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IV. MEXICO’S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS

Mexico is bound by human rights treaties violated repeatedly in the cases documented in this report.79 In addition, these cases highlight the frequent disregard for other, non-binding international standards regarding actions and use of force by police, which represent the international community’s statement of adequate treatment of detainees and suspects by authorities.

The Mexican government has rejected Human Rights Watch’s use of international standards to analyze human rights practices in Mexico, arguing that “unilateral reports”—those produced outside the framework of an international body like the United Nations—lack “legal value” and “minimize the value of international law.”80 However, Mexico is legally bound by the human rights treaties it has ratified; to suggest that it is wrong for any group or observer to point out how and when Mexico fails to live up to these obligations is simply to seek an excuse for noncompliance.

Torture

Mexico has ratified two treaties that focus exclusively on the prohibition of torture and two others that include express prohibitions against this human rights violation.81 Authorities are responsible for fully investigating allegations of torture and any situation in which there is reasonable ground to believe torture may have taken place, even if the victim does not explicitly allege to have suffered torture.82 The failure to investigate and to act on the findings of the investigation constitutes a violation of specific provisions of international law. Torturers must be brought to justice. Further, statements given under conditions of torture or cruel andunusual punishment cannot be used as evidence.83 Prosecutors and judges have the responsibility to investigate any reasonable ground of torture. Prior to using the statement of a suspected torture victim, a prosecutor would have to establish that the statement was not made in circumstances defined as torture by international law.84

Torture is not only a heinous act and very serious crime. The abuse when linked to the judicial process may distort proceedings long after the act took place. A detainee tortured by police then turned over to a civilian prosecutor may, with good reason, testify as the police ordered out of fear of being tortured further, even if the victim never sees the officers again. For these reasons, judges must take extremely seriously their responsibility to ensure that any act of torture documented or suspected or alleged to have taken place is investigated. A judge who cites Mexican legal precedent that permits clearly torture-induced statements to be used in court violates provisions of binding international law; likewise, under binding international standards, judges cannot accept evidence if there are reasonable grounds for suspecting that it was obtained through torture.

Mexico is also required to ensure that torture is punishable under its laws. The Federal Law to Prevent and Punish Torture establishes a solid domestic standard to fight torture, and most Mexican states have similar laws on the books. The law, however, is not rigorously enforced. Torturers, if charged at all, may be accused of a lesser crime, such as “abuse of authority.”

“Disappearance”

“Disappearances” take place when a state agent—or a person acting with official authorization, support, or acquiescence—deprives someone of liberty without providing information about the detention, or denies having that person incustody, thereby rendering ineffective all legal remedies or judicial guarantees that might otherwise have protected the victim.85

When such abuses take place, multiple violations of international human rights standards occur, including the right to judicial protection and the right to personal liberty. Often, such cases also involve torture and the violation of the right to life. As the Inter-American Court of Human Rights has found,

The forced disappearance of human beings is a multiple and continuous violation of many rights under the [American Convention on Human Rights] that the States Parties are obligated to respect and guarantee. The kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee’s right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest. . . . Moreover, prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person. . . . In addition, investigations into the practice of disappearances and the testimony of victims who have regained their liberty show that those who are disappeared are often subjected to merciless treatment, including all types of indignities, torture, and other cruel, inhuman and degrading treatment. . . .86

The U.N. Declaration on the Protection of All Persons from Enforced Disappearance notes that the practice undermines “the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts is of the nature of a crimeagainst humanity. . . .”87 The declaration further urges, “Each State shall take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction.”88 Mexico’s penal code does not criminalize “disappearances,” although the CNDH has drafted a legal proposal to codify the crime.89

In eight years of existence, the CNDH has received more than 1,100 complaints of “disappearances” that reportedly took place since 1969. In these cases, 209 people have been found alive, and ninety-eight others have been found dead. The number of reported cases surged between 1974 and 1978, when guerrilla movements in Mexico grew, and again after 1994, when guerrilla movements and drug trafficking gained momentum.90

