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Mexico: Require Civilian Investigation of Abuses Against Civilians by Military

Calderon’s Proposed Reform Fails to Hold Armed Forces Accountable

(New York) - Mexico's congress should substantially modify President Felipe Calderón's proposed revisions to the Code of Military Justice, Human Rights Watch said today.  The proposed reform would not solve the current lack of accountability for abuses of civilians by members of the military.

The proposal, which Calderón submitted to Congress on October 18, 2010, would subject three types of human rights violations - enforced disappearance, rape, and torture - to investigation and prosecution by civilian authorities. However, other serious violations committed by members of the military against civilians, such as extrajudicial executions and cruel and inhuman treatment, would continue to be investigated by a military justice system that does not provide victims with an independent and impartial avenue to justice.

"Civilian authorities need to be able to investigate and prosecute all human rights violations committed by the military, not just a select few," said Jose Miguel Vivanco, Americas director at Human Rights Watch. "The president's proposal would only perpetuate the impunity for these kind of military abuses."

Calderón's proposal would also grant the military discretion in determining which cases should be transferred to civilian jurisdiction and give military prosecutors control over key evidence. In addition, the proposed changes would establish a statute of limitations on the crime of enforced disappearances. Such a provision would violate international law, under which the crime is continuous as long as the whereabouts and fate of the victim are unknown.

A report by Human Rights Watch published in April 2009, "Uniform Impunity," showed that Mexico routinely fails to hold accountable members of the military who commit human rights violations. In large part, the reason is that cases are investigated and prosecuted by the military justice system, which lacks independence and impartiality.

Because Mexico's defense secretary holds 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. Victims and their families have no opportunity to challenge the basic questions about which justice system should have jurisdiction to investigate human rights abuses.

In a binding November 2009 judgment, Radilla Pacheco v. Mexico, the Inter-American Court on Human Rights ordered Mexico to modify its Code of Military Justice to make it "compatible with the international standards." The court said that, "Regarding situations that violate the human rights of civilians, the military jurisdiction cannot operate under any circumstance."  Mexico has repeatedly pledged to comply fully with the decision. The court reiterated its position in its August 2010 decision in the case of Valentina Rosendo Cantú v. Mexico.

Military abuses have increased significantly since 2007, when President Calderón deployed the army in public security operations. Mexico's official National Human Rights Commission has issued comprehensive reports on more than 60 cases involving egregious army abuses, including killings, rape, and torture, since Calderón took office.

Several of these reports - including investigations into the killings of two students at Monterrey Tec in March and the Almanza children in April, both of which allegedly occurred when innocent civilians were caught in crossfire between the army and criminals - have concluded that the military tampered with the crime scene and refused to share key evidence. The commission has reported receiving over 4,600 additional complaints of abuses by the military since 2007.

According to figures provided by the Defense Secretary's office (SEDENA), military courts have only sentenced one officer for a human rights violation during the current administration.

The military's practice of investigating itself through the flawed military justice system violates Mexico's obligation under international law to provide an effective legal remedy for human rights abuses, and to provide individuals with a "fair and public hearing by a competent, independent and impartial tribunal established by law."  

"Congress should fix Calderón's broken proposal," Vivanco said. "So long as the military is allowed to investigate itself, Mexico will  leave victims of military abuse without access to justice, and all Mexicans without an effective public security policy."

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