VI. Mexico's Obligations Under International Law
Obligation to Investigate Abuses
Mexico is party to several international treaties that impose an obligation to respect, protect, and fulfill the human rights listed in the treaties.[230] Those same treaties also impose on the Mexican state the obligation to deter and prevent violations of those rights, and to investigate, prosecute, and remedy their abuses.[231]
This second set of duties is, in part, a corollary to the first, reflecting the view that effective protection and prevention require investigation and punishment. The Inter-American Court of Human Rights, for example, has held that “the State has the obligation to use all the legal means at its disposal to combat [impunity], since impunity fosters chronic recidivism of human rights violations and total defenselessness of victims and their relatives.”[232]
The duty to investigate and punish also derives from the right to a legal remedy that these treaties extend to victims of human rights violations. Under international law, governments have an obligation to provide victims of human rights abuses with an effective remedy—including justice, truth, and adequate reparations—after they suffer a violation. Under the International Covenant on Civil and Political Rights (ICCPR), governments have an obligation “to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.”[233] The ICCPR imposes on states the duty to ensure that any person shall have their right to an effective remedy “determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.”[234]
At the regional level, the American Convention on Human Rights (ACHR) states that every individual has “the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.”[235] The Inter-American Court has held that this right imposes an obligation upon states to provide victims with effective judicial remedies.[236]
There are also specific obligations on states to prevent and punish torture and enforced disappearances. These two heinous crimes have their own treaties, which codify the obligations of governments, to ensure that whenever an offense occurs there is effective investigation and prosecution and a proper remedy for the victim.[237]
Obligation to Inform
In addition to the obligation to investigate and prosecute, states have an obligation to provide victims with information about the investigation into the violations.
Victims have a right to know the truth about violations they suffered. The UN General Assembly has endorsed the principle that victims’ right to remedies includes having access to relevant information concerning human rights violations.[238] International principles adopted by the former UN Commission on Human Rights state that “irrespective of any legal proceedings, victims, their families and relatives have the imprescriptible right to know the truth about the circumstances in which violations took place.”[239]
International human rights bodies have emphasized the state’s obligation to provide information to victims, particularly in cases of enforced disappearance. The UN Human Rights Committee has held that the extreme anguish inflicted upon relatives of the “disappeared” makes them direct victims of the violation as well.[240] To the extent the state fails to inform relatives about the fate of the “disappeared,” it fails to fulfill its basic obligation to bring an end to the violation.[241]The recently adopted International Convention for the Protection of All Persons from Enforced Disappearance (Convention Against Disappearances), which Mexico has ratified, sets out the right of each victim “to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person.” The treaty requires each state party, including Mexico, to take appropriate measures in this regard.[242]
Similarly, the Inter-American Court has held that states’ obligation to provide reparation to victims of abuses, translates into an obligation to provide family members with information about what has happened to people who have “disappeared.”[243]
In addition to informing the victims and their families, the state has an obligation to inform society in general about human rights abuses, particularly when the violations are serious. This obligation derives partly from its duty to prevent future violations. According to the former UN Commission on Human Rights:
Every people has the inalienable right to know the truth about past events and about the circumstances and reasons which led, through systematic, gross violations of human rights, to the perpetration of heinous crimes. Full and effective exercise of the right to the truth is essential to avoid any recurrence of violations in the future.[244]
Similarly, the IACHR has established that “[e]very society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the future.”[245]
The obligation to inform also derives from the right to “seek, receive, and impart” information, recognized in the Universal Declaration of Human Rights, the ICCPR, and the ACHR.[246] Although to date this has primarily been invoked to prevent states’ illegitimate interference or restriction on individuals or the media accessing information that is available, there is growing international recognition that the right also encompasses a positive obligation of states to provide access to official information. Both regional and international organizations have held that the right of access to official information is a fundamental right of every individual. In the Americas, the Inter-American Court has held that Article 13 of the ACHR (on the right to freedom of expression) entails the right to receive information held by government offices, as well as these offices’ obligation to provide it.[247]
