Dear Senator Beltrones Rivera and Representative Ramírez Marín:
We are writing to express our deep concern with the scope of legislative reform of the Military Code of Justice proposed by President Felipe Calderón, currently being considered by the Senate and the House of Deputies. The proposal would subject three types of human rights violations—enforced disappearance, rape, and torture—to civilian jurisdiction, while other serious violations would continue to be investigated and prosecuted within the military justice system. While the transfer of any cases of human rights violations from the military to civilian jurisdiction represents a step in the right direction, the proposed reform will still leave a significant gap in accountability for most abuses committed by members of the military, and should be amended by Congress.
Human Rights Watch has repeatedly shown that Mexico's military justice system lacks the independence and impartiality to provide an effective remedy in cases where members of the military are accused of violating the rights of civilians, and perpetuates impunity for those members who commit abuses. By guaranteeing that very serious abuses against civilians—such as extrajudicial killings, sexual abuse, and cruel and degrading treatment, which constitute the majority of complaints—would continue to be investigated by military justice system, the proposed reform fails to address this problem. The reform would also grant military police (la Policía Ministerial Militar) considerable discretion in deciding which incidents constitute the crimes of enforced disappearances, rape, or torture, and may create an incentive to bring lesser charges against soldiers in order to preserve the military's jurisdiction over a case. This is particularly worrying in light of the military's track record of downgrading charges against soldiers. Finally, we are concerned that ambiguity in the proposed temporal limitation on prosecution of cases of enforced disappearances risks rendering it in violation of Mexico's international human rights obligations.
The military justice system lacks independence and impartiality, and has systematically carried out inadequate investigations.
Research by Human Rights Watch—including its 2009 report, Uniform Impunity—[i] has shown that Mexico's military justice system lacks the independence and impartiality necessary to provide victims with an effective remedy through meaningful investigation and prosecution of officers who commit human rights violations. The defense secretary holds both executive and judicial power over the armed forces, depriving military judges of security of tenure. Civilian review of military court decisions is very limited, and there is virtually no public scrutiny of military investigations and trials. Furthermore, victims and their families have no recourse to challenge the basic questions about the process, such as which justice system should have jurisdiction to investigate human rights abuses.
These structural flaws have resulted in near total impunity for army abuses. According to the National Human Rights Commission (CNDH), civilians registered more than 4,200 complaints of human rights violations by the army from 2007 through the first half of 2010.[ii] During that same period, according to the Secretary of Defense (SEDENA), military tribunals sentenced only one soldier for a human rights abuse committed since 2007. The majority of criminal investigations conducted by military prosecutors into army abuses have either been closed or are being conducted in a manner likely to lead to impunity. Military prosecutors routinely neglect to interview independent witnesses, ignore credible evidence of abuse, obstruct investigations by the CNDH and other bodies, and at times even tamper with evidence at the scenes of crimes.
The proposed reform would allow the flawed military justice system to continue to investigate and prosecute the majority of human rights violations by soldiers against civilians.
While the investigation by civilian prosecutors of any human rights violations by the military represents an improvement on the current system, the proposed reform would leave the investigation of most abuses committed against civilians within the flawed military justice system. For instance, since 2007 the CNDH has issued 65 recommendations concluding that the army committed serious abuses. SEDENA recently provided limited information regarding the progress of 62 of these cases on its website. A review of the cases revealed that in only 3 of the 62, roughly 5 percent, would the crime being investigated or charged fall into the categories excluded from military jurisdiction under the proposed legislation. Fifty-nine of those cases, including cases of extrajudicial executions, sexual assault, and cruel and degrading treatment, would continue to be investigated by military prosecutors.[iii]
It is worth reminding the Congress that, in its November 2009 decision in the case of 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."[iv] The Court also wrote that "[r]egarding situations that violate the human rights of civilians, the military jurisdiction cannot operate under any circumstance." The reform proposed by President Calderon clearly allows military jurisdiction to operate in a range of cases where soldiers violate the human rights of civilians.
For example, the reform would continue to allow the military to investigate cases such as the June 2007 killings of two women and three children by soldiers in Sinaloa.[v] The victims were passengers in a truck that SEDENA said failed to stop at the soldiers' request. Soldiers alleged they fired their weapons in self-defense after hearing shots, but no evidence was found of passengers carrying arms, and several soldiers involved in the incident later tested positive for drunkenness and drug use. Military prosecutors charged soldiers in the case with "violence against persons causing homicide and violence against persons causing injuries," crimes which would remain subject to military jurisdiction under the proposed reform. The investigation remains ongoing, and the soldiers have not yet been brought to trial.[vi]
Military prosecutors would also continue to have jurisdiction over cases like the October 2008 abuses against four men in Chihuahua.[vii] According to the CNDH, the victims "presented internal wounds to the rectum and colon, and wooden splinters in the area of the buttocks, in virtue of the fact that during their detention [soldiers] forced them face down, blindfolded them and tied them up with rope, and inserted a broomstick in their anuses and bound them to a tree, with the aim of making them confess to their participation in various illicit acts." According to SEDENA, it is investigating the crimes of "abuse of authority and sexual abuse," which would remain in military courts under the proposed reform. No soldiers have been charged or tried in the case.[viii]
The proposed reform would grant military authorities the power to determine which acts constitute the crimes of enforced disappearance, rape, or torture,despite the military's track record of downgrading the severity of charges against soldiers who have committed violations against civilians.
