards to ensure impartiality and independence, which the military justice system lacks.

Finally, this case shows that victims of abuses play a critical role in these processes by speaking up against the military, which in turn helps them provide some degree of closure. Human Rights Watch interviewed three women involved in the criminal proceedings (one who was raped and impregnated by a soldier, another who was sexually abused, and a third who witnessed the events), and they all agreed that nothing will ever erase from their minds what happened to them.[229] However, they all felt “satisfied” when three men were convicted for these crimes, and encouraged other victims of military abuses to speak up.

It is extremely unlikely that victims would be willing to challenge their aggressors before military prosecutors and courts. For instance, two of the women interviewed by Human Rights Watch explained that they would not have felt comfortable participating in similar proceedings before military courts, since they did not trust they would be impartial. One of the women held that participating in the procedure was hard enough, “[so] imagine what it would have been like with someone who favors them.” Another woman added she also feared that military courts would be more worried about the military’s “image” than about procuring justice.