According to the “Principles on Freedom of Information Legislation,” endorsed by the UN and Inter-American human rights systems, the right of access to information is governed by the “principle of maximum disclosure.”[248] In other words, the government is presumed to be under an obligation to disclose information, a presumption that can be overridden only under circumstances clearly defined by law, in which the release of information could undermine the rights of others or the protection of national security, public order, or public health or morals.[249]
Judicial authorities, as part of government, are subject to these obligations. According to the U.N. special rapporteur on freedom of opinion and expression, the OSCE representative on freedom of the media, and the OAS special rapporteur on freedom of expression, “courts and judicial processes, like other public functions, are subject to the principle of maximum disclosure of information which may be overcome only where necessary to protect the right to a fair trial or the presumption of innocence.”[250]
International Standards on Judicial Independence and Impartiality
Several international treaties, including the ICCPR and the ACHR, require that individuals be tried by “independent and impartial tribunals.”[251] A series of international principles set criteria to determine whether any justice system—including a military one—is in fact independent and impartial:
- Judges must be free from constraints, pressures, or orders imposed by the other branches of government. According to the UN Basic Principles on the Independence of the Judiciary (UN Basic Principles), “[i]t is the duty of all governmental and other institutions to respect and observe the independence of the judiciary,” and the judiciary “shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”[252]
- Judicial decisions cannot be subject to change by authorities other than superior courts. The UN Basic Principles state that “[t]here shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision.”[253]
- Judges should have security of tenure to avoid fear of being removed from their posts for the decisions they adopt. The UN Basic Principles state that “[t]he term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law” and that “[j]udges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.”[254]
- Judges should have proper training and qualifications, which should be the basis of their appointments. The Universal Charter of the Judge points out that “[t]he selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification.”[255]
International Standards on Military Jurisdiction
The independence necessary to investigate and prosecute military abuses generally does not exist when military authorities investigate human rights violations committed by military personnel and prosecute them in military courts.
The only explicit prohibition in international law on military prosecutors investigating, and military courts trying, human rights cases is related to enforced disappearances. The Inter-American Convention on Forced Disappearance of Persons states that individuals accused of carrying out “disappearances” should be tried by ordinary courts, “to the exclusion of all other special jurisdictions, particularly military jurisdictions.”[256] (Mexico made a reservation when ratifying this treaty, stating 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.)[257] The Declaration on the Protection of All Persons from Enforced Disappearances includes a similar provision.[258]
International human rights bodies have consistently rejected the use of military prosecutors and courts in cases involving abuses against civilians, by stating that the jurisdiction of military courts should be limited to offenses that are strictly military in nature.
The UN Human Rights Committee (HRC), which monitors implementation of the states’ obligations under the ICCPR, has repeatedly called on states parties to subject military personnel, alleged to have committed human rights violations, to civilian jurisdiction.[259] According to the Committee, the “wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel ... contribute[s] to the impunity which such personnel enjoy against punishment for serious human rights violations.”[260]
The IACHR has held that military jurisdiction is not appropriate for investigating, trying, and punishing violations of human rights, given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.”[261] The result, concludes the commission, is “de facto impunity which ‘has a corrosive effect on the rule of law and violates the principles of the American Convention.’”[262]
The Inter American Court of Human Rights, for its part, has stated that military jurisdiction should have a “restrictive and exceptional scope.”[263] A “restrictive” jurisdictional scope would require that civilians be excluded and that military personnel only be tried by military tribunals when they are charged with crimes or offenses which “by [their] own nature attempt against legally protected interests of military order.”[264] Failure to transfer such cases to civilian jurisdiction results in a breach of the state’s guarantee to an effective recourse.[265] In 2007 the Inter American Court further developed its case law and concluded that “the military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human rights violations.”[266] This view has been upheld in several subsequent decisions.[267]
The European Court of Human Rights (ECHR) has not ruled that military courts lack independence and impartiality per se, but has suggested certain instances in which military courts are not appropriate. For instance, in Incal v. Turkey,the ECHR held that a petitioner had not been given a fair trial because the military judge who had taken part in the trial was accountable to the executive and military authorities, and his superiors were in a position to advance his career.[268] In Findlay v. United Kingdom, the ECHR reasoned that for a ruling to be independent and impartial, it has to have some degree of finality. It found that a military court’s ruling was neither independent nor impartial, because the members of the court who issued the decision were subordinates of the prosecuting officer, who had the authority to change any decision that the court made.[269]
