Dear Secretary Blake:
I am writing in response to the November 11 letter[i] sent by the Ministry of the Interior (SEGOB) regarding our criticisms of President Felipe Calderón's proposal to reform the Code of Military Justice.[ii] We appreciate your sharing with us directly your views regarding the points we have raised with the ranking authorities of the Mexican Congress. We believe that the president's initiative represents an historic opportunity for Mexico to address the longstanding problem of impunity for military abuses, and we hope that this dialogue can serve to strengthen that initiative and ensure that the final reform contains all the elements necessary to provide a just and effective legal remedy to those who require it.
I. Upon reading the arguments in your letter, we are pleased to realize that we appear to agree on some of the key elements that should be incorporated in a reform that is consistent with international standards. In particular, we would like to highlight four points made by your letter:
- Cases involving sexual assault and cruel and degrading treatment by the military should be excluded from military jurisdiction.
- The crime of enforced disappearance is continuous as long as the victim is not found or his fate is unknown, and as a result any statute of limitations could only start to run once the fate of the "disappeared" person has been accounted for.
- The Inter-American court ruled that, in cases of human rights violations, military justice should never be applied.
- Military prosecutors should be obliged to fully cooperate and hand over all evidence to civilian prosecutors, who should have full discretion in deciding whether or not to admit evidence shared by their military counterparts.
However, while your letter may help to clarify the intent of the executive branch on these essential principles, we are concerned that the legislation as drafted does not unambiguously ensure that this will be the interpretation of the law when it is implemented. Therefore, we repeat our call on Congress to amend the reform to ensure that the intent recently expressed by SEGOB is reflected clearly in the law.
II. On the other hand, we would like to express our disagreement with some critical points of your letter. Specifically, we take issue with your arguments that:
- Extrajudicial executions, "which in the Mexican judicial system are translated as homicides ...by [their] nature, cannot be considered outside of the sphere of military discipline."
- While SEGOB acknowledges that, "the Inter-American Court has maintained that in the case of human rights violations military justice should not be applied... [Mexico's] internal norms prevent classifying an act in these terms...precisely because [the Inter-American Court] did not specify concretely the abusive acts to which it was referring."
Finally, we wish to bring to your attention an alarming pattern noted in our letter to Congress, which was ignored in your response: the practice by military authorities of downgrading the severity of abuses against civilians, such as 34 cases where the National Human Rights Commission (CNDH) found evidence of torture or cruel and degrading treatment, which military authorities classified as "injuries," "abuse of authority," or other lesser crimes. This practice—which is one of the many manifestations of a military justice system that lacks independence and impartiality—is precisely why we called on Congress to grant civilian authorities the exclusive discretion to determine when human rights violations have likely been committed by the military and, based on this assessment, decide which justice system is suited to investigate cases.
Explicitly Exclude Cases of Sexual Abuse and Cruel and Degrading Treatment from Military Jurisdiction
In your letter, you seem to argue that, in addition to the human rights violations of torture, rape, and enforced disappearance—which are explicitly excluded from military jurisdiction in the executive's proposed reform-the proposal would also send to civilian jurisdiction cases of alleged cruel and degrading treatment and sexual abuse.[iii] We were surprised to learn that apparently you consider cruel and degrading treatment and sexual abuse to be among the crimes excluded from military jurisdiction, because they are not mentioned in the proposed legislation. And while Human Rights Watch agrees that these crimes should be excluded from military jurisdiction, one cannot reasonably expect that the authorities responsible for implementing the proposal would arrive at the same interpretation as SEGOB, based on the current language of the reform. That is because, as you know, by legal definition the crimes of cruel and degrading treatment and sexual assault do not necessarily constitute the respective crimes of rape and torture. For example, while all cases of rape constitute sexual assault, not all cases of sexual assault constitute rape. And Mexico's Criminal Code defines sexual abuse and rape as distinct crimes.[iv] It is precisely for this reason that we recommend Congress amend the proposed reform by explicitly adding the abuses of sexual assault and cruel and degrading punishment to the list of crimes that would automatically be excluded from military jurisdiction.