Extrajudicial Execution

Extrajudicial executions occur when a public authority arbitrarily and deliberately takes the life of a human being in circumstances other than those related to the legitimate use of force in situations such as may occur in an armed confrontation or in carrying out the death penalty.91 Executions of this type are also considered to have taken place when public officials tolerate or acquiesce to killings by nongovernmental actors. International law clearly prohibits extrajudicial executions as a violation of the right to life.92

Several cases analyzed in this report include extrajudicial execution. In such cases it is common for authorities to assert that the victim committed suicide, or died in an armed confrontation. For example, in the case of Celerino JiménezAlmaraz, documented in the chapter on Oaxaca state, authorities insist that the victim died in a shoot-out, even though medical evidence suggests that he was shot at close range. In the Cárdenas Esqueda case, analyzed in the Tamaulipas chapter, authorities insisted that the victim killed himself.

Violations of Procedural Guarantees

Due process guarantees are essential for the proper functioning of any judicial system. International law requires that criminal suspects, whether or not they are in detention, benefit from procedural guarantees that ensure that the process is fair.93 Chief among these guarantees is the right to an adequate legal defense. International law also establishes procedural guarantees related to arrest and detention and prompt access to a judge once an individual has been charged with a crime.94

The violation of procedural guarantees also frequently takes place in Mexico in the form of illegal detentions or searches, prolonged detentions, and the falsification of evidence. The torture, “disappearance,” and extrajudicial execution cases documented in this report were often accompanied by overt or suspected violations of this nature. Violations of these guarantees facilitate torture by limiting opportunities for establishing accountability and restricting the victims’ access to safeguards, like access to a defense lawyer.

Responsibility to Ensure the Full Exercise of Human Rights and an Effective Remedy for Violations

The Mexican government is obliged under international law to ensure that all people under its jurisdiction are able to exercise their human rights.95 Federal authorities, therefore, are required to take action when they learn of human rights violations. When officials deny that violations occur, as often happened in cases documented in this report, or sit back passively as violations take place, such asthey did in Morelos state, as described below, they violate this obligation. Although Mexican law provides the amparo mechanism to challenge arbitrary acts by government officials and to obtain a court order for authorities to present someone who has been detained, the mechanism fails to function effectively in “disappearance” cases. The existence of a procedure is not enough to satisfy its obligations under international law; the procedure must also be effective.

In a ground-breaking legal decision, the Inter-American Court of Human Rights interpreted the American Convention on Human Rights to require governments to take affirmative action toward this end, including measures to prevent human rights violations:

This obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.96

It is not enough for authorities to pass laws protective of human rights and establish formal structures to implement them. The state can be held liable under international law for human rights violations, including “disappearances,” when judicial mechanisms are ineffective for resolving these problems. According to the court, “The obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation—it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights.”97 The passage of the 1991 Federal Law to Prevent and Punish Torture was important, but, by failing to implement effective policies to eradicate torture, it is insufficient by itself to bring Mexico into compliance with international human rights standards.

Authorities must also ensure that victims of human rights violations have an effective remedy for the violation suffered.98 Impunity for human rights violations,therefore, is not simply an added insult and injury to the victim, it is in itself a violation of human rights standards. Torture must be investigated by authorities whether or not the victim files a formal complaint. In the Rodríguez Tapia case in Baja California, described below, for example, federal authorities acted in consonance with this requirement after a man was tortured to death by federal police in Baja California state in 1997. Within months, the police officer had been investigated, indicted, and jailed.

Rehabilitation for and Compensation to Victims of Violations

International human rights law requires governments whose agents engage in serious human rights violations to compensate the victims. The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, for instance, requires governments to ensure an enforceable right to fair and adequate compensation, including the means for as full a rehabilitation as possible; if a torture victims dies as a result of the torture he or she suffered, the victim’s dependents also have a right to compensation.99 The American Convention on Human Rights establishes the right to compensation for any person sentenced by a final judgement through a miscarriage of justice,100 and the Inter-American Court of Human Rights has authority to order governments to pay damages in cases in which it determines that rights protected by the convention were violated.101 The court has used this authority, for instance, in cases of “disappearance.”102