Finally, sets of principles presented before the former United Nations Human Rights Commission, which are non-binding guidelines for states, also recommend that human rights cases be transferred to civilian courts. The Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, presented before the commission in 2005, state that “the jurisdiction of military tribunals must be restricted solely to specifically military offenses committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court.”[270] Similarly, the Draft Principles Governing the Administration of Justice through Military Tribunals, presented to the commission in January 2006, state that “in all circumstances, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes.”[271]
International Decisions on Mexico’s Military Justice System
Mexico violates its international obligations by allowing its military justice system to investigate, prosecute, and try members of the military accused of committing human rights violations. Over the last decade several United Nations rapporteurs and bodies, as well as the IACHR, have issued reports documenting the lack of independence and impartiality in Mexico’s military justice system, and the consequent impunity of human rights abuses investigated by military courts. Therefore, they have consistently called on Mexico to transfer human rights cases to civilian courts. These reports include:
- A 1998 report by the UN special rapporteur on torture, which found that "[m]ilitary personnel [in Mexico] appear to be immune from civilian justice and generally protected by military justice.”[272]
- A 1999 report by the U.N. special rapporteur on extrajudicial, summary or arbitrary executions, which determined that military courts in Mexico “do not conform to the Basic Principles on the Independence of the Judiciary,” that “the military justice system is arbitrary, resulting in miscarriage of justice,” and that “there is a reluctance on the part of the competent Mexican authorities to hold members of the military forces accountable for extrajudicial killings and other human rights violations.”[273]
- A 2002 report by the U.N. special rapporteur on the independence of judges and lawyers, which found that “the public [has] no confidence in military courts” and thus “many prosecutions of military personnel accused of human rights violations before these tribunals are not pursued.”[274] The rapporteur also expressed concern over “the want of impartiality of the military courts and the reluctance or unwillingness of civilian witnesses to appear before military courts to give evidence against military personnel.”[275]
- A 2003 report by the office of the UN High Commissioner for Human Rights, which concluded that “given the imminently hierarchical structure of the Armed Forces, military courts lack total independence and impartiality due to the fact that its members … report to higher ranking officers in the Army.”[276]
- A 2006 report by the U.N. special rapporteur on violence against women, its causes and consequences, which held that after asserting jurisdiction to investigate and prosecute cases in which members of the military had raped women in southern Mexico, “rather than carrying out full and impartial investigations, military investigators have reportedly delayed criminal proceedings and tried to disprove the allegations thereby placing the burden of proof on the victim.”[277]
- A 2006 report by the IACHR, which held that Mexican military prosecutors lack “by definition, the necessary independence and autonomy to carry out an impartial investigation of human rights violations allegedly committed by members of the armed forces.” The commission concluded that “the investigation by the [military prosecutor’s office] of human rights violations allegedly perpetrated by Mexican military personnel is itself a violation of the American Convention.”[278]
- A 2007 report by the United Nations Committee Against Torture, which “noted with concern” that “cases of torture committed by military personnel against civilians during the performance of their duties continue to be tried in military courts.”[279]
More recently, after a 2008 visit to Mexico, the UN High Commissioner for Human Rights also recommended that civilian courts try military officers engaged in law enforcement activities.[280]
[230]Parts of this section were previously published in Human Rights Watch, Mexico’s National Human Rights Commission: A Critical Assessment, vol. 20, No. 1 (B), February 2008, section III.
[231] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Mexico on March 23, 1981. American Convention on Human Rights (ACHR) (“Pact of San Jose, Costa Rica”), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), acceded to by Mexico on March 2, 1981. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by Mexico on January 23, 1986, arts. 2(1),11, 16. Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67, entered into force February 28, 1987, ratified by Mexico on February 11, 1987, arts. 1, 6. Inter-American Convention on Forced Disappearance of Persons, 33 I.L.M. 1429 (1994), entered into force March 28, 1996, ratified by Mexico on February 28, 2002, art. 1.
[232] Inter-American Court of Human Rights, Paniagua Morales et al., Judgment of March 8, 1998, Inter-Am.Ct.H.R., (Ser. C) No. 37 (1998), para. 173.
[233] ICCPR, art. 2(3)(a).
[234]ICCPR, art. 2 (3)(b). Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of international Human Rights Law and Serious Violations of International Humanitarian Law, March 21, 2006, adopted by the 60th session of the United Nations General Assembly, A/RES/60/147, principle II.3.(d): “The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to: (d) Provide effective remedies to victims, including reparation, as described below.”