Extrajudicial Executions Should Be Judged in Civilian Jurisdiction
In our letter to Congress, we argued that extrajudicial executions by the military were among the violations that should be investigated and prosecuted within civilian courts. Your ministry responded that extrajudicial executions: "which in the Mexican judicial system are translated as homicides, since the Mexican Constitution expressly prohibits the death penalty or judicial executions; it is possible to indicate that this crime, by its nature, cannot be considered outside of the realm of military discipline."[v]
While we appreciate your explanation, your reasoning suggests there may be some misunderstanding regarding the legal principle in question. In "extrajudicial executions," Human Rights Watch was referring not to the crime of homicide in Mexican national law, but rather to an international crime included in human rights treaties that are binding on Mexico. As without a doubt you know, the prohibition on summary, extrajudicial, or arbitrary executions is derived from the right to life guarantees in the American Convention on Human Rights (ACHR) and the International Covenant on Civil and Political Rights (ICCPR), among other international legal treaties, several of which Mexico has signed and ratified.[vi] The force used by police (and, for the purposes of the current discussion, the military) when deployed in a public security role is considered excessive when it contravenes the principles of absolute necessity or proportionality.[vii] In particular, in this context, security forces may only intentionally use lethal force where it is necessary to protect life, such as when a soldier kills an armed assailant in self-defense in a shoot-out.
On the other hand, an extrajudicial execution—for example, a soldier who executes an unarmed civilian, despite the fact that the victim poses no threat to his life or others— is by definition never justifiable. In times of war, extrajudicial execution is a war crime. In times of peace, it may be a crime against humanity, if it is part of a pattern of conduct.[viii] Therefore, to argue that any killing carried out by the military, regardless of the circumstances, could not be considered an extrajudicial execution is simply incorrect.
An example that demonstrates the difference between a homicide and an extrajudicial execution is the August 2008 killing of two civilians in the village of Santiago Lachivía in Oaxaca. On the day of the incident, approximately 100 community members were working on shared plot of farmland when, according to an investigation conducted by the CNDH:
...a group of approximately 20 people in uniforms with firearms arrived, and shouted, "Stop! Don't run! We are the Mexican army," and started to shoot their weapons into the air, which caused many of the frightened peasants to run in various directions, whereupon the army fired shots at them, from which Cecilio Vásquez Miguel, Venancio Olivera Ávila, and Aurelio Ortega Pacheco, were shot and wounded, which resulted in the death of the first two men and caused life-threatening injuries to the last one.[ix]
The facts documented by the CNDH strongly suggest that the military's use of lethal force in the incident was neither necessary nor proportionate, suggesting the case constituted an extrajudicial killing. However, military authorities characterized the case as an "abuse of authority." It is currently being investigated in the military justice system, and no soldier has yet been charged or sentenced.
Given the lack of independence and impartiality of the military justice system-which we demonstrated in our letter to Congress and documented in detail in our report Uniform Impunity [x]-the military cannot be trusted to adequately investigate and prosecute such of alleged extrajudicial executions. Therefore, it is critical that Congress include extrajudicial executions among the list of crimes that cannot be investigated and prosecuted in the military justice system.
National Laws Cannot Provide Justification for Incomplete Compliance with the Sentence of the Inter-American Court of Human Rights
We welcome SEGOB's admission that, "We know that the Inter-American Court has maintained that in the case of human rights violations military justice should not be applied." Nevertheless, we respectfully disagree with the assertion that: "[Mexico's] internal norms prevent classifying an act in these terms... precisely because [the Inter-American Court] did not specify concretely the abusive acts to which it was referring."[xi]
With respect to this matter, we wish to remind you that, in accordance with international law on treaties (specifically the Vienna Convention on the Law of Treaties, to which Mexico is a party), states may not invoke internal laws as a justification for their failure to fulfill their international legal derived from treaties such as the American Convention on Human Rights.[xii] Moreover, if Mexico wishes to find precise definitions of the kinds of human rights violations to which the court decision refers, we would recommend having recourse to the jurisprudence and guidance of several of the treaties to which Mexico is a party, primarily the ACHR and the ICCPR, which address abuses such as arbitrary detention, extrajudicial killings, cruel and degrading treatment, and sexual abuse.