According to the proposed reform: "when, from the inquiries carried out in the investigation of a crime, the likely act of one [of the crimes of enforced disappearance, rape or torture] can be inferred, the military prosecutor's office should, in accordance with the respective agreement, provide a breakdown of the corresponding investigation, specifying the proof of acts realized and transfer it to the federal prosecutor's office."[ix] This language would effectively empower the military prosecutors, based on their preliminary investigations, to determine whether the abuses against civilians rise to the level of enforced disappearance, rape, or torture.
The military's record of downgrading the severity of accusations of torture and forced disappearance raises serious doubts about its ability to exercise this duty responsibly. In the 62 cases reviewed by Human Rights Watch, we compared the abuses documented by the CNDH with the crimes investigated and charged by SEDENA. In more than half of the cases—34 of the 62—we found that acts of torture or cruel, inhuman, and degrading treatment documented by the CNDH were classified by SEDENA as lesser crimes such as "injuries" (lesiones), or "abuse of authority."
For example, José Fausto Gálvez Munguía was arbitrarily detained by the military in Sonora in June 2007.[x] According to the CNDH, Gálvez "was the victim of bodily harm, consisting of kicks to the ribs, the pulling of hair, punches to the face, the dragging of his body along the ground; that he was forced to drink alcohol that provoked his vomiting; the insertion of pieces of wood into his feet and under his nails, which were moved around to make him suffer; the extraction of a nail and his subsequent abandonment in a field in an unconscious state. All of the above occurred while military officials asked him: 'who is your boss and where is he?, .... where is the ranch?, .... where do they keep the marijuana...?' — all of which constitute acts of torture." Independent medical exams conducted by public health officials and the civilian prosecutor's office verified physical wounds corresponding to Gálvez's description of the abuses. Nevertheless, SEDENA is investigating the crime of "injuries" in this case, rather than torture or cruel, inhuman, and degrading treatment—a crime that would remain in the military justice system under the current reform. No soldiers have been charged or tried in the case.[xi]
Similarly, in September 2008, a civilian was detained arbitrarily by the military in Michoacán.[xii] According to the CNDH, soldiers "placed him in one of their vehicles, gave him a blow to the neck with a rifle butt and covered his face with a raincoat to transfer him to a warehouse, where they tortured him for several minutes. [The victim] said they used a handkerchief to cover his eyes, removed his shirt; then they placed a plastic bag over his head that impeded his breathing; they covered his head with a shirt, held him face up and poured water on him; they hit him with a ‘whip' and stabbed a nail into the sole of his foot, one soldier held him from behind while another punched him in the ribs, then they sat him down, dressed him and loaded him onto a truck where they threw him face down and covered him completely with an oilcloth, beating his body throughout the journey. Upon arrival at the military barracks in Morelia, they removed his blindfold and covered his face with a cloth bag and continued beating and threatening him until he fainted. When he recovered consciousness the soldiers continued the abuse to make him confess to his participation in various illegal acts."
Independent medical exams conducted by the CNDH and prison medical examiners documented physical wounds corroborating the victim's description of abuse. Despite credible evidence that the case constituted an act of torture or cruel, inhuman and degrading treatment, SEDENA investigated the incident as a case of "abuse of authority," an offence that would still be subject to military jurisdiction. In July 2010, military prosecutors closed the investigation, "in virtue of the fact that it was not proven that military personnel had caused injuries to the detainee."[xiii]
Because these two cases, as well as 32 others in which there was clear evidence of torture or cruel, inhuman, and degrading punishment, were not investigated or charged as torture by SEDENA and military prosecutors, they would continue to be prosecuted in military courts under the proposed reform.
In at least one instance, military prosecutors downgraded the charge in a case the CNDH had concluded involved enforced disappearances.[xiv] In November 2008, soldiers entered the home of two brothers in Chihuahua and arbitrarily detained them. The brothers have not been seen since. After investigating the incident, the CNDH concluded that, "the diverse proof gathered in the case documents make it possible to prove that the arrest and subsequent disappearance of José Luis and Carlos Guzmán Zúñiga is attributable to public servants from the Secretary of Defense." However, SEDENA is investigating the case as a crime of "abuse of authority," which would remain within the jurisdiction of the military under the reform. No soldiers have yet been tried or charged in the case.[xv]
The proposed statute of limitations on cases of enforced disappearance risks being incompatible with international law.