The International Covenant on Civil and Political Rights holds that any victim of unlawful arrest or detention shall have an enforceable right to compensation.103 However, when Mexico ratified the covenant, it issued a reservation to the article that establishes this guarantee. Asserting that Mexico’s constitution and laws guarantee due process rights, the Mexican government argued that reparations would only be made in cases in which wrongful detentions resulted from a falsedenunciation or complaint.104 Mexico’s National Human Rights Commission criticized the limitation contained in the reservation. Noting that illegal detentions are the “daily bread of our country” and that they stem from so many illegitimate causes, “reparations should not be limited only to cases that come from ‘falsehood in the denunciation or complaint.’”105

International Standards on Police Actions and Use of Force

In addition to binding treaties that bear on the actions and use of force by police, the United Nations has developed detailed principles, minimum rules, and declarations on the subject. Taken together, both sources of standards “offer a comprehensive and detailed international legal framework for ensuring respect for human rights, freedom and dignity in the context of criminal justice,” according to the United Nations’ Centre for Human Rights.106

There can be no doubt that arbitrary and physically abusive actions by police violate international human rights standards. As described above, the International Covenant on Civil and Political Rights and the American Convention on Human Rights prohibit the arbitrary searches, detentions, and arrests that are commonplace in Mexico, as well as torture and other mistreatment committed by police officers. At the same time, the U.N. Code of Conduct for Law Enforcement Officials expressly limits the use of force by police to situations in which it is “strictly necessary and to the extent required for the performance of their duty.”107 Although the code is not binding international law, it constitutes authoritative guidance for interpreting international human rights law regarding policing.

Similarly, the U.N.’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials holds, “Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.”108 Firearms may only be used in very specific circumstances, according to the principles: “Lawenforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury [or] to prevent the perpetration of a particularly serious crime involving grave threat to life. . . .”109

Federal Responsibility for Violations by State or Local Authorities

Mexico’s federal government is responsible for ensuring that all people in the country or subject to its jurisdiction can freely exercise the human rights defined by the treaties to which it is party. In federal systems of government like Mexico’s, the central government cannot avoid its international human rights responsibilities by claiming an abuse was committed by a state-level authority, not a federal official; a hands-off approach to such cases would violate both hemispheric and world-wide standards.110 Given that one of the federal government’s international human rights obligations involves ensuring that human rights can be enjoyed, the government has the affirmative obligation to make sure that state police, prosecutors, and judges act in accord with the human rights principles found in international law.

In order for Mexico to fulfill its obligations under international law, the government must develop effective mechanisms for taking action on serious human rights violations committed by state- or municipal-level officials, even when no federal authority was directly involved in the commission of the abuse. Torture, “disappearance,” extrajudicial execution, and grossly abusive arbitrary detention that lead to violations of the right to life or physical integrity should be among the human rights violations subject to obligatory federal jurisdiction. Currently, only torture is covered under a federal law, but the law only gives federal officials responsibility for handling cases of torture committed by federal agents. Just as certain crimes already fall under federal jurisdiction regardless of who commits the offense or where it takes place—including drug trafficking and other organized criminal enterprises—serious human rights violations should be designated federalcrimes regardless of the agent who commits them. By clarifying which authorities are responsible for resolving these human rights cases and eliminating the need for thirty-one separate state jurisdictions to make appropriate reforms as a prerequisite to resolving them, federal authorities would be in a better position to fulfill their international obligation to ensure that human rights violations are properly resolved throughout the country. Federal attention to these crimes should not come at the expense of strengthening state justice systems.

Human rights violations other than torture, “disappearance,” extrajudicial execution, and grossly abusive arbitrary detention that lead to violations of the right to life or physical integrity should also come under federal jurisdiction when a systematic or widespread practice of such violations takes place and when state governments fail to prosecute them.

79 The country’s constitution gives ratified treaties the status of domestic law. Article 133 of the constitution holds, “This Constitution, the laws of Congress based on it, and all treaties in accord with it. . .will be the supreme law of the Union.” Translation by Human Rights Watch. 80 This approach was used in a press release issued by Mexico’s Foreign Ministry on April 29, 1997, in response to the Human Rights Watch report Implausible Deniability: State Responsibility for Rural Violence in Mexico, published in April 1997.