The State's Obligation to Guarantee Victims' Access to an Independent and Impartial Investigation
Even if the proposed reform were to explicitly state that all investigations and prosecutions of human rights abuses should be excluded from military jurisdiction, the system will only function if independent, impartial authorities are entrusted with classifying crimes allegedly committed by the military against civilians. To this end, we were disappointed to see that SEGOB's response did not address military authorities' track record of downgrading the severity of allegations of torture, rape, and enforced disappearance committed by soldiers, which could result in cases of abuse being kept in the deeply flawed military justice system.
Human Rights Watch conducted an empirical investigation of 62 cases of alleged military abuses for which the Secretary of Defense (SEDENA) provided limited information.[xiii] In these cases, Human Rights Watch compared the human rights violations documented by CNDH investigations with the crimes 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." In one instance, military prosecutors downgraded the charge in a case the CNDH had concluded involved enforced disappearances, classifying it as an abuse of authority. In another, military authorities characterized a case in which the CNDH collected evidence and testimony suggesting soldiers sexually assaulted four minors, and possibly raped two of them, as an abuse of authority.
The practice of downgrading abuses is doubly problematic, taking into account that military police are often the first to arrive at the scene of an alleged abuse, and because the proposed reform would broaden their powers, authorizing them to secure the crime scene, interview witnesses, collect evidence, and even carry out inspections of suspects.[xiv] The proposal would grant these powers despite the fact that—in a range of cases documented by Human Rights Watch and the CNDH—military authorities have routinely neglected to interview independent witnesses, ignored credible evidence of abuse, obstructed investigations by the CNDH, and at times even tampered with evidence.
Your ministry argues that these expanded powers, and the ability of military authorities to define charges in such cases, "does not render ineffectual the victim's right to file a complaint before the civilian prosecutor's office."[xv] However, while it is true that victims of alleged military abuses still have the right to file complaints before civilian authorities, the reality is that civilian prosecutors virtually always transfer cases of alleged abuse by the military to the military justice system.
Furthermore, the Mexican Government should not place the onus on victims to file complaints before civilian authorities to obtain an independent and impartial inquiry. For a remedy to be effective the appropriate authorities must act of their own motion, once the matter has come to their attention, and the government cannot leave it to the victims or next of kin to take responsibility for the conduct of any investigation. In this context the State has a positive obligation to ensure that all victims have access to an effective legal remedy, which excludes the flawed military justice system.[xvi]
Resolve Ambiguity on Statute of Limitations for Enforced Disappearances and Independence of Investigations by Civilian Prosecutors
We welcome clarification that state and federal prosecutors should "act with full and absolute independence in the determination about the relevance or trustworthiness of the evidence obtained by the military prosecutors."[xvii] Human Rights Watch affirmed this same point in our letter to Congress. And we appreciate SEGOB's explanation that the statute of limitations in cases of forced disappearances would not commence "until the victim is found or his whereabouts are determined," in accordance with the jurisprudence of the Supreme Court and Mexico's obligations under international law. Nonetheless, to ensure that there is no ambiguity with respect to these provisions, we recommend the Congress amend the proposal to expressly establish this discretion exclusively for civilian prosecutors, and establish that an enforced disappearance is continuous until the victim or his remains are found.
We sincerely hope that the points raised in this letter will contribute to the efforts to create a stronger, more effective reform to the military justice system, which will fulfill Mexico's international legal obligations.
