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II. BACKGROUND
Counterinsurgency and Counternarcotics
The Mexican military has played an increasingly active role in matters of public security in recent years--from combating insurgents to fighting the war on drugs. The size and budget of the armed forces expanded significantly during the 1990s in order to sustain large-scale troop deployments in the countryside.1
These increases were triggered in part by 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. After an initial response that involved the use of extreme force against the rebels and their sympathizers, the Mexican government settled on a policy aimed at preventing the EZLN's territorial expansion through a massive deployment of troops in rural Chiapas. In 1996, another guerrilla organization, the Popular Revolutionary Army (Ejército Popular Revolucionario, EPR), appeared in Guerrero and several other states, leading the government to launch counterinsurgency operations in these areas too.
The other major reason for the increased military presence in the Mexican countryside has been the war against the illegal drug trade. Mexico is the principle site of transshipment of drugs to the United States, with over 80 percent of U.S.-bound cocaine passing through Mexican territory.2 Regional counternarcotics efforts of the 1990s led those involved in the illegal trade to shift supply routes from the Caribbean to Mexico, and, within Mexico, from the Gulf Coast to the states along the southwestern coast, including Guerrero.3
Mexico is also a major narcotics producer, supplying 29 percent of the heroin and 70 percent of the marijuana imported into the United States.4 During the 1990s, Guerrero had Mexico's highest increase in marijuana cultivation. This growth reflected the fact that farmers could make as much money from one kilo of marijuana as from one ton of corn.5
While the Mexican army's involvement in counternarcotics operations dates back to the 1940s,6 it was in the 1980s that the government first began to rely heavily on the military to combat drug trafficking.7 In 1987, President Miguel de la Madrid declared drug trafficking to be a "national security problem."8 In 1996, President Ernesto Zedillo invited the country's top military leaders to join the National Public Security Council, thus giving the armed forces a direct role in setting policy for public security and anti-narcotics efforts.9 Most recently, in January 2001, President Vicente Fox declared his intention to fight a "war without quarter" against drug traffickers.10
The army currently deploys over 20,000 soldiers in counternarcotics operations, including eradication and interdiction efforts.11 The majority of complaints of army abuses submitted by civilians to the government's National Human Rights Commission (Comisión Nacional de Derechos Humanos, CNDH) have involved troops participating in counternarcotics operations.12
The counterinsurgency mindset appears to be reproduced in the army's approach to the drug war, as officers rely on information from their perceived political allies for information about who to target in their operations. In this way, the military operations in Guerrero have tended to coincide with local political struggles, producing a pattern in which caciques--or political bosses--are able to bring the firepower of the army to bear upon their political opponents by denouncing them as guerrillas or drug traffickers.
Mexican Law and Military Justice
The army's participation in civilian law enforcement is sanctioned by the Mexican Constitution, but only so long as it is requested by civilian authorities, does not violate the rights of individuals, and is carried out in strict accordance with the constitution and the law.13
Soldiers are authorized to detain civilians only when they possess an arrest warrant to do so, or when they catch a person in the act of committing a crime (in flagrante delicto). Once detained, civilians must be turned immediately over to civilian authorities.14
When soldiers commit abuses against civilians, they are subject to the jurisdiction of the military justice system.15 While the Mexican Constitution defines military jurisdiction as covering only "offenses against military discipline,"16 the Code of Military Justice provides an expansive notion of such offenses that includes "offenses under common or federal law . . . when committed by military personnel on active service or in connection with active service."17
International Law and Military Justice
Mexico is party to several international treaties that prohibit human rights violations, including torture, arbitrary detention and extrajudicial execution.18 The Mexican government's obligation under these treaties is not only to prevent violations, but also to investigate and punish any violations that do occur.
This second set of duties is, in part, a corollary to the first, reflecting the view that effective prevention requires 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."19
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. The American Convention on Human Rights, for example, 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."20 The Inter-American Court has held that this right imposes an obligation upon states to provide victims with effective judicial remedies.21
Not any sort of investigation will suffice to fulfill this obligation. The Inter-American Commission on Human Rights has found that, "when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised."22 The result is "de facto impunity which `has a corrosive effect on the rule of law and violates the principles of the American Convention.'"23
The necessary independence does not exist when military authorities investigate abuses committed by military personnel and prosecute them in military courts. International human rights bodies have consistently rejected this practice and called on states to transfer jurisdiction over human rights cases from military to civilian authorities.24 The U.N. Human Rights Committee (HRC), which monitors states' compliance with the International Covenant on Civil and Political Rights (ICCPR), has repeatedly called on states parties to subject military personnel alleged to have committed human rights violations to civilian jurisdiction. For example, 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."25 The Committee has made similar recommendations to the governments of Chile and Peru, on the grounds that 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."26
In the case of Mexico, the U.N. Special Rapporteur on Torture issued a report on Mexico in 1998 that found that "[m]ilitary personnel appear to be immune from civilian justice and generally protected by military justice."27 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."28
1 Under President Ernesto Zedillo (1994-2000), military expenditures averaged 5 percent of the federal budget, up from 2 to 3 percent under previous presidents. The size of the armed forces rose from 170,000 personnel in 1986 to 240,000 in 1999. Roderic Ai Camp, Politics in Mexico (New York: Oxford University Press, 1999), pp. 131.