[235] ACHR, art. 25. Similarly, the Inter-American Convention to Prevent and Punish Torture requires states to “take effective measures to prevent and punish torture” and “other cruel, inhuman, or degrading treatment or punishment within their jurisdiction” (Article 6). It also requires states parties to guarantee that “any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case,” and that “their respective authorities will proceed properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process” (Article 8).
[236]Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R., (Ser. C) No. 4 (1988), paras. 166, 174, 176. Inter-American Court of Human Rights, Loayza Tamayo Case, Judgment of November 27, 1998, Inter-Am.Ct.H.R., (Ser. C) No. 33 (1998), para. 169.
[237] UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by General Assembly Resolution 39/46 of 10 December 1984, entry into force 26 June 1987, ratified by Mexico on January 23, 1986, arts. 4 -6, 12- 14. International Convention for the Protection of All Persons from Enforced Disappearance, adopted by General Assembly Resolution 61/177 of December 20, 2006, ratified by Mexico on March 18, 2008, arts. 3 – 12, 24, 25.
[238] Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of international Human Rights Law and Serious Violations of International Humanitarian Law, March 21, 2006, adopted by the 60th session of the United Nations General Assembly, A/RES/60/147, paras. 11 (c) and 24. para. 11: “Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victim’s right to the following as provided for under international law: (c) Access to relevant information concerning violations and reparation mechanisms.” para. 24: “States should develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Basic Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access.”
[239]Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, October 2, 1997, adopted by the UN Commission on Human Rights, E/CN.4/Sub.2/1997/20/Rev.1, principle 3.
[240]The U.N. Human Rights Committee articulated this principle in the case Quinteros v. Uruguay, concluding that the mother of a “disappeared” person was entitled to compensation as a victim, for the suffering caused by the failure of the state to provide her with information. Quinteros v. Uruguay, U.N. Human Rights Committee, Case No. 107/1981: “The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular, of Article 7.”
[241]Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime," Yale Law Journal, No. 100 (1990). Naomi Roht-Arriaza (comment), "State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law," California Law Review, No. 78 (1990). José Zalaquett, "Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints," in State Crimes: Punishment or Pardon (New York: Aspen Institute Justice and Society Program, 1989).
[242] Convention Against Disappearances, art. 24 (2).
[243] The court has held that parents have a right to obtain reparation for suffering inflicted upon them by the forced disappearance of a child. This obligation is not satisfied with the offer to pay monetary damages. It must also include ending the state of uncertainty and ignorance regarding the fate and whereabouts of the “disappeared” persons. Inter-American Court of Human Rights,Aloeboetoe Case, Reparations (Article 63.1 American Convention on Human Rights), Judgment of September 10, 1993, para. 76: “…it can be presumed that the parents have suffered morally as a result of the cruel death of their offspring, for it is essentially human for all persons to feel pain at the torment of their child.”
[244]Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, October 2, 1997, adopted by the UN Commission on Human Rights, E/CN.4/Sub.2/1997/20/Rev.1, principle 1.
[245] “Areas in which steps need to be taken towards full observance of the human rights set forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights,” Inter-American Commission on Human Rights, “Annual Report 1985-86,” OEA/Ser. L/V./ II.68, Doc. 8, rev. 1, September 26, 1986, ch. V, p. 205. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of international Human Rights Law and Serious Violations of International Humanitarian Law, March 21, 2006, adopted by the 60th session of the United Nations General Assembly, A/RES/60/147, para. 24: “States should develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Basic Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access…”
[246] Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 19: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” ICCPR, art. 19 (2): “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” ACHR, art. 13 (1): “Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.”
[247] Inter-American Court of Human Rights, Marcel Claude Reyes and Others v. Chile, Judgment of September 19, 2006, Inter-Am.Ct.H.R., (Ser. C) No. 151, paras. 76 and 77. Para 76: “In this regard, the Court has established that, according to the protection granted by the American Convention, the right to freedom of thought and expression includes “not only the right and freedom to express one’s own thoughts, but also the right and freedom to seek, receive and impart information and ideas of all kinds.” In the same way as the American Convention, other international human rights instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, establish a positive right to seek and receive information.” Para. 77: “In relation to the facts of the instant case, the Court finds that, by expressly stipulating the right to ‘seek’ and ‘receive’ ‘information,’ Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention. Consequently, this article protects the right of the individual to receive such information and the positive obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the Convention, the State is allowed to restrict access to the information in a specific case. The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, the right to freedom of thought and expression includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State.”