We commend Mexico for being among the first countries to ratify the International Convention for the Protection of All Persons from Enforced Disappearance and a party to the Inter-American Convention on Forced Disappearances of Persons. As a party to both conventions it has a clear obligation with respect to prosecution of perpetrators of the crime of enforced disappearances, including strict conditions on any temporal limitations that may be placed on such prosecutions. In Article 7, the Inter-American Convention states that the crime may not be subject to statutes of limitations unless there is a "norm of a fundamental character" that would prevent an absolute prohibition, and then the limitation should "be equal to that which applies to the gravest crime."[xvi] Under the international convention, Mexico must ensure that its statute of limitations "is of long duration and is proportionate to the extreme seriousness of this offence" and "commences from the moment when the offence of enforced disappearance ceases, taking into account its continuous nature."[xvii]
This means that any statute of limitations could only begin when a person is no longer disappeared, or their fate or whereabouts have been clarified in accordance with the law. The proposed reform, which would extend the statute of limitations to 35 years, does not make clear that the 35 year period would only commence after a disappearance has ceased.[xviii] To be lawful, the Congress must ensure there is no ambiguity in the reform about when the statute of limitations commences.
Military findings should not limit or bias the investigations of civilian prosecutors.
According to the proposed reform, in those cases where military prosecutors transfer jurisdiction to civilian prosecutors, "the investigations carried out" by military police "will not lose their validity" in civilian proceedings.
Military police and prosecutors have a duty to share all of the information they have gathered in preliminary investigations when transferring cases to their civilian counterparts. And it is reasonable that this information, if deemed reliable and probative by civilian prosecutors, be admissible in a civilian court. However, the right to access and utilize information generated by a preliminary military investigation should not be interpreted as binding civilian prosecutors to the conclusions reached by the military, nor should it predetermine the course of their investigation or conclusions in any way. Civilian prosecutors should enjoy full, unfettered independence to determine whether this evidence is relevant and reliable.
In conclusion, we respectfully recommend the Congress modify the proposed reform to guarantee that all military abuses against civilians are investigated and prosecuted within the civilian justice system. To this end, Congress should empower civilian officials to determine whether an alleged crime committed by the military constitutes a human rights violation or a breach of military discipline, and therefore which justice system is suitable for investigating it.
Such a reform would more adequately reflect the reform required by recent judgments from the Inter-American Court and bring Mexico into compliance with its obligations under international law to provide the victims of human rights abuses with an effective remedy—including justice, truth, and adequate reparations. It will also help break the cycle of impunity for soldiers who commit abuses, providing a powerful incentive to prevent abuses going forward. Furthermore, as Human Rights Watch has argued in the past, respecting human rights will significantly strengthen the effectiveness of security forces, because building the trust of the population is vital to gaining the community support necessary to combat organized crime and corruption.
Finally, we would ask that you please share this letter with the members of Congress so that it will be incorporated into the debate on this proposal.
We thank you for your attention to these serious concerns.
José Miguel Vivanco
Human Rights Watch
CC: The Senate, Junta de Coordinación Política; House of Deputies, Junta de Coordinación Política
[i] Human Rights Watch, Mexico-Uniform Impunity: Mexico's Misuse of Military Justice to Prosecute Abuses in Counternarcotics and Public Security Operations, April 2009, https://www.hrw.org/en/reports/2009/04/28/uniform-impunity
[iii] SEDENA, "Cifras de los militares procesados y sentenciados vinculados con violaciones a los derechos humanos, durante la presente administración," 2010, http://www.sedena.gob.mx/pdf/otros/der_hum/proc_sente_08102010.pdf
[iv] Radilla Pacheco vs Mexico, Inter-American Court of Human Rights, November 23, 2009.
[v] CNDH, Recommendation 40/2007, September 21, 2007.
[vi] SEDENA, "Cifras de los militares procesados y sentenciados."
[vii] CNDH, Recommendation 70/2009, October 27, 2009.
[viii]SEDENA,"Cifras de los militares procesados y sentenciados."
[ix] Article 57, Code of Military Justice, proposed reform, October 18, 2010.
[x]CNDH, Recommendation 29/2008, July 11, 2008.
[xi]SEDENA, "Cifras de los militares procesados y sentenciados."
[xii] CNDH, Recommendation 38/2009, June 15, 2009.
[xiii]SEDENA, "Cifras de los militares procesados y sentenciados."
[xiv]CNDH, Recommendation 44/2009, July 14, 2009.
[xv]SEDENA, "Cifras de los militares procesados y sentenciados."
[xvi]Inter-American Convention on Forced Disappearance of Persons, 33 I.L.M.1429 (1994), ratified by Mexico on March 8, 1996.
[xvii]International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the General Assembly Resolution 61/177 on December20, 2006, ratified by Mexico on March 18, 2008, emphasis added.
[xviii]Article 215a, Code of Military Justice, proposed reform, October 18, 2010.