In its fifth periodic report, the Human Rights Committee raised important issues for Mexico to address regarding the use of the armed forces to confront organized crime, as it impacts the rights enshrined in the International Covenant on Civil and Political Rights. It is disappointing that Mexico squandered this opportunity to acknowledge and tackle the lack of accountability for human rights violations committed by the military.
Since President Felipe Calderon deployed thousands of troops to combat drug trafficking starting in December 2006, there has been a dramatic increase in complaints of military abuse. From 2007 to the end of 2009, Mexico's National Human Rights Commission received 3,388 complaints of human rights violations by the military. Of these, it has already concluded that in at least 38 cases the military was in fact responsible for abuses.
Although the military usually accepts the commission's reports and, on occasion, pays monetary compensation to the victims, impunity for these crimes is the norm. The principal reason for this is that the Mexican military justice system, which lacks independence and impartiality, routinely takes over the investigation into even the most egregious abuses, including alleged rapes, killings, arbitrary detentions, and torture, by adopting an excessively broad definition of what constitutes an "act of service." According to a recent report by Human Rights Watch, "Uniform Impunity: Mexico's Misuse of Military Justice to Prosecute Abuses in Counternarcotics and Public Security Operations," this impunity is rooted in the fact that, in Mexico, the secretary of defense wields both executive and judicial power over the armed forces, military judges do not have security of tenure, civilian review of military court decisions is very limited, and there is virtually no public scrutiny of military investigations and trials.
Paragraphs 92 and 183 of the government of Mexico's report to this committee state that, from 2000 to August 2009, 20 penal processes have been initiated against military personnel for human rights abuses, six of which have so far resulted in sentences. However, a closer look at the limited information provided by the government on these cases demonstrates that only three soldiers have been found guilty of human rights crimes committed during the Calderón administration. However, one of those convictions resulted from an automobile accident and another was overturned on appeal. Therefore, only one case qualifies as a conviction for a human rights abuse, in which a soldier was sentenced to 9 months in prison for killing one civilian by opening fire at a military checkpoint.
Although Mexico argues that it is possible to challenge decisions adopted by military courts before the civilian justice system through an injunction (amparo), this recourse exists, essentially, to protect the due process rights of the member of the military accused of committing a crime. Victims and their families are unable to challenge the basic question of which justice system should have jurisdiction to investigate human rights abuses. In August 2009, Mexico's Supreme Court ruled that a victim did not have legal standing to challenge the jurisdiction of military tribunals to investigate military abuses. The case was brought by the wife of a victim of an extrajudicial execution by the military. The ruling effectively closes all legal recourse for victims and their families to challenge military jurisdiction in cases of human rights abuses.
The military's practice of investigating itself through this flawed military justice system violates Mexico's obligations under international law. The ICCPR imposes on governments the obligation to provide an effective legal remedy for abuses, and to provide individuals with a "fair and public hearing by a competent, independent and impartial tribunal established by law." In addition, at the regional level, the Inter-American Court on Human Rights issued a binding ruling in November 2009 that ordered Mexico to modify its Code of Military Justice to comply with its international obligations. The court specifically held that military justice is never applicable in cases of human rights abuses against civilians.
To end this pattern of impunity and to safeguard the rights enshrined in the ICCPR, Mexico must ensure that cases in which members of the military stand accused of human rights violations against civilians are immediately sent to civilian state or federal prosecutors.