[248]Principle 1 of The Public’s Right to Know: Principles on Freedom of Information Legislation holds that “[t]he principle that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances.” The Principles on Freedom of Information Legislation were adopted in June 1999 by Article XIX, an NGO working on freedom of expression and access to information, in consultation with organizations in different countries (http://www.article19.org/pdfs/standards/righttoknow.pdf; accessed February 20, 2009). It was later endorsed by the U.N. and Inter-American systems on human rights. See, for example, IACHR, Report on Terrorism and Human Rights, OAS/Ser.L./V/II 116, Doc. 5 rev. 1 corr. 22, October 2002, para. 284: “As a fundamental component of the right to freedom of expression, access to information must be governed by the "principle of maximum disclosure. In other words, the presumption should be that information will be disclosed by the government. Specifically, as noted in the chapter on the right to personal liberty and security, information regarding individuals arrested or detained should be available to family members, counsel and other persons with a legitimate interest in such information.” See also IACHR, “Annual Report 1999,” vol. III; Report of the office of the special rapporteur for freedom of expression, OEA/Ser.L/V/II.111, Doc. 3 rev., vol. III, ch. 2; United Nations Commission on Human Rights, Resolution 1999/36, 56th Sess., E/CN.4/2000/63 (January 18, 2000), para. 43.
[249] ICCPR, art. 19(3): “The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.” ACHR, art. 13(2): “The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals.”
The Declaration of Principles on Freedom of Expression states that the right may only be limited exceptionally and such limitations must “be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.” Principle 4 of the Declaration of Principles on Freedom of Expression, approved by the IACHR at its 108th regular sessions in October 2000, http://www.cidh.org/Relatoria/showarticle.asp?artID=26&lID=1 (accessed February 20, 2009).
According to The Johannesburg Principles, restrictions must be “necessary in a democratic society to protect a legitimate national security interest.” Principles 1(d) and 11 of The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, http://www.article19.org/pdfs/standards/joburgprinciples.pdf (accessed February 20, 2009). The Johannesburg Principles were adopted on October 1995 by experts in international law, national security, and human rights, and were later recognized by the U.N. special rapporteur on freedom of opinion and expression and the OAS special rapporteur for freedom of expression. See U. N. Commission on Human Rights, Report of the special rapporteur on freedom of opinion and expression, Abid Hussain, pursuant to U.N. Commission on Human Rights resolution 1993/45, U. N. Commission on Human Rights, 52nd Sess., E/CN.4/1996/39 (March 22, 1996), para. 154; IACHR, “Annual Report 2003,” vol. III; Report of the special rapporteur on freedom of opinion and expression, OEA/Ser.L/V/II.118 Doc. 70 rev. 2, chapter IV.
[250] Joint Declaration by the UN special rapporteur on freedom of opinion and expression, Ambeyi Ligabo, OSCE representative on freedom of the media, Freimut Duve, and OAS special rapporteur on freedom of expression, Eduardo Bertoni, http://www.cidh.oas.org/relatoria/showarticle.asp?artID=87&lID=1 (accessed January 6, 2009).
Additionally, the 2008 “Principles on the Right of Access to Information,” issued by the Inter American Juridical Committee, state that “the right of access to information applies to all public bodies, including the executive, legislative and judicial branches at all levels of government.” Inter-American Juridical Committee, “Principles on the Right of Access to Information,” CJI/RES. 147 (LXXIII-O/08), August 7, 2008, http://www.oas.org/cji/eng/CJI-RES_147_LXXIII-O-08_eng.pdf (accessed January 6, 2009), principle 2.
[251] ICCPR, art. 14(1): “Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” ACHR, art. 8(1): “[E]very person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law.” International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, art. 18(1); art. 18 states that migrant workers and their families “shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” European Convention on Human Rights, art. 6(1): “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” African Charter on Human and Peoples’ Rights, art. 7(1) (b, d); art. 7 states that everyone shall have the “right to be presumed innocent until proved guilty by a competent court or tribunal” and the “right to be tried within a reasonable time by an impartial court or tribunal.”
[252] UN Basic Principles on the Independence of the Judiciary, arts. 1 and 2 (emphasis added), http://www2.ohchr.org/english/law/remedy.htm (accessed January 27, 2009).