81 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, ratified by Mexico on January 23, 1986; Inter-American Convention to Prevent and Punish Torture, ratified by Mexico on June 22, 1987. Torture is also prohibited under: Article 7 of the International Covenant on Civil and Political Rights, ratified by Mexico on March 23, 1981; and Article 5 of the American Convention on Human Rights, ratified by Mexico on March 24, 1981.

82 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Articles 12 and 13; Inter-American Convention to Prevent and Punish Torture, Article 8.

83 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Articles 15; Inter-American Convention to Prevent and Punish Torture, Article 10.

84 Article 1(1) of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment provides a standard definition of torture: “For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or the person acting in an official capacity.”

85 The United Nations Declaration on the Protection of all Persons from Enforced Disappearance, approved by General Assembly resolution 47/133 of December 18, 1992, describes in more detail that “disappearances” take place when “persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.”

86 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. 155 and 156.

87 Declaration on the Protection of All Persons from Enforced Disappearance, 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 December 18, 1992.

88 Declaration on the Protection of All Persons from Enforced Disappearance, Article 3.

89 National Human Rights Commission, “Anteproyecto de Tipo Penal de Desaparición Forzada o Involuntaria de Personas,” no date.

90 National Human Rights Commission, Informe anual de actividades mayo 1997-mayo 1998 (Mexico DF: Comisión Nacional de Derechos Humanos, 1998), p. 751.

91 Human Rights Watch opposes the use of the death penalty in any circumstances, given the inherently arbitrary nature of its application and the cruelty of the punishment. However, even given this opposition, we must conceptually distinguish the death penalty, applied after a judicial proceeding, from the taking of life without a proper judicial decision.

92 Article 6 of the International Covenant on Civil and Political Rights holds that “No one shall be arbitrarily deprived of his life.” Article 4 of the American Convention on Human Rights establishes a similar guarantee.

93 International Covenant on Civil and Political Rights, Article 14 and American Convention on Human Rights, Article 8.

94 International Covenant on Civil and Political Rights, Article 9 and American Convention on Human Rights, Article 8.

95 Article 1(1) of the American Convention on Human Rights holds, “The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” Article 2(1) of the International Covenant on Civil and Political Rights contains substantially similar wording.

96 Inter-American Court of Human Rights, Velásquez Rodríguez judgement of 1988, para. 166.

97 Ibid., para. 167.

98 International Covenant on Civil and Political Rights, Article 2(3) and American Convention on Human Rights, Article 25.

99 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Article 14(1).

100 American Convention on Human Rights, Article 10.

101 American Convention on Human Rights, Article 63(1).

102 See, for instance, Inter-American Court of Human Rights, Godínez Cruz Case, Compensatory Damages, Judgment of July 21, 1989, Inter-Am.Ct.H.R. (Ser. C) No. 8 (1990) and Inter-American Court of Human Rights, Velásquez Rodríguez Case, Compensatory Damages, Judgment of July 21, 1989, Inter-Am.Ct.H.R. (Ser. C) No. 7 (1990).

103 International Covenant on Civil and Political Rights, Article 9(5).

104 National Human Rights Commission, Las reservas formuladas por México a instrumentos internacionales sobre derechos humanos (Mexico City: Comisión Nacional de Derechos Humanos, 1996), p. 62.

105 Ibid., pp. 67-68.

106 Centre for Human Rights, Human Rights and Law Enforcement (New York: United Nations, 1997), pp. 25-26.

107 Code of Conduct for Law Enforcement Officials, Article 3.

108 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, General Provision 4.

109 Ibid., General Provision 9.

110 Article 28 of the American Convention on Human Rights holds, “With respect to the provisions over whose subject matter the constituent units of the federal state have jurisdiction, the national government shall immediately take suitable measures, in accordance with its constitution and its laws, to the end that the competent authorities of the constituent units may adopt appropriate provisions for the fulfillment of this Convention.” Article 50 of the International Covenant on Civil and Political Rights reads, “The provisions of the present Covenant shall extend to all parts of the federal States without any limitations or exceptions.”

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