José Miguel Vivanco
Human Rights Watch
CC: Manlio Fabio Beltrones Rivera, President of Senate; Jorge Carlos Ramírez Marín, President of the House of Deputies; The Senate, Junta de Coordinación Política; The House of Deputies, Junta de Coordinación Política; Felipe Zamora Castro, Subsecretary of Judicial Affairs and Human Rights, Ministry of the Interior
[i]Letter from Felipe de Jesús Zamora, Secretary of Legal Affairs and Human rights of the Secretaria de Gobernacion (SEGOB), to José Miguel Vivanco, Executive Director of Human Rights Watch Americas Division, November 11, 2010.
[ii]Letter from José Miguel Vivanco, Executive Director of Human Rights Watch Americas Division, to Manlio Fabio Beltrones Rivera, President of the Senate and Jorge Carlos Ramírez Marín, President of the Chamber of Deputies, November 9, 2010.
[iii]The letter from SEGOB affirms, "sí alude tanto a los delitos de tortura como de violación, ilícitos que corresponden a diversos hechos descritos en su carta como tratos crueles y degradantes y abuso sexual, respectivamente, por lo que de esta manera la reforma propuesta sí atiende el problema que Usted destaca, al excluir del sistema de justicia militar, el conocimiento de esas violaciones a los derechos humanos". Letter from Felipe de Jesús Zamora, November 11, 2010.
[iv]Criminal Code ("Código Penal General"), Chapter 1: "Hostigamiento sexual, abuso sexual, estupro y violación," Cámara de Diputados del H. Congreso de la Unión, art. 259 a 266, http://mexico.justia.com/federales/codigos/codigo-penal-federal/libro-se....
[v]Letter from Felipe de Jesús Zamora, November 11, 2010.
[vi]Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948). Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948). American Convention on Human Rights (ACHR), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992). International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S.171, entered into force March 23, 1976.
[vii]Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, August 27 to September 7, 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 112 (1990), arts. 4, 5, 7, 9; United Nations Code of Conduct for Law Enforcement Officials, adopted December 17, 1979, G.A. res. 34/169, annex, 34 U.N. GAOR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1979), art. 3; U.N. Office of the High Commissioner for Human Rights (OHCHR), "Fact Sheet No. 11 (Rev. 1), Extrajudicial, Summary, or Arbitrary Executions," http://www.ohchr.org/Documents/Publications/FactSheet11Rev.1en.pdf.
[viii]Rome Statue of the International Criminal Court, adopted July 17, 1998, Doc. UN. A/CONF. 183/9, entered into force July 1, 2002.
[ix]National Human Rights Commission, (CNDH), Recommendation 75/2009, October 30, 2009.
[x]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.
[xi] Letter from Felipe de Jesús Zamora, November 11, 2010.
[xii]Vienna Convention on the Law of Treaties, adopted May 23, 1969, U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331, entered into force January 27, 1980.
[xiii]Secretaría de Defensa Nacional (SEDENA), "Cifras de los militares procesados y sentenciados vinculados con violaciones a los derechos humanos, durante la presente administración", 28 de septiembre de 2010, http://www.sedena.gob.mx/pdf/otros/der_hum/proc_sente_08102010.pdf. CNDH, 2010, http://www.cndh.org.mx/.
[xiv] Article 49, Code of Military Justice, reform proposal, October 18, 2010.
[xv] Letter from Felipe de Jesús Zamora, November 11, 2010.
[xvi] Velásquez Rodríguez Case, Series C No. 4  IACHR 1, Judgment of July 29, 1988, par. 177. Golubva v Russia, No. 1062/03, Judgment 17 December 2009, para. 81. Kelly and Others v. the United Kingdom, no. 30054/96, Judgment 4 May 2001, para. 94. Ilhan v. Turkey, [GC] no. 22277/93, ECHR 2000-VII, para. 63.
[xvii] Letter from Felipe de Jesús Zamora, November 11, 2010.