The Bangalore Principles of Judicial Conduct (Bangalore Principles) further add that “[a] judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason” and that “[a] judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free there from.” Bangalore Principles, arts. 1(1) and 1(3), http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf (accessed January 27, 2009).
The Council of Europe has stated that “[i]n the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason” and that “[j]udges should not be obliged to report on the merits of their cases to anyone outside the judiciary.” Council of Europe, Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges, http://www.coe.int/t/e/legal_affairs/legal_co-operation/steering_committees/cdcj/cj_s_just/recR(94)12e.pdf (accessed January 27, 2009).
[253] UN Basic Principles, art. 4. The Council of Europe makes a similar point when it stated that “decisions of judges should not be the subject of any revision outside any appeals procedures as provided for by law.” Council of Europe, principle I, art. 2 (a) (i).
[254] UN Basic Principles, arts. 11 and 12. Similarly, the Council of Europe says that “[j]udges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office.” Council of Europe, principle I, art. 3. The Universal Charter stipulates that judges “cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure” and that they “must be appointed for life or for such other period and conditions, that the judicial independence is not endangered.” Universal Charter, art. 8.
[255] Universal Charter, art. 9. The UN Basic Principles state that “[p]ersons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law” and that “[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives.” UN Basic Principles, art. 10.
The Council of Europe has also noted that “[a]ll decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency.” Council of Europe, principle I, art. 2 (c).
[256]Inter-American Convention on Forced Disappearance of Persons, 33 I.L.M.1429 (1994), entered into force March 28, 1996, ratified by Mexico on February 28, 2002, art. 9: “Persons alleged to be responsible for the acts constituting the offense of forced disappearance of persons may be tried only in the competent jurisdictions of ordinary law in each state, to the exclusion of all other special jurisdictions, particularly military jurisdictions. The acts constituting forced disappearance shall not be deemed to have been committed in the course of military duties.”
[257] “The Government of the United Mexican States, upon ratifying the Inter-American Convention on the Forced Disappearance of Persons adopted in Belem, Brazil on June 9, 1994 makes express reservation to Article IX, inasmuch as the Political Constitution recognizes military jurisdiction when a member of the armed forces commits an illicit act while on duty. Military jurisdiction does not constitute a special jurisdiction in the sense of the Convention given that according to Article 14 of the Mexican Constitution nobody may be deprived of his life, liberty, property, possessions, or rights except as a result of a trial before previously established courts in which due process is observed in accordance with laws promulgated prior to the fact.” This reservation was made upon deposit of the instrument of ratification on April 9, 2002, http://www.cidh.oas.org/Basicos/Basicos7.htm (accessed January 27, 2009).
According to the Vienna Convention on the Law of Treaties, a state is obliged to refrain from acts that defeat the object and purpose of the treaty that they have signed (art. 18) and states may present reservations when ratifying a treaty but these may not be “incompatible with the object and purpose of the treaty” (art. 19, c), http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf (accessed January 27, 2009).
The Inter-American Convention on Forced Disappearances explicitly states in its preamble that it hopes that the Convention may contribute to “prevent, punish, and eliminate” forced disappearances, and includes in its Article 1 that the state parties undertake the obligation to “punish within their jurisdictions, those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories” (art. 1, b).
[258] Declaration on the Protection of All Persons from Enforced Disappearances, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992), adopted by General Assembly resolution 47/133 of 18 December 1992, art. 16.
[259] For example, in its 1993 observations to Egypt, the HRC considered that “military courts should not have the faculty to try cases which do not refer to offenses committed by members of the armed forces in the course of their duties.” UN Human Rights Committee, Comments on Egypt, UN Doc. CCPR/C/79/Add.23 (1993), para. 9. In 1997 it urged the Colombian government to take “all necessary steps… to ensure that members of the armed forces and the police accused of human rights abuses are tried by independent civilian courts,” specifically recommending “that the jurisdiction of the military courts with respect to human rights violations be transferred to civilian courts.” UN Human Rights Committee, Comments on Colombia, UN Doc. CCPR/C/79/Add.76, (1997), para. 34.