2 Ibid., p. 210.
3 Jesus Aranda, "El Pacífico, principal ruta de ingreso de drogas," La Jornada (Mexico City), April 22, 2001.
4 Larry Storrs, "Mexico-US Relations: Issues for the 106th Congress," Congressional Research Service, January 28, 2000. [Cited in Centro de Investigaciones Políticas y Económicas de Acción Comunitaria, Centro Nacional de Comunicación Social, Global Exchange, Always Near, Always Far: The Armed Forces in Mexico, (Mexico, D.F.: 2000), p. 200.]
5 María Celia Toro, Mexico's "War" on Drugs: Causes and Consequences (Boulder, Colorado: Lynne Rienner Publishers, Inc., 1995), p. 39.
6 "Monopolizan militares combate antinarco," Reforma (Mexico City), March 17, 2001.
7 Toro, "War" on Drugs, p. 30.
8 Ibid., p. 31.
9 Camp, Politics, p. 132.
10 Mayolo López, "Declara Fox `guerra' al narco," Reforma, January 24, 2001.
11 The number provided by the Mexican army has been reported as ranging from 21,179 [María Idalia Gómez and Martha Anaya, "Mantendrá la Sedena su lucha contra el narco," Milenio, January 25, 2001] to 27,000 [Jesus Aranda, "La participación del Ejército en el combate al narco ha costado 924 milliones de pesos: Vega," La Jornada, May 23, 2001].
12 In May 2001, Military Attorney General, Brig. Gen. Jaime Antonio López Portillo told reporters that since Fox's inauguration in December 2000, the CNDH had received eighty complaints against military personnel, of which fifty-four related to counternarcotics operations [Jesus Aranda, "Apoyan procuradores el retiro del Ejército de tareas antinarco," La Jornada, May 4, 2001].
13 Mexican Supreme Court ruling "Rangel, Leonel Godoy," 3 S.J.F. 434, 435 (9ª epoca 1996).
14 Article 16, Constitution of the Republic of Mexico.
15 Some Mexican legal experts insist that the Mexican Constitution does not grant military jurisdiction over cases involving civilian victims. However, in practice, Mexican judges and prosecutors interpret the Constitution to grant jurisdiction over these cases to the military.
16 Article 13, Constitution of the Republic of Mexico.
17 Code of Military Justice. art. 57 (Mex.).
18 International Covenant on Civil and Political Rights, ratified by Mexico on March 23, 1981; American Convention on Human Rights, ratified by Mexico on March 24, 1981; 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.
19 Inter-American Court, Paniagua Morales et al., Judgment of March 8, 1998, para. 173.
20 Article 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).
21 Inter-American Court, Velásquez Rodríguez Case, Judgment of July 29, 1988, paras. 166, 174, 176. See also Inter-American Court, Loayza Tamayo Case, Judgment of November 27, 1998, para. 169.
22 IACHR, 1995 Annual Report, Report Nº 10/95 (Case 10.580. Manuel Stalin Bolaños Quiñonez), Ecuador, para. 48
23 IACHR, 2000 Annual Report, Report Nº 53/01 (Case 11.565. Ana, Beatríz y Celia González Pérez), Mexico, para 81. [Citing IACHR, 1995 Annual Report, Report Nº 10/95 (Case 10.580. Manuel Stalin Bolaños Quiñonez), Ecuador, para. 48.]
24 Principle 5 of the Basic Principles on the Independence of the Judiciary (adopted at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders) states that: "Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals."
25 UN Doc. CCPR/C/79/Add. 76 - 3 May 1997. Paragraph 34.
26 UN Doc. CCPR/C/79/Add. 104 - 30 March 1999, Paragraph 9. And UN Doc. CCPR/C/79/Add. 67 - 25 July 1996. Paragraph 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, Case of Durand and Ugarte, Ruling of August 16, 2000, para. 117.]
27 United Nations, 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 Special Rapporteur 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.
28 Ibid (para. 88[j]).
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