[260] UN Human Rights Committee, Comments on Chile, UN Doc. CCPR/C/79/Add.104, (1999), para. 9. UN Human Rights Committee, Comments on Peru, UN Doc. CCPR/C/79/Add.67, (1996), para. 23. Similarly, the Inter-American Court has held that “[i]n a democratic State governed by the rule of law, the scope of authority of criminal military courts must apply on a limited and exceptional basis,” and that “[m]ilitary officers must be prosecuted for the commission of only those offenses and infractions that, because of their nature, have an adverse effect on the assets of the military.” Inter-American Court of Human Rights, Durand and Ugarte v. Peru, Judgment of August 16, 2000, Inter-Am. Ct. H.R., (Ser. C) No. 89 (2001), para. 117.
[261] IACHR, “Annual Report 1995,” Report No. 10/95 (Case 10.580. Manuel Stalin Bolaños Quiñonez), Ecuador, para. 48.
See also IACHR, “Report 93/06, Petition 972-03. Admissibility. Valentina Rosendo Cantu et. al. Mexico,” October 21, 2006, para. 28, https://www.cidh.oas.org/annualrep/2006eng/MEXICO.972.03eng.htm (accessed December 11, 2008); IACHR, “Report 94/06. Petition 540-04. Admissibility. Inés Fernandez Ortega et.al. Mexico,” October 21, 2006, https://www.cidh.oas.org/annualrep/2006eng/MEXICO.540.04eng.htm (accessed December 11, 2008), para. 24.
In the Commission’s view, basic characteristics of the military justice system impede access to an effective and impartial judicial remedy in this jurisdiction. These include that the military justice system is part of the executive branch and is composed of active duty members of the army who often feel compelled to protect their fellow officers. IACHR, “Report 2/06. Case 12.130. Merits. Miguel Orlando Munoz Guzman,” February 28, 2006, http://iachr.org/annualrep/2006eng/MEXICO.12130eng.htm (accessed December 11, 2008), para. 83.
[262] IACHR, “Annual Report 2000,” Report No. 53/01 (Case 11.565. Ana, Beatríz y Celia González Pérez), Mexico, para 81. [Citing IACHR, “Annual Report 1995,” Report No. 10/95 (Case 10.580. Manuel Stalin Bolaños Quiñonez), Ecuador, para. 48.]
[263] In 2000 the court stated that “[i]n a democratic Government of Laws the penal military jurisdiction shall have a restrictive and exceptional scope and shall lead to the protection of special juridical interests, related to the functions assigned by law to the military forces.” Inter-American Court of Human Rights, Durand and Ugarte v. Peru, Judgment of August 16, 2000, Inter-Am. Ct. H.R., (Ser. C) No. 89 (2001), para. 117.
[264] Ibid.
[265] Ibid., para. 122.
[266] Inter-American Court of Human Rights, Rochela Massacre v. Colombia, Judgment of May 11, 2007, Inter-Am. Ct. H.R., (Ser. C) No. 163 (2007), para. 200.
[267] See, for example, Inter-American Court of Human Rights, Escue-Zapata v. Colombia, Judgment of July 4, 2007, Inter-Am. Ct. H. R., (Ser. C) No. 165, para. 105; Inter-American Court of Human Rights, Zambrano Velez v. Ecuador, Judgment of July 4, 2007, Inter-Am. Ct. H.R., (Ser. C) No. 166, para. 66.
[268]European Court of Human Rights, Incal v. Turkey, , Judgment of June 9, 1998, 1998-IV, no. 78, http://cmiskp.echr.coe.int/tkp197/portal.asp?sessionId=18515019&skin=hudoc-en&action=request (accessed January 27, 2009). The Court gave “great importance to the fact that a civilian had to appear before a court composed, even if only in part, of members of the armed forces.” The Court finally concluded that the petitioner had a legitimate concern regarding the independence of such a tribunal. Ibid., para. 72.
[269]European Court of Human Rights, Findlay v. United Kingdom, Judgment of February 25, 1997, paras. 74-77.
[270] UN Human Rights Commission, “Promotion and Protection of Human Rights. Impunity. Report of the independent expert to update the Set of principles to combat impunity, Diane Orentlicher. Addendum. Updated Set of principles for the protection and promotion of human rights through action to combat impunity,” E/CN.4/2005/102/Add.1, February 8, 2005, principle 29.
[271] UN Human Rights Commission, “Civil and Political Rights, Including the Question of Independence of the Judiciary, Administration of Justice, Impunity,” Report of the special rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Emmanuel Decaux, E/CN.4/2006/58, January 13, 2006, principle 9.
[272] UN Human Rights Commission, “Question of the human rights of all persons subjected to any form of detention or prison and, in particular, torture and other cruel, inhuman, or degrading treatment or punishment,” Report of the special rapporteur on torture, Nigel Rodley, submitted pursuant to Resolution 1997/38 of the Commission on Human Rights, E/CN.4/1998/38/Add.2, January 14, 1998, para. 86.
The report recommended that “cases of serious crimes committed by military personnel against civilians, in particular torture and other cruel, inhuman or degrading treatment or punishment, should, regardless of whether they took place in the course of service, be subject to civilian justice.” Ibid., para. 88[j].
[273] UN Commission on Human Rights, “Civil and Political Rights, Including Questions of: Disappearances and Summary Executions,” Report of the special rapporteur on extrajudicial, summary or arbitrary executions, Asma Jahangir, submitted pursuant to Commission on Human Rights resolution 1999/35, Addendum, Visit to Mexico, E/CN.4/2000/3/Add.3, November 25, 1999, http://daccessdds.un.org/doc/UNDOC/GEN/G99/161/43/PDF/G9916143.pdf?OpenElement (accessed December 11, 2008), paras. 44 and 102.
The rapporteur thus recommended that Mexico “initiate reforms aimed at ensuring that all persons accused of human rights violations, regardless of their profession, are tried in ordinary courts.” Ibid., para. 107(f).
[274] UN Commission on Human Rights, “Civil and Political Rights, Including Questions of: Independence of the Judiciary, Administration of Justice, Impunity,” Report of the special rapporteur on the independence of judges and lawyers, Dato'Param Cumaraswamy, submitted in accordance with Commission on Human Rights resolution 2001/39, Addendum, Report on the mission to Mexico, E/CN.4/2002/72/Add.1, January 24, 2002, http://daccessdds.un.org/doc/UNDOC/GEN/G02/103/44/PDF/G0210344.pdf?OpenElement (accessed December 11, 2008), para 178.
[275] The rapporteur also recommended that “crimes alleged to be committed by the military against civilians should be investigated by civilian authorities to allay suspicions of bias.” Ibid., paras. 178 and 192 (b).
[276] The report recommended that the Mexican Constitution include the right of victims to have access to civilian courts in cases of army abuses. UN Office of the High Commissioner for Human Rights, “Diagnosis on the Human Rights Situation in Mexico,” February 2003, http://www.hchr.org.mx/diagdh.htm (accessed December 11, 2008), section 2.1.7.2.
[277] UN Commission on Human Rights, “Integration of the Human Rights of Women and a Gender Perspective: Violence Against Women,” Report of the special rapporteur on violence against women, its causes and consequences, Yakin Ertürk, E/CN.4/2006/61/Add.4, January 13, 2006,
http://daccessdds.un.org/doc/UNDOC/GEN/G06/101/95/PDF/G0610195.pdf?OpenElement (accessed December 11, 2008), para. 37.
Consequently, the rapporteur recommended that Mexico “ensure, if necessary through legislative reform, that all cases of violence against civilians committed by military personnel are investigated by civilian authorities, prosecuted by civilian authorities and adjudicated by independent and impartial civilian courts.” Ibid., para. 69 (a) (iv).
[278] IACHR, “Report 2/06. Case 12.130. Merits. Miguel Orlando Muñoz Guzman,” February 28, 2006, http://iachr.org/annualrep/2006eng/MEXICO.12130eng.htm (accessed December 11, 2008), para. 85.
[279] The report recommended that Mexico “ensure that cases involving violations of human rights, especially torture and cruel, inhuman or degrading treatment, committed by military personnel against civilians, are always heard in civil courts, even when the violations are service-related.” United Nations Committee Against Torture, “Consideration of Reports Submitted by States Parties Under Article 19 of the Convention. Conclusions and recommendations of the Committee against Torture,” CAT/C/MEX/CO/4, February 6, 2007, para. 14, http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/2e3ffd18d95b0739c12572b30042e140/$FILE/G0740331.pdf (accessed December 11, 2008).
[280] United Nations High Commissioner for Human Rights, “The High Commissioner ends her visit to Mexico” (La Alta Comisionada Concluye su visita a México), press release, February 8, 2008, http://www.unhchr.ch/huricane/huricane.nsf/view01/B3B2A5AE31A3FCB6C12573EC00578CD0?opendocument (accessed Fabruary 12, 2009).